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Delhi Development Authority Vs. Bhola Nath Sharma by L.Rs. and Ors | Udit Narain Singh Malpaharia v.Additional Member, Board of Revenue.) A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of compensation sought before the Reference Court by the person interested in the land. Moreover the local authority has a right to appear and adduce evidence before the Reference Court.Having regard to the aforesaid circumstances, we are of the opinion that the presence of the local authority is necessary for the decision of the question involved in the proceedings before the Reference Court and it is a proper party in the proceedings. The local authority is, therefore, entitled to be impleaded as a party in the proceedings before the Reference Court.In case the amount of compensation has been enhanced by the Court and no appeal is filed by the Government the local authority if adversely affected by such enhancement may file an appeal with the leave of the Court. This right of the local authority does not depend on its being impleaded as a party in the proceedings before the Reference Court. Even if the local authority is not impleaded as a party before the Reference Court it can file an appeal against the award of the Reference Court in the High Court after obtaining leave if it is prejudicially affected by the award. In case the Government files an appeal against the enhancement of the award the local authority is entitled to support the said appeal and get itself impleaded as a party. When the person having an interest in the land files an appeal in the High Court against the award of the Reference Court and seeks enhancement of the amount of compensation the local authority should be impleaded as a party in the said appeal and it is entitled to be served with the notice of the said appeal so that it can defend the award of the Reference Court and oppose enhancement of the amount of compensation before the High Court. The same will be the situation in case of an appeal to this Court from the decision of the High Court.” (Emphasis supplied) In Agra Development Authority v.Special Land Acquisition Officer, II (2001) SLT 22=(2001) 2 SCC 646, this Court held that as the land was acquired on behalf of the appellant, it was entitled to an opportunity to appear and adduce evidence on the issue of determination of the amount of compensation and the mere fact that it was aware of the proceedings and had participated in the meetings with the Government and Collector was not sufficient compliance with Section 50 of the Act. In Abdul Rasak v.Kerala Water Authority, I (2002) SLT 631=(2002) 3 SCC 228 , a two-Judge Bench considered the question whether the local authority on whose behalf the land was initially not acquired but to whom the land was subsequently transferred is entitled to be heard in the matter. While rejecting the argument that the Kerala Water Authority being a successor of the Public Health Department for whose benefit the land was initially acquired is not a necessary party, the Court observed: “Mr. T.L.V. Iyer, the learned Senior Counsel for the claimant- appellants has submitted that Kerala Water Authority is the successor of Public Health Engineering Department of the State Government, and bound by the proceedings conducted by or against the State Government and, therefore, the Constitution Bench decision does not have any applicability to the facts of the present case and the High Court ought not to have set aside the awards and remanded the cases to the Reference Court. We find it difficult to subscribe to the view so forcefully canvassed by the learned Senior Counsel for the appellants. KWA came into existence as a statutory corporation on 1.4.1984. It may be said to have succeeded to the liability incurred by the State Government so far as the quantum of compensation awarded by the Collector is concerned but so far as the enhancement in the quantum of compensation is concerned, it will be a liability of KWA incurred by it after its coming into existence and, therefore, to the extent of enhancement, the authority was certainly entitled to notice and right to participate in the proceedings before the Reference Court leading to enhancement of compensation.” (Emphasis supplied) The view expressed by the Constitution Bench in Gyan Devi’s case was reiterated in Kanak v.U.P. Avas Evam Vikas Parishad, V (2003) SLT 532=(2003) 7 SCC 693 and Regional Medical Research Centre, Tribals v.Gokaran, (2004) 13 SCC 125. 27. In view of the above discussion, we hold that: (i) the DDA falls within the definition of the expressions “local authority” [Section 3(aa)] and “person interested” [Section 3(b)] of the Act;(ii) the DDA was entitled to participate in the proceedings held before the Land Acquisition Collector;(iii) the failure of the Land Acquisition Collector to issue notice to the DDA and give an opportunity to it to adduce evidence for the purpose of determining the amount of compensation payable to the land owners was fatal to the award passed by him;(iv) the DDA was entitled to notice and opportunity to adduce evidence before the Reference Court could enhance market value of the acquired land entitling the respondents to claim higher compensation and, as no notice or opportunity was given to the DDA by the Reference Court, the judgments rendered by it are liable to be treated as nullity;(v) the Division Bench of the High Court also committed serious error by further enhancing the amount of compensation payable to the contesting respondents without requiring them to implead the DDA as party respondent so as to enable it to contest their prayer for grant of higher compensation. | 1[ds]8. We are further of the view that delay in filing the special leave petitions deserves to be condoned because after having learnt about the impugned judgment, the concerned functionaries of the DDA took steps to collect the papers relating to the acquisition proceedings, sought opinion of theand the Solicitor General and then filed the special leave petitions. In the facts of this case, it is appropriate to invoke the principles laid down in Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 and State of Haryana v. Chandra Mani, III (1996) CLT 62 (SC)=(1996) 3 SCC 132 , for the purpose of condonation of delay. Accordingly, the application filed by the DDA for grant of permission to challenge the judgment of the High Court is allowed and delay in filing of the special leave petitions is condoned.In our view, proposition Nos. (iii) and (iv) extracted herein above are attracted in the present case because Special Leave Petition (C) No. 1608 of 1999 filed by the Union of India and the Land Acquisition Collector was summarily dismissed without going into the merits of thechallenge to the judgment of the High Court and no question of law was decided by this Court. That apart, this Court neither had the occasion nor did it decide the question whether the DDA, at whose instance the land was acquired as a part of the exercise undertaken for development of the area around Kalkaji temple, was entitled to participate in the proceedings held before the Land Acquisition Collector and the Reference Court for determination of the amount of compensation because no such plea was raised in Special Leave Petition(C) No. 1608/1999.Section 50(2) represents statutory embodiment of one of the facets of the rules of natural justice. The object underlying this section is to afford an opportunity to the local authority or company to participate in the proceedings held before the Collector or the Court for determining the amount of compensation and to show that claim made by the land owner for payment of compensation is legally untenable or unjustified. This is possible only if the Collector or the concerned Court gives notice to the local authority or the concerned company. If notice is not given, the local authority or the company cannot avail the opportunity envisaged in Section 50(2) to adduce evidence for the purpose of determining the amount of compensation. Therefore, even though the plain language of that section does not, in terms, cast a duty on the Collector or the Court to issue notice to the local authority or the company to appear and adduce evidence, the said requirement has to be read as implicit in the provision, else the same will become illusory.In view of the above discussion, we holdthe DDA falls within the definition of the expressionson 3(aa)] andon 3(b)] of the Act;(ii) the DDA was entitled to participate in the proceedings held before the Land Acquisition Collector;(iii) the failure of the Land Acquisition Collector to issue notice to the DDA and give an opportunity to it to adduce evidence for the purpose of determining the amount of compensation payable to the land owners was fatal to the award passed by him;(iv) the DDA was entitled to notice and opportunity to adduce evidence before the Reference Court could enhance market value of the acquired land entitling the respondents to claim higher compensation and, as no notice or opportunity was given to the DDA by the Reference Court, the judgments rendered by it are liable to be treated as nullity;(v) the Division Bench of the High Court also committed serious error by further enhancing the amount of compensation payable to the contesting respondents without requiring them to implead the DDA as party respondent so as to enable it to contest their prayer for grant of higher compensation. | 1 | 9,317 | 721 | ### Instruction:
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Udit Narain Singh Malpaharia v.Additional Member, Board of Revenue.) A local authority for whom land is being acquired has a right to participate in the acquisition proceedings in the matter of determination of the amount of compensation while they are pending before the Collector and to adduce evidence in the said proceedings. While it is precluded from seeking a reference against the award of the Collector it can defend the award and oppose the enhancement of the amount of compensation sought before the Reference Court by the person interested in the land. Moreover the local authority has a right to appear and adduce evidence before the Reference Court.Having regard to the aforesaid circumstances, we are of the opinion that the presence of the local authority is necessary for the decision of the question involved in the proceedings before the Reference Court and it is a proper party in the proceedings. The local authority is, therefore, entitled to be impleaded as a party in the proceedings before the Reference Court.In case the amount of compensation has been enhanced by the Court and no appeal is filed by the Government the local authority if adversely affected by such enhancement may file an appeal with the leave of the Court. This right of the local authority does not depend on its being impleaded as a party in the proceedings before the Reference Court. Even if the local authority is not impleaded as a party before the Reference Court it can file an appeal against the award of the Reference Court in the High Court after obtaining leave if it is prejudicially affected by the award. In case the Government files an appeal against the enhancement of the award the local authority is entitled to support the said appeal and get itself impleaded as a party. When the person having an interest in the land files an appeal in the High Court against the award of the Reference Court and seeks enhancement of the amount of compensation the local authority should be impleaded as a party in the said appeal and it is entitled to be served with the notice of the said appeal so that it can defend the award of the Reference Court and oppose enhancement of the amount of compensation before the High Court. The same will be the situation in case of an appeal to this Court from the decision of the High Court.” (Emphasis supplied) In Agra Development Authority v.Special Land Acquisition Officer, II (2001) SLT 22=(2001) 2 SCC 646, this Court held that as the land was acquired on behalf of the appellant, it was entitled to an opportunity to appear and adduce evidence on the issue of determination of the amount of compensation and the mere fact that it was aware of the proceedings and had participated in the meetings with the Government and Collector was not sufficient compliance with Section 50 of the Act. In Abdul Rasak v.Kerala Water Authority, I (2002) SLT 631=(2002) 3 SCC 228 , a two-Judge Bench considered the question whether the local authority on whose behalf the land was initially not acquired but to whom the land was subsequently transferred is entitled to be heard in the matter. While rejecting the argument that the Kerala Water Authority being a successor of the Public Health Department for whose benefit the land was initially acquired is not a necessary party, the Court observed: “Mr. T.L.V. Iyer, the learned Senior Counsel for the claimant- appellants has submitted that Kerala Water Authority is the successor of Public Health Engineering Department of the State Government, and bound by the proceedings conducted by or against the State Government and, therefore, the Constitution Bench decision does not have any applicability to the facts of the present case and the High Court ought not to have set aside the awards and remanded the cases to the Reference Court. We find it difficult to subscribe to the view so forcefully canvassed by the learned Senior Counsel for the appellants. KWA came into existence as a statutory corporation on 1.4.1984. It may be said to have succeeded to the liability incurred by the State Government so far as the quantum of compensation awarded by the Collector is concerned but so far as the enhancement in the quantum of compensation is concerned, it will be a liability of KWA incurred by it after its coming into existence and, therefore, to the extent of enhancement, the authority was certainly entitled to notice and right to participate in the proceedings before the Reference Court leading to enhancement of compensation.” (Emphasis supplied) The view expressed by the Constitution Bench in Gyan Devi’s case was reiterated in Kanak v.U.P. Avas Evam Vikas Parishad, V (2003) SLT 532=(2003) 7 SCC 693 and Regional Medical Research Centre, Tribals v.Gokaran, (2004) 13 SCC 125. 27. In view of the above discussion, we hold that: (i) the DDA falls within the definition of the expressions “local authority” [Section 3(aa)] and “person interested” [Section 3(b)] of the Act;(ii) the DDA was entitled to participate in the proceedings held before the Land Acquisition Collector;(iii) the failure of the Land Acquisition Collector to issue notice to the DDA and give an opportunity to it to adduce evidence for the purpose of determining the amount of compensation payable to the land owners was fatal to the award passed by him;(iv) the DDA was entitled to notice and opportunity to adduce evidence before the Reference Court could enhance market value of the acquired land entitling the respondents to claim higher compensation and, as no notice or opportunity was given to the DDA by the Reference Court, the judgments rendered by it are liable to be treated as nullity;(v) the Division Bench of the High Court also committed serious error by further enhancing the amount of compensation payable to the contesting respondents without requiring them to implead the DDA as party respondent so as to enable it to contest their prayer for grant of higher compensation.
### Response:
1
### Explanation:
8. We are further of the view that delay in filing the special leave petitions deserves to be condoned because after having learnt about the impugned judgment, the concerned functionaries of the DDA took steps to collect the papers relating to the acquisition proceedings, sought opinion of theand the Solicitor General and then filed the special leave petitions. In the facts of this case, it is appropriate to invoke the principles laid down in Collector, Land Acquisition v. Katiji, (1987) 2 SCC 107 and State of Haryana v. Chandra Mani, III (1996) CLT 62 (SC)=(1996) 3 SCC 132 , for the purpose of condonation of delay. Accordingly, the application filed by the DDA for grant of permission to challenge the judgment of the High Court is allowed and delay in filing of the special leave petitions is condoned.In our view, proposition Nos. (iii) and (iv) extracted herein above are attracted in the present case because Special Leave Petition (C) No. 1608 of 1999 filed by the Union of India and the Land Acquisition Collector was summarily dismissed without going into the merits of thechallenge to the judgment of the High Court and no question of law was decided by this Court. That apart, this Court neither had the occasion nor did it decide the question whether the DDA, at whose instance the land was acquired as a part of the exercise undertaken for development of the area around Kalkaji temple, was entitled to participate in the proceedings held before the Land Acquisition Collector and the Reference Court for determination of the amount of compensation because no such plea was raised in Special Leave Petition(C) No. 1608/1999.Section 50(2) represents statutory embodiment of one of the facets of the rules of natural justice. The object underlying this section is to afford an opportunity to the local authority or company to participate in the proceedings held before the Collector or the Court for determining the amount of compensation and to show that claim made by the land owner for payment of compensation is legally untenable or unjustified. This is possible only if the Collector or the concerned Court gives notice to the local authority or the concerned company. If notice is not given, the local authority or the company cannot avail the opportunity envisaged in Section 50(2) to adduce evidence for the purpose of determining the amount of compensation. Therefore, even though the plain language of that section does not, in terms, cast a duty on the Collector or the Court to issue notice to the local authority or the company to appear and adduce evidence, the said requirement has to be read as implicit in the provision, else the same will become illusory.In view of the above discussion, we holdthe DDA falls within the definition of the expressionson 3(aa)] andon 3(b)] of the Act;(ii) the DDA was entitled to participate in the proceedings held before the Land Acquisition Collector;(iii) the failure of the Land Acquisition Collector to issue notice to the DDA and give an opportunity to it to adduce evidence for the purpose of determining the amount of compensation payable to the land owners was fatal to the award passed by him;(iv) the DDA was entitled to notice and opportunity to adduce evidence before the Reference Court could enhance market value of the acquired land entitling the respondents to claim higher compensation and, as no notice or opportunity was given to the DDA by the Reference Court, the judgments rendered by it are liable to be treated as nullity;(v) the Division Bench of the High Court also committed serious error by further enhancing the amount of compensation payable to the contesting respondents without requiring them to implead the DDA as party respondent so as to enable it to contest their prayer for grant of higher compensation.
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State Bank of Bikaner and Jaipur Vs. Khandelwal (R. L.) | special qualification or skill for the efficient discharge of duties were laid down in Para. 164 of the award. In Para. 168, mention was made of certain categories described in various banks by such terms as junior assistants and senior assistants and classified by some banks as officers, It was held that the terms do not, by themselves, indicate the nature of the work entrusted to them. Irrespective of their designation, in so far as their work falls under clerical work, though of a higher type, as explained by the tribunal in the discussion relating to categories of workmen, they must also be entitled to the scales of pay, minimum special allowance, etc., which were prescribed for the appropriate kind of work during such periods as they were in charge of that kind of work. It was further noted that it was not possible to give a more precise or detailed direction in this matter; and the tribunal ended this paragraph by standing that they trusted, that the banks will act in the true spirit of these directions. It appears that it was in the light of these directions that the respondent was given supervisory allowance after 14 March, 1955 when, as we have mentioned earlier he was authorized to pass cheques or debit vouchers. The case of the appellant was that, with effect from 3 February, 1956, the respondent ceased to be entrusted with this work and was doing the work of an ordinary routine clerk, so that he was no longer entitled thereafter to the special allowance as laid down by the Sastri award in the paragraphs mentioned above. It appears to us that this plea put forward on behalf of the appellant must be accepted.The scope of the function and powers of a labour court, when dealing with an application under S.33C(2) of the Act, has been laid down by this Court in several cases, amongst which mention may be made of Punjab National Bank, Ltd. v. K. L. Kharbanda [1962 - I L.L.J. 234] Central Bank of India, Ltd. v. P. S. Rajgopalan and others [1963 - II L.L.J. 8] and Bombay Gas Company, Ltd. v. Gopal Bhiva and others [1963 - II L.L.J. 608]. The effect of these decisions was recently summarized in the judgment delivered on 8 August, 1967, in East India Coal Company, Ltd. (by Chief Mining Engineer) v. Rameshwar and others [1968 - I L.L.J. 6]. These decisions make it clear that a workman cannot put forward a claim in an application under S. 33C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under S.10 of the Act. In the present case, the respondent himself in Para. 2 of his application under S. 33C(2) admitted that he continued to do the work in the supervisory capacity until on 3 February, 1956, he was wrongfully reverted to do clerical work because he demanded benefit of the supervisory allowance prescribed under the Sastri award. The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a labour court dealing with an application under S. 33C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A labour court, acting under S. 33C(2) has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing routine clerical work and was not employed on supervisory duties. Sri Ramamurthi appearing on behalf of the respondent, urged that this admission by the respondent should not be held to bind him in this appeal and, on the facts of this case, it should be held that the labour court was right in holding that the respondent did continue on a post involving supervisory duties. He did not contest the proposition that, if it be held that, during the relevant period, the respondent was not in fact, doing supervisory duties, he would not be entitled to the supervisory allowance claimed by him. We think that the labour court committed an error in holding that, simply because the respondent was, at one time, entrusted with supervisory duties under the order dated 14 March, 1955, his status as a supervisor must be held to continue, even though, in fact, he was reverted to do routine clerical work on 3 February, 1956. The justification or validity of the order of reversion dated 3 February, 1956 could not be gone into by the labour court in this proceeding under S. 33C(2). The labour court had to proceed on the basis that the order of 3 February, 1956, was effective and did result in the respondent ceasing to work in the supervisory capacity and being employed on routine clerical work. We see no reason to accept Sri Ramamurthis submission that, after 3 February, 1956, the respondent did carry out any supervisory duties. In fact, no evidence or material has been brought to our notice on the basis of which such a finding could have been recorded. The mere fact that the respondent was entrusted with some supervisory duties earlier cannot lead to the conclusion that he continued to be a supervisor even after he was reverted to do routine clerical work. The entrustment of supervisory duties to him by the order dated 14 March, 1955 did not make him a permanent or confirmed incumbent of a post involving supervisory duties. On the face of it, that order only authorized him to carry out those duties as long as the order was not rescinded by a subsequent order.The respondent having himself admitted that he was reverted to do clerical work from 3 February, 1956, he, in fact, ceased to hold any post or to do any work which could entitle him to the supervisory allowance under the Sastri award. | 1[ds]In Para. 168, mention was made of certain categories described in various banks by such terms as junior assistants and senior assistants and classified by some banks as officers, It was held that the terms do not, by themselves, indicate the nature of the work entrusted to them. Irrespective of their designation, in so far as their work falls under clerical work, though of a higher type, as explained by the tribunal in the discussion relating to categories of workmen, they must also be entitled to the scales of pay, minimum special allowance, etc., which were prescribed for the appropriate kind of work during such periods as they were in charge of that kind of work. It was further noted that it was not possible to give a more precise or detailed direction in this matter; and the tribunal ended this paragraph by standing that they trusted, that the banks will act in the true spirit of these directions. It appears that it was in the light of these directions that the respondent was given supervisory allowance after 14 March, 1955 when, as we have mentioned earlier he was authorized to pass cheques or debit vouchers. The case of the appellant was that, with effect from 3 February, 1956, the respondent ceased to be entrusted with this work and was doing the work of an ordinary routine clerk, so that he was no longer entitled thereafter to the special allowance as laid down by the Sastri award in the paragraphs mentioned above. It appears to us that this plea put forward on behalf of the appellant must bedecisions make it clear that a workman cannot put forward a claim in an application under S. 33C(2) in respect of a matter which is not based on an existing right and which can be appropriately theof an industrial dispute only requiring reference under S.10 of the Act. In the present case, the respondent himself in Para. 2 of his application under S. 33C(2) admitted that he continued to do the work in the supervisory capacity until on 3 February, 1956, he was wrongfully reverted to do clerical work because he demanded benefit of the supervisory allowance prescribed under the Sastri award. The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a labour court dealing with an application under S. 33C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A labour court, acting under S. 33C(2) has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing routine clerical work and was not employed on supervisorythink that the labour court committed an error in holding that, simply because the respondent was, at one time, entrusted with supervisory duties under the order dated 14 March, 1955, his status as a supervisor must be held to continue, even though, in fact, he was reverted to do routine clerical work on 3 February, 1956. The justification or validity of the order of reversion dated 3 February, 1956 could not be gone into by the labour court in this proceeding under S. 33C(2). The labour court had to proceed on the basis that the order of 3 February, 1956, was effective and did result in the respondent ceasing to work in the supervisory capacity and being employed on routine clerical work. We see no reason to accept Sri Ramamurthis submission that, after 3 February, 1956, the respondent did carry out any supervisory duties. In fact, no evidence or material has been brought to our notice on the basis of which such a finding could have been recorded. The mere fact that the respondent was entrusted with some supervisory duties earlier cannot lead to the conclusion that he continued to be a supervisor even after he was reverted to do routine clerical work. The entrustment of supervisory duties to him by the order dated 14 March, 1955 did not make him a permanent or confirmed incumbent of a post involving supervisory duties. On the face of it, that order only authorized him to carry out those duties as long as the order was not rescinded by a subsequent order.The respondent having himself admitted that he was reverted to do clerical work from 3 February, 1956, he, in fact, ceased to hold any post or to do any work which could entitle him to the supervisory allowance under the Sastri award. | 1 | 2,049 | 856 | ### 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:
special qualification or skill for the efficient discharge of duties were laid down in Para. 164 of the award. In Para. 168, mention was made of certain categories described in various banks by such terms as junior assistants and senior assistants and classified by some banks as officers, It was held that the terms do not, by themselves, indicate the nature of the work entrusted to them. Irrespective of their designation, in so far as their work falls under clerical work, though of a higher type, as explained by the tribunal in the discussion relating to categories of workmen, they must also be entitled to the scales of pay, minimum special allowance, etc., which were prescribed for the appropriate kind of work during such periods as they were in charge of that kind of work. It was further noted that it was not possible to give a more precise or detailed direction in this matter; and the tribunal ended this paragraph by standing that they trusted, that the banks will act in the true spirit of these directions. It appears that it was in the light of these directions that the respondent was given supervisory allowance after 14 March, 1955 when, as we have mentioned earlier he was authorized to pass cheques or debit vouchers. The case of the appellant was that, with effect from 3 February, 1956, the respondent ceased to be entrusted with this work and was doing the work of an ordinary routine clerk, so that he was no longer entitled thereafter to the special allowance as laid down by the Sastri award in the paragraphs mentioned above. It appears to us that this plea put forward on behalf of the appellant must be accepted.The scope of the function and powers of a labour court, when dealing with an application under S.33C(2) of the Act, has been laid down by this Court in several cases, amongst which mention may be made of Punjab National Bank, Ltd. v. K. L. Kharbanda [1962 - I L.L.J. 234] Central Bank of India, Ltd. v. P. S. Rajgopalan and others [1963 - II L.L.J. 8] and Bombay Gas Company, Ltd. v. Gopal Bhiva and others [1963 - II L.L.J. 608]. The effect of these decisions was recently summarized in the judgment delivered on 8 August, 1967, in East India Coal Company, Ltd. (by Chief Mining Engineer) v. Rameshwar and others [1968 - I L.L.J. 6]. These decisions make it clear that a workman cannot put forward a claim in an application under S. 33C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute only requiring reference under S.10 of the Act. In the present case, the respondent himself in Para. 2 of his application under S. 33C(2) admitted that he continued to do the work in the supervisory capacity until on 3 February, 1956, he was wrongfully reverted to do clerical work because he demanded benefit of the supervisory allowance prescribed under the Sastri award. The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a labour court dealing with an application under S. 33C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A labour court, acting under S. 33C(2) has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing routine clerical work and was not employed on supervisory duties. Sri Ramamurthi appearing on behalf of the respondent, urged that this admission by the respondent should not be held to bind him in this appeal and, on the facts of this case, it should be held that the labour court was right in holding that the respondent did continue on a post involving supervisory duties. He did not contest the proposition that, if it be held that, during the relevant period, the respondent was not in fact, doing supervisory duties, he would not be entitled to the supervisory allowance claimed by him. We think that the labour court committed an error in holding that, simply because the respondent was, at one time, entrusted with supervisory duties under the order dated 14 March, 1955, his status as a supervisor must be held to continue, even though, in fact, he was reverted to do routine clerical work on 3 February, 1956. The justification or validity of the order of reversion dated 3 February, 1956 could not be gone into by the labour court in this proceeding under S. 33C(2). The labour court had to proceed on the basis that the order of 3 February, 1956, was effective and did result in the respondent ceasing to work in the supervisory capacity and being employed on routine clerical work. We see no reason to accept Sri Ramamurthis submission that, after 3 February, 1956, the respondent did carry out any supervisory duties. In fact, no evidence or material has been brought to our notice on the basis of which such a finding could have been recorded. The mere fact that the respondent was entrusted with some supervisory duties earlier cannot lead to the conclusion that he continued to be a supervisor even after he was reverted to do routine clerical work. The entrustment of supervisory duties to him by the order dated 14 March, 1955 did not make him a permanent or confirmed incumbent of a post involving supervisory duties. On the face of it, that order only authorized him to carry out those duties as long as the order was not rescinded by a subsequent order.The respondent having himself admitted that he was reverted to do clerical work from 3 February, 1956, he, in fact, ceased to hold any post or to do any work which could entitle him to the supervisory allowance under the Sastri award.
### Response:
1
### Explanation:
In Para. 168, mention was made of certain categories described in various banks by such terms as junior assistants and senior assistants and classified by some banks as officers, It was held that the terms do not, by themselves, indicate the nature of the work entrusted to them. Irrespective of their designation, in so far as their work falls under clerical work, though of a higher type, as explained by the tribunal in the discussion relating to categories of workmen, they must also be entitled to the scales of pay, minimum special allowance, etc., which were prescribed for the appropriate kind of work during such periods as they were in charge of that kind of work. It was further noted that it was not possible to give a more precise or detailed direction in this matter; and the tribunal ended this paragraph by standing that they trusted, that the banks will act in the true spirit of these directions. It appears that it was in the light of these directions that the respondent was given supervisory allowance after 14 March, 1955 when, as we have mentioned earlier he was authorized to pass cheques or debit vouchers. The case of the appellant was that, with effect from 3 February, 1956, the respondent ceased to be entrusted with this work and was doing the work of an ordinary routine clerk, so that he was no longer entitled thereafter to the special allowance as laid down by the Sastri award in the paragraphs mentioned above. It appears to us that this plea put forward on behalf of the appellant must bedecisions make it clear that a workman cannot put forward a claim in an application under S. 33C(2) in respect of a matter which is not based on an existing right and which can be appropriately theof an industrial dispute only requiring reference under S.10 of the Act. In the present case, the respondent himself in Para. 2 of his application under S. 33C(2) admitted that he continued to do the work in the supervisory capacity until on 3 February, 1956, he was wrongfully reverted to do clerical work because he demanded benefit of the supervisory allowance prescribed under the Sastri award. The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a labour court dealing with an application under S. 33C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A labour court, acting under S. 33C(2) has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing routine clerical work and was not employed on supervisorythink that the labour court committed an error in holding that, simply because the respondent was, at one time, entrusted with supervisory duties under the order dated 14 March, 1955, his status as a supervisor must be held to continue, even though, in fact, he was reverted to do routine clerical work on 3 February, 1956. The justification or validity of the order of reversion dated 3 February, 1956 could not be gone into by the labour court in this proceeding under S. 33C(2). The labour court had to proceed on the basis that the order of 3 February, 1956, was effective and did result in the respondent ceasing to work in the supervisory capacity and being employed on routine clerical work. We see no reason to accept Sri Ramamurthis submission that, after 3 February, 1956, the respondent did carry out any supervisory duties. In fact, no evidence or material has been brought to our notice on the basis of which such a finding could have been recorded. The mere fact that the respondent was entrusted with some supervisory duties earlier cannot lead to the conclusion that he continued to be a supervisor even after he was reverted to do routine clerical work. The entrustment of supervisory duties to him by the order dated 14 March, 1955 did not make him a permanent or confirmed incumbent of a post involving supervisory duties. On the face of it, that order only authorized him to carry out those duties as long as the order was not rescinded by a subsequent order.The respondent having himself admitted that he was reverted to do clerical work from 3 February, 1956, he, in fact, ceased to hold any post or to do any work which could entitle him to the supervisory allowance under the Sastri award.
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NOY VALLESINA ENGINEERING SpA, (now known as Noy Ambiente S.p.a) Vs. JINDAL DRUGS LIMITED & ORS | Constitution Bench decision of this Court in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] , and the way the Constitution Bench understood and interpreted Mohindra Supply Co. [Union of India v. Mohindra Supply Co., AIR 1962 SC 256 ] would be clear from the following para 10 of the judgment: (P.S. Sathappan case [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] , SCC pp. 689-90) 10. … The provisions in the Letters Patent providing for appeal, insofar as they related to orders passed in arbitration proceedings, were held to be subject to the provisions of Sections 39(1) and (2) of the Arbitration Act, as the same is a self-contained code relating to arbitration. 89. It is, thus, to be seen that the Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] ) was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done [The reference is to S.N. Srikantia and Co. v. Union of India, 1965 SCC OnLine Bom 133 : AIR 1967 Bom 347 at p. 354, para 9.] . In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. These observations were quoted with approval in Union of India v Simplex Infrastructures Ltd 2017 (14) SCC 225 and the court further held: 10. After this decision, there is no scope to contend that the remedy of letters patent appeal was available in relation to the judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in Arun Dev Upadhyaya v. Integrated Sales Service Ltd. [Arun Dev Upadhyaya v. Integrated Sales Service Ltd., (2016) 9 SCC 524 : (2016) 4 SCC (Civ) 564] This court, in Kandla Export Corpn. v. OCI Corpn (2018) 14 SCC 715 held that a further appeal by a party aggrieved by an order of enforcement, even under the later enacted Commercial Courts Act, 2015 is not maintainable: 20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. ***************** ************ 22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left to the Court authorised by law to hear appeals from such orders. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal. In view of the categorical holdings in the judgments of this court, Jindals appeal to the Division Bench, (Appeal No. 492/2006) is not maintainable. However, in view of the above decisions, and the express terms of Section 50, NV Engineerings appeal (Appeal. No. 740/2006), against the order of the single judge (to the extent it refuses enforcement) is maintainable. 26. This court has not considered the merits of the substantive challenge to the enforcement order, because the parties were not heard and therefore, it would not be fair to comment on it. Further, Jindal has proceeded on the assumption that its appeal to the Division Bench on this aspect is pending. In view of the finding of this court that such an appeal (against an order of enforcement) is untenable by reason of Section 50, the merits of Jindals objections to the single judges order, are open for it to be canvassed in appropriate proceedings. Such proceedings cannot also be a resort to any remedy under the Code of Civil Procedure. In the event Jindal chooses to avail of such remedy, the question of limitation is left open, as this court is conscious of the fact that Fuerst Day Lawson (Supra n. 17) is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that Jindal was ignorant of the law. | 1[ds]17. The decision in Bhatia (Supra n.8), and later, in Venture Global (Supra n.9), had ruled that resort to remedies under Part I of the Act can be made in respect of foreign awards, despite the clear dichotomy in the enactment between domestic awards (covered by Part I) and foreign awards (covered by Part II). This understanding was re-visited in BALCO where this court held as follows:75. We are also unable to accept the submission of the learned counsel for the appellants that the Arbitration Act, 1996 does not make seat of the arbitration as the centre of gravity of the arbitration. On the contrary, it is accepted by most of the experts that in most of the national laws, arbitrations are anchored to the seat/place/situs of arbitration. Redfern in Para 3.54 concludes that the seat of the arbitration is thus intended to be its centre of gravity. [Blackaby, Partasides, Redfern and Hunter (Eds.), Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009)] This, however, does not mean that all the proceedings of the arbitration have to take place at the seat of the arbitration. The arbitrators at times hold meetings at more convenient locations. This is necessary as arbitrators often come from different countries. It may, therefore, on occasions be convenient to hold some of the meetings in a location which may be convenient to all. Such a situation was examined by the Court of Appeal in England in Naviera Amazonica Peruana SA v. Compania International de Seguros del Peru [Naviera Amazonica Peruana SA v. Compania International de Seguros del Peru, (1988) 1 Lloyds Rep 116 (CA)] wherein at p. 121 it is observed as follows:The preceding discussion has been on the basis that there is only one place of arbitration. This will be the place chosen by or on behalf of the parties; and it will be designated in the arbitration agreement or the terms ofreference or the minutes of proceedings or in some other way as the place or seat of the arbitration. This does not mean, however, that the Arbitral Tribunal must hold all its meetings or hearings at the place of arbitration. International commercial arbitration often involves people of many different nationalities, from many different countries. In these circumstances, it is by no means unusual for an Arbitral Tribunal to hold meetings—or even hearings —in a place other than the designated place of arbitration, either for its own convenience or for the convenience of the parties or their witnesses…. It may be more convenient for an Arbitral Tribunal sitting in one country to conduct a hearing in another country — for instance, for the purpose of taking evidence…. In such circumstances each move of the Arbitral Tribunal does not of itself mean that the seat of arbitration changes. The seat of arbitration remains the place initially agreed by or on behalf of the parties.76. It must be pointed out that the law of the seat or place where the arbitration is held, is normally the law to govern that arbitration. The territorial link between the place of arbitration and the law governing that arbitration is well established in the international instruments, namely, the New York Convention of 1958 and the UNCITRAL Model Law of 1985. It is true that the terms seat and place are often used interchangeably. In Redfern and Hunter on International Arbitration [Blackaby, Partasides, Redfern and Hunter (Eds.), Redfern and Hunter on International Arbitration (5th Edn., Oxford University Press, Oxford/New York 2009)] (Para 3.51), the seat theory is defined thus:The concept that an arbitration is governed by the law of the place in which it is held, which is the seat (or forum or locus arbitri) of the arbitration, is well established in both the theory and practice of international arbitration. In fact, the Geneva Protocol, 1923 states***** ******** *****95. The learned counsel for the appellants have submitted that Section 2(1)(e), Section 20 and Section 28 read with Section 45 and Section 48(1)(e) make it clear that Part I is not limited only to arbitrations which take place in India. These provisions indicate that the Arbitration Act, 1996 is subject-matter centric and not exclusively seat-centric. Therefore, seat is not the centre of gravity so far as the Arbitration Act, 1996 is concerned. We are of the considered opinion that the aforesaid provisions have to be interpreted by keeping the principle of territoriality at the forefront. We have earlier observed that Section 2(2) does not make Part I applicable to arbitrations seated or held outside India. In view of the expression used in Section 2(2), the maxim expressumfacitcessaretacitum, would not permit by interpretation to hold that Part I would also apply to arbitrations held outside the territory of India. The expression this Part shall apply where the place of arbitration is in India necessarily excludes application of Part I to arbitration seated or held outside India. It appears to us that neither of the provisions relied upon by the learned counsel for the appellants would make any section of Part I applicable to arbitration seated outside India. It will be apposite now to consider each of the aforesaid provisions in turn.96. Section 2(1)(e) of the Arbitration Act, 1996 reads as under:****** ****** ******We are of the opinion, the term subject-matter of the arbitration cannot be confused with subject-matter of the suit. The term subject-matter in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order Under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution i.e. arbitration is located.98. We now come to Section 20, which is as under:****** ****** ******A plain reading of Section 20 leaves no room for doubt that where the place of arbitration is in India, the parties are free to agree to any place or seat within India, be it Delhi, Mumbai, etc. In the absence of the parties agreement thereto, Section 20(2) authorises the tribunal to determine the place/seat of such arbitration. Section 20(3) enables the tribunal to meet at any place for conducting hearings at a place of convenience in matters such as consultations among its members for hearing witnesses, experts or the parties.99. The fixation of the most convenient venue is taken care of by Section 20(3). Section 20, has to be read in the context of Section 2(2), which places a threshold limitation on the applicability of Part I, where the place of arbitration is in India. Therefore, Section 20 would also not support the submission of the extra-territorial applicability of Part I, as canvassed by the learned counsel for the appellants, so far as purely domestic arbitration is concerned.Only if the agreement of the parties is construed to provide for the seat/place of arbitration being in India — would Part I of the Arbitration Act, 1996 be applicable. If the agreement is held to provide for a seat/place outside India, Part I would be inapplicable to the extent inconsistent with the arbitration law of the seat, even if the agreement purports to provide that the Arbitration Act, 1996 shall govern the arbitration proceedings.****** ******* *******110. Examining the fact situation in the case, the Court observed as follows: (Shashoua case [2009 EWHC 957 (Comm)])The basis for the courts grant of an anti-suit injunction of the kind sought depended upon the seat of the arbitration. An agreement as to the seat of an arbitration brought in the law of that country as the curial law and was analogous to an exclusive jurisdiction clause. Not only was there agreement to the curial law of the seat, but also to the courts of the seat having supervisory jurisdiction over the arbitration, so that, by agreeing to the seat, the parties agreed that any challenge to an interim or final award was to be made only in the courts of the place designated as the seat of the arbitration.Although, venue was not synonymous with seat, in an arbitration clause which provided for arbitration to be conducted in accordance with the Rules of the ICC in Paris (a supranational body of rules), a provision that the venue of arbitration shall be London, United Kingdom did amount to the designation of a juridical seat….In para 54, it is further observed as follows: (Shashoua case [2009 EWHC 957 (Comm)])There was a little debate about the possibility of the issues relating to the alleged submission by the claimants to the jurisdiction of the High Court of Delhi being heard by that Court, because it was best fitted to determine such issues under the Indian law. Whilst I found this idea attractive initially, we are persuaded that it would be wrong in principle to allow this and that it would create undue practical problems in any event. On the basis of what I have already decided, England is the seat of the arbitration and since this carries with it something akin to an exclusive jurisdiction clause, as a matter of principle the foreign court should not decide matters which are for this Court to decide in the context of an anti-suit injunction.In making the aforesaid observations in Shashoua case [2009 EWHC 957 (Comm)] , the Court relied on the judgments of the Court of Appeal in C v. D [2008 Bus LR 843 : 2007 EWCA Civ 1282 (CA)] .111. In C v. D [2008 Bus LR 843: 2007 EWCA Civ 1282 (CA)] the Court of Appeal in England was examining an appeal by the defendant insurer from the judgment of Cooke, J. granting an anti-suit injunction preventing it from challenging an arbitration award in the US courts. The insurance policy provided any dispute arising under this policy shall be finally and fully determined in London, England under the provisions of the English Arbitration Act, 1950 as amended. However, it was further provided that this policy shall be governed by and construed in accordance with the internal laws of the State of New York…. (Bus LR p. 847, para 2). A partial award was made in favour of the claimants. It was agreed that this partial award is, in English law terms, final as to what it decides. The defendant sought the tribunals withdrawal of its findings. The defendant also intimated its intention to apply to a Federal Court applying the US Federal Arbitration Law governing the enforcement of arbitral award, which was said to permit vacatur of an award where arbitrators have manifestly disregarded the law. It was in consequence of such intimation that the claimant sought and obtained an interim anti-suit injunction. The Judge held that parties had agreed that any proceedings seeking to attack or set aside the partial award would only be those permitted by the English law. It was not, therefore, permissible for the defendant to bring any proceedings in New York or elsewhere to attack the partial award. The Judge rejected the arguments to the effect that the choice of the law of New York as the proper law of the contract amounted to an agreement that the law of England should not apply to proceedings post award. The Judge also rejected a further argument that the separate agreement to arbitrate contained in Condition V(o) of the policy was itself governed by New York Law so that proceedings could be instituted in New York. The Judge granted the claimant a final injunction.****** ****** ******116. The legal position that emerges from a conspectus of all the decisions, seems to be, that the choice of another country as the seat of arbitration inevitably imports an acceptance that the law of that country relating to the conduct and supervision of arbitrations will apply to the proceedings.117. It would, therefore, follow that if the arbitration agreement is found or held to provide for a seat/place of arbitration outside India, then the provision that the Arbitration Act, 1996 would govern the arbitration proceedings, would not make Part I of the Arbitration Act, 1996 applicable or enable the Indian courts to exercise supervisory jurisdiction over the arbitration or the award. It would only mean that the parties have contractually imported from the Arbitration Act, 1996, those provisions which are concerned with the internal conduct of their arbitration and which are not inconsistent with the mandatory provisions of the English procedural law/curial law. This necessarily follows from the fact that Part I applies only to arbitrations having their seat/place in India.The final conclusions in BALCO were recorded as follows:194. In view of the above discussion, we are of the considered opinion that the Arbitration Act, 1996 has accepted the territoriality principle which has been adopted in the UNCITRAL Model Law. Section 2(2) makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. In our opinion, the provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.23. Having regard to the precedential unanimity, so to say, about the manner of applicability of BALCO in respect of agreements entered into and awards rendered earlier, with respect to the law of the seat of arbitration (or the curial law) excluding applicability of Part I of the Act, and the unambiguous intention of the parties in the present case (expressed in Clause 12.4.2) that the seat of arbitration was London, where the ICC arbitration proceedings were in fact held, and the awards rendered, this court is of the opinion that the impugned judgment cannot be sustained.24. The above discussion would have been sufficient to dispose of this appeal. However, it is noticeable that the decision in Feurest Day Lawson (Supra n. 17) unambiguously ruled out the maintainability of any appeal against an order granting enforcement of a foreign arbitration award. In the present case, both the partial and final awards are foreign awards. Therefore, the provisions of Sections 47/48 were correctly invoked by NV Engineering, for enforcement of the awards (through Application No 156/2005). Jindal objected to the enforcement proceedings, in accordance with grounds articulated in Part II of the Act. A single judge substantially upheld the award, and proceeded to its enforcement, by a judgment dated 05.06.2006, at the same time rejecting the challenge to enforcement laid out by Jindal. Both parties appealed to the Division Bench; Jindal, on the challenge to the order rejecting its objection to enforcement (Appeal No. 492/2006), and NV Engineering, as to that part of the order of the single judge, refusing to enforce a part of the award (Appeal. No. 740/2006).This court, in Kandla Export Corpn. v. OCI Corpn (2018) 14 SCC 715 held that a further appeal by a party aggrieved by an order of enforcement, even under the later enacted Commercial Courts Act, 2015 is not maintainable:20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act.22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left to the Court authorised by law to hear appeals from such orders. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In view of the categorical holdings in the judgments of this court, Jindals appeal to the Division Bench, (Appeal No. 492/2006) is not maintainable. However, in view of the above decisions, and the express terms of Section 50, NV Engineerings appeal (Appeal. No. 740/2006), against the order of the single judge (to the extent it refuses enforcement) is maintainable.26. This court has not considered the merits of the substantive challenge to the enforcement order, because the parties were not heard and therefore, it would not be fair to comment on it. Further, Jindal has proceeded on the assumption that its appeal to the Division Bench on this aspect is pending. In view of the finding of this court that such an appeal (against an order of enforcement) is untenable by reason of Section 50, the merits of Jindals objections to the single judges order, are open for it to be canvassed in appropriate proceedings. Such proceedings cannot also be a resort to any remedy under the Code of Civil Procedure. In the event Jindal chooses to avail of such remedy, the question of limitation is left open, as this court is conscious of the fact that Fuerst Day Lawson (Supra n. 17) is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that Jindal was ignorant of the law. | 1 | 13,956 | 3,891 | ### 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:
Constitution Bench decision of this Court in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] , and the way the Constitution Bench understood and interpreted Mohindra Supply Co. [Union of India v. Mohindra Supply Co., AIR 1962 SC 256 ] would be clear from the following para 10 of the judgment: (P.S. Sathappan case [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] , SCC pp. 689-90) 10. … The provisions in the Letters Patent providing for appeal, insofar as they related to orders passed in arbitration proceedings, were held to be subject to the provisions of Sections 39(1) and (2) of the Arbitration Act, as the same is a self-contained code relating to arbitration. 89. It is, thus, to be seen that the Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan [P.S. Sathappan v. Andhra Bank Ltd., (2004) 11 SCC 672 ] ) was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lucid expression of Tulzapurkar, J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done [The reference is to S.N. Srikantia and Co. v. Union of India, 1965 SCC OnLine Bom 133 : AIR 1967 Bom 347 at p. 354, para 9.] . In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. These observations were quoted with approval in Union of India v Simplex Infrastructures Ltd 2017 (14) SCC 225 and the court further held: 10. After this decision, there is no scope to contend that the remedy of letters patent appeal was available in relation to the judgment of the learned Single Judge in question. This legal position has been restated in the recent decision of this Court (to which one of us was party, Justice Dipak Misra), in Arun Dev Upadhyaya v. Integrated Sales Service Ltd. [Arun Dev Upadhyaya v. Integrated Sales Service Ltd., (2016) 9 SCC 524 : (2016) 4 SCC (Civ) 564] This court, in Kandla Export Corpn. v. OCI Corpn (2018) 14 SCC 715 held that a further appeal by a party aggrieved by an order of enforcement, even under the later enacted Commercial Courts Act, 2015 is not maintainable: 20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. ***************** ************ 22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left to the Court authorised by law to hear appeals from such orders. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal. In view of the categorical holdings in the judgments of this court, Jindals appeal to the Division Bench, (Appeal No. 492/2006) is not maintainable. However, in view of the above decisions, and the express terms of Section 50, NV Engineerings appeal (Appeal. No. 740/2006), against the order of the single judge (to the extent it refuses enforcement) is maintainable. 26. This court has not considered the merits of the substantive challenge to the enforcement order, because the parties were not heard and therefore, it would not be fair to comment on it. Further, Jindal has proceeded on the assumption that its appeal to the Division Bench on this aspect is pending. In view of the finding of this court that such an appeal (against an order of enforcement) is untenable by reason of Section 50, the merits of Jindals objections to the single judges order, are open for it to be canvassed in appropriate proceedings. Such proceedings cannot also be a resort to any remedy under the Code of Civil Procedure. In the event Jindal chooses to avail of such remedy, the question of limitation is left open, as this court is conscious of the fact that Fuerst Day Lawson (Supra n. 17) is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that Jindal was ignorant of the law.
### Response:
1
### Explanation:
This necessarily follows from the fact that Part I applies only to arbitrations having their seat/place in India.The final conclusions in BALCO were recorded as follows:194. In view of the above discussion, we are of the considered opinion that the Arbitration Act, 1996 has accepted the territoriality principle which has been adopted in the UNCITRAL Model Law. Section 2(2) makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. In our opinion, the provisions contained in the Arbitration Act, 1996 make it crystal clear that there can be no overlapping or intermingling of the provisions contained in Part I with the provisions contained in Part II of the Arbitration Act, 1996.23. Having regard to the precedential unanimity, so to say, about the manner of applicability of BALCO in respect of agreements entered into and awards rendered earlier, with respect to the law of the seat of arbitration (or the curial law) excluding applicability of Part I of the Act, and the unambiguous intention of the parties in the present case (expressed in Clause 12.4.2) that the seat of arbitration was London, where the ICC arbitration proceedings were in fact held, and the awards rendered, this court is of the opinion that the impugned judgment cannot be sustained.24. The above discussion would have been sufficient to dispose of this appeal. However, it is noticeable that the decision in Feurest Day Lawson (Supra n. 17) unambiguously ruled out the maintainability of any appeal against an order granting enforcement of a foreign arbitration award. In the present case, both the partial and final awards are foreign awards. Therefore, the provisions of Sections 47/48 were correctly invoked by NV Engineering, for enforcement of the awards (through Application No 156/2005). Jindal objected to the enforcement proceedings, in accordance with grounds articulated in Part II of the Act. A single judge substantially upheld the award, and proceeded to its enforcement, by a judgment dated 05.06.2006, at the same time rejecting the challenge to enforcement laid out by Jindal. Both parties appealed to the Division Bench; Jindal, on the challenge to the order rejecting its objection to enforcement (Appeal No. 492/2006), and NV Engineering, as to that part of the order of the single judge, refusing to enforce a part of the award (Appeal. No. 740/2006).This court, in Kandla Export Corpn. v. OCI Corpn (2018) 14 SCC 715 held that a further appeal by a party aggrieved by an order of enforcement, even under the later enacted Commercial Courts Act, 2015 is not maintainable:20. Given the judgment of this Court in Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] , which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section is a provision contained in a self-contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in para 89 of Fuerst Day Lawson [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civ) 178] that appeals which are not mentioned therein, are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis-à-vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act.22. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left to the Court authorised by law to hear appeals from such orders. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal.In view of the categorical holdings in the judgments of this court, Jindals appeal to the Division Bench, (Appeal No. 492/2006) is not maintainable. However, in view of the above decisions, and the express terms of Section 50, NV Engineerings appeal (Appeal. No. 740/2006), against the order of the single judge (to the extent it refuses enforcement) is maintainable.26. This court has not considered the merits of the substantive challenge to the enforcement order, because the parties were not heard and therefore, it would not be fair to comment on it. Further, Jindal has proceeded on the assumption that its appeal to the Division Bench on this aspect is pending. In view of the finding of this court that such an appeal (against an order of enforcement) is untenable by reason of Section 50, the merits of Jindals objections to the single judges order, are open for it to be canvassed in appropriate proceedings. Such proceedings cannot also be a resort to any remedy under the Code of Civil Procedure. In the event Jindal chooses to avail of such remedy, the question of limitation is left open, as this court is conscious of the fact that Fuerst Day Lawson (Supra n. 17) is a decision rendered over 10 years ago; it settled the law decisively and has been followed in later judgments. It cannot be said that Jindal was ignorant of the law.
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M/s. Tata Engineering & Locomotive Company Limited Vs. N.K. Singh | Arijit Pasayat, J. Appellant calls in question legality of the judgment rendered by a Division Bench of the Jharkhand High Court dismissing Letters Patent Appeal filed by the appellant. 2. Background facts as projected by appellant in a nutshell are as follows:The respondent who was working as Assistant Store Keeper, was in unauthorized occupation of quarter belonging to the appellant-company. A suit for vacation was filed by the appellant which was decreed in his favour. When the Town Warden (Sri A.K. Banerjee) went to execute the decree along with Nazir of Civil Court he was assaulted by fists and bricks. Shri A.K. Banerjee, suffered serious injuries. In the domestic inquiry the respondent was found guilty of misconduct and was dismissed from service. With reference to alleged incident on 17.10.1984, First Information Report was lodged alleging commission of offences punishable under Sections 311 and 307 read with Section 34 of the India Penal Code, 1860 (in short the IPC). Allegation was that the respondent as well as others on his instigation assaulted Shri A.K. Banerjee and he was also threatened with dire consequences. On 23.10.1984 charge sheet-cum-notice of inquiry was issued and served on the respondent under the Works Standing Orders of the appellant, particularly under Standing order 24, sub Clauses (xvi) and (xxxii) asking him to show cause to furnish his explanation and appear at the inquiry. Said sub-clauses of Clause 24 read as under:"Without prejudice in the general meaning of the term misconduct..........(xvi) Drunkernns fighting or riotous or disorderly or indecent behaviour or any acts subversive of discipline or efficiency (xxxii) Threatening or intimidating any employees."3. The respondent submitted his explanation on 27.10.1984. After considering the explanation to be unsatisfactory, domestic inquiry was held and at the conclusion of the domestic inquiry, Inquiry Officer submitted a report holding the respondent to be guilty of misconduct. After perusal of the report and inquiry proceedings, the General Manager of the appellant-company ordered dismissal of the respondent from service of the company w.e.f. 25.10.1984 i.e. the date of issue of charge-sheet in terms of the Standing Orders.4. A dispute was raised by the respondent and reference was made by the State Government under Section 10(1)(c) of the Industrial Disputes Act, 1947 (in short the Act). The terms of reference were as follows:"Whether the termination of service of Shri N.K. Singh Ticket No. 9956/08843/1 workman of Tata Engineering of Locomotive Company Ltd., Jameshedpur is justified? If not, whether he is entitled to re-instatement and for any reliefs?"That on the notice in the reference case, the petitioner and respondent workman submitted their respective claims. In the meanwhile, the application was filed by the petitioner to decide the validity of the domestic enquiry as preliminary issue."5. The appellant and the respondent submitted their respective claim. An application was filed by the appellant to decide the preliminary issue as to the validity of the domestic inquiry. On 6.3.1987 the respondent was acquitted in the criminal case on the ground of lack of evidence.6. By order dated 17.6.1995 the Labour Court decided the validity of the domestic inquiry conducted and held that same was fair, proper and in accordance with the principles of natural justice. By order dated 5.1.1996 award was passed by the Labour Court setting aside the order of dismissal and directing respondents reinstatement with full back wages. Though it was held that the charge of misconduct levelled against the respondent was established, the order of dismissal was disproportionate to the charge proved. Therefore, reinstatement with payment of half of the back wages was directed. Appellant filed a writ petition before the High Court. Learned Single Judge partially allowed the writ petition directing that half of the back wages was to be paid from the date of award. As noted supra, Letters Patent Appeal was dismissed. It was noted that one R.P. Singh who stood on identical footing was directed to be reinstated with half back wages.7. In support of the appeal learned counsel for the appellant submitted that the High Court has fallen into grave error by setting aside the order of dismissal and directing reinstatement and payment of 50% back wages. 8. R.P. Singhs case is distinguishable on facts. The facts on record clearly show that the respondent was guilty of misconduct. The Labour Court having found that the domestic inquiry was fair, proper and in accordance with the principles of natural justice should not have interfered with the order of dismissal. The High Court clearly missed to notice that the charges were serious in nature.9. Learned counsel for the respondent on the other hand submitted that the High Court has taken a practical and reasonable view and the order of dismissal was clearly disproportionate to the alleged misconduct.10. We find that the Labour Court has found the inquiry to be fair and proper. The conduct highlighted by the management and established in inquiry was certainly of very grave nature. The Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline. Without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed the order in the manner done. The case of R.P. Singh was not on a similar footing. He was one of the persons instigating whereas the respondent was the person who committed the acts. | 0[ds]10. We find that the Labour Court has found the inquiry to be fair and proper. The conduct highlighted by the management and established in inquiry was certainly of very grave nature. The Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline. Without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed the order in the manner done. The case of R.P. Singh was not on a similar footing. He was one of the persons instigating whereas the respondent was the person who committed the acts. | 0 | 1,042 | 159 | ### 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:
Arijit Pasayat, J. Appellant calls in question legality of the judgment rendered by a Division Bench of the Jharkhand High Court dismissing Letters Patent Appeal filed by the appellant. 2. Background facts as projected by appellant in a nutshell are as follows:The respondent who was working as Assistant Store Keeper, was in unauthorized occupation of quarter belonging to the appellant-company. A suit for vacation was filed by the appellant which was decreed in his favour. When the Town Warden (Sri A.K. Banerjee) went to execute the decree along with Nazir of Civil Court he was assaulted by fists and bricks. Shri A.K. Banerjee, suffered serious injuries. In the domestic inquiry the respondent was found guilty of misconduct and was dismissed from service. With reference to alleged incident on 17.10.1984, First Information Report was lodged alleging commission of offences punishable under Sections 311 and 307 read with Section 34 of the India Penal Code, 1860 (in short the IPC). Allegation was that the respondent as well as others on his instigation assaulted Shri A.K. Banerjee and he was also threatened with dire consequences. On 23.10.1984 charge sheet-cum-notice of inquiry was issued and served on the respondent under the Works Standing Orders of the appellant, particularly under Standing order 24, sub Clauses (xvi) and (xxxii) asking him to show cause to furnish his explanation and appear at the inquiry. Said sub-clauses of Clause 24 read as under:"Without prejudice in the general meaning of the term misconduct..........(xvi) Drunkernns fighting or riotous or disorderly or indecent behaviour or any acts subversive of discipline or efficiency (xxxii) Threatening or intimidating any employees."3. The respondent submitted his explanation on 27.10.1984. After considering the explanation to be unsatisfactory, domestic inquiry was held and at the conclusion of the domestic inquiry, Inquiry Officer submitted a report holding the respondent to be guilty of misconduct. After perusal of the report and inquiry proceedings, the General Manager of the appellant-company ordered dismissal of the respondent from service of the company w.e.f. 25.10.1984 i.e. the date of issue of charge-sheet in terms of the Standing Orders.4. A dispute was raised by the respondent and reference was made by the State Government under Section 10(1)(c) of the Industrial Disputes Act, 1947 (in short the Act). The terms of reference were as follows:"Whether the termination of service of Shri N.K. Singh Ticket No. 9956/08843/1 workman of Tata Engineering of Locomotive Company Ltd., Jameshedpur is justified? If not, whether he is entitled to re-instatement and for any reliefs?"That on the notice in the reference case, the petitioner and respondent workman submitted their respective claims. In the meanwhile, the application was filed by the petitioner to decide the validity of the domestic enquiry as preliminary issue."5. The appellant and the respondent submitted their respective claim. An application was filed by the appellant to decide the preliminary issue as to the validity of the domestic inquiry. On 6.3.1987 the respondent was acquitted in the criminal case on the ground of lack of evidence.6. By order dated 17.6.1995 the Labour Court decided the validity of the domestic inquiry conducted and held that same was fair, proper and in accordance with the principles of natural justice. By order dated 5.1.1996 award was passed by the Labour Court setting aside the order of dismissal and directing respondents reinstatement with full back wages. Though it was held that the charge of misconduct levelled against the respondent was established, the order of dismissal was disproportionate to the charge proved. Therefore, reinstatement with payment of half of the back wages was directed. Appellant filed a writ petition before the High Court. Learned Single Judge partially allowed the writ petition directing that half of the back wages was to be paid from the date of award. As noted supra, Letters Patent Appeal was dismissed. It was noted that one R.P. Singh who stood on identical footing was directed to be reinstated with half back wages.7. In support of the appeal learned counsel for the appellant submitted that the High Court has fallen into grave error by setting aside the order of dismissal and directing reinstatement and payment of 50% back wages. 8. R.P. Singhs case is distinguishable on facts. The facts on record clearly show that the respondent was guilty of misconduct. The Labour Court having found that the domestic inquiry was fair, proper and in accordance with the principles of natural justice should not have interfered with the order of dismissal. The High Court clearly missed to notice that the charges were serious in nature.9. Learned counsel for the respondent on the other hand submitted that the High Court has taken a practical and reasonable view and the order of dismissal was clearly disproportionate to the alleged misconduct.10. We find that the Labour Court has found the inquiry to be fair and proper. The conduct highlighted by the management and established in inquiry was certainly of very grave nature. The Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline. Without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed the order in the manner done. The case of R.P. Singh was not on a similar footing. He was one of the persons instigating whereas the respondent was the person who committed the acts.
### Response:
0
### Explanation:
10. We find that the Labour Court has found the inquiry to be fair and proper. The conduct highlighted by the management and established in inquiry was certainly of very grave nature. The Labour Court and the High Court have not found that misconduct was of any minor nature. On the contrary, the finding on facts that the acts complained of were established has not been disturbed. That being so, the leniency shown by the Labour Court is clearly unwarranted and would in fact encourage indiscipline. Without indicating any reason as to why it was felt that the punishment was disproportionate, the Labour Court should not have passed the order in the manner done. The case of R.P. Singh was not on a similar footing. He was one of the persons instigating whereas the respondent was the person who committed the acts.
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Randhir Shivajirao Naik & Anr Vs. Reserve Bank of India & Ors | notice and an affidavit to that effect may be filed in court by the next date. 6. Affidavits in Reply have been filed by all the Respondents. There is some discrepancy in the page numbering in the Court record. 7. The facts have been briefly noted in the order of 28th June 2021. Although we do not think a longer delineation is necessary, we will refer to the relevant dates. 8. The 2nd Respondent is admittedly a NonScheduled Urban Co-operative Bank or UCB. On 2nd February 2021 it issued a show cause notice to the Petitioners calling upon them to show cause within 30 days why they should not be classified as wilful defaulters according to RBI guidelines. The Petitioners replied and showed cause. In that reply on 9th March 2021, the Petitioner specifically raised the question of whether the 2nd Respondent could even issue such a notice. 9. In the meantime, the 3rd Respondent found itself before the NCLT. A moratorium was imposed on it under section 14 of the Insolvency and Bankruptcy Code 2016. In those NCLT proceedings, on 30th April 2021 a second meeting of the Committee of Creditors was held. The Resolution Professional appointed of the 3rd Respondent asked the representatives of the 2nd Respondent bank if they are already declared the Petitioners as defaulters. Apparently, the 2nd Respondents officers said that they have not done so until then but might do so shortly after. This was before the Petitioners were given any hearing. 10. On 9th June 2021, a wilful defaulter Identification Committee of the 2nd Respondent bank proceeded to declare the Petitioners as wilful defaulters. 11. This Petition was filed in June 2021. 12. The statutory regularity conspectus is governed by Reserve Bank of Indias Master Circulars. One is dated 1st July 2014 and two are dated 1st July 2015. Copies of these are annexed inter alia to the Petition as also to the affidavit in reply of the Reserve Bank of India, which has copies of the correctly applicable circulars. They are at Exhibits I, II and VI of the RBI affidavit. The RBI is also represented before us today by Mr Shenoy. 13. We will first turn to the averments made by the RBI in the affidavit that it has filed. In paragraph 8, the RBI says that the 1st July 2014 master circular is applicable to (a) All Scheduled Commercial Banks (excluding RRBs and LBBs) and (b) All India Notified Financial Institutions. The latest master circular on wilful defaulters dated 1st July 2015 is applicable to (a) All Scheduled Commercial Banks (excluding RRBs) and (b) All India Notified Financial Institutions. 14. Nobody before us challenges these circulars, as indeed none can. 15. Then, also in paragraph 8, the RBI has stated that instructions on reporting of information pertaining to Wilful Defaulters to RBI have been issued to Scheduled Co-operative Banks. This has been done by circulars dated 30th June 1999, 1st August 2002 and 24th June 2008 (copies of which are also annexed). 16. These instructions, according to the RBI, have been consolidated in paragraph 5.4 of the Master Circular on Management of Advances which is dated 1st July 2015 and a copy of which is at Exhibit VI. We turn to that immediately. Paragraph 5.4 deals with collection and dissemination of information on cases of wilful default of Rs.25 lakhs and above. Clause 5.4.1 speaks of, and only of Scheduled UCBs. This is why RBI on affidavit and through its counsel, Mr Shenoy, before us today maintains that the provisions of clause 5.4 for declaration a person as wilful defaulter only apply to Scheduled UCBs and not to Non-Scheduled UCBs like the 2nd Respondent. 17. Mr Jahagirdar for the 2nd Respondent evidently has a difficult task before him. He has to carefully negotiate the tightrope between defending his clients position on the one hand and avoid antagonising the top-most banking regulator, the RBI, on the other. His clients have interpreted the RBI circulars as being applicable to them, although they are Non- Scheduled UCBs. The 2nd Respondent clearly cannot go against the RBI for reasons they are self-evident. Once, therefore, the RBI has said that these master circulars are not applicable to Non-Scheduled UCBs such as the 2nd Respondent, the matter must surely end at that and the Petition must succeed. 18. But since Mr Jahagirdar has placed additional points, we will consider them. He draws attention to clauses 5.3.3, 5.3.4 and 5.3.7 of the same circular. Clause 5.3.3 is a requirement that that all UCBs are required to submit a quarterly list of suits filed of accounts of Rs.1 Crore and above, classified as doubtful or loss, to CIBIL and/or any other credit information company which has obtained CoR from RBI and of which the UCB is a member. But this is a matter of reporting information and is not the same as being empowered to decide or adjudicate whether a person is wilful defaulter. 19. Similarly clause 5.3.4 says that all UCBs are required to submit a list of suit filed accounts of wilful defaulters of Rs. 25 lakhs and above as at the end of four quarters to CIBIL or any other credit information company etc. Again this is an information-gathering process. It cannot be read to invest a Non-Scheduled Bank with declaratory powers. 20. Clause 5.3.7 then says that banks may make enquiries, if any, about the defaulters from the reporting bank/financial institution. But to ask is one thing; to decide is quite another. 21. Finally, Mr Jahagirdar seeks to draw support from the provisions of penal measures in clause 5.4.4. We fail to appreciate how this can possibly assist the 2nd Respondent in its submission that it is in fact invested with the necessary declaratory powers. 22. As we noted earlier, now that the RBI has made its stand abundantly clear, it is impossible to sustain the actions by 2nd Respondent either in issuing the show cause notice or in issuing the order that followed. | 1[ds]14. Nobody before us challenges these circulars, as indeed none can.15. Then, also in paragraph 8, the RBI has stated that instructions on reporting of information pertaining to Wilful Defaulters to RBI have been issued to Scheduled Co-operative Banks. This has been done by circulars dated 30th June 1999, 1st August 2002 and 24th June 2008 (copies of which are also annexed).16. These instructions, according to the RBI, have been consolidated in paragraph 5.4 of the Master Circular on Management of Advances which is dated 1st July 2015 and a copy of which is at Exhibit VI. We turn to that immediately. Paragraph 5.4 deals with collection and dissemination of information on cases of wilful default of Rs.25 lakhs and above. Clause 5.4.1 speaks of, and only of Scheduled UCBs.17. Mr Jahagirdar for the 2nd Respondent evidently has a difficult task before him. He has to carefully negotiate the tightrope between defending his clients position on the one hand and avoid antagonising the top-most banking regulator, the RBI, on the other. His clients have interpreted the RBI circulars as being applicable to them, although they are Non- Scheduled UCBs. The 2nd Respondent clearly cannot go against the RBI for reasons they are self-evident. Once, therefore, the RBI has said that these master circulars are not applicable to Non-Scheduled UCBs such as the 2nd Respondent, the matter must surely end at that and the Petition must succeed.Clause 5.3.3 is a requirement that that all UCBs are required to submit a quarterly list of suits filed of accounts of Rs.1 Crore and above, classified as doubtful or loss, to CIBIL and/or any other credit information company which has obtained CoR from RBI and of which the UCB is a member. But this is a matter of reporting information and is not the same as being empowered to decide or adjudicate whether a person is wilful defaulter.19. Similarly clause 5.3.4 says that all UCBs are required to submit a list of suit filed accounts of wilful defaulters of Rs. 25 lakhs and above as at the end of four quarters to CIBIL or any other credit information company etc. Again this is an information-gathering process. It cannot be read to invest a Non-Scheduled Bank with declaratory powers.20. Clause 5.3.7 then says that banks may make enquiries, if any, about the defaulters from the reporting bank/financial institution. But to ask is one thing; to decide is quite another.We fail to appreciate how this can possibly assist the 2nd Respondent in its submission that it is in fact invested with the necessary declaratory powers.22. As we noted earlier, now that the RBI has made its stand abundantly clear, it is impossible to sustain the actions by 2nd Respondent either in issuing the show cause notice or in issuing the order that followed. | 1 | 1,919 | 517 | ### 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 and an affidavit to that effect may be filed in court by the next date. 6. Affidavits in Reply have been filed by all the Respondents. There is some discrepancy in the page numbering in the Court record. 7. The facts have been briefly noted in the order of 28th June 2021. Although we do not think a longer delineation is necessary, we will refer to the relevant dates. 8. The 2nd Respondent is admittedly a NonScheduled Urban Co-operative Bank or UCB. On 2nd February 2021 it issued a show cause notice to the Petitioners calling upon them to show cause within 30 days why they should not be classified as wilful defaulters according to RBI guidelines. The Petitioners replied and showed cause. In that reply on 9th March 2021, the Petitioner specifically raised the question of whether the 2nd Respondent could even issue such a notice. 9. In the meantime, the 3rd Respondent found itself before the NCLT. A moratorium was imposed on it under section 14 of the Insolvency and Bankruptcy Code 2016. In those NCLT proceedings, on 30th April 2021 a second meeting of the Committee of Creditors was held. The Resolution Professional appointed of the 3rd Respondent asked the representatives of the 2nd Respondent bank if they are already declared the Petitioners as defaulters. Apparently, the 2nd Respondents officers said that they have not done so until then but might do so shortly after. This was before the Petitioners were given any hearing. 10. On 9th June 2021, a wilful defaulter Identification Committee of the 2nd Respondent bank proceeded to declare the Petitioners as wilful defaulters. 11. This Petition was filed in June 2021. 12. The statutory regularity conspectus is governed by Reserve Bank of Indias Master Circulars. One is dated 1st July 2014 and two are dated 1st July 2015. Copies of these are annexed inter alia to the Petition as also to the affidavit in reply of the Reserve Bank of India, which has copies of the correctly applicable circulars. They are at Exhibits I, II and VI of the RBI affidavit. The RBI is also represented before us today by Mr Shenoy. 13. We will first turn to the averments made by the RBI in the affidavit that it has filed. In paragraph 8, the RBI says that the 1st July 2014 master circular is applicable to (a) All Scheduled Commercial Banks (excluding RRBs and LBBs) and (b) All India Notified Financial Institutions. The latest master circular on wilful defaulters dated 1st July 2015 is applicable to (a) All Scheduled Commercial Banks (excluding RRBs) and (b) All India Notified Financial Institutions. 14. Nobody before us challenges these circulars, as indeed none can. 15. Then, also in paragraph 8, the RBI has stated that instructions on reporting of information pertaining to Wilful Defaulters to RBI have been issued to Scheduled Co-operative Banks. This has been done by circulars dated 30th June 1999, 1st August 2002 and 24th June 2008 (copies of which are also annexed). 16. These instructions, according to the RBI, have been consolidated in paragraph 5.4 of the Master Circular on Management of Advances which is dated 1st July 2015 and a copy of which is at Exhibit VI. We turn to that immediately. Paragraph 5.4 deals with collection and dissemination of information on cases of wilful default of Rs.25 lakhs and above. Clause 5.4.1 speaks of, and only of Scheduled UCBs. This is why RBI on affidavit and through its counsel, Mr Shenoy, before us today maintains that the provisions of clause 5.4 for declaration a person as wilful defaulter only apply to Scheduled UCBs and not to Non-Scheduled UCBs like the 2nd Respondent. 17. Mr Jahagirdar for the 2nd Respondent evidently has a difficult task before him. He has to carefully negotiate the tightrope between defending his clients position on the one hand and avoid antagonising the top-most banking regulator, the RBI, on the other. His clients have interpreted the RBI circulars as being applicable to them, although they are Non- Scheduled UCBs. The 2nd Respondent clearly cannot go against the RBI for reasons they are self-evident. Once, therefore, the RBI has said that these master circulars are not applicable to Non-Scheduled UCBs such as the 2nd Respondent, the matter must surely end at that and the Petition must succeed. 18. But since Mr Jahagirdar has placed additional points, we will consider them. He draws attention to clauses 5.3.3, 5.3.4 and 5.3.7 of the same circular. Clause 5.3.3 is a requirement that that all UCBs are required to submit a quarterly list of suits filed of accounts of Rs.1 Crore and above, classified as doubtful or loss, to CIBIL and/or any other credit information company which has obtained CoR from RBI and of which the UCB is a member. But this is a matter of reporting information and is not the same as being empowered to decide or adjudicate whether a person is wilful defaulter. 19. Similarly clause 5.3.4 says that all UCBs are required to submit a list of suit filed accounts of wilful defaulters of Rs. 25 lakhs and above as at the end of four quarters to CIBIL or any other credit information company etc. Again this is an information-gathering process. It cannot be read to invest a Non-Scheduled Bank with declaratory powers. 20. Clause 5.3.7 then says that banks may make enquiries, if any, about the defaulters from the reporting bank/financial institution. But to ask is one thing; to decide is quite another. 21. Finally, Mr Jahagirdar seeks to draw support from the provisions of penal measures in clause 5.4.4. We fail to appreciate how this can possibly assist the 2nd Respondent in its submission that it is in fact invested with the necessary declaratory powers. 22. As we noted earlier, now that the RBI has made its stand abundantly clear, it is impossible to sustain the actions by 2nd Respondent either in issuing the show cause notice or in issuing the order that followed.
### Response:
1
### Explanation:
14. Nobody before us challenges these circulars, as indeed none can.15. Then, also in paragraph 8, the RBI has stated that instructions on reporting of information pertaining to Wilful Defaulters to RBI have been issued to Scheduled Co-operative Banks. This has been done by circulars dated 30th June 1999, 1st August 2002 and 24th June 2008 (copies of which are also annexed).16. These instructions, according to the RBI, have been consolidated in paragraph 5.4 of the Master Circular on Management of Advances which is dated 1st July 2015 and a copy of which is at Exhibit VI. We turn to that immediately. Paragraph 5.4 deals with collection and dissemination of information on cases of wilful default of Rs.25 lakhs and above. Clause 5.4.1 speaks of, and only of Scheduled UCBs.17. Mr Jahagirdar for the 2nd Respondent evidently has a difficult task before him. He has to carefully negotiate the tightrope between defending his clients position on the one hand and avoid antagonising the top-most banking regulator, the RBI, on the other. His clients have interpreted the RBI circulars as being applicable to them, although they are Non- Scheduled UCBs. The 2nd Respondent clearly cannot go against the RBI for reasons they are self-evident. Once, therefore, the RBI has said that these master circulars are not applicable to Non-Scheduled UCBs such as the 2nd Respondent, the matter must surely end at that and the Petition must succeed.Clause 5.3.3 is a requirement that that all UCBs are required to submit a quarterly list of suits filed of accounts of Rs.1 Crore and above, classified as doubtful or loss, to CIBIL and/or any other credit information company which has obtained CoR from RBI and of which the UCB is a member. But this is a matter of reporting information and is not the same as being empowered to decide or adjudicate whether a person is wilful defaulter.19. Similarly clause 5.3.4 says that all UCBs are required to submit a list of suit filed accounts of wilful defaulters of Rs. 25 lakhs and above as at the end of four quarters to CIBIL or any other credit information company etc. Again this is an information-gathering process. It cannot be read to invest a Non-Scheduled Bank with declaratory powers.20. Clause 5.3.7 then says that banks may make enquiries, if any, about the defaulters from the reporting bank/financial institution. But to ask is one thing; to decide is quite another.We fail to appreciate how this can possibly assist the 2nd Respondent in its submission that it is in fact invested with the necessary declaratory powers.22. As we noted earlier, now that the RBI has made its stand abundantly clear, it is impossible to sustain the actions by 2nd Respondent either in issuing the show cause notice or in issuing the order that followed.
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UNION OF INDIA Vs. LT. COL. KULDEEP YADAV | that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April, 2007, which reads thus:?5. Cases which are not a minor nature and yet do not involve moral turpitude, fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is expedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Govt.?28. The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined. | 1[ds]22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.Indeed, the past service records of the delinquent officer may be germane for awarding punishment. But in the present case, the same had been duly noticed by the competent authority as also by the authority considering the statutory complaint filed by the respondent. That becomes evident from the decisions of both the authorities. For, the competent authority was very much conscious about the said position, as is reflected from paragraph No.4 of his order dated 10 th May, 2013 (reproduced at paragraph No.6 hereinabove). In the same way, the higher authority whilst rejecting the statutory complaint filed by the respondent vide order dated 26 th February, 2014 took note of this aspect as is clear from the extract reproduced in paragraph No.7 hereinabove.26. The Tribunal also erroneously assumed that the competent authority opted to resort to administrative action by awarding censure instead of Court Martial, because it had condoned the misconduct of respondent being of a minor nature and not being a case involving moral turpitude, fraud, theft, dishonesty and misappropriation. This basis is plainly misdirected and not in conformity with the applicable policy regarding award of censure to Officers and JCO?s circulated vide communication dated 23 rd April, 2007. In fact, the Tribunal has extracted the relevant portion of the said policy, which clearly predicates that in cases, which are not of a minor nature and not an act involving moral turpitude, fraud, theft, dishonesty, financial irregularities or misappropriation where trial by a Court Martial is not practicable or is inexpedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Government. The case of the respondent would certainly fall within the purview of the said clause. Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal. Notably, the Tribunal has taken such erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April,The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined. | 1 | 6,931 | 1,689 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April, 2007, which reads thus:?5. Cases which are not a minor nature and yet do not involve moral turpitude, fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is expedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Govt.?28. The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.
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the COAS/Government. The case of the respondent would certainly fall within the purview of the said clause. Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal. Notably, the Tribunal has taken such erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April,The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.
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R. B. Bansilal Abirchand Milis Co. Ltd Vs. Labour Court Nagpur & Ors | order that the respondent could claim the benefit of S. 25-F it was obligatory on her to show that she had worked for 240 days in each year of service for which the claim was made. This Court found that the appellant had not taken the plea in its written statement and that there had been a lay-off or a lock-out and that it had only submitted that the closure in accordance with the notice did not fall within the scope of S. 25-FFF of the Act. By issues 6 and 7 the appellant raised questions as to whether the closure had resulted in the retrenchment of the applicant and whether the closure was beyond the control of the employer. No dispute was raised about the factum of closure. Strangely enough it was urged before this Court that "there could be no closure because the appellant was merely protesting against irresponsible action of the Government and had no intention to close the business permanently." The Court found that the question of lockout was not mooted when the issues were settled nor had any plea been taken that there had been a temporary cessation of work under Standing Orders No. 11. In our view, the observations in this case do not help the appellants before us. 22. In Sawatram Mills v. Baliram, (1966) 1 SCR 764 = (AIR 1966 SC 616 ) the claim of the workmen for lay-off during a certain period before the Second Labour Court Bombay was resisted inter alia on the ground that the said court had no jurisdiction as the dispute fell to be tried under the C. P. and Berar Industrial Disputes (Settlement) Act, 1947, and, secondly, the application under S. 33-C was incompetent because it was not a claim for money due and calculations had to be made for ascertaining the sum due. On a construction of the sections of the Industrial disputes Act this Court held that:"Compensation for lay-off could only be determined under Chapter V-A of the Industrial Disputes Act and the workmen were entitled under S. 33-C (1) to go before the Second Labour Court to realise moneys due from their employers under Chapter V-A." The Court also negatived the contention that the Industrial Disputes Act did not apply but the C. P. and Berar Industrial Disputes (Settlement) Act did as the State Act made no mention of lay-off or compensation for lay-off. The other argument was rejected following the judgment in Kays Construction Co. (P) Ltd. v. State of U. P. (1965) 2 SCR 276 = (AIR 1965 SC 1488 ). 23. In substance the point urged by the appellants was that if a claim is made on the basis of a lay-off and the employer contends that there was no lay-off but closure, it is not open to a labour court to entertain an application under S. 33-C (2). The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Courts conclusion that"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Courts jurisdiction could not be ousted by a mere plea denying the workmans claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional plea." 24. Appearing for the appellant in Civil Appeal No. 2136/66 Mr. Pai contended that his clients liability would only commence after the 1st October ,1960 when it started to run the mill. This point had not been canvassed before the High Court and consequently we cannot entertain it. 25. In the second case Mr. Gupte argued that although his client did not raise the question of liability before, there was no question of any concession and he should be allowed to contest his liability on the basis of the application preferred for urging additional grounds before this Court. As this point was not urged in the court below this application must be refused. 26. The last point urged was that in view of standing Orders 19 and 21 the quantum of compensation had to be scaled down or measured in terms of the Standing Orders. Under Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc. stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice. Understanding Order 21, any operative played (sic) off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages during such unemployment except to the extent mentioned in Standing Order No. 19.The High Court rightly turned down the contention in view of S. 25-J of the Act under which the provisions of Chapter V-A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946. | 0[ds]18. Section 25-C provides for the measure of compensation to be awarded in cases of lay-off of workers. Section 25-E of the Act however provides inter alia that no compensation shall be paid to a workman who has been laid-off if he does not present himself for work at the establishment at the appointed time during the normal working hours at least once a day19. The claim to compensation of every workman who is laid-off is one which arises under the statue itself and S. 25-C provides for a benefit to the workman which is capable of being computed in terms of money under S. 33-C (2) of the Act. The scheme of the Act being to enable a workman to approach a Labour Court for computation of the compensation claimed by him in terms of S. 25-C of the Act he is not concerned to see whether other co-workers will or will not adopt the same course. The fact that a number of workers make claims of identical nature i.e. to compensation for lay-off, arising out of the same set of facts and circumstances cannot make any difference to the individual workman who prefers the claim. The mere fact that a large number of persons makes a claim of the same nature against the employer, does not change the nature of the dispute so as to take it out of the pale of S. 7 of the Act and render the dispute one which can only be dealt with by an Industrial Tribunal to which reference can be made by the appropriate GovernmentThis Court found that the appellant had not taken the plea in its written statement and that there had been a lay-off or a lock-out and that it had only submitted that the closure in accordance with the notice did not fall within the scope of S. 25-FFF of the Act. By issues 6 and 7 the appellant raised questions as to whether the closure had resulted in the retrenchment of the applicant and whether the closure was beyond the control of the employer. No dispute was raised about the factum of closure. Strangely enough it was urged before this Court that "there could be no closure because the appellant was merely protesting against irresponsible action of the Government and had no intention to close the business permanently." The Court found that the question of lockout was not mooted when the issues were settled nor had any plea been taken that there had been a temporary cessation of work under Standing Orders No. 11. In our view, the observations in this case do not help the appellants before usThe more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Courts conclusion that"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Courts jurisdiction could not be ousted by a mere plea denying the workmans claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional pleaUnder Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc. stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice. Understanding Order 21, any operative played (sic) off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages during such unemployment except to the extent mentioned in Standing Order No. 19.The High Court rightly turned down the contention in view of S. 25-J of the Act under which the provisions of Chapter V-A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946We do not think it necessary to go into this question as the matter can be disposed of even on the basis that it is open to the appellants to raise the question of jurisdiction before this Court although the point was not expressly taken in the grounds for leave to appeal to this Court before the High Court14. We find ourselves unable to accept Mr. Guptes contention. We may in this connection refer to the relevant provisions in the Act. The authorities under the Act are specified in different sections of Chapter II containing Ss. 3 to 9. Under S. 7 it is open to the appropriate Government by notification in the Official Gazette to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matters specified in the Second Schedule and for performing such other functions as may be assigned to them under the Act. Under S.A the appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule. In the Second Schedule are set forth certain matters in items 1 to 5 which are within the jurisdiction of a Labour Court and item 6 gives the Labour Court jurisdiction to deal with "all matters other than those specified in the Third Schedule"is not expressly covered by either of the two Schedules. It would therefore be a matter covered by the Second Schedule under item 6 thereof. Sec. 10 (1) ( c) enables the appropriate Government when it is of opinion that an industrial dispute exists or is apprehended inter alia, to refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule to a Labour Court for adjudication. So far as an Industrial Tribunal is concerned, the appropriate Government may under S. 10 (1) (d) make reference to it not only in cases covered by the Second Schedule but also those included in the Third Schedule except that when the dispute relates to any matter in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it thinks fit, make a reference to a Labour Court under cl. ( c)17. Following the above decision, it was held in Mining Engineer v. Rameshwar, (1968) 1 SCR 140 = (AIR 1968 SC 218 ) that. (2) of S.C was not confined to cases arising under an award, settlement or even under the provisions of ChapterA of the Act and the benefit provided in the bonus scheme underthe Coal Mines Provident Fund and Bonus Schemes Act, 1948 would be covered by | 0 | 5,544 | 1,373 | ### Instruction:
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order that the respondent could claim the benefit of S. 25-F it was obligatory on her to show that she had worked for 240 days in each year of service for which the claim was made. This Court found that the appellant had not taken the plea in its written statement and that there had been a lay-off or a lock-out and that it had only submitted that the closure in accordance with the notice did not fall within the scope of S. 25-FFF of the Act. By issues 6 and 7 the appellant raised questions as to whether the closure had resulted in the retrenchment of the applicant and whether the closure was beyond the control of the employer. No dispute was raised about the factum of closure. Strangely enough it was urged before this Court that "there could be no closure because the appellant was merely protesting against irresponsible action of the Government and had no intention to close the business permanently." The Court found that the question of lockout was not mooted when the issues were settled nor had any plea been taken that there had been a temporary cessation of work under Standing Orders No. 11. In our view, the observations in this case do not help the appellants before us. 22. In Sawatram Mills v. Baliram, (1966) 1 SCR 764 = (AIR 1966 SC 616 ) the claim of the workmen for lay-off during a certain period before the Second Labour Court Bombay was resisted inter alia on the ground that the said court had no jurisdiction as the dispute fell to be tried under the C. P. and Berar Industrial Disputes (Settlement) Act, 1947, and, secondly, the application under S. 33-C was incompetent because it was not a claim for money due and calculations had to be made for ascertaining the sum due. On a construction of the sections of the Industrial disputes Act this Court held that:"Compensation for lay-off could only be determined under Chapter V-A of the Industrial Disputes Act and the workmen were entitled under S. 33-C (1) to go before the Second Labour Court to realise moneys due from their employers under Chapter V-A." The Court also negatived the contention that the Industrial Disputes Act did not apply but the C. P. and Berar Industrial Disputes (Settlement) Act did as the State Act made no mention of lay-off or compensation for lay-off. The other argument was rejected following the judgment in Kays Construction Co. (P) Ltd. v. State of U. P. (1965) 2 SCR 276 = (AIR 1965 SC 1488 ). 23. In substance the point urged by the appellants was that if a claim is made on the basis of a lay-off and the employer contends that there was no lay-off but closure, it is not open to a labour court to entertain an application under S. 33-C (2). The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Courts conclusion that"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Courts jurisdiction could not be ousted by a mere plea denying the workmans claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional plea." 24. Appearing for the appellant in Civil Appeal No. 2136/66 Mr. Pai contended that his clients liability would only commence after the 1st October ,1960 when it started to run the mill. This point had not been canvassed before the High Court and consequently we cannot entertain it. 25. In the second case Mr. Gupte argued that although his client did not raise the question of liability before, there was no question of any concession and he should be allowed to contest his liability on the basis of the application preferred for urging additional grounds before this Court. As this point was not urged in the court below this application must be refused. 26. The last point urged was that in view of standing Orders 19 and 21 the quantum of compensation had to be scaled down or measured in terms of the Standing Orders. Under Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc. stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice. Understanding Order 21, any operative played (sic) off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages during such unemployment except to the extent mentioned in Standing Order No. 19.The High Court rightly turned down the contention in view of S. 25-J of the Act under which the provisions of Chapter V-A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946.
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and that there had been a lay-off or a lock-out and that it had only submitted that the closure in accordance with the notice did not fall within the scope of S. 25-FFF of the Act. By issues 6 and 7 the appellant raised questions as to whether the closure had resulted in the retrenchment of the applicant and whether the closure was beyond the control of the employer. No dispute was raised about the factum of closure. Strangely enough it was urged before this Court that "there could be no closure because the appellant was merely protesting against irresponsible action of the Government and had no intention to close the business permanently." The Court found that the question of lockout was not mooted when the issues were settled nor had any plea been taken that there had been a temporary cessation of work under Standing Orders No. 11. In our view, the observations in this case do not help the appellants before usThe more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Courts conclusion that"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Courts jurisdiction could not be ousted by a mere plea denying the workmans claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional pleaUnder Standing Order 19 the employer could, in the event of fire, breakdown of machinery etc. stop any machine or machines or department or departments wholly or partially or the whole or a part of the establishment for any period, without notice and without compensation in lieu of notice. Understanding Order 21, any operative played (sic) off under Standing Order 19 was not to be considered as dismissed from service but as temporarily unemployed and was not to be entitled to wages during such unemployment except to the extent mentioned in Standing Order No. 19.The High Court rightly turned down the contention in view of S. 25-J of the Act under which the provisions of Chapter V-A are to have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946We do not think it necessary to go into this question as the matter can be disposed of even on the basis that it is open to the appellants to raise the question of jurisdiction before this Court although the point was not expressly taken in the grounds for leave to appeal to this Court before the High Court14. We find ourselves unable to accept Mr. Guptes contention. We may in this connection refer to the relevant provisions in the Act. The authorities under the Act are specified in different sections of Chapter II containing Ss. 3 to 9. Under S. 7 it is open to the appropriate Government by notification in the Official Gazette to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matters specified in the Second Schedule and for performing such other functions as may be assigned to them under the Act. Under S.A the appropriate Government may, by notification, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule. In the Second Schedule are set forth certain matters in items 1 to 5 which are within the jurisdiction of a Labour Court and item 6 gives the Labour Court jurisdiction to deal with "all matters other than those specified in the Third Schedule"is not expressly covered by either of the two Schedules. It would therefore be a matter covered by the Second Schedule under item 6 thereof. Sec. 10 (1) ( c) enables the appropriate Government when it is of opinion that an industrial dispute exists or is apprehended inter alia, to refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule to a Labour Court for adjudication. So far as an Industrial Tribunal is concerned, the appropriate Government may under S. 10 (1) (d) make reference to it not only in cases covered by the Second Schedule but also those included in the Third Schedule except that when the dispute relates to any matter in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it thinks fit, make a reference to a Labour Court under cl. ( c)17. Following the above decision, it was held in Mining Engineer v. Rameshwar, (1968) 1 SCR 140 = (AIR 1968 SC 218 ) that. (2) of S.C was not confined to cases arising under an award, settlement or even under the provisions of ChapterA of the Act and the benefit provided in the bonus scheme underthe Coal Mines Provident Fund and Bonus Schemes Act, 1948 would be covered by
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American Express Bank Limited Vs. Calcutta Steel Company, and Others | addressee who accepts it, can never, according to the principles of the law merchant, be liable otherwise than in their respective characters of drawer and acceptor." * At p. 778 the learned Law Lord further stated that "in other cases the character and liability of parties to a bill cannot be ascertained without the aid of proof, as, for instance, when a dispute arises in regard to the order of time in which endorsements were made upon a bill. But such proof, when it is admissible, must be strictly limited to facts and circumstances attendant upon the making, issue, or endorsements of the billThis leads me to consider whether the late James M Kinlay, as a party to the bill in the sense of the law merchant, was under obligation, failing payment by his two sons or their firm, to pay the contents to Mr. Walker; and in so doing, I assume as legitimate materials for inference all those facts connected with the making, issuing, and discounting of the bill to which I have already adverted.... The tenor of the bill is, in my opinion, conclusive against the view that James MKinlay was an acceptor. Save in the case of acceptance for honour or per procuration, on one can become a party to a bill qua acceptor who is not a proper drawee, or, in other words, an addressee." * At p. 782 he stated that "I am of opinion that the character in which James MKinlay did become a party to the bill was, both in fact and law, that of an endorser; and that in determining the legal position the circumstance that MKinlay indorsement was written before the bill was delivered to the drawer and the money advanced by him is quite immaterial. No doubt a proper indorsement can only be made by one who has a right to the bill, an who thereby transmits the rights and also incurs certain well known and well-defined liabilities, . I fail to see upon what principle James MKinlay can be interpolated as a party to the bill in question between the drawer and the acceptor" * At p. 785 he further stated that "I should have had less difficulty in holding that James MKinlay, as party to the bill was an endorser, and therefore not liable to pay to Mr. Walker, the drawer, when it was dishonoured by the acceptors, had it not been that the point seems to have been otherwise decided by the Court of Queens Bench in Matthews v. Bloxsome 33 LJ(QB) 209). The report of the case is not satisfactory, and leaves room for doubt whether the decisions was intended to go so far as the report states" * At p. 785 he stated that "[B]eing of opinion that James MKinlay was not, as a party to the bill, under any obligation to the drawer, and that there is no competent or sufficient evidence of his agreement to undertake such an obligation, I think the appeal ought to be dismissed. In the light of those facts it was held that James MKinlay was not an acceptor within the meaning of Section 11 of the Bill of Exchange." * 20. The ratio in Sitaram Krishna Padhye v. Chimandas Fatehchand 1928 AIR(Bom) 516), relied on by Shri Sen is also of little assistance to the facts in this case. The Hundi therein was in the following term : "Fifty-six days after date I promise to pay Seth Chimandas Fatehchand or order the sum of Rs. 600 only or value received in cash. G. V. Athale, Managing Proprietor, Gangadhar & B. Friends, Sandhurst Road, Bombay No. 4". It was held that the person liable on the Hundi was Athale and not any alleged firm passing under the name of Gangadhar & B. Friends21. In the light of the above law and the facts of the case we unhesitatingly hold that the plaintiff, CSC is the drawee-acceptor. In a suit based on the letter of credit laid by M/s Harlow & Jones Ltd., CSC and the appellant suffered a decree in London Court which the appellant discharged and became a holder in due course. Based thereon the appellant filed Civil Suit No. 479 of 1990 under order 37 of the Code of Civil procedure against CSC which is pending in the High Court. Therefore, we do not therefore propose to express any opinion on merits of the liability of CSC. 22. Undoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of the Act is discretionary. The plaintiff cannot claim the relief as to right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind the well-settled principles of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. Grant of declaration and injunction relating to commercial transactions tend to aid dishonesty and perfidy. Conversely, refusal to grant relief generally encourages candor in business behavior, facilitates free flow of capital, prompt compliance with covenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication., Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice. From the backdrop fact-situation we have no hesitation to hold that the relief of declaration granted is unjust and illegal. It tended to impede free flow of capital, thwarted the growth of mercantile business and deflected the course of justice. | 1[ds]7. It would thus be clear that the maker of a bill of exchange is the drawer; the person thereby directed to pay is called the drawee; after the drawee has signed his assent upon the bill he is called the acceptor. In the absence of any contract to the contrary, the acceptor, before maturity of a bill of exchange, is bound to pay the amount thereof at maturity according to the acceptance to the holder on demand. No person except the drawee of the bill of exchange, in case of numerical drawees one or all drawees or the person named thereon as a drawee in case of need or honour can bind himself by anHaving given our anxious and careful consideration to the facts and circumstances of the case, we find no merit in the contentions of Shri A. K. Sen, the learned senior counsel for the first respondent which runs thus : That the liability of CSC on the basis of the bills of exchange being commercial instruments would aries only if CSC is the drawee and acceptor thereof. Since the acceptance creates a technical contract between the acceptor and the drawer, the parties to the instruments on their face alone are entitled to be dealt with and no other parties to a bill independently could act upon unless it is a case of agency which is not the case of the appellant or of the MMTC. MMTC is the principal drawee; for the purpose of receiving the goods, letters of credit were opened by CSC as per the authority dated November 18, 1986 and the bills of exchange were addressed to MMTC A/c of CSC. The sale of goods having been taken place on high seas and the bill of lading made to the order of MMTC, bills of exchange having been drawn in favour of MMTC, it alone is the drawee in relation to Harlow & Jones Ltd. and sellerthe first respondent, CSC being not an agent of the MMTC, the acceptance by CSC is void. The declaration granted by the High Court is, therefore, legal and being a discretionary relief no interference under Article 136 isLaw Merchant always insists that a negotiable instrument must bear no veil but reveal its true character on its face. A party that takes a negotiable instrument make his contract with all the parties who appear on its face to be bound for its payment. Therefore, the Act insists that a bill of exchange makes the acceptor personally liable unless the acceptor states on the face of the bill that he subscribes for a disclosed principal. The usual mode of accepting bills of exchange is for the drawee to write, accepted across the face of the bill and then to sign his or its name underneath. The acceptance need not necessarily be on the face of the bill and an acceptance on its back is also sufficient. In all cases it is essential that the acceptance should be on the bill itself otherwise it is a mereBhashyam and Adiga in their Negotiable Instruments Act, 15th edn. at page 362 stated that a bill of exchange, being in its nature a letter of request from the maker to a particular person, no one can be made liable on it but the person to whom it is addressed as the person to accept the bill. As it has been stated, the acceptance of a bill is the signification by the drawee of his assent to the request of the drawer and such acceptance must be in writing on the bill and signed by the drawee. At page 363, Bhashyam stated that if there is no drawee named in the bill and a person accepts such instruments, such acceptance must be regarded as acknowledging that he is the drawee. At page 365 it was further stated that a drawee is under no obligation to the holder to accept a bill drawn on him, even though such refusal may be in breach of a contract between the drawee and drawer. Such contract will, however, entitle the drawer to sue the drawee on breach ofThe ratio in Sitaram Krishna Padhye v. Chimandas Fatehchand 1928 AIR(Bom) 516), relied on by Shri Sen is also of little assistance to the facts in this case. The Hundi therein was in the following term :days after date I promise to pay Seth Chimandas Fatehchand or order the sum of Rs. 600 only or value received in cash. G. V. Athale, Managing Proprietor, Gangadhar & B. Friends, Sandhurst Road, Bombay No. 4". It was held that the person liable on the Hundi was Athale and not any alleged firm passing under the name of Gangadhar & B. Friends21. In the light of the above law and the facts of the case we unhesitatingly hold that the plaintiff, CSC is theIn a suit based on the letter of credit laid by M/s Harlow & Jones Ltd., CSC and the appellant suffered a decree in London Court which the appellant discharged and became a holder in due course. Based thereon the appellant filed Civil Suit No. 479 of 1990 under order 37 of the Code of Civil procedure against CSC which is pending in the High Court. Therefore, we do not therefore propose to express any opinion on merits of the liability ofUndoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of the Act is discretionary. The plaintiff cannot claim the relief as to right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind theprinciples of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. Grant of declaration and injunction relating to commercial transactions tend to aid dishonesty and perfidy. Conversely, refusal to grant relief generally encourages candor in business behavior, facilitates free flow of capital, prompt compliance with covenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication., Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice. From the backdropwe have no hesitation to hold that the relief of declaration granted is unjust and illegal. It tended to impede free flow of capital, thwarted the growth of mercantile business and deflected the course of justice | 1 | 5,724 | 1,240 | ### Instruction:
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addressee who accepts it, can never, according to the principles of the law merchant, be liable otherwise than in their respective characters of drawer and acceptor." * At p. 778 the learned Law Lord further stated that "in other cases the character and liability of parties to a bill cannot be ascertained without the aid of proof, as, for instance, when a dispute arises in regard to the order of time in which endorsements were made upon a bill. But such proof, when it is admissible, must be strictly limited to facts and circumstances attendant upon the making, issue, or endorsements of the billThis leads me to consider whether the late James M Kinlay, as a party to the bill in the sense of the law merchant, was under obligation, failing payment by his two sons or their firm, to pay the contents to Mr. Walker; and in so doing, I assume as legitimate materials for inference all those facts connected with the making, issuing, and discounting of the bill to which I have already adverted.... The tenor of the bill is, in my opinion, conclusive against the view that James MKinlay was an acceptor. Save in the case of acceptance for honour or per procuration, on one can become a party to a bill qua acceptor who is not a proper drawee, or, in other words, an addressee." * At p. 782 he stated that "I am of opinion that the character in which James MKinlay did become a party to the bill was, both in fact and law, that of an endorser; and that in determining the legal position the circumstance that MKinlay indorsement was written before the bill was delivered to the drawer and the money advanced by him is quite immaterial. No doubt a proper indorsement can only be made by one who has a right to the bill, an who thereby transmits the rights and also incurs certain well known and well-defined liabilities, . I fail to see upon what principle James MKinlay can be interpolated as a party to the bill in question between the drawer and the acceptor" * At p. 785 he further stated that "I should have had less difficulty in holding that James MKinlay, as party to the bill was an endorser, and therefore not liable to pay to Mr. Walker, the drawer, when it was dishonoured by the acceptors, had it not been that the point seems to have been otherwise decided by the Court of Queens Bench in Matthews v. Bloxsome 33 LJ(QB) 209). The report of the case is not satisfactory, and leaves room for doubt whether the decisions was intended to go so far as the report states" * At p. 785 he stated that "[B]eing of opinion that James MKinlay was not, as a party to the bill, under any obligation to the drawer, and that there is no competent or sufficient evidence of his agreement to undertake such an obligation, I think the appeal ought to be dismissed. In the light of those facts it was held that James MKinlay was not an acceptor within the meaning of Section 11 of the Bill of Exchange." * 20. The ratio in Sitaram Krishna Padhye v. Chimandas Fatehchand 1928 AIR(Bom) 516), relied on by Shri Sen is also of little assistance to the facts in this case. The Hundi therein was in the following term : "Fifty-six days after date I promise to pay Seth Chimandas Fatehchand or order the sum of Rs. 600 only or value received in cash. G. V. Athale, Managing Proprietor, Gangadhar & B. Friends, Sandhurst Road, Bombay No. 4". It was held that the person liable on the Hundi was Athale and not any alleged firm passing under the name of Gangadhar & B. Friends21. In the light of the above law and the facts of the case we unhesitatingly hold that the plaintiff, CSC is the drawee-acceptor. In a suit based on the letter of credit laid by M/s Harlow & Jones Ltd., CSC and the appellant suffered a decree in London Court which the appellant discharged and became a holder in due course. Based thereon the appellant filed Civil Suit No. 479 of 1990 under order 37 of the Code of Civil procedure against CSC which is pending in the High Court. Therefore, we do not therefore propose to express any opinion on merits of the liability of CSC. 22. Undoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of the Act is discretionary. The plaintiff cannot claim the relief as to right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind the well-settled principles of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. Grant of declaration and injunction relating to commercial transactions tend to aid dishonesty and perfidy. Conversely, refusal to grant relief generally encourages candor in business behavior, facilitates free flow of capital, prompt compliance with covenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication., Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice. From the backdrop fact-situation we have no hesitation to hold that the relief of declaration granted is unjust and illegal. It tended to impede free flow of capital, thwarted the growth of mercantile business and deflected the course of justice.
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counsel for the first respondent which runs thus : That the liability of CSC on the basis of the bills of exchange being commercial instruments would aries only if CSC is the drawee and acceptor thereof. Since the acceptance creates a technical contract between the acceptor and the drawer, the parties to the instruments on their face alone are entitled to be dealt with and no other parties to a bill independently could act upon unless it is a case of agency which is not the case of the appellant or of the MMTC. MMTC is the principal drawee; for the purpose of receiving the goods, letters of credit were opened by CSC as per the authority dated November 18, 1986 and the bills of exchange were addressed to MMTC A/c of CSC. The sale of goods having been taken place on high seas and the bill of lading made to the order of MMTC, bills of exchange having been drawn in favour of MMTC, it alone is the drawee in relation to Harlow & Jones Ltd. and sellerthe first respondent, CSC being not an agent of the MMTC, the acceptance by CSC is void. The declaration granted by the High Court is, therefore, legal and being a discretionary relief no interference under Article 136 isLaw Merchant always insists that a negotiable instrument must bear no veil but reveal its true character on its face. A party that takes a negotiable instrument make his contract with all the parties who appear on its face to be bound for its payment. Therefore, the Act insists that a bill of exchange makes the acceptor personally liable unless the acceptor states on the face of the bill that he subscribes for a disclosed principal. The usual mode of accepting bills of exchange is for the drawee to write, accepted across the face of the bill and then to sign his or its name underneath. The acceptance need not necessarily be on the face of the bill and an acceptance on its back is also sufficient. In all cases it is essential that the acceptance should be on the bill itself otherwise it is a mereBhashyam and Adiga in their Negotiable Instruments Act, 15th edn. at page 362 stated that a bill of exchange, being in its nature a letter of request from the maker to a particular person, no one can be made liable on it but the person to whom it is addressed as the person to accept the bill. As it has been stated, the acceptance of a bill is the signification by the drawee of his assent to the request of the drawer and such acceptance must be in writing on the bill and signed by the drawee. At page 363, Bhashyam stated that if there is no drawee named in the bill and a person accepts such instruments, such acceptance must be regarded as acknowledging that he is the drawee. At page 365 it was further stated that a drawee is under no obligation to the holder to accept a bill drawn on him, even though such refusal may be in breach of a contract between the drawee and drawer. Such contract will, however, entitle the drawer to sue the drawee on breach ofThe ratio in Sitaram Krishna Padhye v. Chimandas Fatehchand 1928 AIR(Bom) 516), relied on by Shri Sen is also of little assistance to the facts in this case. The Hundi therein was in the following term :days after date I promise to pay Seth Chimandas Fatehchand or order the sum of Rs. 600 only or value received in cash. G. V. Athale, Managing Proprietor, Gangadhar & B. Friends, Sandhurst Road, Bombay No. 4". It was held that the person liable on the Hundi was Athale and not any alleged firm passing under the name of Gangadhar & B. Friends21. In the light of the above law and the facts of the case we unhesitatingly hold that the plaintiff, CSC is theIn a suit based on the letter of credit laid by M/s Harlow & Jones Ltd., CSC and the appellant suffered a decree in London Court which the appellant discharged and became a holder in due course. Based thereon the appellant filed Civil Suit No. 479 of 1990 under order 37 of the Code of Civil procedure against CSC which is pending in the High Court. Therefore, we do not therefore propose to express any opinion on merits of the liability ofUndoubtedly declaration of the rights or status is one of discretion of the court under Section 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of the Act is discretionary. The plaintiff cannot claim the relief as to right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind theprinciples of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. Grant of declaration and injunction relating to commercial transactions tend to aid dishonesty and perfidy. Conversely, refusal to grant relief generally encourages candor in business behavior, facilitates free flow of capital, prompt compliance with covenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication., Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice. From the backdropwe have no hesitation to hold that the relief of declaration granted is unjust and illegal. It tended to impede free flow of capital, thwarted the growth of mercantile business and deflected the course of justice
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Commissioner Of Income Tax Vs. Dharmodayan & Co., Kerala | the High Court which is now under appeal before us and which is reported in [1974] 94 ITR 113 (Ker) was specifically brought to the notice of the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and was criticised therein on applying the wrong test. It is urged on behalf of the revenue that as the three-judge Bench having already overruled the judgment in appeal before us, there is nothing left for us to do save to allow this appeal filed by the revenue. Having given our most anxious and respectful consideration to the judgment in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) we find ourselves unable to accept this submission. The memorandum and articles of association of the assessee in that case, the Indian Chamber of Commerce, indisputably showed that the Chamber was to undertake activities for the purpose of advancing objects of general public utility (page 799). The Chamber received income, amongst other sources, from (a) arbitration fees, (b) fees collected for the certificates of origin, and (c) share in the profit made by issuing certificates of weighment and measurement. The bone of contention was whether this income was excludible under section 11(1)(a) read with section 2(15) of the Act of 196 1. As said by Krishna Iyer J. (page 799), who spoke for the court, the straight question to be answered was whether the three activities which yielded profits to the Chamber involved the carrying on of any activity for profit. Observing that the various chambers of commerce were established in the country in order to promote the trading interests of the commercial community (page 802), the court held that by the new definition in section 2(15), the benefit of exclusion from total income was taken away where in accomplishing a charitable purpose the institution engages itself in activities for profit (page 803). In other words"Section 2(15) excludes from exemption the carrying on of activities for profit even if they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit " (page 805). After so holding, the court referred to the decision of this court in the case of Loka Shikshana Trust [1975] 101 ITR 234 (SC) and observed ---See. [1975] 101 ITR 796 , 807 (SC)." Among the Kerala cases which went on the wrong test we wish to mention one, Dharmodayam Co.s case [1974] 94 ITR 113 (Ker) . The assessee-- company was conducting a profitable business of running chit funds and its memorandum of association had as one of its objects to do the needful for the promotion of charity, education and industry. The court found it possible on these facts to grant the benefit of section 2(15) by a recondite reasoning. If this ratio were to hold good, businessmen have a highroad to tax avoidance. Dharmodayam Co.s case [1974] 94 ITR 113 (Ker) shows how dangerous the consequence can be if the provision were misconstrued. " 7. This is square and scathing comment on the judgment now in appeal before us and the court has expressed its view in unequivocal language. But we cannot accept that the court " overruled ", as stated in the headnote of the report (page 797), the judgment of the Kerala High Court and that we must, without considering the facts of the case, allow the appeal straightaway. The facts of the instant case were not before the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and it is evident from the passage extracted above that the test applied by the Kerala High Court was held to be wrong on the assumption that the case fell under the last clause of section 2(15) of the Act of 1961, which was the only part of section 2(15) relevant for deciding the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC). Considering further that the word " industry " has been italicised in the passage extracted above, it is plain that the court assumed that the assessee was engaged in running an industry. We have endeavoured to point out that, on the facts of the case, it is impossible to hold that the last clause of section 2(15) has any application and that, in the light of the activities of the respondent spread over the past several years, no importance can be attached to clause 39 of its articles of association which enables it " to do the needful for the promotion of ......... industry ". With great deference, therefore, we are unable to read the decision in the case of Indian Chamber of Commerce [ 1975] 101 ITR 796 (SC) as overruling the judgment which is under appeal before us. The court was not even apprised there that this appeal was pending against the decision of the Kerala High CourtWe are, therefore, of the opinion, strictly limiting ourselves to the facts of the case and for the reasons mentioned above, that the income derived by the assessee from the kuries is exempt from taxation under section 11(1)(a) of the Act of 1961. 8. The second question presents no difficulty. The apprehension that in exercise of the power conferred by article 39 of the articles of association, the general meeting may set apart the entire profit or a substantive part of it for reserves is unfounded. If and when the affairs of the respondent take that shape, the department will have ample powers and opportunity to deny the exemption to the respondent. For the time being it is enough to state that the High Court has found that the respondent has spent the income for charitable purposes. The answer to the second question must, therefore, be that the power to set apart reserves under article 39 will not, without more, vitiate the charitable nature of the institution. 9. | 0[ds]It is undeniable that the law governing exemption from taxation of income derived from property held for religious or charitable purposes has undergone significant changes after the enactment of the Act of 1961But we are unable to accept the submission made by Mr. Ramamurthi on behalf of the revenue that by reason of the change brought about by the Act of 1961 in the definition of the expression " charitable purpose ", the judgment of the Kerala High Court in Dharmodayams case [1962] 45 ITR 478 (Ker) is not good law and that the decision therein cannot any longer govern the question whether income received by the assessee by conducting the kuries is exempt from taxation. The entire argument is built around the words " advancement of any other object of general public utility not involving the carrying on of any activity for profit " which occur in the definition of " charitable purpose " contained in section 2(15) of the Act of 1961, particular emphasis being laid by counsel on the expression " not involving the carrying on of any activity for profit ". This argument assumes that the respondent is running the kuries as a matter of advancement of an object of general public utility. If that were so, it would have been necessary to inquire whether conducting the kuri business involved the carrying on of any activity for profit. The answer, perhaps, to that inquiry might have been in the affirmative since speaking generally, the conduct of a business involves the carrying on of an activity for profit. But the assumption that the respondent is running the kuri business as a matter of advancement of an object of general public utility or for that purpose is plainly contrary to the finding of the Kerala High Court in Dharmodayam Co.s case [1962] 45 ITR 478 (Ker) , that the kuri " business itself is held under a trust for religious or charitable purposes ". It is a necessary implication of this finding that the business activity was not undertaken by the respondent in order to advance any object of general public utility. The decision of the Kerala High Court was challenged by the revenue in an appeal filed in this court, but that appeal was withdrawn by it. The relevant legislative provision has certainly undergone a change, but the nature of the respondents activity remains what it was when the Kerala High Court gave its judgment in Dharmodayam Co.s case [1962] 45 ITR 478 (Ker) . It will, therefore, be erroneous to say, as contended by Mr. Ramamurthi on behalf of the revenue, that the Kerala judgment has lost its validity. That judgment, in our opinion, concludes the point that the kuri business is not conducted by the respondent in order to advance or for the purpose of advancing any object of general public utilityIt is undisputed that the respondent-company, which was registered on January 21, 1959, under the Cochin Companies Act, has never engaged itself in any industry or in any other activity of public interest. It is notorious that the memoranda and articles of association of companies usually cover a variety of activities, only a few of which are in fact undertaken or intended to be undertaken. That obviates the necessity for applying for amendment of the articles from time to time and helps to rule out a possible challenge on the ground that the company has acted beyond its powers in undertaking a particular form of activity. The only activity in which the respondent is engaged over the years is the conduct of kuries. On this aspect of the matter the High Court rightly observesAfter referring to the judgment of this court in the earlier case, the Kerala High Court took the view that the income in respect of which exemption was claimed was not excludible from the total income of the assessee since the assessee had commenced a business for the purpose of advancing an object of general public utility involving the carrying on of an activity for profit. The main argument advanced before the Kerala High Court was that the true purpose of the business, as gleaned from all the circumstances of the case, was to afford medical relief and not the advancement of an object of general public utility. The High Court rejected that argument and held that the preparation and sale of ayurvedic medicines cannot be said to be an activity in the nature of medical relief. As explained earlier, in the instant case the last clause of section 2(15) of the Act of 1961, which is described in various judgments as the fourth category falling within the terms of that section, has no applicationThis has no application in the instant case since the business of kuries was not started by the respondent with the object or for the purpose of advancing an object of general public utilityHaving given our most anxious and respectful consideration to the judgment in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) we find ourselves unable to accept this submission.The facts of the instant case were not before the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and it is evident from the passage extracted above that the test applied by the Kerala High Court was held to be wrong on the assumption that the case fell under the last clause of section 2(15) of the Act of 1961, which was the only part of section 2(15) relevant for deciding the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC). Considering further that the word " industry " has been italicised in the passage extracted above, it is plain that the court assumed that the assessee was engaged in running an industry. We have endeavoured to point out that, on the facts of the case, it is impossible to hold that the last clause of section 2(15) has any application and that, in the light of the activities of the respondent spread over the past several years, no importance can be attached to clause 39 of its articles of association which enables it " to do the needful for the promotion of ......... industry ". With great deference, therefore, we are unable to read the decision in the case of Indian Chamber of Commerce [ 1975] 101 ITR 796 (SC) as overruling the judgment which is under appeal before us. The court was not even apprised there that this appeal was pending against the decision of the Kerala High CourtWe are, therefore, of the opinion, strictly limiting ourselves to the facts of the case and for the reasons mentioned above, that the income derived by the assessee from the kuries is exempt from taxation under section 11(1)(a) of the Act of 1961The second question presents no difficulty. The apprehension that in exercise of the power conferred by article 39 of the articles of association, the general meeting may set apart the entire profit or a substantive part of it for reserves is unfounded. If and when the affairs of the respondent take that shape, the department will have ample powers and opportunity to deny the exemption to the respondent. For the time being it is enough to state that the High Court has found that the respondent has spent the income for charitable purposes. The answer to the second question must, therefore, be that the power to set apart reserves under article 39 will not, without more, vitiate the charitable nature of the institution. | 0 | 4,786 | 1,382 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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the High Court which is now under appeal before us and which is reported in [1974] 94 ITR 113 (Ker) was specifically brought to the notice of the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and was criticised therein on applying the wrong test. It is urged on behalf of the revenue that as the three-judge Bench having already overruled the judgment in appeal before us, there is nothing left for us to do save to allow this appeal filed by the revenue. Having given our most anxious and respectful consideration to the judgment in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) we find ourselves unable to accept this submission. The memorandum and articles of association of the assessee in that case, the Indian Chamber of Commerce, indisputably showed that the Chamber was to undertake activities for the purpose of advancing objects of general public utility (page 799). The Chamber received income, amongst other sources, from (a) arbitration fees, (b) fees collected for the certificates of origin, and (c) share in the profit made by issuing certificates of weighment and measurement. The bone of contention was whether this income was excludible under section 11(1)(a) read with section 2(15) of the Act of 196 1. As said by Krishna Iyer J. (page 799), who spoke for the court, the straight question to be answered was whether the three activities which yielded profits to the Chamber involved the carrying on of any activity for profit. Observing that the various chambers of commerce were established in the country in order to promote the trading interests of the commercial community (page 802), the court held that by the new definition in section 2(15), the benefit of exclusion from total income was taken away where in accomplishing a charitable purpose the institution engages itself in activities for profit (page 803). In other words"Section 2(15) excludes from exemption the carrying on of activities for profit even if they are linked with the objectives of general public utility, because the statute interdicts, for purposes of tax relief, the advancement of such objects by involvement in the carrying on of activities for profit " (page 805). After so holding, the court referred to the decision of this court in the case of Loka Shikshana Trust [1975] 101 ITR 234 (SC) and observed ---See. [1975] 101 ITR 796 , 807 (SC)." Among the Kerala cases which went on the wrong test we wish to mention one, Dharmodayam Co.s case [1974] 94 ITR 113 (Ker) . The assessee-- company was conducting a profitable business of running chit funds and its memorandum of association had as one of its objects to do the needful for the promotion of charity, education and industry. The court found it possible on these facts to grant the benefit of section 2(15) by a recondite reasoning. If this ratio were to hold good, businessmen have a highroad to tax avoidance. Dharmodayam Co.s case [1974] 94 ITR 113 (Ker) shows how dangerous the consequence can be if the provision were misconstrued. " 7. This is square and scathing comment on the judgment now in appeal before us and the court has expressed its view in unequivocal language. But we cannot accept that the court " overruled ", as stated in the headnote of the report (page 797), the judgment of the Kerala High Court and that we must, without considering the facts of the case, allow the appeal straightaway. The facts of the instant case were not before the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and it is evident from the passage extracted above that the test applied by the Kerala High Court was held to be wrong on the assumption that the case fell under the last clause of section 2(15) of the Act of 1961, which was the only part of section 2(15) relevant for deciding the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC). Considering further that the word " industry " has been italicised in the passage extracted above, it is plain that the court assumed that the assessee was engaged in running an industry. We have endeavoured to point out that, on the facts of the case, it is impossible to hold that the last clause of section 2(15) has any application and that, in the light of the activities of the respondent spread over the past several years, no importance can be attached to clause 39 of its articles of association which enables it " to do the needful for the promotion of ......... industry ". With great deference, therefore, we are unable to read the decision in the case of Indian Chamber of Commerce [ 1975] 101 ITR 796 (SC) as overruling the judgment which is under appeal before us. The court was not even apprised there that this appeal was pending against the decision of the Kerala High CourtWe are, therefore, of the opinion, strictly limiting ourselves to the facts of the case and for the reasons mentioned above, that the income derived by the assessee from the kuries is exempt from taxation under section 11(1)(a) of the Act of 1961. 8. The second question presents no difficulty. The apprehension that in exercise of the power conferred by article 39 of the articles of association, the general meeting may set apart the entire profit or a substantive part of it for reserves is unfounded. If and when the affairs of the respondent take that shape, the department will have ample powers and opportunity to deny the exemption to the respondent. For the time being it is enough to state that the High Court has found that the respondent has spent the income for charitable purposes. The answer to the second question must, therefore, be that the power to set apart reserves under article 39 will not, without more, vitiate the charitable nature of the institution. 9.
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assumption that the respondent is running the kuri business as a matter of advancement of an object of general public utility or for that purpose is plainly contrary to the finding of the Kerala High Court in Dharmodayam Co.s case [1962] 45 ITR 478 (Ker) , that the kuri " business itself is held under a trust for religious or charitable purposes ". It is a necessary implication of this finding that the business activity was not undertaken by the respondent in order to advance any object of general public utility. The decision of the Kerala High Court was challenged by the revenue in an appeal filed in this court, but that appeal was withdrawn by it. The relevant legislative provision has certainly undergone a change, but the nature of the respondents activity remains what it was when the Kerala High Court gave its judgment in Dharmodayam Co.s case [1962] 45 ITR 478 (Ker) . It will, therefore, be erroneous to say, as contended by Mr. Ramamurthi on behalf of the revenue, that the Kerala judgment has lost its validity. That judgment, in our opinion, concludes the point that the kuri business is not conducted by the respondent in order to advance or for the purpose of advancing any object of general public utilityIt is undisputed that the respondent-company, which was registered on January 21, 1959, under the Cochin Companies Act, has never engaged itself in any industry or in any other activity of public interest. It is notorious that the memoranda and articles of association of companies usually cover a variety of activities, only a few of which are in fact undertaken or intended to be undertaken. That obviates the necessity for applying for amendment of the articles from time to time and helps to rule out a possible challenge on the ground that the company has acted beyond its powers in undertaking a particular form of activity. The only activity in which the respondent is engaged over the years is the conduct of kuries. On this aspect of the matter the High Court rightly observesAfter referring to the judgment of this court in the earlier case, the Kerala High Court took the view that the income in respect of which exemption was claimed was not excludible from the total income of the assessee since the assessee had commenced a business for the purpose of advancing an object of general public utility involving the carrying on of an activity for profit. The main argument advanced before the Kerala High Court was that the true purpose of the business, as gleaned from all the circumstances of the case, was to afford medical relief and not the advancement of an object of general public utility. The High Court rejected that argument and held that the preparation and sale of ayurvedic medicines cannot be said to be an activity in the nature of medical relief. As explained earlier, in the instant case the last clause of section 2(15) of the Act of 1961, which is described in various judgments as the fourth category falling within the terms of that section, has no applicationThis has no application in the instant case since the business of kuries was not started by the respondent with the object or for the purpose of advancing an object of general public utilityHaving given our most anxious and respectful consideration to the judgment in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) we find ourselves unable to accept this submission.The facts of the instant case were not before the court in the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC) and it is evident from the passage extracted above that the test applied by the Kerala High Court was held to be wrong on the assumption that the case fell under the last clause of section 2(15) of the Act of 1961, which was the only part of section 2(15) relevant for deciding the case of Indian Chamber of Commerce [1975] 101 ITR 796 (SC). Considering further that the word " industry " has been italicised in the passage extracted above, it is plain that the court assumed that the assessee was engaged in running an industry. We have endeavoured to point out that, on the facts of the case, it is impossible to hold that the last clause of section 2(15) has any application and that, in the light of the activities of the respondent spread over the past several years, no importance can be attached to clause 39 of its articles of association which enables it " to do the needful for the promotion of ......... industry ". With great deference, therefore, we are unable to read the decision in the case of Indian Chamber of Commerce [ 1975] 101 ITR 796 (SC) as overruling the judgment which is under appeal before us. The court was not even apprised there that this appeal was pending against the decision of the Kerala High CourtWe are, therefore, of the opinion, strictly limiting ourselves to the facts of the case and for the reasons mentioned above, that the income derived by the assessee from the kuries is exempt from taxation under section 11(1)(a) of the Act of 1961The second question presents no difficulty. The apprehension that in exercise of the power conferred by article 39 of the articles of association, the general meeting may set apart the entire profit or a substantive part of it for reserves is unfounded. If and when the affairs of the respondent take that shape, the department will have ample powers and opportunity to deny the exemption to the respondent. For the time being it is enough to state that the High Court has found that the respondent has spent the income for charitable purposes. The answer to the second question must, therefore, be that the power to set apart reserves under article 39 will not, without more, vitiate the charitable nature of the institution.
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M/S Swastik Gases P.Ltd Vs. Indian Oil Corp.Ltd | had filed a suit at Vijayawada for recovery of dues from the petitioner while the petitioner had filed a suit for recovery of its alleged dues from the respondent in Calcutta High Court. One of the questions under consideration before this Court was whether the court at Vijayawada had no jurisdiction to entertain the suit on account of exclusion clause in the agreement. Having regard to the facts obtaining in the case, this Court first held that both the courts within the jurisdiction of Calcutta and Vijayawada had jurisdiction to try the suit. Then it was held that in view of the exclusion clause in the agreement, the jurisdiction of courts at Vijayawada would stand ousted. 29. Section 11(12)(b) of the 1996 Act provides that where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an arbitration other than the international commercial arbitration, the reference to ‘Chief Justice’ in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the Principal Civil Court referred to in Section 2(1)(e) is situate, and where the High Court itself is the court referred to in clause (e) of sub- section (1) of Section 2, to the Chief Justice of that High Court. Clause (e) of sub-section (1) of Section 2 defines ‘Court’ which means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes. 30. When it comes to the question of territorial jurisdiction relating to the application under Section 11, besides the above legislative provisions, Section 20 of the Code is relevant. Section 20 of the Code states that subject to the limitations provided in Sections 15 to 19, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part arises. The explanation appended to Section 20 clarifies that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like ‘alone’, ‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement – is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner. 32. The above view finds support from the decisions of this Court in Hakam Singh, A.B.C. Laminart, R.S.D.V. Finance, Angile Insulations, Shriram City, Hanil Era Textiles and Balaji Coke. 33. In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law. | 0[ds]31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words likeor ‘exclusivehave not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement – is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law. | 0 | 6,951 | 493 | ### Instruction:
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had filed a suit at Vijayawada for recovery of dues from the petitioner while the petitioner had filed a suit for recovery of its alleged dues from the respondent in Calcutta High Court. One of the questions under consideration before this Court was whether the court at Vijayawada had no jurisdiction to entertain the suit on account of exclusion clause in the agreement. Having regard to the facts obtaining in the case, this Court first held that both the courts within the jurisdiction of Calcutta and Vijayawada had jurisdiction to try the suit. Then it was held that in view of the exclusion clause in the agreement, the jurisdiction of courts at Vijayawada would stand ousted. 29. Section 11(12)(b) of the 1996 Act provides that where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an arbitration other than the international commercial arbitration, the reference to ‘Chief Justice’ in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the Principal Civil Court referred to in Section 2(1)(e) is situate, and where the High Court itself is the court referred to in clause (e) of sub- section (1) of Section 2, to the Chief Justice of that High Court. Clause (e) of sub-section (1) of Section 2 defines ‘Court’ which means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes. 30. When it comes to the question of territorial jurisdiction relating to the application under Section 11, besides the above legislative provisions, Section 20 of the Code is relevant. Section 20 of the Code states that subject to the limitations provided in Sections 15 to 19, every suit shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part arises. The explanation appended to Section 20 clarifies that a corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like ‘alone’, ‘only’, ‘exclusive’ or ‘exclusive jurisdiction’ have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement – is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner. 32. The above view finds support from the decisions of this Court in Hakam Singh, A.B.C. Laminart, R.S.D.V. Finance, Angile Insulations, Shriram City, Hanil Era Textiles and Balaji Coke. 33. In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law.
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31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, Chief Justice of the Rajasthan High Court or the designate Judge has jurisdiction to consider the application made by the appellant for the appointment of an arbitrator under Section 11. Having regard to Section 11(12)(b) and Section 2(e) of the 1996 Act read with Section 20(c) of the Code, there remains no doubt that the Chief Justice or the designate Judge of the Rajasthan High Court has jurisdiction in the matter. The question is, whether parties by virtue of clause 18 of the agreement have agreed to exclude the jurisdiction of the courts at Jaipur or, in other words, whether in view of clause 18 of the agreement, the jurisdiction of Chief Justice of the Rajasthan High Court has been excluded. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words likeor ‘exclusivehave not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties - by having clause 18 in the agreement – is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner.In view of the above, we answer the question in the affirmative and hold that the impugned order does not suffer from any error of law.
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Mrs. Hema Khattar Vs. Mr. Shiv Khera | party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before the Court.] (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 24. It is also worthwhile to note Clause 33(d) of the agreement dated 06.06.2009 which refers the parties to Arbitration:- Governing Law & Dispute Resolution:All or any disputes and differences whatsoever between the parties arising out of this Agreement or relating to or touching the mutual rights and obligations of the parties shall be subject to the jurisdiction of the Courts/Forums in Delhi only and shall be referred for adjudication to the sole arbitrator, to be appointed solely and exclusively by the FIRST PARTY, whose decision shall be final and binding upon the parties. The arbitration proceedings shall be held at New Delhi, India and only the Courts at New Delhi, India alone shall have jurisdiction over the subject matter of this AGREEMENT. 25. In Sundaram Finance Limited and Another v. T. Thankam (2015) 14 SCC 444 , this Court has held as under:- 8. Once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the agreement, approaches the civil court and the other party, in terms of Section 8 of the Arbitration Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed, in view of the peremptory language of Section 8 of the Arbitration Act, it is obligatory for the court to refer the parties to arbitration in terms of the agreement, as held by this Court in P. Anand Gajapathi Raju v. P.V.G. Raju. 26. In P. Anand Gajapathi Raju & Others v. P.V.G. Raju (Dead) and Others (2000) 4 SCC 539 , it was held as under:- 5. The conditions which are required to be satisfied under sub-sections (1) and (2) of Section 8 before the court can exercise its powers are: (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the court against the other party; (3) subject-matter of the action is the same as the subject-matter of the arbitration agreement; (4) the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. In view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. 27. In view of the above, we are of the considered opinion that in the present case, the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. We have come to the conclusion that the civil court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant. 28. As we have already held that the oral agreement as evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 06/07.04.2011 substituting the alleged written agreement dated 06.06.2009 and which contained a clause for arbitration, the same clause for arbitration would also be applicable to the oral agreement. The Division Bench has also erred in law in affirming the order passed by learned single Judge. Both the orders, therefore, cannot be sustained and are set aside and, therefore, in view of the decision in P.R. Shah (supra), there can only be one arbitrator and there can only be a single arbitration. | 1[ds]22. In view of the foregoing discussion, we are of the opinion that the appellants even though had different causes of action against the respondent but it was a continuity of the agreement dated 06.06.2009 and oral agreement is evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 6/07.04.2011, therefore, both the appellants could have joined as plaintiffs in a suit and the suit is not bad for misjoinder of parties or causes of action. Hence, learned single Judge as also the division bench, was not right in giving an option to the appellants to pursue reliefs qua appellant No. 1 or qua appellant No. 2 onlyIn view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitratorIn view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator27. In view of the above, we are of the considered opinion that in the present case, the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. We have come to the conclusion that the civil court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant28. As we have already held that the oral agreement as evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 06/07.04.2011 substituting the alleged written agreement dated 06.06.2009 and which contained a clause for arbitration, the same clause for arbitration would also be applicable to the oral agreement. The Division Bench has also erred in law in affirming the order passed by learned single Judge. Both the orders, therefore, cannot be sustained and are set aside and, therefore, in view of the decision in P.R. Shah (supra), there can only be one arbitrator and there can only be a single arbitration | 1 | 5,244 | 781 | ### Instruction:
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party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof: [Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before the Court.] (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. 24. It is also worthwhile to note Clause 33(d) of the agreement dated 06.06.2009 which refers the parties to Arbitration:- Governing Law & Dispute Resolution:All or any disputes and differences whatsoever between the parties arising out of this Agreement or relating to or touching the mutual rights and obligations of the parties shall be subject to the jurisdiction of the Courts/Forums in Delhi only and shall be referred for adjudication to the sole arbitrator, to be appointed solely and exclusively by the FIRST PARTY, whose decision shall be final and binding upon the parties. The arbitration proceedings shall be held at New Delhi, India and only the Courts at New Delhi, India alone shall have jurisdiction over the subject matter of this AGREEMENT. 25. In Sundaram Finance Limited and Another v. T. Thankam (2015) 14 SCC 444 , this Court has held as under:- 8. Once there is an agreement between the parties to refer the disputes or differences arising out of the agreement to arbitration, and in case either party, ignoring the terms of the agreement, approaches the civil court and the other party, in terms of Section 8 of the Arbitration Act, moves the court for referring the parties to arbitration before the first statement on the substance of the dispute is filed, in view of the peremptory language of Section 8 of the Arbitration Act, it is obligatory for the court to refer the parties to arbitration in terms of the agreement, as held by this Court in P. Anand Gajapathi Raju v. P.V.G. Raju. 26. In P. Anand Gajapathi Raju & Others v. P.V.G. Raju (Dead) and Others (2000) 4 SCC 539 , it was held as under:- 5. The conditions which are required to be satisfied under sub-sections (1) and (2) of Section 8 before the court can exercise its powers are: (1) there is an arbitration agreement; (2) a party to the agreement brings an action in the court against the other party; (3) subject-matter of the action is the same as the subject-matter of the arbitration agreement; (4) the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. In view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator. 27. In view of the above, we are of the considered opinion that in the present case, the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. We have come to the conclusion that the civil court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant. 28. As we have already held that the oral agreement as evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 06/07.04.2011 substituting the alleged written agreement dated 06.06.2009 and which contained a clause for arbitration, the same clause for arbitration would also be applicable to the oral agreement. The Division Bench has also erred in law in affirming the order passed by learned single Judge. Both the orders, therefore, cannot be sustained and are set aside and, therefore, in view of the decision in P.R. Shah (supra), there can only be one arbitrator and there can only be a single arbitration.
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22. In view of the foregoing discussion, we are of the opinion that the appellants even though had different causes of action against the respondent but it was a continuity of the agreement dated 06.06.2009 and oral agreement is evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 6/07.04.2011, therefore, both the appellants could have joined as plaintiffs in a suit and the suit is not bad for misjoinder of parties or causes of action. Hence, learned single Judge as also the division bench, was not right in giving an option to the appellants to pursue reliefs qua appellant No. 1 or qua appellant No. 2 onlyIn view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitratorIn view of the above, where an agreement is terminated by one party on account of the breach committed by the other, particularly, in a case where the clause is framed in wide and general terms, merely because agreement has come to an end by its termination by mutual consent, the arbitration clause does not get perished nor is rendered inoperative. This Court, in the case of P. Anand Gajapathi Raju (supra), has held that the language of Section 8 is peremptory in nature. Therefore, in cases where there is an arbitration clause in the agreement, it is obligatory for the court to refer the parties to arbitration in terms of their arbitration agreement and nothing remains to be decided in the original action after such an application is made except to refer the dispute to an arbitrator. Therefore, it is clear that in an agreement between the parties before the civil court, if there is a clause for arbitration, it is mandatory for the civil court to refer the dispute to an arbitrator27. In view of the above, we are of the considered opinion that in the present case, the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. We have come to the conclusion that the civil court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant28. As we have already held that the oral agreement as evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 06/07.04.2011 substituting the alleged written agreement dated 06.06.2009 and which contained a clause for arbitration, the same clause for arbitration would also be applicable to the oral agreement. The Division Bench has also erred in law in affirming the order passed by learned single Judge. Both the orders, therefore, cannot be sustained and are set aside and, therefore, in view of the decision in P.R. Shah (supra), there can only be one arbitrator and there can only be a single arbitration
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Himani Alloys Ltd Vs. Tata Steel Ltd | for a sum of Rs.48,00,000/- in favour of the Registrar of the High Court. The intra appeal filed by the appellant was dismissed by the Division Bench of the High Court by judgment dated 22.9.2008. The said judgment is under challenge in this appeal by special leave. 4. Order 12 Rule 6 of the Code provides that where admission of facts have been made in the pleadings or otherwise, whether oral or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.5. The specific case of the respondent-plaintiff in the application was that at a meeting held on 9.12.2000 for reconciling the accounts as on 31.3.1999, the appellant admitted that a sum of Rs.74,57,074/50 was outstanding to the respondent and therefore it was entitled to a judgment on admission for that amount. The learned single Judge found that there was no such admission in regard to Rs.74,57,074/50 in the minutes of the meeting dated 9.12.2000. He however held that the minutes of the meeting dated 9.12.2000 recorded an admission by the appellant in respect of a sum of Rs.47,06,775/70 and consequently made a judgment on admission in regard to Rs.47,06,775/70 against the appellant. The question is whether such judgment on admission was justified.6. The sum of Rs.74,57,074/50 described as the amount admitted to be due by the appellant, has nothing to do with appellant (Himani Alloys Ltd.). It is an amount that actually figures in the minutes of a meeting held on 23.2.2001 between the representatives of the respondent and another company by name Himani Ferro Alloys Ltd. Thus the specific case of admission put forth by the respondent in its application seeking a judgment on admission, was found to be incorrect. The respondent did not refer to or rely upon any other admission, nor sought judgment in regard to any other admission. Once the claim of the respondent regarding admission was proved to be incorrect, its application for judgment on admission ought to have been rejected by the High Court. The High Court could not have embarked upon an enquiry as to whether there was some other admission nor given a judgment on the basis of such other admission, not pleaded by the respondent-plaintiff. If the respondent wanted to rely upon some other admission, it ought to have made a separate application, so that the appellant could have filed its objections to the same. That was not done.7. Assuming that the High Court could have examined whether there was some other `admission in the minutes of the meeting dated 9.12.2000 relied on by the respondent, let us examine whether there was in fact any admission, on the basis of which a judgment on admission could have been passed. The minutes of the meeting dated 9.12.2000 no doubt starts by noting that the "As per Himanis records: credit TISCO Rs.47,06,789.00" as on 31.3.1999. It also records that as per TISCOs records, as on 31.3.1999, the amount due by Himani(appellant) was Rs.61,49,449/30 and if three deductions (which were yet to be checked) were made, the amount due would be Rs.47,06,775/70. Thereafter, in paragraphs 3,4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.8. Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (appellant) to pay any amount to TISCO (respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount `X to the credit of the supplier, it can not be treated as an admission that the said amount `X was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or `reveral of credits or `settlement of the account. We therefore hold that there was no admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.9. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear `admission which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120 ], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753 ] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601 ]. There is no such admission in this case. | 1[ds]4. Order 12 Rule 6 of the Code provides that where admission of facts have been made in the pleadings or otherwise, whether oral or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.5. The specific case of the respondent-plaintiff in the application was that at a meeting held on 9.12.2000 for reconciling the accounts as on 31.3.1999, the appellant admitted that a sum of Rs.74,57,074/50 was outstanding to the respondent and therefore it was entitled to a judgment on admission for that amount. The learned single Judge found that there was no such admission in regard to Rs.74,57,074/50 in the minutes of the meeting dated 9.12.2000. He however held that the minutes of the meeting dated 9.12.2000 recorded an admission by the appellant in respect of a sum of Rs.47,06,775/70 and consequently made a judgment on admission in regard to Rs.47,06,775/70 against the appellant. The question is whether such judgment on admission was justified.6. The sum of Rs.74,57,074/50 described as the amount admitted to be due by the appellant, has nothing to do with appellant (Himani Alloys Ltd.). It is an amount that actually figures in the minutes of a meeting held on 23.2.2001 between the representatives of the respondent and another company by name Himani Ferro Alloys Ltd. Thus the specific case of admission put forth by the respondent in its application seeking a judgment on admission, was found to be incorrect. The respondent did not refer to or rely upon any other admission, nor sought judgment in regard to any other admission. Once the claim of the respondent regarding admission was proved to be incorrect, its application for judgment on admission ought to have been rejected by the High Court. The High Court could not have embarked upon an enquiry as to whether there was some other admission nor given a judgment on the basis of such other admission, not pleaded by the respondent-plaintiff. If the respondent wanted to rely upon some other admission, it ought to have made a separate application, so that the appellant could have filed its objections to the same. That was not done.7. Assuming that the High Court could have examined whether there was some other `admission in the minutes of the meeting dated 9.12.2000 relied on by the respondent, let us examine whether there was in fact any admission, on the basis of which a judgment on admission could have been passed. The minutes of the meeting dated 9.12.2000 no doubt starts by noting that the "As per Himanis records: credit TISCO Rs.47,06,789.00" as on 31.3.1999. It also records that as per TISCOs records, as on 31.3.1999, the amount due by Himani(appellant) was Rs.61,49,449/30 and if three deductions (which were yet to be checked) were made, the amount due would be Rs.47,06,775/70. Thereafter, in paragraphs 3,4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.8. Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (appellant) to pay any amount to TISCO (respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount `X to the credit of the supplier, it can not be treated as an admission that the said amount `X was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or `reveral of credits or `settlement of the account. We therefore hold that there was no admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.9. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear `admission which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120 ], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753 ] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601 ]. There is no such admission in this case. | 1 | 1,306 | 1,062 | ### 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:
for a sum of Rs.48,00,000/- in favour of the Registrar of the High Court. The intra appeal filed by the appellant was dismissed by the Division Bench of the High Court by judgment dated 22.9.2008. The said judgment is under challenge in this appeal by special leave. 4. Order 12 Rule 6 of the Code provides that where admission of facts have been made in the pleadings or otherwise, whether oral or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.5. The specific case of the respondent-plaintiff in the application was that at a meeting held on 9.12.2000 for reconciling the accounts as on 31.3.1999, the appellant admitted that a sum of Rs.74,57,074/50 was outstanding to the respondent and therefore it was entitled to a judgment on admission for that amount. The learned single Judge found that there was no such admission in regard to Rs.74,57,074/50 in the minutes of the meeting dated 9.12.2000. He however held that the minutes of the meeting dated 9.12.2000 recorded an admission by the appellant in respect of a sum of Rs.47,06,775/70 and consequently made a judgment on admission in regard to Rs.47,06,775/70 against the appellant. The question is whether such judgment on admission was justified.6. The sum of Rs.74,57,074/50 described as the amount admitted to be due by the appellant, has nothing to do with appellant (Himani Alloys Ltd.). It is an amount that actually figures in the minutes of a meeting held on 23.2.2001 between the representatives of the respondent and another company by name Himani Ferro Alloys Ltd. Thus the specific case of admission put forth by the respondent in its application seeking a judgment on admission, was found to be incorrect. The respondent did not refer to or rely upon any other admission, nor sought judgment in regard to any other admission. Once the claim of the respondent regarding admission was proved to be incorrect, its application for judgment on admission ought to have been rejected by the High Court. The High Court could not have embarked upon an enquiry as to whether there was some other admission nor given a judgment on the basis of such other admission, not pleaded by the respondent-plaintiff. If the respondent wanted to rely upon some other admission, it ought to have made a separate application, so that the appellant could have filed its objections to the same. That was not done.7. Assuming that the High Court could have examined whether there was some other `admission in the minutes of the meeting dated 9.12.2000 relied on by the respondent, let us examine whether there was in fact any admission, on the basis of which a judgment on admission could have been passed. The minutes of the meeting dated 9.12.2000 no doubt starts by noting that the "As per Himanis records: credit TISCO Rs.47,06,789.00" as on 31.3.1999. It also records that as per TISCOs records, as on 31.3.1999, the amount due by Himani(appellant) was Rs.61,49,449/30 and if three deductions (which were yet to be checked) were made, the amount due would be Rs.47,06,775/70. Thereafter, in paragraphs 3,4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.8. Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (appellant) to pay any amount to TISCO (respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount `X to the credit of the supplier, it can not be treated as an admission that the said amount `X was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or `reveral of credits or `settlement of the account. We therefore hold that there was no admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.9. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear `admission which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120 ], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753 ] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601 ]. There is no such admission in this case.
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1
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4. Order 12 Rule 6 of the Code provides that where admission of facts have been made in the pleadings or otherwise, whether oral or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.5. The specific case of the respondent-plaintiff in the application was that at a meeting held on 9.12.2000 for reconciling the accounts as on 31.3.1999, the appellant admitted that a sum of Rs.74,57,074/50 was outstanding to the respondent and therefore it was entitled to a judgment on admission for that amount. The learned single Judge found that there was no such admission in regard to Rs.74,57,074/50 in the minutes of the meeting dated 9.12.2000. He however held that the minutes of the meeting dated 9.12.2000 recorded an admission by the appellant in respect of a sum of Rs.47,06,775/70 and consequently made a judgment on admission in regard to Rs.47,06,775/70 against the appellant. The question is whether such judgment on admission was justified.6. The sum of Rs.74,57,074/50 described as the amount admitted to be due by the appellant, has nothing to do with appellant (Himani Alloys Ltd.). It is an amount that actually figures in the minutes of a meeting held on 23.2.2001 between the representatives of the respondent and another company by name Himani Ferro Alloys Ltd. Thus the specific case of admission put forth by the respondent in its application seeking a judgment on admission, was found to be incorrect. The respondent did not refer to or rely upon any other admission, nor sought judgment in regard to any other admission. Once the claim of the respondent regarding admission was proved to be incorrect, its application for judgment on admission ought to have been rejected by the High Court. The High Court could not have embarked upon an enquiry as to whether there was some other admission nor given a judgment on the basis of such other admission, not pleaded by the respondent-plaintiff. If the respondent wanted to rely upon some other admission, it ought to have made a separate application, so that the appellant could have filed its objections to the same. That was not done.7. Assuming that the High Court could have examined whether there was some other `admission in the minutes of the meeting dated 9.12.2000 relied on by the respondent, let us examine whether there was in fact any admission, on the basis of which a judgment on admission could have been passed. The minutes of the meeting dated 9.12.2000 no doubt starts by noting that the "As per Himanis records: credit TISCO Rs.47,06,789.00" as on 31.3.1999. It also records that as per TISCOs records, as on 31.3.1999, the amount due by Himani(appellant) was Rs.61,49,449/30 and if three deductions (which were yet to be checked) were made, the amount due would be Rs.47,06,775/70. Thereafter, in paragraphs 3,4 and 5, there is a reference to both parties agreeing to provide particulars, agreeing to hold further discussions on 26.12.2000 and respondent agreeing to check up its records to find out the correctness of certain entries. Thereafter the minutes conclude that the "final figure will be arrived at the meeting accordingly". When the minutes merely notes certain figures and states that they are tentative and both parties will verify the same and says that the final figure will be arrived at the next meeting, after discussions, we fail to understand how the same could be termed as an "admission" for the purpose of Order 12 Rule 6 of the Code.8. Another aspect regarding the minutes dated 9.12.2000 requires to be noticed. The Minutes do not refer to any admission by HIMANI (appellant) to pay any amount to TISCO (respondent). If a buyer states on 9.12.2000 that his account as on 31.3.1999 shows a balance of amount `X to the credit of the supplier, it can not be treated as an admission that the said amount `X was due to the supplier on 9.12.2000. In a continuing account, it may be possible that between 31.3.1999 and 9.12.2000, there may be debits to the account, or `reveral of credits or `settlement of the account. We therefore hold that there was no admission on 9.12.2000 which could result in a judgment under Order 12 Rule 6 of the Code.9. It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear `admission which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120 ], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753 ] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601 ]. There is no such admission in this case.
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Delhi Automobiles Private Limited Vs. Commissioner of Sales Tax, Delhi | 1. The High Court was called upon to answer the following question "Whether on the facts and circumstances of the case, the Additional District Judge was justified in directing the notified authority to accept the photostat copies of the counterfoils of the declaration in Form C of the turnover of Rs. 3, 59, 497.38 p. in respect of the sale stated to have been made by the respondent in the course of inter- State trade and commerce." * The High Court answered it in the negative and in favour of the Revenue. The assessee is in appeal 2. The assessee sold 12 trucks to M/s. Tosh Metal and Alloye Industries (P) Ltd., which, subsequently, went into liquidation. The purchaser did not send the requisite C Form declarations to the assessee. The Official Liquidator of the High Court of Calcutta informed the assessee that the records of the company in liquidation indicated the said purchase and 8 sales tax C Forms had been issued by the company in liquidation; and that no C Form appeared to have been issued in respect of the remaining 4 sales. An application was made by the assessee to the High Court for directions to the Official Liquidator that he should issue duplicates of the 8 C Forms which had been issued. The learned Single Judge who disposed of the application directed the Official Liquidator only to permit the assessee to take photostat copies of the 8 C Forms declarations. The assessees obtained these photostat copies and submitted the same to the sales tax authorities 3. The sales tax authorities turned them down relying upon Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, which pertained to the C Form declaration. Sub-rule (3) thereof reads thus "Where a declaration form furnished by the dealer purchasing the goods or the certificate furnished by the Government has been lost, the dealer selling the goods, may demand from the dealer who purchased the goods, or, as the case may be, from the Government, which purchased the goods, a duplicate of such form or certificate, and the same shall be furnished with the following declaration recorded in red ink and signed by the dealer or authorised officer of the Government, as the case may be, on all the three portions of such form or certificate, - I, hereby declare that this is the duplicate of the Declaration Form/Certificate No. ... signed on... and issued to... who is a registered dealer of... (State) and whose registration certificate number is...." * 4. The Additional District Judge, Delhi hearing the revision petition of the assessee against the order of the Additional Commissioner of Sales Tax, took the view that the furnishing of the photostat copies of the counterfoils of the C Form declaration should be taken to be in compliance with Rule 12(3) afore-quoted and he directed the assessee to furnish an indemnity bond in the form required 5. Arising out of the order in revision, the question set out above was posed to the High Court at the instance of the Revenue. The High Court came to the conclusion that the requirement of the rule had not been complied with and answered the question, as aforesaid, in favour of the Revenue 6. The learned counsel for the assessee submitted that this was a hard case, that the assessee had done all that it could, and it could have done nothing more, having regard to the fact that the learned Single Judge of the Calcutta High Court had only permitted the assessee to take photostat copies of the C Form declarations and not directed the Official Liquidator to furnish duplicates of the C Form declarations. He submitted that there was substantial compliance with the provisions of Rule 12(3). He also relied upon the judgment of this Court in CIT v. J. H. Gotla (ITR at p. 339) 7. In our view, in the first place, the assessee had not done all that it could; it could, and should, have preferred an appeal against the order of the learned Single Judge and persisted in his application for obtaining from the Official Liquidator duplicates of the C Form declarations, as required by Rule 12(3). Since it did not, in the face of the clear language of the rule, its case can hardly be said to be a hard case. The judgment cited by the learned counsel has no application because that was a case where the language of the statute was found to be ambiguous. The language of the provision here is clear and was rightly applied by the High Court | 0[ds]7. In our view, in the first place, the assessee had not done all that it could; it could, and should, have preferred an appeal against the order of the learned Single Judge and persisted in his application for obtaining from the Official Liquidator duplicates of the C Form declarations, as required by Rule 12(3). Since it did not, in the face of the clear language of the rule, its case can hardly be said to be a hard case. The judgment cited by the learned counsel has no application because that was a case where the language of the statute was found to be ambiguous. The language of the provision here is clear and was rightly applied by the High Court | 0 | 857 | 141 | ### 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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1. The High Court was called upon to answer the following question "Whether on the facts and circumstances of the case, the Additional District Judge was justified in directing the notified authority to accept the photostat copies of the counterfoils of the declaration in Form C of the turnover of Rs. 3, 59, 497.38 p. in respect of the sale stated to have been made by the respondent in the course of inter- State trade and commerce." * The High Court answered it in the negative and in favour of the Revenue. The assessee is in appeal 2. The assessee sold 12 trucks to M/s. Tosh Metal and Alloye Industries (P) Ltd., which, subsequently, went into liquidation. The purchaser did not send the requisite C Form declarations to the assessee. The Official Liquidator of the High Court of Calcutta informed the assessee that the records of the company in liquidation indicated the said purchase and 8 sales tax C Forms had been issued by the company in liquidation; and that no C Form appeared to have been issued in respect of the remaining 4 sales. An application was made by the assessee to the High Court for directions to the Official Liquidator that he should issue duplicates of the 8 C Forms which had been issued. The learned Single Judge who disposed of the application directed the Official Liquidator only to permit the assessee to take photostat copies of the 8 C Forms declarations. The assessees obtained these photostat copies and submitted the same to the sales tax authorities 3. The sales tax authorities turned them down relying upon Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, which pertained to the C Form declaration. Sub-rule (3) thereof reads thus "Where a declaration form furnished by the dealer purchasing the goods or the certificate furnished by the Government has been lost, the dealer selling the goods, may demand from the dealer who purchased the goods, or, as the case may be, from the Government, which purchased the goods, a duplicate of such form or certificate, and the same shall be furnished with the following declaration recorded in red ink and signed by the dealer or authorised officer of the Government, as the case may be, on all the three portions of such form or certificate, - I, hereby declare that this is the duplicate of the Declaration Form/Certificate No. ... signed on... and issued to... who is a registered dealer of... (State) and whose registration certificate number is...." * 4. The Additional District Judge, Delhi hearing the revision petition of the assessee against the order of the Additional Commissioner of Sales Tax, took the view that the furnishing of the photostat copies of the counterfoils of the C Form declaration should be taken to be in compliance with Rule 12(3) afore-quoted and he directed the assessee to furnish an indemnity bond in the form required 5. Arising out of the order in revision, the question set out above was posed to the High Court at the instance of the Revenue. The High Court came to the conclusion that the requirement of the rule had not been complied with and answered the question, as aforesaid, in favour of the Revenue 6. The learned counsel for the assessee submitted that this was a hard case, that the assessee had done all that it could, and it could have done nothing more, having regard to the fact that the learned Single Judge of the Calcutta High Court had only permitted the assessee to take photostat copies of the C Form declarations and not directed the Official Liquidator to furnish duplicates of the C Form declarations. He submitted that there was substantial compliance with the provisions of Rule 12(3). He also relied upon the judgment of this Court in CIT v. J. H. Gotla (ITR at p. 339) 7. In our view, in the first place, the assessee had not done all that it could; it could, and should, have preferred an appeal against the order of the learned Single Judge and persisted in his application for obtaining from the Official Liquidator duplicates of the C Form declarations, as required by Rule 12(3). Since it did not, in the face of the clear language of the rule, its case can hardly be said to be a hard case. The judgment cited by the learned counsel has no application because that was a case where the language of the statute was found to be ambiguous. The language of the provision here is clear and was rightly applied by the High Court
### Response:
0
### Explanation:
7. In our view, in the first place, the assessee had not done all that it could; it could, and should, have preferred an appeal against the order of the learned Single Judge and persisted in his application for obtaining from the Official Liquidator duplicates of the C Form declarations, as required by Rule 12(3). Since it did not, in the face of the clear language of the rule, its case can hardly be said to be a hard case. The judgment cited by the learned counsel has no application because that was a case where the language of the statute was found to be ambiguous. The language of the provision here is clear and was rightly applied by the High Court
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Commr.Of Income Tax,Chennai Vs. M/S Alagendran Finance Ltd | read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings." It was furthermore held: ";As a result of the aforesaid discussion, we find that in proceedings under Section 147 of the Act, the Income Tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of notice under Section 148 and where ressessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has been under-assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the under-assessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income Tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of metters which are not the subject-matter of proceedings under Section 147." 12. We may at this juncture also take note of the fact that even the Tribunal found that all the subsequent events were in respect of the matters other than the allowance of lease equalization fund. The said finding of fact is binding on us. Doctrine of merger, therefore, in the fact situation obtaining herein cannot be said to have any application whatsoever. It is not a case where the subject matter of reassessment and subject matter of assessment were the same. They were not.13. It may be of some interest to notice that a similar contention raised at the instance of an assessee was rejected by a 3-Judge Bench of this Court in Commissioner of Income-Tax v. Shri Arbuda Mills Ltd. [231 ITR 50]. This Court took note of the amendment made in Section 263 of the Act by the Finance Act, 1989 with retrospective effect from June 1, 1988, inserting Explanation (c) to Sub-section (1) of Section 263 of the Act stating: "The consequence of the said amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred." We, therefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application.14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it was held: "Under section 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has escaped assessment for any assessment year. The power to deal with underassessment and the scope of reassessment proceedings as explained by the Supreme Court in the case of Sun Engineering [1992] 198 ITR 297 , is in relation to that which has escaped assessment, and does not extend to reopening the entire assessment for the purpose of redoing the same de novo. An assessee cannot agitate in any such reassessment proceedings matters forming part of the original assessment which are not required to be dealt with for the purpose of levying tax on that which had escaped tax earlier. Cases of underassessment are also treated as instances of escaped assessment. The order of reassessment is one which deals with the assessment already made in respect of items which are not required to be reopened, as also matters which are required to be dealt with in order to bring what had escaped in the earlier order of assessment, to assessment. An assessee who has failed to file an appeal against the original order of assessment cannot utilise the reassessment proceedings as an occasion for seeking revision or review of what had been assessed earlier. He may only question the extent of the reassessment in so far as the escaped assessment is concerned. The Revenue is similarly bound." The same principle was reiterated by a Division Bench of the Calcutta High Court in Commissioner of Income-Tax v. Kanubhai Engineers (P.) Ltd. [241 ITR 665] .15. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity. 16. | 1[ds]9. We may at this juncture also notice the decision of this Court in Hind Wire Industries Ltd (supra) wherein the decision of this Court in V. Jaganmohan Rao v. CIT and CEPT [75 ITR 373] interpreting the provisions of Section 34 of the Act was reproduced which reads as under:"Section 34 in terms states that once the Income-tax officer decides to reopen the assessment, he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains. It is, therefore, manifest that once assessment is reopened by issuing a notice under sub-section (2) of section 22, the previous underassessment is set aside and the whole assessment proceedings start afresh. When once valid proceedings are started under section 34(1)(b), the Income-tax Officer had not only the jurisdiction, but it was his duty to levy tax on the entire income that had escaped assessment during that year.There may not be any doubt or dispute that once an order of assessment is reopened, the previous underassessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of reassessment is distinct and different, the entire proceeding of assessment would be deemed to have been reopened.11. In Sun Engineering Works P. Ltd (supra) also, V. Jaganmohan Rao (supra) was noticedprinciple laid down by this Court in Jaganmohan Raos case, therefore, is only to the extent that once an assessment is validly reopened by issuance of a notice under Section 22(2) of the 1922 Act (corresponding to Section 148 of the Act) the previous under assessment is set aside and the ITO has the jurisdiction and duty to levy tax on the entire income that had escaped assessment during the previous year. The judgment in Jaganmohan Raos case, therefore, cannot be read to imply as laying down that in the reassessment proceedings validly initiated, the assessee can seek reopening of the whole assessment and claim credit in respect of items finally concluded in the original assessment. The assessee cannot claim recomputation of the income or redoing of an assessment and be allowed a claim which he either failed to make or which was otherwise rejected at the time of original assessment which has since acquired finality. Of course, in the reassessment proceedings it is open to an assessee to show that the income alleged to have escaped assessment has in truth and in fact not escaped assessment but that the same had been shown under some inappropriate head in the original return, but to read the judgment in Jaganmohan Raos case, as if laying down that reassessment wipes out the original assessment and that reassessment is not only confined to "escaped assessment" or "under assessment" but to the entire assessment for the year and starts the assessment proceeding de novo giving the right to an assessee to reagitate matters which he had lost during the original assessment proceeding, which had acquired finality, is not only erroneous but also against the phraseology of Section 147 of the Act and the object of reassessment proceedings. Such an interpretation would be reading that judgment totally out of context in which the questions arose for decision in that case. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their;As a result of the aforesaid discussion, we find that in proceedings under Section 147 of the Act, the Income Tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of notice under Section 148 and where ressessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has been under-assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the under-assessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income Tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of metters which are not the subject-matter of proceedings under Section 147.We may at this juncture also take note of the fact that even the Tribunal found that all the subsequent events were in respect of the matters other than the allowance of lease equalization fund. The said finding of fact is binding on us. Doctrine of merger, therefore, in the fact situation obtaining herein cannot be said to have any application whatsoever. It is not a case where the subject matter of reassessment and subject matter of assessment were the same. They were not.13. It may be of some interest to notice that a similar contention raised at the instance of an assessee was rejected by a 3-Judge Bench of this Court in Commissioner of Income-Tax v. Shri Arbuda Mills Ltd. [231 ITR 50]. This Court took note of the amendment made in Section 263 of the Act by the Finance Act, 1989 with retrospective effect from June 1, 1988, inserting Explanation (c) to Sub-section (1) of Section 263 of the Actconsequence of the said amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has beentherefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application.14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it wassection 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has escaped assessment for any assessment year. The power to deal with underassessment and the scope of reassessment proceedings as explained by the Supreme Court in the case of Sun Engineering [1992] 198 ITR 297 , is in relation to that which has escaped assessment, and does not extend to reopening the entire assessment for the purpose of redoing the same de novo. An assessee cannot agitate in any such reassessment proceedings matters forming part of the original assessment which are not required to be dealt with for the purpose of levying tax on that which had escaped tax earlier. Cases of underassessment are also treated as instances of escaped assessment. The order of reassessment is one which deals with the assessment already made in respect of items which are not required to be reopened, as also matters which are required to be dealt with in order to bring what had escaped in the earlier order of assessment, to assessment. An assessee who has failed to file an appeal against the original order of assessment cannot utilise the reassessment proceedings as an occasion for seeking revision or review of what had been assessed earlier. He may only question the extent of the reassessment in so far as the escaped assessment is concerned. The Revenue is similarlysame principle was reiterated by a Division Bench of the Calcutta High Court in Commissioner of Income-Tax v. Kanubhai Engineers (P.) Ltd. [241 ITR 665] .15. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity.We may at this juncture also notice the decision of this Court in Hind Wire Industries Ltd (supra) wherein the decision of this Court in V. Jaganmohan Rao v. CIT and CEPT [75 ITR 373] interpreting the provisions of Section 34 of the Act was reproduced which reads as under:"Section 34 in terms states that once the Income-tax officer decides to reopen the assessment, he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains. It is, therefore, manifest that once assessment is reopened by issuing a notice under sub-section (2) of section 22, the previous underassessment is set aside and the whole assessment proceedings start afresh. When once valid proceedings are started under section 34(1)(b), the Income-tax Officer had not only the jurisdiction, but it was his duty to levy tax on the entire income that had escaped assessment during that year.e may not be any doubt or dispute that once an order of assessment is reopened, the previous underassessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of reassessment is distinct and different, the entire proceeding of assessment would be deemed to have been reopened.11. In Sun Engineering Works P. Ltd (supra) also, V. Jaganmohan Rao (supra) was noticedprinciple laid down by this Court in Jaganmohan Raos case, therefore, is only to the extent that once an assessment is validly reopened by issuance of a notice under Section 22(2) of the 1922 Act (corresponding to Section 148 of the Act) the previous under assessment is set aside and the ITO has the jurisdiction and duty to levy tax on the entire income that had escaped assessment during the previous year. The judgment in Jaganmohan Raos case, therefore, cannot be read to imply as laying down that in the reassessment proceedings validly initiated, the assessee can seek reopening of the whole assessment and claim credit in respect of items finally concluded in the original assessment. The assessee cannot claim recomputation of the income or redoing of an assessment and be allowed a claim which he either failed to make or which was otherwise rejected at the time of original assessment which has since acquired finality. Of course, in the reassessment proceedings it is open to an assessee to show that the income alleged to have escaped assessment has in truth and in fact not escaped assessment but that the same had been shown under some inappropriate head in the original return, but to read the judgment in Jaganmohan Raos case, as if laying down that reassessment wipes out the original assessment and that reassessment is not only confined to "escaped assessment" or "under assessment" but to the entire assessment for the year and starts the assessment proceeding de novo giving the right to an assessee to reagitate matters which he had lost during the original assessment proceeding, which had acquired finality, is not only erroneous but also against the phraseology of Section 147 of the Act and the object of reassessment proceedings. Such an interpretation would be reading that judgment totally out of context in which the questions arose for decision in that case. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their;As a result of the aforesaid discussion, we find that in proceedings under Section 147 of the Act, the Income Tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of notice under Section 148 and where ressessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has been under-assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the under-assessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income Tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of metters which are not the subject-matter of proceedings under Section 147.e may at this juncture also take note of the fact that even the Tribunal found that all the subsequent events were in respect of the matters other than the allowance of lease equalization fund. The said finding of fact is binding on us. Doctrine of merger, therefore, in the fact situation obtaining herein cannot be said to have any application whatsoever. It is not a case where the subject matter of reassessment and subject matter of assessment were the same. They were not.13. It may be of some interest to notice that a similar contention raised at the instance of an assessee was rejected by a 3-Judge Bench of this Court in Commissioner of Income-Tax v. Shri Arbuda Mills Ltd. [231 ITR 50]. This Court took note of the amendment made in Section 263 of the Act by the Finance Act, 1989 with retrospective effect from June 1, 1988, inserting Explanation (c) to Sub-section (1) of Section 263 of the Actconsequence of the said amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has beentherefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application.14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it wasn 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has escaped assessment for any assessment year. The power to deal with underassessment and the scope of reassessment proceedings as explained by the Supreme Court in the case of Sun Engineering [1992] 198 ITR 297 , is in relation to that which has escaped assessment, and does not extend to reopening the entire assessment for the purpose of redoing the same de novo. An assessee cannot agitate in any such reassessment proceedings matters forming part of the original assessment which are not required to be dealt with for the purpose of levying tax on that which had escaped tax earlier. Cases of underassessment are also treated as instances of escaped assessment. The order of reassessment is one which deals with the assessment already made in respect of items which are not required to be reopened, as also matters which are required to be dealt with in order to bring what had escaped in the earlier order of assessment, to assessment. An assessee who has failed to file an appeal against the original order of assessment cannot utilise the reassessment proceedings as an occasion for seeking revision or review of what had been assessed earlier. He may only question the extent of the reassessment in so far as the escaped assessment is concerned. The Revenue is similarlye principle was reiterated by a Division Bench of the Calcutta High Court in Commissioner of Income-Tax v. Kanubhai Engineers (P.) Ltd. [241 ITR 665] .15. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity.The Tribunal and the High Court, therefore, in our opinion were correct in passing the impugned judgment. The appeal, therefore, being devoid of any merit is dismissed with costs.Counsels fee assessed at | 1 | 4,242 | 3,517 | ### Instruction:
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read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings." It was furthermore held: ";As a result of the aforesaid discussion, we find that in proceedings under Section 147 of the Act, the Income Tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of notice under Section 148 and where ressessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has been under-assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the under-assessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income Tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of metters which are not the subject-matter of proceedings under Section 147." 12. We may at this juncture also take note of the fact that even the Tribunal found that all the subsequent events were in respect of the matters other than the allowance of lease equalization fund. The said finding of fact is binding on us. Doctrine of merger, therefore, in the fact situation obtaining herein cannot be said to have any application whatsoever. It is not a case where the subject matter of reassessment and subject matter of assessment were the same. They were not.13. It may be of some interest to notice that a similar contention raised at the instance of an assessee was rejected by a 3-Judge Bench of this Court in Commissioner of Income-Tax v. Shri Arbuda Mills Ltd. [231 ITR 50]. This Court took note of the amendment made in Section 263 of the Act by the Finance Act, 1989 with retrospective effect from June 1, 1988, inserting Explanation (c) to Sub-section (1) of Section 263 of the Act stating: "The consequence of the said amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred." We, therefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application.14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it was held: "Under section 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has escaped assessment for any assessment year. The power to deal with underassessment and the scope of reassessment proceedings as explained by the Supreme Court in the case of Sun Engineering [1992] 198 ITR 297 , is in relation to that which has escaped assessment, and does not extend to reopening the entire assessment for the purpose of redoing the same de novo. An assessee cannot agitate in any such reassessment proceedings matters forming part of the original assessment which are not required to be dealt with for the purpose of levying tax on that which had escaped tax earlier. Cases of underassessment are also treated as instances of escaped assessment. The order of reassessment is one which deals with the assessment already made in respect of items which are not required to be reopened, as also matters which are required to be dealt with in order to bring what had escaped in the earlier order of assessment, to assessment. An assessee who has failed to file an appeal against the original order of assessment cannot utilise the reassessment proceedings as an occasion for seeking revision or review of what had been assessed earlier. He may only question the extent of the reassessment in so far as the escaped assessment is concerned. The Revenue is similarly bound." The same principle was reiterated by a Division Bench of the Calcutta High Court in Commissioner of Income-Tax v. Kanubhai Engineers (P.) Ltd. [241 ITR 665] .15. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity. 16.
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1
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have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their;As a result of the aforesaid discussion, we find that in proceedings under Section 147 of the Act, the Income Tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of notice under Section 148 and where ressessment is made under Section 147 in respect of income which has escaped tax, the Income Tax Officers jurisdiction is confined to only such income which has escaped tax or has been under-assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the under-assessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income Tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of metters which are not the subject-matter of proceedings under Section 147.e may at this juncture also take note of the fact that even the Tribunal found that all the subsequent events were in respect of the matters other than the allowance of lease equalization fund. The said finding of fact is binding on us. Doctrine of merger, therefore, in the fact situation obtaining herein cannot be said to have any application whatsoever. It is not a case where the subject matter of reassessment and subject matter of assessment were the same. They were not.13. It may be of some interest to notice that a similar contention raised at the instance of an assessee was rejected by a 3-Judge Bench of this Court in Commissioner of Income-Tax v. Shri Arbuda Mills Ltd. [231 ITR 50]. This Court took note of the amendment made in Section 263 of the Act by the Finance Act, 1989 with retrospective effect from June 1, 1988, inserting Explanation (c) to Sub-section (1) of Section 263 of the Actconsequence of the said amendment made with retrospective effect is that the powers under section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the Commissioner under section 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has beentherefore, are clearly of the opinion that in a case of this nature, the doctrine of merger will have no application.14. The Madras High Court in A.K. Thanga Pillai (supra), in our opinion, has rightly considered the matter albeit under Section 17 of the Wealth Tax Act, 1957 which is in pari materia with the provisions of the Act. Relying on Sun Engineering Works P. Ltd (supra), it wasn 17 of the Wealth-tax Act, 1957, even as it is under section 147 of the Income-tax Act, proceedings for reassessment can be initiated when what is assessable to tax has escaped assessment for any assessment year. The power to deal with underassessment and the scope of reassessment proceedings as explained by the Supreme Court in the case of Sun Engineering [1992] 198 ITR 297 , is in relation to that which has escaped assessment, and does not extend to reopening the entire assessment for the purpose of redoing the same de novo. An assessee cannot agitate in any such reassessment proceedings matters forming part of the original assessment which are not required to be dealt with for the purpose of levying tax on that which had escaped tax earlier. Cases of underassessment are also treated as instances of escaped assessment. The order of reassessment is one which deals with the assessment already made in respect of items which are not required to be reopened, as also matters which are required to be dealt with in order to bring what had escaped in the earlier order of assessment, to assessment. An assessee who has failed to file an appeal against the original order of assessment cannot utilise the reassessment proceedings as an occasion for seeking revision or review of what had been assessed earlier. He may only question the extent of the reassessment in so far as the escaped assessment is concerned. The Revenue is similarlye principle was reiterated by a Division Bench of the Calcutta High Court in Commissioner of Income-Tax v. Kanubhai Engineers (P.) Ltd. [241 ITR 665] .15. We, therefore, are clearly of the opinion that keeping in view the facts and circumstances of this case and, in particular, having regard to the fact that the Commissioner of Income Tax exercising its revisional jurisdiction reopened the order of assessment only in relation to lease equalization fund which being not the subject of the reassessment proceedings, the period of limitation provided for under Sub-section (2) of Section 263 of the Act would begin to run from the date of the order of assessment and not from the order of reassessment. The revisional jurisdiction having, thus, been invoked by the Commissioner of Income Tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity.The Tribunal and the High Court, therefore, in our opinion were correct in passing the impugned judgment. The appeal, therefore, being devoid of any merit is dismissed with costs.Counsels fee assessed at
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State Bank of Indore Vs. Commissioner of Payments & Others | appellants filed claim before the Commissioner. The claims were not just for the loans amount but also for interest on such loans. The Commissioner disallowed claims for loans given prior to the date Management was taken over. The Commissioner allowed claims only for loans given during the period the Management was taken over and upto the appointed day.4. The appellants filed appeals before the District Court. The District Court held that all amounts payable upto the appointed day fell in the Category I. The District Court however disallowed interest after 1st of April, 1974. The High Court has by the impugned judgment upheld the order of the District Court.5. The respondents have not come in appeal. Therefore, we are not concerned with the question as to whether or not amounts advanced prior to the taking over of the Management are to be paid in the priority. The only question for consideration is whether interest after 1st of April, 1974 upto the date the claim was made is payable in priority. 6. Strong reliance is placed upon the judgment of the Bombay High Court in the case of State Bank of India v. Edward Textile Mills Ltd. & Anr., reported in AIR (1988) Bom. 313 . In this case it has been held, after consideration of the various provisions of the Sick Textile Undertakings (Nationalisation) Act that the term liability includes liability for interest also. It is held that the amounts which have to be paid in priority, under the Second Schedule, include not just the loan amounts but also the interest thereon upto the date of payment. The impugned judgment runs contrary to this view. 7. A glance at the provisions of the Act, extracted hereinabove, shows that by virtue of Section 3 the right, title and interest of the owner in sick textile undertakings stands transferred to and vests in the Central Government. Section 4 provides for the effect of such vesting. It shows that the liability, which vests in the Central Government, is only liability specified under Sub-section (2) of Section 5. This position is further clarified by Section 5(1) which states that except for liabilities mentioned in Sub-section (2) of Section 5 all other liabilities would continue to be the liabilities of the owner of the sick textile undertakings and shall be enforceable against the owner and not against the Central Government or the National Textile Corporation. Thus by virtue of Section 5(1) the remedy for recovery of any liability is against the owner. Undoubtedly, the word liability would include not just the loan amounts but also the amounts due by way of interest of such loan amounts.8. Sub-section (2) of Section 5 specifies which the liabilities are taken over by the Central Government. Sub-section (2)(a) talks of loans advanced by Central Government or State Government. Thus, the Legislature is now making a distinction between the terms “liability” and “loan”. When the term “loan” is used it is specified that the loans would be “together with interest due thereon”. The same clarification can be found even in Sub-section 5(2)(b). This indicates the intention of the Legislature. Thus even though the term “liability” includes liability for the interest amounts also, the term “loan” does not include the interest amount unless specified otherwise in the Act. This position is fortified by Section 9 wherein on the amounts paid to the owner interest at the rate of 4% is also payable. Thus, where the Legislature wanted to specify that certain amounts would carry interest it has done so specifically. 9. Section 21 provides that the amounts set out in the Second Schedule are to be paid in priority. The relevant portion of Second Schedule reads as follows: “The Second Schedule[See Sections 21, 22, 23 and 27]Order of priorties for the discharge of liabilities in respect of a sick textile undertakingPART APost-takeover management period Category I—(a) Loans advanced by a bank.(b) Loans advanced by an institution other than a bank.(c) Any other loan.(d) Any credit availed of for purpose of trade or manufacturing operations.Category II—(a) Revenue, taxes, cesses, rates or any other dues to the Central Government or a State Govern-ment.(b) Any other dues.” Thus, the heading of the Second Schedule provides “priorities for discharge of liabilities”. The term liability as stated would include interest. It would include a loan. It would also include credits availed of. It would include revenue, taxes, cesses, rates and other dues. However, the payment in priority is for a loan. The distinction in language makes it very clear that what was to be paid in a priority was only the amount of the loan i.e. the principal amount and not the interest amount due thereon. Of course, payments towards interest would remain liabilities. But for recovery of that the remedy would be to proceed against the owner/surety. 10. This Court has in the case of Industrial Finance Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills and Ors., reported in III (2002) SLT 185=2002 (5) SCC 54 , held that by virtue of the provisions of the Act the liability of the principal debtor and that of the surety does not come to an end. It is held that if the compensation to be paid by virtue of Section 21 and the Second Schedule does not satisfy the full claim then the creditor is not barred from filing a civil suit for the balance. Further, in the case of Punjab National Bank v. State of U.P. & Ors., reported in II (2001) SLT 642=2002 (5) SCC 80 , it has been held that even though mode of recovery, against a surety, may be affected the liability of the principal debtor and the guarantor does not get affected by the provision of this Act. Not only are these authorities binding us but we are in complete agreement with what is laid down therein. 11. It is thus clear that the interest amounts are not to be paid in priority under the provisions of this Act. | 0[ds]7. A glance at the provisions of the Act, extracted hereinabove, shows that by virtue of Section 3 the right, title and interest of the owner in sick textile undertakings stands transferred to and vests in the Central Government. Section 4 provides for the effect of such vesting. It shows that the liability, which vests in the Central Government, is only liability specified under(2) of Section 5. This position is further clarified by Section 5(1) which states that except for liabilities mentioned in(2) of Section 5 all other liabilities would continue to be the liabilities of the owner of the sick textile undertakings and shall be enforceable against the owner and not against the Central Government or the National Textile Corporation. Thus by virtue of Section 5(1) the remedy for recovery of any liability is against the owner. Undoubtedly, the word liability would include not just the loan amounts but also the amounts due by way of interest of such loan amounts.8.(2) of Section 5 specifies which the liabilities are taken over by the Central Government.(2)(a) talks of loans advanced by Central Government or State Government. Thus, the Legislature is now making a distinction between the termsWhen the termis used it is specified that the loans would bewith interest dueThe same clarification can be found even in5(2)(b). This indicates the intention of the Legislature. Thus even though the termincludes liability for the interest amounts also, the termdoes not include the interest amount unless specified otherwise in the Act. This position is fortified by Section 9 wherein on the amounts paid to the owner interest at the rate of 4% is also payable. Thus, where the Legislature wanted to specify that certain amounts would carry interest it has done so specifically.It is thus clear that the interest amounts are not to be paid in priority under the provisions of this Act. | 0 | 3,358 | 365 | ### 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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appellants filed claim before the Commissioner. The claims were not just for the loans amount but also for interest on such loans. The Commissioner disallowed claims for loans given prior to the date Management was taken over. The Commissioner allowed claims only for loans given during the period the Management was taken over and upto the appointed day.4. The appellants filed appeals before the District Court. The District Court held that all amounts payable upto the appointed day fell in the Category I. The District Court however disallowed interest after 1st of April, 1974. The High Court has by the impugned judgment upheld the order of the District Court.5. The respondents have not come in appeal. Therefore, we are not concerned with the question as to whether or not amounts advanced prior to the taking over of the Management are to be paid in the priority. The only question for consideration is whether interest after 1st of April, 1974 upto the date the claim was made is payable in priority. 6. Strong reliance is placed upon the judgment of the Bombay High Court in the case of State Bank of India v. Edward Textile Mills Ltd. & Anr., reported in AIR (1988) Bom. 313 . In this case it has been held, after consideration of the various provisions of the Sick Textile Undertakings (Nationalisation) Act that the term liability includes liability for interest also. It is held that the amounts which have to be paid in priority, under the Second Schedule, include not just the loan amounts but also the interest thereon upto the date of payment. The impugned judgment runs contrary to this view. 7. A glance at the provisions of the Act, extracted hereinabove, shows that by virtue of Section 3 the right, title and interest of the owner in sick textile undertakings stands transferred to and vests in the Central Government. Section 4 provides for the effect of such vesting. It shows that the liability, which vests in the Central Government, is only liability specified under Sub-section (2) of Section 5. This position is further clarified by Section 5(1) which states that except for liabilities mentioned in Sub-section (2) of Section 5 all other liabilities would continue to be the liabilities of the owner of the sick textile undertakings and shall be enforceable against the owner and not against the Central Government or the National Textile Corporation. Thus by virtue of Section 5(1) the remedy for recovery of any liability is against the owner. Undoubtedly, the word liability would include not just the loan amounts but also the amounts due by way of interest of such loan amounts.8. Sub-section (2) of Section 5 specifies which the liabilities are taken over by the Central Government. Sub-section (2)(a) talks of loans advanced by Central Government or State Government. Thus, the Legislature is now making a distinction between the terms “liability” and “loan”. When the term “loan” is used it is specified that the loans would be “together with interest due thereon”. The same clarification can be found even in Sub-section 5(2)(b). This indicates the intention of the Legislature. Thus even though the term “liability” includes liability for the interest amounts also, the term “loan” does not include the interest amount unless specified otherwise in the Act. This position is fortified by Section 9 wherein on the amounts paid to the owner interest at the rate of 4% is also payable. Thus, where the Legislature wanted to specify that certain amounts would carry interest it has done so specifically. 9. Section 21 provides that the amounts set out in the Second Schedule are to be paid in priority. The relevant portion of Second Schedule reads as follows: “The Second Schedule[See Sections 21, 22, 23 and 27]Order of priorties for the discharge of liabilities in respect of a sick textile undertakingPART APost-takeover management period Category I—(a) Loans advanced by a bank.(b) Loans advanced by an institution other than a bank.(c) Any other loan.(d) Any credit availed of for purpose of trade or manufacturing operations.Category II—(a) Revenue, taxes, cesses, rates or any other dues to the Central Government or a State Govern-ment.(b) Any other dues.” Thus, the heading of the Second Schedule provides “priorities for discharge of liabilities”. The term liability as stated would include interest. It would include a loan. It would also include credits availed of. It would include revenue, taxes, cesses, rates and other dues. However, the payment in priority is for a loan. The distinction in language makes it very clear that what was to be paid in a priority was only the amount of the loan i.e. the principal amount and not the interest amount due thereon. Of course, payments towards interest would remain liabilities. But for recovery of that the remedy would be to proceed against the owner/surety. 10. This Court has in the case of Industrial Finance Corporation of India Ltd. v. Cannanore Spinning and Weaving Mills and Ors., reported in III (2002) SLT 185=2002 (5) SCC 54 , held that by virtue of the provisions of the Act the liability of the principal debtor and that of the surety does not come to an end. It is held that if the compensation to be paid by virtue of Section 21 and the Second Schedule does not satisfy the full claim then the creditor is not barred from filing a civil suit for the balance. Further, in the case of Punjab National Bank v. State of U.P. & Ors., reported in II (2001) SLT 642=2002 (5) SCC 80 , it has been held that even though mode of recovery, against a surety, may be affected the liability of the principal debtor and the guarantor does not get affected by the provision of this Act. Not only are these authorities binding us but we are in complete agreement with what is laid down therein. 11. It is thus clear that the interest amounts are not to be paid in priority under the provisions of this Act.
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0
### Explanation:
7. A glance at the provisions of the Act, extracted hereinabove, shows that by virtue of Section 3 the right, title and interest of the owner in sick textile undertakings stands transferred to and vests in the Central Government. Section 4 provides for the effect of such vesting. It shows that the liability, which vests in the Central Government, is only liability specified under(2) of Section 5. This position is further clarified by Section 5(1) which states that except for liabilities mentioned in(2) of Section 5 all other liabilities would continue to be the liabilities of the owner of the sick textile undertakings and shall be enforceable against the owner and not against the Central Government or the National Textile Corporation. Thus by virtue of Section 5(1) the remedy for recovery of any liability is against the owner. Undoubtedly, the word liability would include not just the loan amounts but also the amounts due by way of interest of such loan amounts.8.(2) of Section 5 specifies which the liabilities are taken over by the Central Government.(2)(a) talks of loans advanced by Central Government or State Government. Thus, the Legislature is now making a distinction between the termsWhen the termis used it is specified that the loans would bewith interest dueThe same clarification can be found even in5(2)(b). This indicates the intention of the Legislature. Thus even though the termincludes liability for the interest amounts also, the termdoes not include the interest amount unless specified otherwise in the Act. This position is fortified by Section 9 wherein on the amounts paid to the owner interest at the rate of 4% is also payable. Thus, where the Legislature wanted to specify that certain amounts would carry interest it has done so specifically.It is thus clear that the interest amounts are not to be paid in priority under the provisions of this Act.
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State Of Gujarat Vs. M/S. Kothari & Associates | filed on 25.1.1985, well after the limitation period of three years for even the final breach, as the various causes of action became time barred on 15.11.1979, 15.11.1980, 15.11.1981 and 15.11.1982 respectively. 10. There is another perspective on the method or manner in which limitation is to be computed. We have already narrated that the Respondent, on every occasion when the extension was sought by it, had requested to be compensated for delay. The Appellant State had granted the extensions but had repudiated and rejected the Respondent’s claims for damages. The effect of these events would be that the cause of action for making the claim for damages indubitably arose on each of those occasions. It is certainly arguable that the Appellant State may have also been aggrieved by the delay, although the facts of the case appear to be unfavourable to this prediction, since delay can reasonably be laid at the door of the Appellant. The Respondent, however, could prima facie be presumed to have accepted a renewal or extension in the period of performance but with the rider that the claim for damages had been abandoned by it. If this assumption was not to be made against the Respondent, it would reasonably be expected that the Respondent should have filed a suit for damages on each of these occasions. In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is therefore not legally possible for the Respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Respondent. 11. In a works contract, more often than not, delays occur, and that is why it is assumed that time is not of the essence. Where extensions are asked for and granted, there must be a clear and discernable stand on behalf of either of the parties that the extension is granted and/or accepted without prejudice to the claim of damages. It has become commonplace that neither party lodges a claim for damages, but waits for the end of the contract to raise these disputes, taking advantage of the nebulous and equivocal nature of the transactions between them. This, however, is not the position that obtains before us since the Appellant State had categorically posited that the claim for damages for the alleged delay on its part would not be entertained. 12. The Respondent has sought to place reliance on Section 19 of the Limitation Act. It would be apposite to reproduce this Section: 19. Effect of payment on account of debt or of interest on legacy.—Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. This Section would not come to the aid of the Respondent, as the suit before us is not for payment on account of a debt or of interest on legacy, but is a suit for damages for additional costs incurred as a result of the extension of the contract period. This Court in Union of India vs. Raman Iron Foundry 1974 (2) SCC 231 , after placing reliance on Jones v. Thompson [1858] 27 L.J.Q.B. 234, has opined that a claim for damages does not give rise to a debt until the liability is adjudicated and damages have been assessed by a decree or any order of a Court or any other adjudicatory authority or forum. Furthermore, in J.C. Budharaja vs Chairman, Orissa Mining Corporation Ltd. and Anr (2008) 2 SCC 444 , it has been held that the effect of Section 19 would be to allow a fresh period of limitation with regard to the existing debt in respect of which acknowledgment and payment has been made. It would not extend the period of limitation for any fresh claim, or any amount not accepted by the other party. In the factual scenario before us, the payment of the Final Bill and Security Deposit could not be construed to accept or acknowledge the damages raised by the Respondent and therefore Section 19 would not per se extend the period of limitation. Furthermore, there could be no extension under Section 18 on account of the acknowledgement in writing, as at each point that the Respondent raised a claim for damages, it was specifically refuted by the Appellant State, and the amounts that were accepted by the Appellant State were limited to the liabilities within the contract, not fresh liabilities for damages. 13. The Respondent has also argued that since notice under Section 80 of the C.P.C. was served to the Appellant State claiming damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act. It has relied on M/s Disha Constructions vs. State of Goa (2012) 1 SCC 690 to this end. However, since the limitation period for the last breach alleged by the Respondent itself ended on 15.11.1982 and the notice under Section 80 C.P.C. is dated 7.8.1983, this provision is irrelevant. The notice perforce should have been issued before the suit became time barred, and only if so done would the period have been extended for a further two months.14. It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone. Th | 1[ds]5. It would be pertinent to note that the issue of limitation was not pleaded as a ground before the Trial Court or the High Court. It was pressed for the first time in the course of oral arguments before the High Court. Nonetheless, it has been discussed in the impugned Order. The High Court, noting the contention raised by the Respondent that the point of limitation was a mixed question of fact and law and could therefore not be adjudicated at this point, held that even if it could be adjudicated, the suit would not be barred by principles of prescription as it was based on a series of successive breaches committed by the Appellant State, and in such circumstances the date of the last breach was relevant. The High Court was of the opinion that limitation need not mandatorily be computed on the basis of each cause of action. It held the date of return of the Security Deposit as the last date of payment for the work done, and concluded that the suit had been filed within three years from this date. The suit was therefore found to be within the prescribed period of limitation.The Respondent has also argued that since notice under Section 80 of the C.P.C. was served to the Appellant State claiming damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act. It has relied on M/s Disha Constructions vs. State of Goa (2012) 1 SCC 690 to this end. However, since the limitation period for the last breach alleged by the Respondent itself ended on 15.11.1982 and the notice under Section 80 C.P.C. is dated 7.8.1983, this provision is irrelevant. The notice perforce should have been issued before the suit became time barred, and only if so done would the period have been extended for a further two months.14. It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone. | 1 | 3,482 | 397 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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filed on 25.1.1985, well after the limitation period of three years for even the final breach, as the various causes of action became time barred on 15.11.1979, 15.11.1980, 15.11.1981 and 15.11.1982 respectively. 10. There is another perspective on the method or manner in which limitation is to be computed. We have already narrated that the Respondent, on every occasion when the extension was sought by it, had requested to be compensated for delay. The Appellant State had granted the extensions but had repudiated and rejected the Respondent’s claims for damages. The effect of these events would be that the cause of action for making the claim for damages indubitably arose on each of those occasions. It is certainly arguable that the Appellant State may have also been aggrieved by the delay, although the facts of the case appear to be unfavourable to this prediction, since delay can reasonably be laid at the door of the Appellant. The Respondent, however, could prima facie be presumed to have accepted a renewal or extension in the period of performance but with the rider that the claim for damages had been abandoned by it. If this assumption was not to be made against the Respondent, it would reasonably be expected that the Respondent should have filed a suit for damages on each of these occasions. In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is therefore not legally possible for the Respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. In other words, contemporaneous with the extensions granted, it was essential for the Respondent to have initiated legal action. Since this was not done, there would be a reasonable presumption that the claim for damages had been abandoned and given a go-by by the Respondent. 11. In a works contract, more often than not, delays occur, and that is why it is assumed that time is not of the essence. Where extensions are asked for and granted, there must be a clear and discernable stand on behalf of either of the parties that the extension is granted and/or accepted without prejudice to the claim of damages. It has become commonplace that neither party lodges a claim for damages, but waits for the end of the contract to raise these disputes, taking advantage of the nebulous and equivocal nature of the transactions between them. This, however, is not the position that obtains before us since the Appellant State had categorically posited that the claim for damages for the alleged delay on its part would not be entertained. 12. The Respondent has sought to place reliance on Section 19 of the Limitation Act. It would be apposite to reproduce this Section: 19. Effect of payment on account of debt or of interest on legacy.—Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. This Section would not come to the aid of the Respondent, as the suit before us is not for payment on account of a debt or of interest on legacy, but is a suit for damages for additional costs incurred as a result of the extension of the contract period. This Court in Union of India vs. Raman Iron Foundry 1974 (2) SCC 231 , after placing reliance on Jones v. Thompson [1858] 27 L.J.Q.B. 234, has opined that a claim for damages does not give rise to a debt until the liability is adjudicated and damages have been assessed by a decree or any order of a Court or any other adjudicatory authority or forum. Furthermore, in J.C. Budharaja vs Chairman, Orissa Mining Corporation Ltd. and Anr (2008) 2 SCC 444 , it has been held that the effect of Section 19 would be to allow a fresh period of limitation with regard to the existing debt in respect of which acknowledgment and payment has been made. It would not extend the period of limitation for any fresh claim, or any amount not accepted by the other party. In the factual scenario before us, the payment of the Final Bill and Security Deposit could not be construed to accept or acknowledge the damages raised by the Respondent and therefore Section 19 would not per se extend the period of limitation. Furthermore, there could be no extension under Section 18 on account of the acknowledgement in writing, as at each point that the Respondent raised a claim for damages, it was specifically refuted by the Appellant State, and the amounts that were accepted by the Appellant State were limited to the liabilities within the contract, not fresh liabilities for damages. 13. The Respondent has also argued that since notice under Section 80 of the C.P.C. was served to the Appellant State claiming damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act. It has relied on M/s Disha Constructions vs. State of Goa (2012) 1 SCC 690 to this end. However, since the limitation period for the last breach alleged by the Respondent itself ended on 15.11.1982 and the notice under Section 80 C.P.C. is dated 7.8.1983, this provision is irrelevant. The notice perforce should have been issued before the suit became time barred, and only if so done would the period have been extended for a further two months.14. It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone. Th
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1
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5. It would be pertinent to note that the issue of limitation was not pleaded as a ground before the Trial Court or the High Court. It was pressed for the first time in the course of oral arguments before the High Court. Nonetheless, it has been discussed in the impugned Order. The High Court, noting the contention raised by the Respondent that the point of limitation was a mixed question of fact and law and could therefore not be adjudicated at this point, held that even if it could be adjudicated, the suit would not be barred by principles of prescription as it was based on a series of successive breaches committed by the Appellant State, and in such circumstances the date of the last breach was relevant. The High Court was of the opinion that limitation need not mandatorily be computed on the basis of each cause of action. It held the date of return of the Security Deposit as the last date of payment for the work done, and concluded that the suit had been filed within three years from this date. The suit was therefore found to be within the prescribed period of limitation.The Respondent has also argued that since notice under Section 80 of the C.P.C. was served to the Appellant State claiming damages on 7.8.1983, a period of two months from the date of the notice would have to be excluded when calculating the period of limitation, as per Section 15(2) of the Limitation Act. It has relied on M/s Disha Constructions vs. State of Goa (2012) 1 SCC 690 to this end. However, since the limitation period for the last breach alleged by the Respondent itself ended on 15.11.1982 and the notice under Section 80 C.P.C. is dated 7.8.1983, this provision is irrelevant. The notice perforce should have been issued before the suit became time barred, and only if so done would the period have been extended for a further two months.14. It is thus clear that the Respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone.
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THE GOVERNMENT OF TAMIL NADU AND ANR. ETC. ETC Vs. ARULMIGHU KALLALAGAR THIRUKOIL ALAGAR KOIL ETC. ETC | Secretary of State for India in Council through the Collector of Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 are not applicable to the facts of this case. 16. As the suit filed by the respondent was not dismissed as barred by limitation, it is not necessary for us to examine the point relating to Section 10 of the Limitation Act. Another point decided in favour of the Respondent is that lost grant has to be presumed. On the basis that the Respondent-temple had been in long and continuous possession of Alagar hills, the High Court was of the opinion that lost grant was to be presumed. The High Court observed that the Respondent-temple had been exercising acts of ownership over the suit hills for several centuries. The Application filed under Order 41 Rule 27 of the C.P .C. by the Respondent was allowed and the documents produced by them were marked as Exhibits A-46 to A-56. We have carefully examined those documents which only show that honey and other forest produce were being collected by those who were permitted by the Respondent-temple. The right, title or possession of the temple over Alagar hills cannot be determined on the basis of the above documents. 17. An adverse inference was drawn against the Appellant for not producing the relevant material. The High Court was of the opinion that the Appellant was guilty of suppression of the documents which were available. Hence, the High Court presumed lost grant. The circumstances in which the presumption of lost grant can be made has been settled by this Court in a judgment reported in Sri Manohar Das Mohanta v. Charu Chandra Pal & Ors. (1955) 1 SCR 1168 as under ; "7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. ?It cannot be the duty of a Judge to presume a grant of the non- existence of which he is convinced? observed Farwell, J. in Attorney-General v. Simpson [(1901) 2 Ch D 671, 698]. So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431 , 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsburys Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v. Richardson [4 B & Ald 579 : 106 ER 1048 at 1049] and Rochdale Canal Company v. Radclife [18 QB 287 : 118 ER 108 at 118] ).? 18. We do not agree that the respondent was in continuous possession under an assertion of title as there is no evidence on record to reach such a conclusion. The presumption of lost grant is therefore not permissible. 19. The finding recorded by the High Court that there is adequate material to hold that Alagar hills belong to the temple is erroneous. The trial Court is right in holding that the Respondent miserably failed in producing any material to prove its title. 20. On 02.04.2019, we were informed that the parties were attempting a settlement. This Court directed the Member Secretary, Hindu Religious and Charitable Endowments Board (HR & CE) to convene a meeting with all the stakeholders to facilitate a settlement. A meeting was conducted on 03.08.2019 in the Office of the Commissioner, HR & CE in which all the stakeholders participated. The significant proposals of the Respondent were that the title in respect of the Alagar Hills should be with that of the presiding deity of the Respondent-temple and that the income from the forest shall be shared equally by the Respondent-temple and the Forest Department. The Appellant did not accept the said proposals. After joint inspection by the Forest Department and the HR & CE Department, the Appellant was willing to divert an area of 18.3032 hectares of land including the various religious spots for ease of movement of the devotees. The Forest Department was willing to permit 50 ft. of pathway to reach all the spots and shrines from the foothill. The Forest Department was of the view that the temple should undertake very strict vigil on the ecosystem and environment and no non-forest activities shall be permitted within the 18.3032 hectares, except religious activities. We are in agreement with the proposal made by the Appellant. The Forest Department shall permit 50 ft. of pathway to reach all the spots and shrines from the foothills for which the earmarked area of 18.3032 hectares of land can be used. No non-forest activities shall be permitted to be undertaken by anybody, including the Respondent-temple administration within the 18.3032 hectares of land which is diverted for ease of movement of devotees to reach all the spots and shrines from the foothill. | 1[ds]13. While examining the contention of the Respondent that the Notification dated 11.10.1883 was issued without complying the requirements of Section 25 of the Act, the High Court committed an error in finding that there is no order of Reservation prior to 01.01.1883. The High Court referred to Exhibit B-6 which contains Order No.187 issued under Section 4 of the Act, to arrive at a conclusion that there is no order of reservation. Exhibit B-6 also contains the Notification dated 13.11.1883 by which certain blocks of forest land described in the Schedule annexed thereto have been declared as reserved forests. Serial No.XXI of the said Schedule covers Alagar Hills which is the subject matter of the suit. Order No.189 was issued under Section 4 of the Act notifying the proposal to constitute certain area in Madura District as reserved forest. The area mentioned therein pertains to Aggamalais. Mr. F .E Robinson, Assistant Collector, was appointed as the Forest Settlement Officer and District Forest Officer of Madura to conduct the inquiry under Section 4. The Notification pertaining to the suit schedule land i.e. Alagarmalai was under Section 25 of the Act whereas the Notification in respect of Aggamalais was issued under Section 4 of the Act.The High Court mixed-up the two Notifications to hold that a reservation was not made in respect of Alagarmalai prior to the Act coming into force. Relying on Order No.189 pertaining to Aggamalais, the High Court erroneously held that the notification under Section 4 of the Act relates to Alagarmalais. On such basis the High Court held that there was no order passed by the Government declaring the Algarmalai as reserved forest prior to 01.01.1883 i.e. the date on which the Act came into force. Proceeding No.1284 dated 23.08.1881 would clearly demonstrate that the proposal for reserving forest area in Alagarmalai was approved by the Government prior to the commencement of the Act.Due to the misconception that Order No.189 issued under Section 4 of the Act is applicable to Alagarmalai, the High Court proceeded further to hold that the inquiry under Sections 6 and 8 have not been conducted. Section 6, as stated above, provides for an inquiry to be conducted pursuant to the notification issued under Section 4. Section 8 is connected to the inquiry to be conducted under Section 6. Neither Section 6 nor Section 8 are applicable to a notification issued under Section 25 of the Act which deals with forests which were already reserved by the Government prior to the Act. Therefore, the finding of the High Court that mandatory requirements of the Act were not complied with before issuing Notification dated 11.10.1883 under Section 25 is not correct. The judgments relied upon by the High Court in Sri Perarula Ramanuja Jeer Swami v. The Secretary of State for India in Council through the Collector of Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 are not applicable to the facts of this case.As the suit filed by the respondent was not dismissed as barred by limitation, it is not necessary for us to examine the point relating to Section 10 of the Limitation Act. Another point decided in favour of the Respondent is that lost grant has to be presumed. On the basis that the Respondent-temple had been in long and continuous possession of Alagar hills, the High Court was of the opinion that lost grant was to be presumed. The High Court observed that the Respondent-temple had been exercising acts of ownership over the suit hills for several centuries. The Application filed under Order 41 Rule 27 of the C.P .C. by the Respondent was allowed and the documents produced by them were marked as Exhibits A-46 to A-56. We have carefully examined those documents which only show that honey and other forest produce were being collected by those who were permitted by the Respondent-temple. The right, title or possession of the temple over Alagar hills cannot be determined on the basis of the above documents.An adverse inference was drawn against the Appellant for not producing the relevant material. The High Court was of the opinion that the Appellant was guilty of suppression of the documents which were available. Hence, the High Court presumed lost grant.We do not agree that the respondent was in continuous possession under an assertion of title as there is no evidence on record to reach such a conclusion. The presumption of lost grant is therefore not permissible.The finding recorded by the High Court that there is adequate material to hold that Alagar hills belong to the temple is erroneous. The trial Court is right in holding that the Respondent miserably failed in producing any material to prove its title.On 02.04.2019, we were informed that the parties were attempting a settlement. This Court directed the Member Secretary, Hindu Religious and Charitable Endowments Board (HR & CE) to convene a meeting with all the stakeholders to facilitate a settlement. A meeting was conducted on 03.08.2019 in the Office of the Commissioner, HR & CE in which all the stakeholders participated. The significant proposals of the Respondent were that the title in respect of the Alagar Hills should be with that of the presiding deity of the Respondent-temple and that the income from the forest shall be shared equally by the Respondent-temple and the Forest Department. The Appellant did not accept the said proposals. After joint inspection by the Forest Department and the HR & CE Department, the Appellant was willing to divert an area of 18.3032 hectares of land including the various religious spots for ease of movement of the devotees. The Forest Department was willing to permit 50 ft. of pathway to reach all the spots and shrines from the foothill. The Forest Department was of the view that the temple should undertake very strict vigil on the ecosystem and environment and no non-forest activities shall be permitted within the 18.3032 hectares, except religious activities. We are in agreement with the proposal made by the Appellant. The Forest Department shall permit 50 ft. of pathway to reach all the spots and shrines from the foothills for which the earmarked area of 18.3032 hectares of land can be used. No non-forest activities shall be permitted to be undertaken by anybody, including the Respondent-temple administration within the 18.3032 hectares of land which is diverted for ease of movement of devotees to reach all the spots and shrines from the foothill. | 1 | 3,487 | 1,157 | ### 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:
Secretary of State for India in Council through the Collector of Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 are not applicable to the facts of this case. 16. As the suit filed by the respondent was not dismissed as barred by limitation, it is not necessary for us to examine the point relating to Section 10 of the Limitation Act. Another point decided in favour of the Respondent is that lost grant has to be presumed. On the basis that the Respondent-temple had been in long and continuous possession of Alagar hills, the High Court was of the opinion that lost grant was to be presumed. The High Court observed that the Respondent-temple had been exercising acts of ownership over the suit hills for several centuries. The Application filed under Order 41 Rule 27 of the C.P .C. by the Respondent was allowed and the documents produced by them were marked as Exhibits A-46 to A-56. We have carefully examined those documents which only show that honey and other forest produce were being collected by those who were permitted by the Respondent-temple. The right, title or possession of the temple over Alagar hills cannot be determined on the basis of the above documents. 17. An adverse inference was drawn against the Appellant for not producing the relevant material. The High Court was of the opinion that the Appellant was guilty of suppression of the documents which were available. Hence, the High Court presumed lost grant. The circumstances in which the presumption of lost grant can be made has been settled by this Court in a judgment reported in Sri Manohar Das Mohanta v. Charu Chandra Pal & Ors. (1955) 1 SCR 1168 as under ; "7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. ?It cannot be the duty of a Judge to presume a grant of the non- existence of which he is convinced? observed Farwell, J. in Attorney-General v. Simpson [(1901) 2 Ch D 671, 698]. So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431 , 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsburys Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v. Richardson [4 B & Ald 579 : 106 ER 1048 at 1049] and Rochdale Canal Company v. Radclife [18 QB 287 : 118 ER 108 at 118] ).? 18. We do not agree that the respondent was in continuous possession under an assertion of title as there is no evidence on record to reach such a conclusion. The presumption of lost grant is therefore not permissible. 19. The finding recorded by the High Court that there is adequate material to hold that Alagar hills belong to the temple is erroneous. The trial Court is right in holding that the Respondent miserably failed in producing any material to prove its title. 20. On 02.04.2019, we were informed that the parties were attempting a settlement. This Court directed the Member Secretary, Hindu Religious and Charitable Endowments Board (HR & CE) to convene a meeting with all the stakeholders to facilitate a settlement. A meeting was conducted on 03.08.2019 in the Office of the Commissioner, HR & CE in which all the stakeholders participated. The significant proposals of the Respondent were that the title in respect of the Alagar Hills should be with that of the presiding deity of the Respondent-temple and that the income from the forest shall be shared equally by the Respondent-temple and the Forest Department. The Appellant did not accept the said proposals. After joint inspection by the Forest Department and the HR & CE Department, the Appellant was willing to divert an area of 18.3032 hectares of land including the various religious spots for ease of movement of the devotees. The Forest Department was willing to permit 50 ft. of pathway to reach all the spots and shrines from the foothill. The Forest Department was of the view that the temple should undertake very strict vigil on the ecosystem and environment and no non-forest activities shall be permitted within the 18.3032 hectares, except religious activities. We are in agreement with the proposal made by the Appellant. The Forest Department shall permit 50 ft. of pathway to reach all the spots and shrines from the foothills for which the earmarked area of 18.3032 hectares of land can be used. No non-forest activities shall be permitted to be undertaken by anybody, including the Respondent-temple administration within the 18.3032 hectares of land which is diverted for ease of movement of devotees to reach all the spots and shrines from the foothill.
### Response:
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### Explanation:
forest land described in the Schedule annexed thereto have been declared as reserved forests. Serial No.XXI of the said Schedule covers Alagar Hills which is the subject matter of the suit. Order No.189 was issued under Section 4 of the Act notifying the proposal to constitute certain area in Madura District as reserved forest. The area mentioned therein pertains to Aggamalais. Mr. F .E Robinson, Assistant Collector, was appointed as the Forest Settlement Officer and District Forest Officer of Madura to conduct the inquiry under Section 4. The Notification pertaining to the suit schedule land i.e. Alagarmalai was under Section 25 of the Act whereas the Notification in respect of Aggamalais was issued under Section 4 of the Act.The High Court mixed-up the two Notifications to hold that a reservation was not made in respect of Alagarmalai prior to the Act coming into force. Relying on Order No.189 pertaining to Aggamalais, the High Court erroneously held that the notification under Section 4 of the Act relates to Alagarmalais. On such basis the High Court held that there was no order passed by the Government declaring the Algarmalai as reserved forest prior to 01.01.1883 i.e. the date on which the Act came into force. Proceeding No.1284 dated 23.08.1881 would clearly demonstrate that the proposal for reserving forest area in Alagarmalai was approved by the Government prior to the commencement of the Act.Due to the misconception that Order No.189 issued under Section 4 of the Act is applicable to Alagarmalai, the High Court proceeded further to hold that the inquiry under Sections 6 and 8 have not been conducted. Section 6, as stated above, provides for an inquiry to be conducted pursuant to the notification issued under Section 4. Section 8 is connected to the inquiry to be conducted under Section 6. Neither Section 6 nor Section 8 are applicable to a notification issued under Section 25 of the Act which deals with forests which were already reserved by the Government prior to the Act. Therefore, the finding of the High Court that mandatory requirements of the Act were not complied with before issuing Notification dated 11.10.1883 under Section 25 is not correct. The judgments relied upon by the High Court in Sri Perarula Ramanuja Jeer Swami v. The Secretary of State for India in Council through the Collector of Tinnevelly (1910) VI Indian Cases 691 and Mysore Balakrishna Rao v. The Secretary of State for India in Council (1915) XXIX M.L.J. 276 are not applicable to the facts of this case.As the suit filed by the respondent was not dismissed as barred by limitation, it is not necessary for us to examine the point relating to Section 10 of the Limitation Act. Another point decided in favour of the Respondent is that lost grant has to be presumed. On the basis that the Respondent-temple had been in long and continuous possession of Alagar hills, the High Court was of the opinion that lost grant was to be presumed. The High Court observed that the Respondent-temple had been exercising acts of ownership over the suit hills for several centuries. The Application filed under Order 41 Rule 27 of the C.P .C. by the Respondent was allowed and the documents produced by them were marked as Exhibits A-46 to A-56. We have carefully examined those documents which only show that honey and other forest produce were being collected by those who were permitted by the Respondent-temple. The right, title or possession of the temple over Alagar hills cannot be determined on the basis of the above documents.An adverse inference was drawn against the Appellant for not producing the relevant material. The High Court was of the opinion that the Appellant was guilty of suppression of the documents which were available. Hence, the High Court presumed lost grant.We do not agree that the respondent was in continuous possession under an assertion of title as there is no evidence on record to reach such a conclusion. The presumption of lost grant is therefore not permissible.The finding recorded by the High Court that there is adequate material to hold that Alagar hills belong to the temple is erroneous. The trial Court is right in holding that the Respondent miserably failed in producing any material to prove its title.On 02.04.2019, we were informed that the parties were attempting a settlement. This Court directed the Member Secretary, Hindu Religious and Charitable Endowments Board (HR & CE) to convene a meeting with all the stakeholders to facilitate a settlement. A meeting was conducted on 03.08.2019 in the Office of the Commissioner, HR & CE in which all the stakeholders participated. The significant proposals of the Respondent were that the title in respect of the Alagar Hills should be with that of the presiding deity of the Respondent-temple and that the income from the forest shall be shared equally by the Respondent-temple and the Forest Department. The Appellant did not accept the said proposals. After joint inspection by the Forest Department and the HR & CE Department, the Appellant was willing to divert an area of 18.3032 hectares of land including the various religious spots for ease of movement of the devotees. The Forest Department was willing to permit 50 ft. of pathway to reach all the spots and shrines from the foothill. The Forest Department was of the view that the temple should undertake very strict vigil on the ecosystem and environment and no non-forest activities shall be permitted within the 18.3032 hectares, except religious activities. We are in agreement with the proposal made by the Appellant. The Forest Department shall permit 50 ft. of pathway to reach all the spots and shrines from the foothills for which the earmarked area of 18.3032 hectares of land can be used. No non-forest activities shall be permitted to be undertaken by anybody, including the Respondent-temple administration within the 18.3032 hectares of land which is diverted for ease of movement of devotees to reach all the spots and shrines from the foothill.
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SHRI H.D. SHRMA Vs. NORTHERN INDIA TEXTILE RES.ASSN | never paid to the appellant after August,1986 till 24.04.1987 (date of dismissal order). It is for this reason, the respondent contended that a sum of Rs.110/- is neither a wage and nor its component and nor the appellant has any right in law to claim such amount under the terms of his employment from the respondent. 29. What types of payment would constitute a wage or its component within the meaning of the word wages as defined under Section 2 (rr) of the Industrial Disputes Act has been the subject matter of several decisions of this Court. The word wages defined in Section 2(y) of the Act is in peri materia with the definition of word wagesdefined in Section 2(rr) of the Industrial Disputes Act. 30. A question arose before the Three Judge Bench in the case of Bharat Electronics Limited vs. Industrial Tribunal, Karnataka, Bangalore & Anr. (1990) 2 SCC 314 as to whether night shift allowance would form part of wages in the context of Section 33 (2) (b) of the Industrial Disputes Act, 1947. 31. Justice M.M. Punchhi (as His Lordship then was and later CJI) speaking for the Bench examined the object of Section 33(2)(b) of the Industrial Disputes Act. After referring to earlier decision of this Court in Syndicate Bank Limited vs. Ramanath (1968) 1 SCR 327 , it was held that the intention of the legislature in providing for such a contingency is not far to seek. It was held that the section was enacted to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed This Court held that one months wages as thought and provided to be given are conceptually for the month to follow, the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. This Court further held that if the converse is read in the context of the proviso to Section 33(2)(b), it inevitable would have to be read as double the wages as earned in the month previous to the date of dismissal and that would, in our view, be reading in the provision something which is not there, either expressly or impliedly. This Court held that we have to blend the contextual interpretation with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working. It was held that the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift. It was held that the night shift allowance automatically did not form part of his wages and it was not such an allowance which flowed to him as his entitlement not restricted to his service. 32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way of interim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter. 33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act. 34. The reason is that any isolated one time ex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act. 35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim such amount from the employer provided the employee proves that he has fulfilled the terms of his employment. 36. A question arose before the Two Judge Bench in Ghaziabad Zila Sahkari Bank Ltd. vs. Additional Labour Commissioner & Ors. (2007) 11 SCC 756 as to whether any ex gratia payment made to the employee by the Bank would be regarded as Bonus (production, incentive or customary). This Court held that it was not. It was held that it is not possible to employ a term of service on the basis of employment contract. It was held that the payment made as ex gratia was neither in the nature of production bonus nor incentive bonus nor customary bonus and nor any statutory bonus. It cannot be regarded as part of the contract employment. It was accordingly held that the ex gratia payment made by the Bank cannot be regarded as remuneration paid or payable to the employees in fulfillment of the terms of the contract of employment within the meaning of definition of wage under Section 2 (rr) of the ID Act. 37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along with his dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act. On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of his term of the employment and, if so, under which head. 38. | 0[ds]21. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are inclined to uphold the conclusion arrived at by the High Court but we do so on our reasoning given hereinbelow. In other words, though we uphold the conclusion arrived at by the High Court,but not the reasoning of the High Court. This we say for the following reasons22. In our view, the respondents application made underSection 6E(2) of the Act deserves to be allowed by granting them approval to the appellants dismissal32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way ofinterim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act34. The reason is that any isolated one timeex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim suchamount from the employer provided the employee proves that he has fulfilled the terms of his employment37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along withhis dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act.On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of histerm of the employment and, if so, under which head. | 0 | 3,683 | 472 | ### 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:
never paid to the appellant after August,1986 till 24.04.1987 (date of dismissal order). It is for this reason, the respondent contended that a sum of Rs.110/- is neither a wage and nor its component and nor the appellant has any right in law to claim such amount under the terms of his employment from the respondent. 29. What types of payment would constitute a wage or its component within the meaning of the word wages as defined under Section 2 (rr) of the Industrial Disputes Act has been the subject matter of several decisions of this Court. The word wages defined in Section 2(y) of the Act is in peri materia with the definition of word wagesdefined in Section 2(rr) of the Industrial Disputes Act. 30. A question arose before the Three Judge Bench in the case of Bharat Electronics Limited vs. Industrial Tribunal, Karnataka, Bangalore & Anr. (1990) 2 SCC 314 as to whether night shift allowance would form part of wages in the context of Section 33 (2) (b) of the Industrial Disputes Act, 1947. 31. Justice M.M. Punchhi (as His Lordship then was and later CJI) speaking for the Bench examined the object of Section 33(2)(b) of the Industrial Disputes Act. After referring to earlier decision of this Court in Syndicate Bank Limited vs. Ramanath (1968) 1 SCR 327 , it was held that the intention of the legislature in providing for such a contingency is not far to seek. It was held that the section was enacted to soften the rigour of unemployment that will face the workman against whom an order of discharge or dismissal has been passed This Court held that one months wages as thought and provided to be given are conceptually for the month to follow, the month of unemployment and in the context wages for the month following the date of dismissal and not a repetitive wage of the month previous to the date of dismissal. This Court further held that if the converse is read in the context of the proviso to Section 33(2)(b), it inevitable would have to be read as double the wages as earned in the month previous to the date of dismissal and that would, in our view, be reading in the provision something which is not there, either expressly or impliedly. This Court held that we have to blend the contextual interpretation with the conceptual interpretation to come to the view that night shift allowance could never be part of wages, and those would be due only in the event of working. It was held that the conclusion is inescapable that the workman had to earn night shift allowance by actually working in the night shift and his claim to that allowance was contingent upon his reporting to duty and being put to that shift. It was held that the night shift allowance automatically did not form part of his wages and it was not such an allowance which flowed to him as his entitlement not restricted to his service. 32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way of interim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter. 33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act. 34. The reason is that any isolated one time ex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act. 35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim such amount from the employer provided the employee proves that he has fulfilled the terms of his employment. 36. A question arose before the Two Judge Bench in Ghaziabad Zila Sahkari Bank Ltd. vs. Additional Labour Commissioner & Ors. (2007) 11 SCC 756 as to whether any ex gratia payment made to the employee by the Bank would be regarded as Bonus (production, incentive or customary). This Court held that it was not. It was held that it is not possible to employ a term of service on the basis of employment contract. It was held that the payment made as ex gratia was neither in the nature of production bonus nor incentive bonus nor customary bonus and nor any statutory bonus. It cannot be regarded as part of the contract employment. It was accordingly held that the ex gratia payment made by the Bank cannot be regarded as remuneration paid or payable to the employees in fulfillment of the terms of the contract of employment within the meaning of definition of wage under Section 2 (rr) of the ID Act. 37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along with his dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act. On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of his term of the employment and, if so, under which head. 38.
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0
### Explanation:
21. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are inclined to uphold the conclusion arrived at by the High Court but we do so on our reasoning given hereinbelow. In other words, though we uphold the conclusion arrived at by the High Court,but not the reasoning of the High Court. This we say for the following reasons22. In our view, the respondents application made underSection 6E(2) of the Act deserves to be allowed by granting them approval to the appellants dismissal32. Now coming to the facts of this case, we find that it has come in evidence that the respondent had paid Rs.110/- to the appellant in August 1986 by way ofinterim relief as an ex gratia payment. It is not in dispute that a sum of Rs.110/- was paid only once in August 1986 and not thereafter33. In our opinion,such payment cannot be termed either as wages or its component within the meaning of Section 2 (y) read with Section 6E (2) of the Act34. The reason is that any isolated one timeex gratia payment made by way of an interim relief neither satisfies the requirement of Section 2 (y) and nor it satisfies the requirement of clauses (i) to (iii) of Section 2 (y) of the Act35. If such amount had been paid regularly by the respondent to the appellant in compliance with his terms of employment, it would have been regarded as wages or its component within the meaning of Section 2(y) of the Act.In order that any payment is regarded as wages, it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. It is only then a right is created in employees favour to claim suchamount from the employer provided the employee proves that he has fulfilled the terms of his employment37. We are, therefore, of the considered opinion that the respondent rightly paid Rs.1103.40 to the appellant by way of his wages for one month along withhis dismissal order. Such payment, in our view, was made strictly in accordance with the requirements of Section 2(y) read with Section 6E (2) of the Act.On the other hand, we find that the appellant failed to adduce any evidence to prove that Rs.110/- was being paid to him every month by the respondent as a part of histerm of the employment and, if so, under which head.
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State Of Madhya Pradesh Vs. Nurbudda Vally Refigerated Products &Ors | Government, the compensation payable shall in no case exceed-(a) the amount paid to Government by the local body less depreciation on buildings, if any, calculated in accordance with Paragraph 3.036 of Chapter III-"Buildings" for the period during which the property was in charge of the local body or the present value of the property, whichever is less;(b) the cost or present value, whichever is less, of any buildings or other works constructed on the property by the local body." 12) A perusal of the order of the Nazul Officer shows that grant of NOC depends upon various factors and fulfillment of certain conditions. It is also not in dispute that the said officer is better equipped with to decide the application for grant of NOC. Undoubtedly, while deciding such an application, Nazul Officer has to consider not only the circulars but also rules and regulations framed by the State Government. Even otherwise, when the ultimate order of Nazul Officer can be canvassed before Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Art. 226 as an appellate court over the finding of fact arrived at by the Nazul Officer. In this context, it is useful to refer the following decisions: In Punjab National Bank vs. O.C. Krishnan & Ors., (2001) 6 SCC 569 , this Court held:- "6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." In State of Himachal Pradesh and Ors. vs. Gujarat Ambuja Cement Ltd. and Anr. (2005) 6 SCC 499 , this Court observed as under:- "17. We shall first deal with the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction." 13) There is broad separation of powers under the Constitution between three organs of the State, i.e., the Legislature, the Executive and the Judiciary. It is also well established principle that one organ of the State should not ordinarily encroach into the domain of another. Even if the order of the first authority, in the case on hand, Nazul Officer, requires interference, it is for the appellate authority to look into it and take a decision one way or the other and it is not an extraordinary case which warrants direct interference by the High Court under Art. 226. It is relevant to note that the Nazul Officer has adverted to a relevant fact that the Government, while renewing the lease of 3.13 acres of land from 14.03.1999 to 13.03.2029 in favour of the respondent-Company, permitted it to change the use of leased land from industrial purpose to commercial or residential purpose on payment of the lease rent, as payable on the land used or changed for commercial or residential purpose. In such circumstances, if the said direction is applicable, it is but proper on the part of the respondent to comply with it. Even if the stand of the respondent-Company is acceptable and if they are aggrieved of the order of the Nazul Officer, they are free to challenge the same before the Collector as pointed above. In our opinion, interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction.14) Coming to the second submission, in view of our conclusion about the order of the High Court dated 26.09.2008, we are satisfied that the second issue is to be answered against the respondent. Here again, this Court, in a series of decisions, has held that when a matter is remitted to the original authority to decide the issue, the said authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, rules and regulations applicable to the same. There cannot be any restriction to pass an order in such a way de hors to the statutory provisions or regulations/instructions applicable to the case in particular. As pointed out earlier, even if there is any error, it is for the Collector/Government to set it right and the High Court is not justified in asking the officer to personally present and explain his "misconduct". In our considered view, the High Court has exceeded its jurisdiction in issuing such a direction. | 1[ds]12) A perusal of the order of the Nazul Officer shows that grant of NOC depends upon various factors and fulfillment of certain conditions. It is also not in dispute that the said officer is better equipped with to decide the application for grant of NOC. Undoubtedly, while deciding such an application, Nazul Officer has to consider not only the circulars but also rules and regulations framed by the State Government. Even otherwise, when the ultimate order of Nazul Officer can be canvassed before Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Art. 226 as an appellate court over the finding of fact arrived at by the Nazulis relevant to note that the Nazul Officer has adverted to a relevant fact that the Government, while renewing the lease of 3.13 acres of land from 14.03.1999 to 13.03.2029 in favour of the respondent-Company, permitted it to change the use of leased land from industrial purpose to commercial or residential purpose on payment of the lease rent, as payable on the land used or changed for commercial or residential purpose. In such circumstances, if the said direction is applicable, it is but proper on the part of the respondent to comply with it. Even if the stand of the respondent-Company is acceptable and if they are aggrieved of the order of the Nazul Officer, they are free to challenge the same before the Collector as pointed above. In our opinion, interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction.14) Coming to the second submission, in view of our conclusion about the order of the High Court dated 26.09.2008, we are satisfied that the second issue is to be answered against the respondent. Here again, this Court, in a series of decisions, has held that when a matter is remitted to the original authority to decide the issue, thesaid authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, rules and regulations applicable to the same. There cannot be any restriction to pass an order in such a way de hors to the statutory provisions or regulations/instructions applicable to the case in particular. As pointed out earlier, even if there is any error, it is for the Collector/Government to set it right and the High Court is not justified in asking the officer to personally present and explain his "misconduct". In our considered view, the High Court has exceeded its jurisdiction in issuing such a direction. | 1 | 3,211 | 476 | ### 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:
Government, the compensation payable shall in no case exceed-(a) the amount paid to Government by the local body less depreciation on buildings, if any, calculated in accordance with Paragraph 3.036 of Chapter III-"Buildings" for the period during which the property was in charge of the local body or the present value of the property, whichever is less;(b) the cost or present value, whichever is less, of any buildings or other works constructed on the property by the local body." 12) A perusal of the order of the Nazul Officer shows that grant of NOC depends upon various factors and fulfillment of certain conditions. It is also not in dispute that the said officer is better equipped with to decide the application for grant of NOC. Undoubtedly, while deciding such an application, Nazul Officer has to consider not only the circulars but also rules and regulations framed by the State Government. Even otherwise, when the ultimate order of Nazul Officer can be canvassed before Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Art. 226 as an appellate court over the finding of fact arrived at by the Nazul Officer. In this context, it is useful to refer the following decisions: In Punjab National Bank vs. O.C. Krishnan & Ors., (2001) 6 SCC 569 , this Court held:- "6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." In State of Himachal Pradesh and Ors. vs. Gujarat Ambuja Cement Ltd. and Anr. (2005) 6 SCC 499 , this Court observed as under:- "17. We shall first deal with the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction." 13) There is broad separation of powers under the Constitution between three organs of the State, i.e., the Legislature, the Executive and the Judiciary. It is also well established principle that one organ of the State should not ordinarily encroach into the domain of another. Even if the order of the first authority, in the case on hand, Nazul Officer, requires interference, it is for the appellate authority to look into it and take a decision one way or the other and it is not an extraordinary case which warrants direct interference by the High Court under Art. 226. It is relevant to note that the Nazul Officer has adverted to a relevant fact that the Government, while renewing the lease of 3.13 acres of land from 14.03.1999 to 13.03.2029 in favour of the respondent-Company, permitted it to change the use of leased land from industrial purpose to commercial or residential purpose on payment of the lease rent, as payable on the land used or changed for commercial or residential purpose. In such circumstances, if the said direction is applicable, it is but proper on the part of the respondent to comply with it. Even if the stand of the respondent-Company is acceptable and if they are aggrieved of the order of the Nazul Officer, they are free to challenge the same before the Collector as pointed above. In our opinion, interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction.14) Coming to the second submission, in view of our conclusion about the order of the High Court dated 26.09.2008, we are satisfied that the second issue is to be answered against the respondent. Here again, this Court, in a series of decisions, has held that when a matter is remitted to the original authority to decide the issue, the said authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, rules and regulations applicable to the same. There cannot be any restriction to pass an order in such a way de hors to the statutory provisions or regulations/instructions applicable to the case in particular. As pointed out earlier, even if there is any error, it is for the Collector/Government to set it right and the High Court is not justified in asking the officer to personally present and explain his "misconduct". In our considered view, the High Court has exceeded its jurisdiction in issuing such a direction.
### Response:
1
### Explanation:
12) A perusal of the order of the Nazul Officer shows that grant of NOC depends upon various factors and fulfillment of certain conditions. It is also not in dispute that the said officer is better equipped with to decide the application for grant of NOC. Undoubtedly, while deciding such an application, Nazul Officer has to consider not only the circulars but also rules and regulations framed by the State Government. Even otherwise, when the ultimate order of Nazul Officer can be canvassed before Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Art. 226 as an appellate court over the finding of fact arrived at by the Nazulis relevant to note that the Nazul Officer has adverted to a relevant fact that the Government, while renewing the lease of 3.13 acres of land from 14.03.1999 to 13.03.2029 in favour of the respondent-Company, permitted it to change the use of leased land from industrial purpose to commercial or residential purpose on payment of the lease rent, as payable on the land used or changed for commercial or residential purpose. In such circumstances, if the said direction is applicable, it is but proper on the part of the respondent to comply with it. Even if the stand of the respondent-Company is acceptable and if they are aggrieved of the order of the Nazul Officer, they are free to challenge the same before the Collector as pointed above. In our opinion, interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction.14) Coming to the second submission, in view of our conclusion about the order of the High Court dated 26.09.2008, we are satisfied that the second issue is to be answered against the respondent. Here again, this Court, in a series of decisions, has held that when a matter is remitted to the original authority to decide the issue, thesaid authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, rules and regulations applicable to the same. There cannot be any restriction to pass an order in such a way de hors to the statutory provisions or regulations/instructions applicable to the case in particular. As pointed out earlier, even if there is any error, it is for the Collector/Government to set it right and the High Court is not justified in asking the officer to personally present and explain his "misconduct". In our considered view, the High Court has exceeded its jurisdiction in issuing such a direction.
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Jaipur Udyog Limited Vs. Union of India & Others | charges, their application under S. 11A should have been dismissed. Sec . 41. so far as it is relevant for the present purpose, and Sec. 41A of the Act read as follows:"41. (1) Any complaint that a railway administration-(a) is contravening the provisions of Section 28, or(b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or(c) is levying any other charge which is unreasonable,may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter.(2) x x x(3) x x x(4) x x x41 A. Where a railway administration` bound by an order of the Tribunal, considers that since the order was made there has been a material change in the circumstances on which it was based, the railway administration may, after the expiry of one year from the date of the order, make an application to the Tribunal for revision of the order and the Tribunal may, after making due inquiry into the matter in accordance with the provisions of this Chapter, vary or revoke the order."4. The Tribunal held that since the previous orders were made the cost of the operations as well as the wages of the staff have gone up appreciably and there has thus been a material change in the circumstances on which the said orders were based. On the application under Section 41-A arising out of complaint No. 6 of 1965 the Tribunal found, as regards the maintenance charges, that the formula on the basis of which the charges had been fixed in the previous order involved many arbitrary assumptions and was of no help in estimating reasonable maintenance charges for the siding. The Tribunal further held that the "payable cost of siding charges" had increased and found that the basis adopted in the previous order for fixing the siding charges was of "no significance." With regard to supplementary charges, the Tribunal noted that in the earlier order the supplementary charges were "fixed on the basis of the percentage, in force for similar charges on freight" and that there being no supplementary charges on freight with effect from April 1, 1970, the circumstances upon which the charges under this head were fixed by the earlier order had undergone a material change on the other application under S. 41A, directed against the order made-on complaint No. 7 of 1965 the Tribunal recorded similar findings on the placement-charges, maintenance charges and supplementary charges fixed by the said order. Having found that there has been material change in the circumstances justifying the exercise of the revisional jurisdiction under Section 41A of Act, the Tribunal considered which of the two alternatives permitted by Section 41A, variation or revocation of the previous orders would be appropriate. As stated already, the Tribunal held that on the evidence before it, it was not in a position to vary the earlier order by refixing the charges.5. Before us it was contended on behalf of the appellant that the railway administration by choosing not to lead evidence necessary for variation of the previous orders could not compel the Tribunal to revoke these orders. It was submitted that under Section 41A the Tribunal had a discretion either to very or to revoke the previous orders and it was not permissible for the railway administration to lead evidence in such a way as would compel the Tribunal to exercise its discretion in one Particular manner only leaving no alternative. That may be so, but the main difficulty that the Tribunal appears to have experienced in refixing the charges was that it found the basis on which some of the charges were fixed not proper or reliable and felt that- certain relevant factors which should have been taken note of were not considered in the previous orders. These difficulties felt by the Tribunal in the way of refixing the charges could not have been anticipated by the railway administration while adducing evidence in these cases and under the circumstances revocation of the previous orders was the only choice left to the Tribunal.6. It was stated before us that after the revocation of the previous orders the railway administration has refixed the charges at rates which according to the appellant are exorbitant. It was submitted that if we found that evidence was lacking for fixation of the charges by the Tribunal we should remit the matters to the Tribunal for variation of the earlier orders with liberty to the parties to adduce further evidence; otherwise, it was submitted, if the appellant were driven to make fresh complaints under Section 41 of the Act. orders reducing the charges made on such complaints would be effective only from a future date, as held by this Court in Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd., (1963) 2 SCR 333 = (AIR 1963 SC 217 ) and the appellant would be denied any relief for the interim period. It was further submitted that the law stated in that decision that the Tribunal in passing an order fixing reasonable rates or charges under S. 41 of the Act cannot make the order effective even from the date of the complaint but has to "mention a future date for this to come into operation" required reconsideration. The decision in Upper Doab Sugar Mills case (supra) does not arise for consideration in these appeals in which we are concerned only with the propriety of the two orders made under Section 41A of the Act. We do not also think that it would be more advantageous to the appellant if the matters were remanded to the Tribunal for being reheard, especially when the railway administration has admittedly refixed the charges. The appellant will be free to make fresh complaints regarding these charges under Section 41 of the Act, and we were told by the learned counsel for the respondent that these complaints are now disposed of without much delay. | 0[ds]The decision in Upper Doab Sugar Mills case (supra) does not arise for consideration in these appeals in which we are concerned only with the propriety of the two orders made under Section 41A of the Act. We do not also think that it would be more advantageous to the appellant if the matters were remanded to the Tribunal for being reheard, especially when the railway administration has admittedly refixed the charges. | 0 | 1,601 | 81 | ### 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:
charges, their application under S. 11A should have been dismissed. Sec . 41. so far as it is relevant for the present purpose, and Sec. 41A of the Act read as follows:"41. (1) Any complaint that a railway administration-(a) is contravening the provisions of Section 28, or(b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or(c) is levying any other charge which is unreasonable,may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter.(2) x x x(3) x x x(4) x x x41 A. Where a railway administration` bound by an order of the Tribunal, considers that since the order was made there has been a material change in the circumstances on which it was based, the railway administration may, after the expiry of one year from the date of the order, make an application to the Tribunal for revision of the order and the Tribunal may, after making due inquiry into the matter in accordance with the provisions of this Chapter, vary or revoke the order."4. The Tribunal held that since the previous orders were made the cost of the operations as well as the wages of the staff have gone up appreciably and there has thus been a material change in the circumstances on which the said orders were based. On the application under Section 41-A arising out of complaint No. 6 of 1965 the Tribunal found, as regards the maintenance charges, that the formula on the basis of which the charges had been fixed in the previous order involved many arbitrary assumptions and was of no help in estimating reasonable maintenance charges for the siding. The Tribunal further held that the "payable cost of siding charges" had increased and found that the basis adopted in the previous order for fixing the siding charges was of "no significance." With regard to supplementary charges, the Tribunal noted that in the earlier order the supplementary charges were "fixed on the basis of the percentage, in force for similar charges on freight" and that there being no supplementary charges on freight with effect from April 1, 1970, the circumstances upon which the charges under this head were fixed by the earlier order had undergone a material change on the other application under S. 41A, directed against the order made-on complaint No. 7 of 1965 the Tribunal recorded similar findings on the placement-charges, maintenance charges and supplementary charges fixed by the said order. Having found that there has been material change in the circumstances justifying the exercise of the revisional jurisdiction under Section 41A of Act, the Tribunal considered which of the two alternatives permitted by Section 41A, variation or revocation of the previous orders would be appropriate. As stated already, the Tribunal held that on the evidence before it, it was not in a position to vary the earlier order by refixing the charges.5. Before us it was contended on behalf of the appellant that the railway administration by choosing not to lead evidence necessary for variation of the previous orders could not compel the Tribunal to revoke these orders. It was submitted that under Section 41A the Tribunal had a discretion either to very or to revoke the previous orders and it was not permissible for the railway administration to lead evidence in such a way as would compel the Tribunal to exercise its discretion in one Particular manner only leaving no alternative. That may be so, but the main difficulty that the Tribunal appears to have experienced in refixing the charges was that it found the basis on which some of the charges were fixed not proper or reliable and felt that- certain relevant factors which should have been taken note of were not considered in the previous orders. These difficulties felt by the Tribunal in the way of refixing the charges could not have been anticipated by the railway administration while adducing evidence in these cases and under the circumstances revocation of the previous orders was the only choice left to the Tribunal.6. It was stated before us that after the revocation of the previous orders the railway administration has refixed the charges at rates which according to the appellant are exorbitant. It was submitted that if we found that evidence was lacking for fixation of the charges by the Tribunal we should remit the matters to the Tribunal for variation of the earlier orders with liberty to the parties to adduce further evidence; otherwise, it was submitted, if the appellant were driven to make fresh complaints under Section 41 of the Act. orders reducing the charges made on such complaints would be effective only from a future date, as held by this Court in Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd., (1963) 2 SCR 333 = (AIR 1963 SC 217 ) and the appellant would be denied any relief for the interim period. It was further submitted that the law stated in that decision that the Tribunal in passing an order fixing reasonable rates or charges under S. 41 of the Act cannot make the order effective even from the date of the complaint but has to "mention a future date for this to come into operation" required reconsideration. The decision in Upper Doab Sugar Mills case (supra) does not arise for consideration in these appeals in which we are concerned only with the propriety of the two orders made under Section 41A of the Act. We do not also think that it would be more advantageous to the appellant if the matters were remanded to the Tribunal for being reheard, especially when the railway administration has admittedly refixed the charges. The appellant will be free to make fresh complaints regarding these charges under Section 41 of the Act, and we were told by the learned counsel for the respondent that these complaints are now disposed of without much delay.
### Response:
0
### Explanation:
The decision in Upper Doab Sugar Mills case (supra) does not arise for consideration in these appeals in which we are concerned only with the propriety of the two orders made under Section 41A of the Act. We do not also think that it would be more advantageous to the appellant if the matters were remanded to the Tribunal for being reheard, especially when the railway administration has admittedly refixed the charges.
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Agra Electric Supply Co. Ltd Vs. The Labour Court, Meerut & Anr | other date to which hearing may be adjourned any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of the date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper.(2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of his absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order."Sub-rule (1) deals with the absence of a party on the date fixed or any other date to which the hearing may be adjourned, though he has been served with summons or he has notice of the date of hearing. Under those circumstances it provides that the Labour Court, Tribunal or Arbitrator, as the case any be "may proceed with the case in his absence and pass such order as it may deem fit and proper." It is to the setting aside of such an order that may have been passed under Sub-rule (1), that the procedure is indicated in sub-rule (2). According to Mr. Gupte, learned Counsel for the appellant, the order passed on February 22, 1964, by the Labour Court is one contemplated by sub-rule (1) of Rules 16, in which case the provisions of sub-rule (2) are attracted and the second respondent ,if he felt aggrieved by that order, should have filed an application under sub-rule (2), within time, to set aside that order.11. We are not inclined to accept this contention of Mr. Gupte. As pointed out earlier by us, the order passed on February 22, 1964, is one dismissing the application as not having been prosecuted, for default of appearance of the second respondent. We will presently show that the order of February 22, 1964, cannot be considered to be one contemplated to have been passed under sub-rule (1) of Rule 16. Sub-rule (1) refers to a party being absent on the date fixed, or on any other date to which the hearing has been adjourned, and such party having been duly served or having notice of the date of hearing. The said sub-rule (1) indicates as to what is to be done under such circumstances. We have referred to Rule 12 which provides for what the Labour Court or Tribunal should do at the first hearing. Neither the Act nor the rules empower a Tribunal or Labour Court to dismiss an application for default of appearance of a party. Rule 16 (1) is the only provision providing for what is to be done when a party is absent. That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein "to proceed with the case in his absence", either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction "and pass such order as it may deem fit and proper", clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default. Without attempting to be exhaustive, we shall just give an example. Where a workman, after leading some evidence in support of his claim, absents himself on the next adjourned date with the result that he does not lead further evidence, the Tribunal is bound to proceed with the case on such evidence as has been placed before it. It cannot dismiss the application on the ground of default of appearance of the workman. This will be an instance of "proceeding with the case in the absence of a party" and giving a decision on merits. If such an order is passed by the Tribunal in the absence of one or other of the parties before it, a right is given to such party to apply, under sub-rule (2) for setting aside the order that has been passed in his absence in the case in terms of sub-rule (1). The application must be filed within the period mentioned in sub-rule (2) and the party will have also to satisfy the Tribunal or Labour Court that he had sufficient cause for his absence.The necessity for filing an application for setting aside an order passed in the case in the absence of a party, as contemplated under sub-rule (2) of Rule 16 will only arise when an order on merits affecting the case has been passed in the absence of a party, under sub-rule (1) of Rule 16.An order dismissing a case for default or non-prosecution, does not come under sub-rule (1) of Rule 16 and to such an order sub-rule (2) has no application.12. We have already indicated that the order passed on February 22, 1964 by the Labour Court cannot be considered to be an order contemplated under sub-rule (1) of Rule 16.If that is so, the second respondent was not bound to file an application within the time mentioned in sub-rule (2) for setting aside the order dated February 22, 1964. Therefore the fact that a previous application, filed by the second respondent, was dismissed for non-prosecution on February 22, 1964 is no bar under Rule 16 (2) to the filing of the present application, Case No. 217 of 1965. It follows that the objections raised by the appellant to the maintainability of the application filed by the second respondent have been rightly rejected by the Labour Court and the High Court. | 0[ds]11. We are not inclined to accept this contention of Mr. Gupte. As pointed out earlier by us, the order passed on February 22, 1964, is one dismissing the application as not having been prosecuted, for default of appearance of the second respondent. We will presently show that the order of February 22, 1964, cannot be considered to be one contemplated to have been passed under sub-rule (1) of Rule 16. Sub-rule (1) refers to a party being absent on the date fixed, or on any other date to which the hearing has been adjourned, and such party having been duly served or having notice of the date of hearing. The said sub-rule (1) indicates as to what is to be done under such circumstances. We have referred to Rule 12 which provides for what the Labour Court or Tribunal should do at the first hearing. Neither the Act nor the rules empower a Tribunal or Labour Court to dismiss an application for default of appearance of a party. Rule 16 (1) is the only provision providing for what is to be done when a party is absent. That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein "to proceed with the case in his absence", either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction "and pass such order as it may deem fit and proper", clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default. Without attempting to be exhaustive, we shall just give an example. Where a workman, after leading some evidence in support of his claim, absents himself on the next adjourned date with the result that he does not lead further evidence, the Tribunal is bound to proceed with the case on such evidence as has been placed before it. It cannot dismiss the application on the ground of default of appearance of the workman. This will be an instance of "proceeding with the case in the absence of a party" and giving a decision on merits. If such an order is passed by the Tribunal in the absence of one or other of the parties before it, a right is given to such party to apply, under sub-rule (2) for setting aside the order that has been passed in his absence in the case in terms of sub-rule (1). The application must be filed within the period mentioned in sub-rule (2) and the party will have also to satisfy the Tribunal or Labour Court that he had sufficient cause for his absence.The necessity for filing an application for setting aside an order passed in the case in the absence of a party, as contemplated under sub-rule (2) of Rule 16 will only arise when an order on merits affecting the case has been passed in the absence of a party, under sub-rule (1) of Rule 16.An order dismissing a case for default or non-prosecution, does not come under sub-rule (1) of Rule 16 and to such an order sub-rule (2) has no application.12. We have already indicated that the order passed on February 22, 1964 by the Labour Court cannot be considered to be an order contemplated under sub-rule (1) of Rule 16.If that is so, the second respondent was not bound to file an application within the time mentioned in sub-rule (2) for setting aside the order dated February 22, 1964. Therefore the fact that a previous application, filed by the second respondent, was dismissed for non-prosecution on February 22, 1964 is no bar under Rule 16 (2) to the filing of the present application, Case No. 217 of 1965. It follows that the objections raised by the appellant to the maintainability of the application filed by the second respondent have been rightly rejected by the Labour Court and the High Court. | 0 | 2,972 | 749 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
other date to which hearing may be adjourned any party to the proceedings before the Labour Court or Tribunal or an Arbitrator is absent, though duly served with summons or having the notice of the date of hearing, the Labour Court or Tribunal or the Arbitrator, as the case may be, may proceed with the case in his absence and pass such order as it may deem fit and proper.(2) The Labour Court, Tribunal or an Arbitrator may set aside the order passed against the party in his absence if within ten days of such order, the party applies in writing for setting aside such order and shows sufficient cause for his absence. The Labour Court, Tribunal or an Arbitrator may require the party to file an affidavit, stating the cause of his absence. As many copies of the application and affidavit, if any, shall be filed by the party concerned as there are persons on the opposite side. Notice of the application shall be given to the opposite parties before setting aside the order."Sub-rule (1) deals with the absence of a party on the date fixed or any other date to which the hearing may be adjourned, though he has been served with summons or he has notice of the date of hearing. Under those circumstances it provides that the Labour Court, Tribunal or Arbitrator, as the case any be "may proceed with the case in his absence and pass such order as it may deem fit and proper." It is to the setting aside of such an order that may have been passed under Sub-rule (1), that the procedure is indicated in sub-rule (2). According to Mr. Gupte, learned Counsel for the appellant, the order passed on February 22, 1964, by the Labour Court is one contemplated by sub-rule (1) of Rules 16, in which case the provisions of sub-rule (2) are attracted and the second respondent ,if he felt aggrieved by that order, should have filed an application under sub-rule (2), within time, to set aside that order.11. We are not inclined to accept this contention of Mr. Gupte. As pointed out earlier by us, the order passed on February 22, 1964, is one dismissing the application as not having been prosecuted, for default of appearance of the second respondent. We will presently show that the order of February 22, 1964, cannot be considered to be one contemplated to have been passed under sub-rule (1) of Rule 16. Sub-rule (1) refers to a party being absent on the date fixed, or on any other date to which the hearing has been adjourned, and such party having been duly served or having notice of the date of hearing. The said sub-rule (1) indicates as to what is to be done under such circumstances. We have referred to Rule 12 which provides for what the Labour Court or Tribunal should do at the first hearing. Neither the Act nor the rules empower a Tribunal or Labour Court to dismiss an application for default of appearance of a party. Rule 16 (1) is the only provision providing for what is to be done when a party is absent. That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein "to proceed with the case in his absence", either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction "and pass such order as it may deem fit and proper", clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default. Without attempting to be exhaustive, we shall just give an example. Where a workman, after leading some evidence in support of his claim, absents himself on the next adjourned date with the result that he does not lead further evidence, the Tribunal is bound to proceed with the case on such evidence as has been placed before it. It cannot dismiss the application on the ground of default of appearance of the workman. This will be an instance of "proceeding with the case in the absence of a party" and giving a decision on merits. If such an order is passed by the Tribunal in the absence of one or other of the parties before it, a right is given to such party to apply, under sub-rule (2) for setting aside the order that has been passed in his absence in the case in terms of sub-rule (1). The application must be filed within the period mentioned in sub-rule (2) and the party will have also to satisfy the Tribunal or Labour Court that he had sufficient cause for his absence.The necessity for filing an application for setting aside an order passed in the case in the absence of a party, as contemplated under sub-rule (2) of Rule 16 will only arise when an order on merits affecting the case has been passed in the absence of a party, under sub-rule (1) of Rule 16.An order dismissing a case for default or non-prosecution, does not come under sub-rule (1) of Rule 16 and to such an order sub-rule (2) has no application.12. We have already indicated that the order passed on February 22, 1964 by the Labour Court cannot be considered to be an order contemplated under sub-rule (1) of Rule 16.If that is so, the second respondent was not bound to file an application within the time mentioned in sub-rule (2) for setting aside the order dated February 22, 1964. Therefore the fact that a previous application, filed by the second respondent, was dismissed for non-prosecution on February 22, 1964 is no bar under Rule 16 (2) to the filing of the present application, Case No. 217 of 1965. It follows that the objections raised by the appellant to the maintainability of the application filed by the second respondent have been rightly rejected by the Labour Court and the High Court.
### Response:
0
### Explanation:
11. We are not inclined to accept this contention of Mr. Gupte. As pointed out earlier by us, the order passed on February 22, 1964, is one dismissing the application as not having been prosecuted, for default of appearance of the second respondent. We will presently show that the order of February 22, 1964, cannot be considered to be one contemplated to have been passed under sub-rule (1) of Rule 16. Sub-rule (1) refers to a party being absent on the date fixed, or on any other date to which the hearing has been adjourned, and such party having been duly served or having notice of the date of hearing. The said sub-rule (1) indicates as to what is to be done under such circumstances. We have referred to Rule 12 which provides for what the Labour Court or Tribunal should do at the first hearing. Neither the Act nor the rules empower a Tribunal or Labour Court to dismiss an application for default of appearance of a party. Rule 16 (1) is the only provision providing for what is to be done when a party is absent. That provision, which clearly enjoins the Labour Court or Tribunal in the circumstances mentioned therein "to proceed with the case in his absence", either on the date fixed or on any other date to which the hearing may be adjourned, coupled with the further direction "and pass such order as it may deem fit and proper", clearly indicates that the Tribunal or Labour Court should take up the case and decide it on merits and not dismiss it for default. Without attempting to be exhaustive, we shall just give an example. Where a workman, after leading some evidence in support of his claim, absents himself on the next adjourned date with the result that he does not lead further evidence, the Tribunal is bound to proceed with the case on such evidence as has been placed before it. It cannot dismiss the application on the ground of default of appearance of the workman. This will be an instance of "proceeding with the case in the absence of a party" and giving a decision on merits. If such an order is passed by the Tribunal in the absence of one or other of the parties before it, a right is given to such party to apply, under sub-rule (2) for setting aside the order that has been passed in his absence in the case in terms of sub-rule (1). The application must be filed within the period mentioned in sub-rule (2) and the party will have also to satisfy the Tribunal or Labour Court that he had sufficient cause for his absence.The necessity for filing an application for setting aside an order passed in the case in the absence of a party, as contemplated under sub-rule (2) of Rule 16 will only arise when an order on merits affecting the case has been passed in the absence of a party, under sub-rule (1) of Rule 16.An order dismissing a case for default or non-prosecution, does not come under sub-rule (1) of Rule 16 and to such an order sub-rule (2) has no application.12. We have already indicated that the order passed on February 22, 1964 by the Labour Court cannot be considered to be an order contemplated under sub-rule (1) of Rule 16.If that is so, the second respondent was not bound to file an application within the time mentioned in sub-rule (2) for setting aside the order dated February 22, 1964. Therefore the fact that a previous application, filed by the second respondent, was dismissed for non-prosecution on February 22, 1964 is no bar under Rule 16 (2) to the filing of the present application, Case No. 217 of 1965. It follows that the objections raised by the appellant to the maintainability of the application filed by the second respondent have been rightly rejected by the Labour Court and the High Court.
|
C. Mackertich Vs. Steuart & Company, Limited | that business is continuing. In answer to question No. 247 the witness said that the company had agency to deal in Austin cars. It is true that in the registered lease deed Ex. L and L (1) there is the description of the lessee as coach-builder. But it is obvious that the defendant company cannot claim to be holding under the registered lease deed Ex. L and L (I) and so the purpose mentioned in the lease deed cannot be taken into consideration.In our opinion neither the evidence of Mr. J. N. Ghose nor the statement in Ex. W, Memorandum and Articles of Association, can be taken as sufficient evidence to prove that the purpose of the lease was exclusively or even dominantly for a manufacturing purpose. It follows, therefore, that the High Court was in error in holding that the dominant purpose of the lease was manufacture and so 15 days notice ending with the month of each tenancy must be held to be insufficient. 4. The High Court expressed the view that the test for applying the presumption of Section 106 of the Transfer of Property Act is to ascertain what was the dominant purpose of the lease and not whether the lease was exclusively for manufacturing purpose. Section 106 of the Transfer of Property Act states: In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. 5. Counsel on behalf of the appellant referred to the decision of the Court of Appeal in Howkins v. Jirdine, 1951-1 KB 614. In that case the landlord granted to the tenant a tenancy from year to year, terminable within six months, of seven acres of land and three cottages on the land. The lease contained provisions usual in a lease of an agricultural holding. The tenant, who farmed other land in addition to the seven acres, sub-let the three cottages to persons who were not engaged in agriculture. After the death of the landlord his executors served on the tenant twelve months notice to quit the cottages and land under Section 23, sub-section (1) of the Agricultural Holdings Act, 1948. The tenant thereupon served a counter notice under Section 24, sub-section (1) of the Act. The Minister of Agriculture having given his assent to the notice to quit, the tenant appealed to the Agricultural Land Tribunal, who allowed his appeal, holding that the notice to quit was inoperative. Proceedings were then brought in the county court by the executors as landlords, and they were granted by the county court judge a declaration that they were entitled to possession of the cottages and to mesne profits on the ground that the decision of the tribunal rendered the notice to quit invalid so far as it related to the land as distinct from cottages. In this state of facts, it was decided by the Court of Appeal that Section 1 of the Act of 1948 which defined Agricultural holding as meaning the aggregate of the agricultural land comprised in a contract of tenancy did not effect a severance of agricultural land and non-agricultural land, and as the lease in question was in substance a lease of an agricultural holding, therefore, the whole of the subject-matter of the contract of tenancy came within the protection of the Act and the appeal of the tenant was accordingly allowed. It was submitted on behalf of the respondents that a similar principle must be applied in construing Section 106 of the Transfer of Property Act and if the purpose of the lease was mainly or in substance a manufacturing purpose, a presumption of yearly tenancy will arise and that it was incumbent upon the landlord to give a notice expiring with the end of the year of tenancy if the lease was to be validly determined. The opposite point of view is put forward on behalf of the appellant. It was argued that the test was exclusiveness of manufacturing purpose for applying the presumption under Section 106 of the Transfer of Property Act. Reliance was placed upon the decision of the Calcutta High Court in Ramesh Chandra v. Surya Properties, AIR 1957 Cal 198 and Sati Prasanna v. Md. Fazel, AIR 1952 Cal 320.But we do not propose in this case to express our concluded opinion regarding Section 106 of the Transfer of Property Act. We shall proceed on the assumption that the argument of the respondent is correct and that the test applicable under Section 106 of the Transfer of Property Act is not exclusiveness of purpose but what is the main or substantial purpose of the lease. As we have already shown there is no proper material on the record of the case from which it can be inferred that the dominant purpose of the lease was manufacture or that the respondent substantially used the premises for manufacturing purposes. It follows, therefore that the trial court was right in holding that the tenancy was monthly and notices Exs. I and I-A were legally valid for termination of the tenancy. | 1[ds]3. In support of these appeals it was submitted on behalf of the appellant that the High Court was in error in holding that the tenancy was for manufacturing purpose and that six months notice terminable with a year of tenancy was required.It was said that the onus of proving that the tenancy was for manufacturing purpose was upon the defendant and as that point was not raised in the written statement the High Court should not have allowed the respondent to raise then our opinion there is substance in this argument. But we shall assume in favour of the respondent that such an objection could have taken by it even without a specific plea in the written statement. Even upon that assumption we are of opinion that there is no evidence in the case to support the finding of the High Court that the purpose of the lease was dominantly for manufacturing purposeThe opposite point of view is put forward on behalf of the appellant. It was argued that the test was exclusiveness of manufacturing purpose for applying the presumption under Section 106 of the Transfer of Property Act. Reliance was placed upon the decision of the Calcutta High Court in Ramesh Chandra v. Surya Properties, AIR 1957 Cal 198 and Sati Prasanna v. Md. Fazel, AIR 1952 Calt we do not propose in this case to express our concluded opinion regarding Section 106 of the Transfer of Property Act. We shall proceed on the assumption that the argument of the respondent is correct and that the test applicable under Section 106 of the Transfer of Property Act is not exclusiveness of purpose but what is the main or substantial purpose of the lease. As we have already shown there is no proper material on the record of the case from which it can be inferred that the dominant purpose of the lease was manufacture or that the respondent substantially used the premises for manufacturing purposes. It follows, therefore that the trial court was right in holding that the tenancy was monthly and notices Exs. I andA were legally valid for termination of the tenancy. | 1 | 2,742 | 374 | ### Instruction:
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that business is continuing. In answer to question No. 247 the witness said that the company had agency to deal in Austin cars. It is true that in the registered lease deed Ex. L and L (1) there is the description of the lessee as coach-builder. But it is obvious that the defendant company cannot claim to be holding under the registered lease deed Ex. L and L (I) and so the purpose mentioned in the lease deed cannot be taken into consideration.In our opinion neither the evidence of Mr. J. N. Ghose nor the statement in Ex. W, Memorandum and Articles of Association, can be taken as sufficient evidence to prove that the purpose of the lease was exclusively or even dominantly for a manufacturing purpose. It follows, therefore, that the High Court was in error in holding that the dominant purpose of the lease was manufacture and so 15 days notice ending with the month of each tenancy must be held to be insufficient. 4. The High Court expressed the view that the test for applying the presumption of Section 106 of the Transfer of Property Act is to ascertain what was the dominant purpose of the lease and not whether the lease was exclusively for manufacturing purpose. Section 106 of the Transfer of Property Act states: In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. 5. Counsel on behalf of the appellant referred to the decision of the Court of Appeal in Howkins v. Jirdine, 1951-1 KB 614. In that case the landlord granted to the tenant a tenancy from year to year, terminable within six months, of seven acres of land and three cottages on the land. The lease contained provisions usual in a lease of an agricultural holding. The tenant, who farmed other land in addition to the seven acres, sub-let the three cottages to persons who were not engaged in agriculture. After the death of the landlord his executors served on the tenant twelve months notice to quit the cottages and land under Section 23, sub-section (1) of the Agricultural Holdings Act, 1948. The tenant thereupon served a counter notice under Section 24, sub-section (1) of the Act. The Minister of Agriculture having given his assent to the notice to quit, the tenant appealed to the Agricultural Land Tribunal, who allowed his appeal, holding that the notice to quit was inoperative. Proceedings were then brought in the county court by the executors as landlords, and they were granted by the county court judge a declaration that they were entitled to possession of the cottages and to mesne profits on the ground that the decision of the tribunal rendered the notice to quit invalid so far as it related to the land as distinct from cottages. In this state of facts, it was decided by the Court of Appeal that Section 1 of the Act of 1948 which defined Agricultural holding as meaning the aggregate of the agricultural land comprised in a contract of tenancy did not effect a severance of agricultural land and non-agricultural land, and as the lease in question was in substance a lease of an agricultural holding, therefore, the whole of the subject-matter of the contract of tenancy came within the protection of the Act and the appeal of the tenant was accordingly allowed. It was submitted on behalf of the respondents that a similar principle must be applied in construing Section 106 of the Transfer of Property Act and if the purpose of the lease was mainly or in substance a manufacturing purpose, a presumption of yearly tenancy will arise and that it was incumbent upon the landlord to give a notice expiring with the end of the year of tenancy if the lease was to be validly determined. The opposite point of view is put forward on behalf of the appellant. It was argued that the test was exclusiveness of manufacturing purpose for applying the presumption under Section 106 of the Transfer of Property Act. Reliance was placed upon the decision of the Calcutta High Court in Ramesh Chandra v. Surya Properties, AIR 1957 Cal 198 and Sati Prasanna v. Md. Fazel, AIR 1952 Cal 320.But we do not propose in this case to express our concluded opinion regarding Section 106 of the Transfer of Property Act. We shall proceed on the assumption that the argument of the respondent is correct and that the test applicable under Section 106 of the Transfer of Property Act is not exclusiveness of purpose but what is the main or substantial purpose of the lease. As we have already shown there is no proper material on the record of the case from which it can be inferred that the dominant purpose of the lease was manufacture or that the respondent substantially used the premises for manufacturing purposes. It follows, therefore that the trial court was right in holding that the tenancy was monthly and notices Exs. I and I-A were legally valid for termination of the tenancy.
### Response:
1
### Explanation:
3. In support of these appeals it was submitted on behalf of the appellant that the High Court was in error in holding that the tenancy was for manufacturing purpose and that six months notice terminable with a year of tenancy was required.It was said that the onus of proving that the tenancy was for manufacturing purpose was upon the defendant and as that point was not raised in the written statement the High Court should not have allowed the respondent to raise then our opinion there is substance in this argument. But we shall assume in favour of the respondent that such an objection could have taken by it even without a specific plea in the written statement. Even upon that assumption we are of opinion that there is no evidence in the case to support the finding of the High Court that the purpose of the lease was dominantly for manufacturing purposeThe opposite point of view is put forward on behalf of the appellant. It was argued that the test was exclusiveness of manufacturing purpose for applying the presumption under Section 106 of the Transfer of Property Act. Reliance was placed upon the decision of the Calcutta High Court in Ramesh Chandra v. Surya Properties, AIR 1957 Cal 198 and Sati Prasanna v. Md. Fazel, AIR 1952 Calt we do not propose in this case to express our concluded opinion regarding Section 106 of the Transfer of Property Act. We shall proceed on the assumption that the argument of the respondent is correct and that the test applicable under Section 106 of the Transfer of Property Act is not exclusiveness of purpose but what is the main or substantial purpose of the lease. As we have already shown there is no proper material on the record of the case from which it can be inferred that the dominant purpose of the lease was manufacture or that the respondent substantially used the premises for manufacturing purposes. It follows, therefore that the trial court was right in holding that the tenancy was monthly and notices Exs. I andA were legally valid for termination of the tenancy.
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AVTAR SINGH & ORS Vs. BIMLA DEVI & ORS | report corroborated the respondents/plaintiffs case that a staircase did not exist, or rather that it was in the stage of construction and was not completed. The report also bore out the plaintiffs allegation that holes had been made in the lintel of the roof. Furthermore, the dimensions of the chaubara, as found by the Local Commissioner, differed from what was stated by Avtar Singh. 15. From an overall discussion of the evidence, it is apparent that undeniably Avtar Singhs possession - and perhaps even ownership - of the ground floor shop, could not be denied. The findings of the lower courts, therefore, based upon the registered documents cannot be faulted. However, both these courts ignored the other evidence - in the form of the Local Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to. 16. In these circumstances, the question that arises, is whether the High Court justly interfered with what are unquestionably, concurrent findings of fact. This court in its five-judge bench ruling, in Pankajakshi v. Chandrika (2016) 6 SCC 157 held that the provisions of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not Section 100 CPC. The Court observed that: 27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 which held that Section 41 is inconsistent with Section 100 CPC after its amendment in 1976, and that the latter prevails, was expressly overruled. 17. The decision in Pankajakshi (supra) came up for discussion in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram (2020) 16 SCC 209 , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 , it was held as follows: 13. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105] , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16) 15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness. 18. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld. | 1[ds]15. From an overall discussion of the evidence, it is apparent that undeniably Avtar Singhs possession - and perhaps even ownership - of the ground floor shop, could not be denied. The findings of the lower courts, therefore, based upon the registered documents cannot be faulted. However, both these courts ignored the other evidence - in the form of the Local Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to.This court in its five-judge bench ruling, in Pankajakshi v. Chandrika (2016) 6 SCC 157 held that the provisions of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not Section 100 CPC. The Court observed that:27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 which held that Section 41 is inconsistent with Section 100 CPC after its amendment in 1976, and that the latter prevails, was expressly overruled.17. The decision in Pankajakshi (supra) came up for discussion in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram (2020) 16 SCC 209 , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 , it was held as follows:13. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105] , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16)15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.18. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld. | 1 | 3,078 | 1,040 | ### Instruction:
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report corroborated the respondents/plaintiffs case that a staircase did not exist, or rather that it was in the stage of construction and was not completed. The report also bore out the plaintiffs allegation that holes had been made in the lintel of the roof. Furthermore, the dimensions of the chaubara, as found by the Local Commissioner, differed from what was stated by Avtar Singh. 15. From an overall discussion of the evidence, it is apparent that undeniably Avtar Singhs possession - and perhaps even ownership - of the ground floor shop, could not be denied. The findings of the lower courts, therefore, based upon the registered documents cannot be faulted. However, both these courts ignored the other evidence - in the form of the Local Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to. 16. In these circumstances, the question that arises, is whether the High Court justly interfered with what are unquestionably, concurrent findings of fact. This court in its five-judge bench ruling, in Pankajakshi v. Chandrika (2016) 6 SCC 157 held that the provisions of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not Section 100 CPC. The Court observed that: 27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 which held that Section 41 is inconsistent with Section 100 CPC after its amendment in 1976, and that the latter prevails, was expressly overruled. 17. The decision in Pankajakshi (supra) came up for discussion in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram (2020) 16 SCC 209 , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 , it was held as follows: 13. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105] , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16) 15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness. 18. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.
### Response:
1
### Explanation:
15. From an overall discussion of the evidence, it is apparent that undeniably Avtar Singhs possession - and perhaps even ownership - of the ground floor shop, could not be denied. The findings of the lower courts, therefore, based upon the registered documents cannot be faulted. However, both these courts ignored the other evidence - in the form of the Local Commissioners report - with regard to the issue of possession of the chaubara. The Local Commissioner was neither cross-examined, nor was his report objected to.This court in its five-judge bench ruling, in Pankajakshi v. Chandrika (2016) 6 SCC 157 held that the provisions of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not Section 100 CPC. The Court observed that:27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force.As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh Mann (2001) 4 SCC 262 which held that Section 41 is inconsistent with Section 100 CPC after its amendment in 1976, and that the latter prevails, was expressly overruled.17. The decision in Pankajakshi (supra) came up for discussion in two subsequent judgments of this Court. In Dhanpat v. Sheo Ram (2020) 16 SCC 209 , citing the ruling in the earlier decision Randhir Kaur v. Prithvi Pal Singh (2019) 17 SCC 71 , it was held as follows:13. It may be noticed that in view of Constitution Bench judgment of this Court in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105] , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16)15. A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.18. It is thus evident, therefore, that mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Courts findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.
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The Kamrup Industrial Gases Limited Vs. Union Of India | by the respondents Counsel, but his evidence on this topic has remained unshaken. Reference is made to Qs. 1044 to 1047 and Qs. 1370 to 1411 in cross-examination, put to the said A.N. Jha. The said A.N. Jha has proved that the said Blown off statements had been delivered by him personally to the responents employees at the General Managers Office. The said A.N. Jha has also deposed that the people at the General Managers Office of the respondent refused to acknowledge receipt of the said statements on the copies of the Statements produced by the claimant and the copies of the said Statements were kept in the office of the claimant which they have produced in this Reference and which have been exhibited herein as mentioned before. The claimant has also produced in this Reference their Plant Reports and proved the same through their witness, A.N. Jha (Qs. 244 to 265 in examination-in-chief). The Plant Reports were exhibited in these proceedings as Exhibit PPPPPPP series. The said A.N. Jha has deposed that the said Plant Reports were prepared by the Foreman on duty of the respondent on the basis of the production and sale of Oxygen and D.A. Gases during the relevant periods. The said Plant Reports were prepared under his supervision. The Plant Reports have entries regarding production, available gases lifted by DLW, Sales to other customers, Blown Off Statement and Closing Stock of the Claimant-Company. The Plant Reports are internal documents of the claimant, produced and proved by A.N. Jha in these proceedings. The other documents on which the claimant relies with regard to their case of blowing off of the gases are various bills submitted by the claimant in respect of the gases, both lifted and unlifted quantitites, made on the respondent. The claimants Counsel has contended that though these bills were duly served on the respondent in accordance with Clause 7 of the Agreement, no objections were raised regarding the accuracy and/or contents of the said bills." (emphasis is ours)13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works. Details in this behalf are extracted below: "The claimant had called one A.N. Jha (full name Amar Nath Jha) as witness. Jha was the Office Superintendent of the Claimant-Company in 1971 and was appointed as the Assistant Manager in 1972 and was posted at the claimants factory at Varanasi during the relevant time. Jha had deposed that all the relevant bills with covering letters from the claimant were served on the respondent at the F.A. & C.O. Department of DLW at Varanasi by him personally and the receipt of the said bills were acknowledged by various officers of the said F.A. & C.O. Department of the respondent on the copy of the said bills (vide Qs. 32 to 75 in Examination-in-chief). The evidence of Jha in this respect had not been shaken in cross-examination by the learned Counsel for the respondent. With respect to bills for uplifted quantity of gas, the respondents case is that they made part payments for the gas supplies at the contract rate but withheld payment of escalation charges relating to rise in the price of Carbide mentioned in the said bills. Receipt of the said bills was not denied by the respondent. In respect of bills for the price of unuplifted quantities of gas, the respondents Counsel put Qs.1470 to 1497 to the said Jha in cross-examination. Jha maintained that he personally served the said bills at the Office of the F.A. & C.O. of the respondent and obtained acknowledgements by the people working at F.A. & C.O. Department of the respondent of the receipt of the said bills on the copies of the said bills, which are tendered in evidence in these proceedings.The respondents on their part called one M. Singh as their only witness. The said M. Singh was the Senior Clerk working in the Stores Department of the respondent at the relevant time. He did not belong to the F.A. & C.O. Department of the respondent and had no knowledge of affairs of the said F.A. & C.O. Department. No one from the said F.A. & C.O. Department or the General Managers Office has been called by the respondent to contradict the deposition of Jha. Further, the respondent did not produce Receipt Register from the F.A. & C.O. Department to controvert the evidence of Jha although the respondents witness, the said M. Singh, deposed that the respondent maintained Receipt Registers at the relevant time. The respondent has adduced no evidence to rebut the testimony of Jha that the bills had been served on the respondent. I accept the evidence of Jha on this point." (emphasis is ours) Interestingly, there was no rebuttal to the assertions made by Shri A.N. Jha, before the learned Arbitrator. | 1[ds]5. During the course of hearing it emerged, that the main reason for the Division Bench of the High Court in accepting the appeal was, that the appellant did not produce vital documents called for by the Diesel Locomotive Works, before the Arbitrator.We find substance in the contention advanced at the hands of the learned counsel for the appellant, more particularly because learned counsel for the respondent, could not dispute the factual position recorded in the proceedings conducted before the Arbitrator, on 16.08.1989. We therefore, hereby set aside the finding recorded by the High Court, to the effect, that the documents sought for by the buyer - Diesel Locomotive Works, were neither produced before the Arbitrator, nor provided to the respondent.9. The next question, that arises for consideration is, whetherthe appellant was entitled to payment on account of short lifting of gases by the Diesel LocomotiveWorks. In this behalf, it has already been noticed hereinabove, that the Diesel Locomotive Works, would lift a minimum of 12,900 cubic meters of Oxygen gas, and a minimum of 2,500 cubic meters of Acetylene gas, per month. And whether or not they lifted the minimum quantity, the appellant herein - Kamrup Industrial Gases Ltd., would be entitled to payment for the same. Be that as it may, it is imperative to determine, before the appellant can be held to be entitled to claim the right of such payment, that the appellant - Kamrup Industrial Gases Ltd., had actually produced the gases in terms of the stated minimum quantum, and further, the appellant was not able to sell the shortfall, in the open market. The question of payment to the appellant would arise only if, there was a subsisting shortfall, after the steps referred to above were followed. This could be done by adding the amount of gases lifted by the Diesel Locomotive Works, and the amount of gases sold by the appellant in the open market. Payment for the shortfall would emerge, "only" if the shortfall of gases thus established, were shown to have been blown off, as has been claimed by the appellant before the Arbitrator, and before the High Court.The above factual finding of the High Court, has also been assailed by the appellant.13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works.15. The list of dates reveals, that on 1.9.2006 the Calcutta High Court decreed the award dated 18.4.2004 (in Award Case No. 12/2004). The said factual position is not disputed in the counter affidavit filed on behalf of the respondent. | 1 | 3,400 | 708 | ### 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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by the respondents Counsel, but his evidence on this topic has remained unshaken. Reference is made to Qs. 1044 to 1047 and Qs. 1370 to 1411 in cross-examination, put to the said A.N. Jha. The said A.N. Jha has proved that the said Blown off statements had been delivered by him personally to the responents employees at the General Managers Office. The said A.N. Jha has also deposed that the people at the General Managers Office of the respondent refused to acknowledge receipt of the said statements on the copies of the Statements produced by the claimant and the copies of the said Statements were kept in the office of the claimant which they have produced in this Reference and which have been exhibited herein as mentioned before. The claimant has also produced in this Reference their Plant Reports and proved the same through their witness, A.N. Jha (Qs. 244 to 265 in examination-in-chief). The Plant Reports were exhibited in these proceedings as Exhibit PPPPPPP series. The said A.N. Jha has deposed that the said Plant Reports were prepared by the Foreman on duty of the respondent on the basis of the production and sale of Oxygen and D.A. Gases during the relevant periods. The said Plant Reports were prepared under his supervision. The Plant Reports have entries regarding production, available gases lifted by DLW, Sales to other customers, Blown Off Statement and Closing Stock of the Claimant-Company. The Plant Reports are internal documents of the claimant, produced and proved by A.N. Jha in these proceedings. The other documents on which the claimant relies with regard to their case of blowing off of the gases are various bills submitted by the claimant in respect of the gases, both lifted and unlifted quantitites, made on the respondent. The claimants Counsel has contended that though these bills were duly served on the respondent in accordance with Clause 7 of the Agreement, no objections were raised regarding the accuracy and/or contents of the said bills." (emphasis is ours)13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works. Details in this behalf are extracted below: "The claimant had called one A.N. Jha (full name Amar Nath Jha) as witness. Jha was the Office Superintendent of the Claimant-Company in 1971 and was appointed as the Assistant Manager in 1972 and was posted at the claimants factory at Varanasi during the relevant time. Jha had deposed that all the relevant bills with covering letters from the claimant were served on the respondent at the F.A. & C.O. Department of DLW at Varanasi by him personally and the receipt of the said bills were acknowledged by various officers of the said F.A. & C.O. Department of the respondent on the copy of the said bills (vide Qs. 32 to 75 in Examination-in-chief). The evidence of Jha in this respect had not been shaken in cross-examination by the learned Counsel for the respondent. With respect to bills for uplifted quantity of gas, the respondents case is that they made part payments for the gas supplies at the contract rate but withheld payment of escalation charges relating to rise in the price of Carbide mentioned in the said bills. Receipt of the said bills was not denied by the respondent. In respect of bills for the price of unuplifted quantities of gas, the respondents Counsel put Qs.1470 to 1497 to the said Jha in cross-examination. Jha maintained that he personally served the said bills at the Office of the F.A. & C.O. of the respondent and obtained acknowledgements by the people working at F.A. & C.O. Department of the respondent of the receipt of the said bills on the copies of the said bills, which are tendered in evidence in these proceedings.The respondents on their part called one M. Singh as their only witness. The said M. Singh was the Senior Clerk working in the Stores Department of the respondent at the relevant time. He did not belong to the F.A. & C.O. Department of the respondent and had no knowledge of affairs of the said F.A. & C.O. Department. No one from the said F.A. & C.O. Department or the General Managers Office has been called by the respondent to contradict the deposition of Jha. Further, the respondent did not produce Receipt Register from the F.A. & C.O. Department to controvert the evidence of Jha although the respondents witness, the said M. Singh, deposed that the respondent maintained Receipt Registers at the relevant time. The respondent has adduced no evidence to rebut the testimony of Jha that the bills had been served on the respondent. I accept the evidence of Jha on this point." (emphasis is ours) Interestingly, there was no rebuttal to the assertions made by Shri A.N. Jha, before the learned Arbitrator.
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5. During the course of hearing it emerged, that the main reason for the Division Bench of the High Court in accepting the appeal was, that the appellant did not produce vital documents called for by the Diesel Locomotive Works, before the Arbitrator.We find substance in the contention advanced at the hands of the learned counsel for the appellant, more particularly because learned counsel for the respondent, could not dispute the factual position recorded in the proceedings conducted before the Arbitrator, on 16.08.1989. We therefore, hereby set aside the finding recorded by the High Court, to the effect, that the documents sought for by the buyer - Diesel Locomotive Works, were neither produced before the Arbitrator, nor provided to the respondent.9. The next question, that arises for consideration is, whetherthe appellant was entitled to payment on account of short lifting of gases by the Diesel LocomotiveWorks. In this behalf, it has already been noticed hereinabove, that the Diesel Locomotive Works, would lift a minimum of 12,900 cubic meters of Oxygen gas, and a minimum of 2,500 cubic meters of Acetylene gas, per month. And whether or not they lifted the minimum quantity, the appellant herein - Kamrup Industrial Gases Ltd., would be entitled to payment for the same. Be that as it may, it is imperative to determine, before the appellant can be held to be entitled to claim the right of such payment, that the appellant - Kamrup Industrial Gases Ltd., had actually produced the gases in terms of the stated minimum quantum, and further, the appellant was not able to sell the shortfall, in the open market. The question of payment to the appellant would arise only if, there was a subsisting shortfall, after the steps referred to above were followed. This could be done by adding the amount of gases lifted by the Diesel Locomotive Works, and the amount of gases sold by the appellant in the open market. Payment for the shortfall would emerge, "only" if the shortfall of gases thus established, were shown to have been blown off, as has been claimed by the appellant before the Arbitrator, and before the High Court.The above factual finding of the High Court, has also been assailed by the appellant.13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works.15. The list of dates reveals, that on 1.9.2006 the Calcutta High Court decreed the award dated 18.4.2004 (in Award Case No. 12/2004). The said factual position is not disputed in the counter affidavit filed on behalf of the respondent.
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Dilip N. Shroff Vs. Joint Commnr. Of Income Tax, Mumbai &Anr | be a genuine difference of opinion between two experts. The District Valuer, as noticed hereinbefore, having regard to the sale instances of 1979 wherein the value of the land was fixed at Rs.500/- per sq. ft., took notice of the fact that the valuation in terms of another sale instance of 19.10.1982 wherein the land was valued at about Rs. 1823/- per sq. ft. A valuation was to be arrived at on 01.04.1981. He picked up a figure of Rs.897/- per sq. ft. No reason had been assigned in support thereof. No other or further sale instances had been given. We do not know as to whether any other sale instances were available. He merely stated that such valuation had been arrived at after taking into account the time size-shape, time gap, location-situation and also the factors like physical, social, legal and economical. Some other officer could have picked up holes in the said report. On the other hand, the opinion of the registered valuer, as would appear from the report, was that he had taken into consideration the value of the shop as Rs.1525/- per sq. ft. A duty may be enjoined on the assessee to make a correct disclosure of income but if such disclosure is based on the opinion of an expert, who is otherwise also a registered valuer having been appointed in terms of a statutory scheme, only because his opinion is not accepted or some other expert gives another opinion, the same by itself may not be sufficient for arriving at a conclusion that the assessee has furnished inaccurate particulars. It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations. The impugned order, therefore, suffers from non-application of mind. It was also bound to comply with the principles of natural justice. [See Malabar Industrial Co. Ltd. v. Commissioner of Income Tax, Kerala State, (2000) 2 SCC 718 ] 82. We have, however, noticed hereinbefore that the Income Tax Officer had merely held that the assessee is guilty of furnishing of inaccurate particulars and not of concealment of income; which finding was arrived at also by the Commissioner of Income Tax and the Income Tax Appellate Tribunal. 83. In K.C. Builders and Another v. Assistant Commissioner of Income Tax [(2004) 2 SCC 731] , this Court formulated the following questions for consideration :. "8. On the above pleadings and facts and circumstances of the case, the following questions of law arise for consideration by this Court:(a) Whether a penalty imposed under Section 271(1)(c) of the Income Tax Act and prosecution under Section 276-C of the Income Tax Act are simultaneous?(b) Whether the criminal prosecution gets quashed automatically when the Income Tax Appellate Tribunal which is the final court on the facts comes to the conclusion that there is no concealment of income, since no offence survives under the Income Tax Act thereafter?(c) Whether the High Court was justified in dismissing the criminal revision petition vide its impugned order ignoring the settled law as laid down by this Court that the finding of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the Income Tax Appellate Tribunals order no offence survives under the Income Tax Act and thus the quashing of the prosecution is automatic?(d) Whether the finding of the Income Tax Appellate Tribunal is binding upon the criminal court in view of the fact that the Chief Commissioner and the assessing officer who initiated the prosecution under Section 276-C(1) had no right to overrule the order of the Income Tax Appellate Tribunal? More so when the Income Tax Officer giving the effect to the order cancelled the penalty levied under Section 271(1)(c)?(e) Whether the High Courts order is liable to be set aside in view of the errors apparent on record? In K.C. Builders (supra), this Court noticed the dictionary meaning of the explanation and held: "4. The respondent assessing authority treated the difference between the income as per original return and revised income as concealed income. The Assistant Commissioner of Income Tax levied penalties under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for all the aforesaid four assessment years. Accordingly, penalty proceedings were initiated. The first appeal against the order of penalties levied for concealment of income against the appellants were confirmed by the CIT (Appeals). As per the directions of the Chief Commissioner of Income Tax, four complaints were filed in the Court of the Additional Chief Metropolitan Magistrate, Egmore, Chennai for offences under Sections 276-C(2), 277 and 278-B of the Act and Sections 120-B, 34, 193, 196 and 420 of the Indian Penal Code." 84. The learned Additional Solicitor General, however, submitted that although on the facts of the case the decision rendered is correct but the view of the court that unless there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable or the part of the assessee to conceal his income so as to evade income tax thereon may not correct. As at present advised, we do not intend to go into the said question; as in the facts and circumstances of the case, there are enough material to show that the action on the part of the appellant may not be said to be such which would attract the penal provision under Section 271(1)(c) of the Act. 85. For the reasons aforementioned, the | 1[ds]While considering as to whether the assessee has been able to discharge his burden, the assessing officer should not begin with the presumption that he isIncome Tax Officer had merely held that the assessee is guilty of furnishing of inaccurate particulars and not of concealment of income; which finding was arrived at also by the Commissioner of Income Tax and the Income Tax Appellateis of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not beenthe Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurateimpugned order, therefore, suffers from non-application of mind. It was also bound to comply with the principles of natural justice. | 1 | 14,445 | 160 | ### 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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be a genuine difference of opinion between two experts. The District Valuer, as noticed hereinbefore, having regard to the sale instances of 1979 wherein the value of the land was fixed at Rs.500/- per sq. ft., took notice of the fact that the valuation in terms of another sale instance of 19.10.1982 wherein the land was valued at about Rs. 1823/- per sq. ft. A valuation was to be arrived at on 01.04.1981. He picked up a figure of Rs.897/- per sq. ft. No reason had been assigned in support thereof. No other or further sale instances had been given. We do not know as to whether any other sale instances were available. He merely stated that such valuation had been arrived at after taking into account the time size-shape, time gap, location-situation and also the factors like physical, social, legal and economical. Some other officer could have picked up holes in the said report. On the other hand, the opinion of the registered valuer, as would appear from the report, was that he had taken into consideration the value of the shop as Rs.1525/- per sq. ft. A duty may be enjoined on the assessee to make a correct disclosure of income but if such disclosure is based on the opinion of an expert, who is otherwise also a registered valuer having been appointed in terms of a statutory scheme, only because his opinion is not accepted or some other expert gives another opinion, the same by itself may not be sufficient for arriving at a conclusion that the assessee has furnished inaccurate particulars. It is of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not been done. Thus, the Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurate particulars. Even before us, the learned Additional Solicitor General while placing the order of assessment laid emphasis that he had dealt with both the situations. The impugned order, therefore, suffers from non-application of mind. It was also bound to comply with the principles of natural justice. [See Malabar Industrial Co. Ltd. v. Commissioner of Income Tax, Kerala State, (2000) 2 SCC 718 ] 82. We have, however, noticed hereinbefore that the Income Tax Officer had merely held that the assessee is guilty of furnishing of inaccurate particulars and not of concealment of income; which finding was arrived at also by the Commissioner of Income Tax and the Income Tax Appellate Tribunal. 83. In K.C. Builders and Another v. Assistant Commissioner of Income Tax [(2004) 2 SCC 731] , this Court formulated the following questions for consideration :. "8. On the above pleadings and facts and circumstances of the case, the following questions of law arise for consideration by this Court:(a) Whether a penalty imposed under Section 271(1)(c) of the Income Tax Act and prosecution under Section 276-C of the Income Tax Act are simultaneous?(b) Whether the criminal prosecution gets quashed automatically when the Income Tax Appellate Tribunal which is the final court on the facts comes to the conclusion that there is no concealment of income, since no offence survives under the Income Tax Act thereafter?(c) Whether the High Court was justified in dismissing the criminal revision petition vide its impugned order ignoring the settled law as laid down by this Court that the finding of the Appellate Tribunal was conclusive and the prosecution cannot be sustained since the penalty after having been cancelled by the complainant following the Income Tax Appellate Tribunals order no offence survives under the Income Tax Act and thus the quashing of the prosecution is automatic?(d) Whether the finding of the Income Tax Appellate Tribunal is binding upon the criminal court in view of the fact that the Chief Commissioner and the assessing officer who initiated the prosecution under Section 276-C(1) had no right to overrule the order of the Income Tax Appellate Tribunal? More so when the Income Tax Officer giving the effect to the order cancelled the penalty levied under Section 271(1)(c)?(e) Whether the High Courts order is liable to be set aside in view of the errors apparent on record? In K.C. Builders (supra), this Court noticed the dictionary meaning of the explanation and held: "4. The respondent assessing authority treated the difference between the income as per original return and revised income as concealed income. The Assistant Commissioner of Income Tax levied penalties under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") for all the aforesaid four assessment years. Accordingly, penalty proceedings were initiated. The first appeal against the order of penalties levied for concealment of income against the appellants were confirmed by the CIT (Appeals). As per the directions of the Chief Commissioner of Income Tax, four complaints were filed in the Court of the Additional Chief Metropolitan Magistrate, Egmore, Chennai for offences under Sections 276-C(2), 277 and 278-B of the Act and Sections 120-B, 34, 193, 196 and 420 of the Indian Penal Code." 84. The learned Additional Solicitor General, however, submitted that although on the facts of the case the decision rendered is correct but the view of the court that unless there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable or the part of the assessee to conceal his income so as to evade income tax thereon may not correct. As at present advised, we do not intend to go into the said question; as in the facts and circumstances of the case, there are enough material to show that the action on the part of the appellant may not be said to be such which would attract the penal provision under Section 271(1)(c) of the Act. 85. For the reasons aforementioned, the
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While considering as to whether the assessee has been able to discharge his burden, the assessing officer should not begin with the presumption that he isIncome Tax Officer had merely held that the assessee is guilty of furnishing of inaccurate particulars and not of concealment of income; which finding was arrived at also by the Commissioner of Income Tax and the Income Tax Appellateis of some significance that in the standard proforma used by the Assessing Officer in issuing a notice despite the fact that the same postulates that inappropriate words and paragraphs were to be deleted, but the same had not beenthe Assessing Officer himself was not sure as to whether he had proceeded on the basis that the assessee had concealed his income or he had furnished inaccurateimpugned order, therefore, suffers from non-application of mind. It was also bound to comply with the principles of natural justice.
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Sudarshan Mineral Co. Ltd Vs. Union Of India & Anr | of Section 13.Sub-section (2) merely illustrates the nature of the power. It does not restrict the general power under sub-section (1). Even under clause (g) of sub-section (2) in particular the Rules may provide the terms on which and the conditions subject to which any mining lease may be granted or renewed. Sub-rule (1) of Rule 27 requires every mining lease to be subjected to the conditions enumerated in clauses (a) to (n) and such conditions have got to be incorporated in every mining lease. The conditions enumerated in cls. (a) to (o) of Sub-rule (2) are optional and a mining lease may contain such other conditions as the State Government may deem necessary in regard to them. Rule 27 (1) (c) reads as follows: The lessee shall pay, for every year, except the first year of the lease, such yearly dead rent within the limits specified in Schedule IV as may be fixed from time to time by the State Government and if the lease permits the working of more than one mineral in the same area, the State Government may charge separate dead rent in respect of each mineral: Provided that the lessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both.There is no element of uncertainty in the Rule either in regard to the grant of fresh lease or in respect of the renewal. The yearly dead rent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore certain. To provide for payment of dead rent at a specified rate subject to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power conferred on the Central Government under Section 13 of the Act. The 4th and 5th points urged on behalf of the appellant therefore fail. 6. Rule 27 (l) makes it incumbent to subject every mining lease to the conditions enumerated in that sub-rule. The renewal of lease cannot be outside Rule 27 (1). A lease granted under the Rules and the renewal made thereunder will not occasion any difficulty at all in the application of the conditions enumerated in sub-rule (1) to both. But the scope for argument in this case arose because the original lease was granted in 1941 by the erstwhile State. The modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Terms) Rules, 1956. The Rules of 1960 were then not in existence. The question which deserves careful consideration, therefore, is - whether there is any substance in either of the first or second points urged on behalf of the appellant. 7. The Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-l941 specifically stating therein that the said lease was for 20 years without a renewal clause. After providing that dead rent shall be payable at the rate of Rs. 6/- per acre per annum, it was mentioned The following clause shall be deemed to be inserted in the lease deed and shall form part thereof Except for the modifications made by this order the lease shall be subject to the Rules made or deemed to have been made under Sections 13 and 18 of the Mines and Minerals (Regulation and Development) Act, 1957 (No. 67 of 1957). 8. It was submitted on behalf of the appellant that when renewal of the lease was granted under R. 28 of the Rules then the State Government was bound to act upon and incorporate the new clause inserted in the original lease by order dated 20-11-1959. In other words, it was contended that the renewed lease had to be granted on the same terms and conditions. No term and condition could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with sub-rule (5) of R. 28. That being so, the argument stressed was that in view of the new clause operation of Rule 27 (1) (c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre. In our judgment the argument though attractive is not fruitful. If in the original lease there would have been a renewal clause giving a right to the lessee to have the renewal of the lease for another period of 20 years at its option one could probably say that the renewal had to be on the same terms and conditions. In that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to override the mandatory requirement of Rule 27 (l) (c). But in absence of such a right of renewal to the lessee the said clause was operative and effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the original lease in one sense and a fresh lease in another. While granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-rule (1) of Rule 27 of the Rules. By agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause (c) of Rule 27 (l). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 8/- per acre was within the limits specified in Schedule IV of the Rules and there was no infirmity in it. | 0[ds]In our opinion none of he contentions put forward on behalf of the appellant is fit to be accepted and the appeal must fail5. As is well settled the power to make rules for regulating the grant of prospecting licenses and mining leases in respect of minerals and for purposes connected therewith is to be found in sub-section (1) of Section 13.Sub-rule (1) of Rule 27 requires every mining lease to be subjected to the conditions enumerated in clauses (a) to (n) and such conditions have got to be incorporated in every mining lease. The conditions enumerated in cls. (a) to (o) of Sub-rule (2) are optional and a mining lease may contain such other conditions as the State Government may deem necessary in regard to themProvided that the lessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both.There is no element of uncertainty in the Rule either in regard to the grant of fresh lease or in respect of the renewal. The yearly dead rent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore certain. To provide for payment of dead rent at a specified rate subject to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power conferred on the Central Government under Section 13 of the Act. The 4th and 5th points urged on behalf of the appellant therefore fail6. Rule 27 (l) makes it incumbent to subject every mining lease to the conditions enumerated in that sub-rule. The renewal of lease cannot be outside Rule 27 (1). A lease granted under the Rules and the renewal made thereunder will not occasion any difficulty at all in the application of the conditions enumerated in sub-rule (1) to both. But the scope for argument in this case arose because the original lease was granted in 1941 by the erstwhile State. The modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Terms) Rules, 1956. The Rules of 1960 were then not in existenceIn other words, it was contended that the renewed lease had to be granted on the same terms and conditions. No term and condition could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with sub-rule (5) of R. 28. That being so, the argument stressed was that in view of the new clause operation of Rule 27 (1) (c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre. In our judgment the argument though attractive is not fruitful. If in the original lease there would have been a renewal clause giving a right to the lessee to have the renewal of the lease for another period of 20 years at its option one could probably say that the renewal had to be on the same terms and conditions. In that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to override the mandatory requirement of Rule 27 (l) (c). But in absence of such a right of renewal to the lessee the said clause was operative and effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the original lease in one sense and a fresh lease in another. While granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-rule (1) of Rule 27 of the Rules. By agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause (c) of Rule 27 (l). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 8/- per acre was within the limits specified in Schedule IV of the Rules and there was no infirmity in it. | 0 | 1,973 | 818 | ### 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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of Section 13.Sub-section (2) merely illustrates the nature of the power. It does not restrict the general power under sub-section (1). Even under clause (g) of sub-section (2) in particular the Rules may provide the terms on which and the conditions subject to which any mining lease may be granted or renewed. Sub-rule (1) of Rule 27 requires every mining lease to be subjected to the conditions enumerated in clauses (a) to (n) and such conditions have got to be incorporated in every mining lease. The conditions enumerated in cls. (a) to (o) of Sub-rule (2) are optional and a mining lease may contain such other conditions as the State Government may deem necessary in regard to them. Rule 27 (1) (c) reads as follows: The lessee shall pay, for every year, except the first year of the lease, such yearly dead rent within the limits specified in Schedule IV as may be fixed from time to time by the State Government and if the lease permits the working of more than one mineral in the same area, the State Government may charge separate dead rent in respect of each mineral: Provided that the lessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both.There is no element of uncertainty in the Rule either in regard to the grant of fresh lease or in respect of the renewal. The yearly dead rent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore certain. To provide for payment of dead rent at a specified rate subject to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power conferred on the Central Government under Section 13 of the Act. The 4th and 5th points urged on behalf of the appellant therefore fail. 6. Rule 27 (l) makes it incumbent to subject every mining lease to the conditions enumerated in that sub-rule. The renewal of lease cannot be outside Rule 27 (1). A lease granted under the Rules and the renewal made thereunder will not occasion any difficulty at all in the application of the conditions enumerated in sub-rule (1) to both. But the scope for argument in this case arose because the original lease was granted in 1941 by the erstwhile State. The modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Terms) Rules, 1956. The Rules of 1960 were then not in existence. The question which deserves careful consideration, therefore, is - whether there is any substance in either of the first or second points urged on behalf of the appellant. 7. The Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-l941 specifically stating therein that the said lease was for 20 years without a renewal clause. After providing that dead rent shall be payable at the rate of Rs. 6/- per acre per annum, it was mentioned The following clause shall be deemed to be inserted in the lease deed and shall form part thereof Except for the modifications made by this order the lease shall be subject to the Rules made or deemed to have been made under Sections 13 and 18 of the Mines and Minerals (Regulation and Development) Act, 1957 (No. 67 of 1957). 8. It was submitted on behalf of the appellant that when renewal of the lease was granted under R. 28 of the Rules then the State Government was bound to act upon and incorporate the new clause inserted in the original lease by order dated 20-11-1959. In other words, it was contended that the renewed lease had to be granted on the same terms and conditions. No term and condition could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with sub-rule (5) of R. 28. That being so, the argument stressed was that in view of the new clause operation of Rule 27 (1) (c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre. In our judgment the argument though attractive is not fruitful. If in the original lease there would have been a renewal clause giving a right to the lessee to have the renewal of the lease for another period of 20 years at its option one could probably say that the renewal had to be on the same terms and conditions. In that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to override the mandatory requirement of Rule 27 (l) (c). But in absence of such a right of renewal to the lessee the said clause was operative and effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the original lease in one sense and a fresh lease in another. While granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-rule (1) of Rule 27 of the Rules. By agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause (c) of Rule 27 (l). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 8/- per acre was within the limits specified in Schedule IV of the Rules and there was no infirmity in it.
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In our opinion none of he contentions put forward on behalf of the appellant is fit to be accepted and the appeal must fail5. As is well settled the power to make rules for regulating the grant of prospecting licenses and mining leases in respect of minerals and for purposes connected therewith is to be found in sub-section (1) of Section 13.Sub-rule (1) of Rule 27 requires every mining lease to be subjected to the conditions enumerated in clauses (a) to (n) and such conditions have got to be incorporated in every mining lease. The conditions enumerated in cls. (a) to (o) of Sub-rule (2) are optional and a mining lease may contain such other conditions as the State Government may deem necessary in regard to themProvided that the lessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both.There is no element of uncertainty in the Rule either in regard to the grant of fresh lease or in respect of the renewal. The yearly dead rent to be fixed from time to time by the State Government cannot exceed the limit specified in Chapter IV. The maximum limit is therefore certain. To provide for payment of dead rent at a specified rate subject to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power conferred on the Central Government under Section 13 of the Act. The 4th and 5th points urged on behalf of the appellant therefore fail6. Rule 27 (l) makes it incumbent to subject every mining lease to the conditions enumerated in that sub-rule. The renewal of lease cannot be outside Rule 27 (1). A lease granted under the Rules and the renewal made thereunder will not occasion any difficulty at all in the application of the conditions enumerated in sub-rule (1) to both. But the scope for argument in this case arose because the original lease was granted in 1941 by the erstwhile State. The modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Terms) Rules, 1956. The Rules of 1960 were then not in existenceIn other words, it was contended that the renewed lease had to be granted on the same terms and conditions. No term and condition could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with sub-rule (5) of R. 28. That being so, the argument stressed was that in view of the new clause operation of Rule 27 (1) (c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre. In our judgment the argument though attractive is not fruitful. If in the original lease there would have been a renewal clause giving a right to the lessee to have the renewal of the lease for another period of 20 years at its option one could probably say that the renewal had to be on the same terms and conditions. In that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to override the mandatory requirement of Rule 27 (l) (c). But in absence of such a right of renewal to the lessee the said clause was operative and effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the original lease in one sense and a fresh lease in another. While granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-rule (1) of Rule 27 of the Rules. By agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause (c) of Rule 27 (l). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 8/- per acre was within the limits specified in Schedule IV of the Rules and there was no infirmity in it.
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Salem Cooperative Central Bank Limited Vs. Commissioner of Income Tax, Madras | case it could not fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946-47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10(2)(vii) was the date when the compensation was in fact received and that therefore the amount was assessable in the A.Y. 1946-47. At the instance of the assessee, the Tribunal stated the following question of law for the opinion of the High Court "whether the sum of Rs. 9, 26, 532 was properly included in the assessee companys total income computed for the A.Y. 1946-47?" 7. Before the High Court the assessee raised a new contention for the first time that the fourth proviso to section 10(2)( vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the company had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue tha t the said aspect, or question as it may be called, did not arise out of the order of the Tribunal, that it was not raised before or dealt with by the Tribunal and that it was also not referred for the opining of the High Court. The High Court over-ruled the objection opining that the form in which the question was framed was sufficiently wide to take in the new contention and that the company was entitled to raise it even if that aspect of the question had not been argued before the Tribunal. It upheld the new contention raised by the assessee and answered the question in its favour. On appeal, this court affirmed. It was held that the High Court had jurisdiction to entertain the new contention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein.This court enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which t he following principle is relevant for our purpose: "Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, branching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that Section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over- refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act." This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal. 8. The question in the present case is whether additional surcharge was livable for the A.Y. 1963-64 under the relevant Finance Act. The assessees contention was that it has no income which was liable to be assessed to income-tax inasmuch as its entire income was exempt under Section 81(1)(a). In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessees contention that it was business income and therefore the liability of surcharge was not attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, no doubt for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle.Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V. R. Y.K.N. Kallappa Chettiar v. Commissioner of Income Tax, C.I.T v. Ogale Class Works Ltd., and Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North, Ahmedabad, by the learned counsel for the appellant and Commissioner of Income Tax, Bihar and Orissa v. kirkend Coal Co.,and Kusunben D. Mahadevia v. Commissioner of Income Tax, Bombay City, by the learned counsel for the Revenue. We do not, however , think it necessary to refer to them, since the situation present herein was not present in those cases. The principles of these decisions does not in any manner run contrary to the one affirmed by us herein, which is consistent with the one enunciated in Scindia Steam Navigation. 9. | 0[ds]We find it difficult to agree with Smt. Janaki Ramachandran, learned counsel for the assessee that the High Court has exceeded its jurisdiction under Section 256 in making the above direction. As rightly observed by the High Court, if the Tribunal proceeds upon an assumption which is erroneous in law and refers a question to the High Court, it cannot be said that the High Court is bound by the terms of the question referred and cannot correct the erroneous assumption of law underlying the question. If such power is not conceded to the High Court, the result would be that the answer given by the High Court may equally be erroneous in law. Such a situation cannot certainly be countenanced. It would not be in the interest of law or justice. It is not as if the High Court has asked for any fresh investigation of facts in this case not that such power does not exist in the High Court in a appropriate case. All that the High Court has asked the Tribunal to do is to consider whether the liability of surcharge is not attracted even if the said sum of Rs. 19 is treated as income from business, The fact that the revenue was also a party to the said erroneous assumption before the Tribunal cannot stand in the way of the Revenue resiling from an erroneous assumption of law. In C.I.T., Bombay v. Scindia Steam Navigation Ltd., the facts were these: a steam-ship belonging to the respondent company was requisitioned by-the government.The ship was lost by enemy action on Mar ch 16, 1944. The company received a sum of Rs. 20 lacs by way of compensation on July 17, 1944, a sum of Rs. 23 lacs on December 22. 1944 and a sum of Rs. 33, 333 on August 10, 1946. The total compensation so received exceeded the cost price of the steam ship. The difference between the cost price and written down value was Rs. 9, 26, 532. In the assessment proceeding for the A.Y. 1946-47, the revenue sought to charge the said amount under the fourth proviso to Section 10(2 )(vii) of the Income Tax Act, 1922, inserted by the Income Tax (Amendment) Act, 1946, which came into force on May 4, 1946. The assessee contended that the amount should be deemed to have been received on April 16, 1944 as was done for the purposes of Excess Profits Tax Act, in which case it could not fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946-47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10(2)(vii) was the date when the compensation was in fact received and that therefore the amount was assessable in the A.Y. 1946-47. At the instance of the assessee, the Tribunal stated the following question of law for the opinion of the High Court "whether the sum of Rs. 9, 26, 532 was properly included in the assessee companys total income computed for the A.Y. 1946-47?"Before the High Court the assessee raised a new contention for the first time that the fourth proviso to section 10(2)( vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the company had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue tha t the said aspect, or question as it may be called, did not arise out of the order of the Tribunal, that it was not raised before or dealt with by the Tribunal and that it was also not referred for the opining of the High Court. The High Court over-ruled the objection opining that the form in which the question was framed was sufficiently wide to take in the new contention and that the company was entitled to raise it even if that aspect of the question had not been argued before the Tribunal. It upheld the new contention raised by the assessee and answered the question in its favour. On appeal, this court affirmed. It was held that the High Court had jurisdiction to entertain the new contention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein.This court enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which t he following principle is relevant for our purpose:This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal.The question in the present case is whether additional surcharge was livable for the A.Y. 1963-64 under the relevant Finance Act. The assessees contention was that it has no income which was liable to be assessed to income-tax inasmuch as its entire income was exempt under Section 81(1)(a). In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessees contention that it was business income and therefore the liability of surcharge was not attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, no doubt for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle.Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V. R. Y.K.N. Kallappa Chettiar v. Commissioner of Income Tax, C.I.T v. Ogale Class Works Ltd., and Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North, Ahmedabad, by the learned counsel for the appellant and Commissioner of Income Tax, Bihar and Orissa v. kirkend Coal Co.,and Kusunben D. Mahadevia v. Commissioner of Income Tax, Bombay City, by the learned counsel for the Revenue. We do not, however , think it necessary to refer to them, since the situation present herein was not present in those cases. The principles of these decisions does not in any manner run contrary to the one affirmed by us herein, which is consistent with the one enunciated in Scindia Steam Navigation | 0 | 2,619 | 1,386 | ### 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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case it could not fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946-47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10(2)(vii) was the date when the compensation was in fact received and that therefore the amount was assessable in the A.Y. 1946-47. At the instance of the assessee, the Tribunal stated the following question of law for the opinion of the High Court "whether the sum of Rs. 9, 26, 532 was properly included in the assessee companys total income computed for the A.Y. 1946-47?" 7. Before the High Court the assessee raised a new contention for the first time that the fourth proviso to section 10(2)( vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the company had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue tha t the said aspect, or question as it may be called, did not arise out of the order of the Tribunal, that it was not raised before or dealt with by the Tribunal and that it was also not referred for the opining of the High Court. The High Court over-ruled the objection opining that the form in which the question was framed was sufficiently wide to take in the new contention and that the company was entitled to raise it even if that aspect of the question had not been argued before the Tribunal. It upheld the new contention raised by the assessee and answered the question in its favour. On appeal, this court affirmed. It was held that the High Court had jurisdiction to entertain the new contention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein.This court enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which t he following principle is relevant for our purpose: "Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, branching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that Section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over- refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act." This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal. 8. The question in the present case is whether additional surcharge was livable for the A.Y. 1963-64 under the relevant Finance Act. The assessees contention was that it has no income which was liable to be assessed to income-tax inasmuch as its entire income was exempt under Section 81(1)(a). In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessees contention that it was business income and therefore the liability of surcharge was not attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, no doubt for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle.Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V. R. Y.K.N. Kallappa Chettiar v. Commissioner of Income Tax, C.I.T v. Ogale Class Works Ltd., and Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North, Ahmedabad, by the learned counsel for the appellant and Commissioner of Income Tax, Bihar and Orissa v. kirkend Coal Co.,and Kusunben D. Mahadevia v. Commissioner of Income Tax, Bombay City, by the learned counsel for the Revenue. We do not, however , think it necessary to refer to them, since the situation present herein was not present in those cases. The principles of these decisions does not in any manner run contrary to the one affirmed by us herein, which is consistent with the one enunciated in Scindia Steam Navigation. 9.
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In C.I.T., Bombay v. Scindia Steam Navigation Ltd., the facts were these: a steam-ship belonging to the respondent company was requisitioned by-the government.The ship was lost by enemy action on Mar ch 16, 1944. The company received a sum of Rs. 20 lacs by way of compensation on July 17, 1944, a sum of Rs. 23 lacs on December 22. 1944 and a sum of Rs. 33, 333 on August 10, 1946. The total compensation so received exceeded the cost price of the steam ship. The difference between the cost price and written down value was Rs. 9, 26, 532. In the assessment proceeding for the A.Y. 1946-47, the revenue sought to charge the said amount under the fourth proviso to Section 10(2 )(vii) of the Income Tax Act, 1922, inserted by the Income Tax (Amendment) Act, 1946, which came into force on May 4, 1946. The assessee contended that the amount should be deemed to have been received on April 16, 1944 as was done for the purposes of Excess Profits Tax Act, in which case it could not fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946-47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10(2)(vii) was the date when the compensation was in fact received and that therefore the amount was assessable in the A.Y. 1946-47. At the instance of the assessee, the Tribunal stated the following question of law for the opinion of the High Court "whether the sum of Rs. 9, 26, 532 was properly included in the assessee companys total income computed for the A.Y. 1946-47?"Before the High Court the assessee raised a new contention for the first time that the fourth proviso to section 10(2)( vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the company had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue tha t the said aspect, or question as it may be called, did not arise out of the order of the Tribunal, that it was not raised before or dealt with by the Tribunal and that it was also not referred for the opining of the High Court. The High Court over-ruled the objection opining that the form in which the question was framed was sufficiently wide to take in the new contention and that the company was entitled to raise it even if that aspect of the question had not been argued before the Tribunal. It upheld the new contention raised by the assessee and answered the question in its favour. On appeal, this court affirmed. It was held that the High Court had jurisdiction to entertain the new contention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein.This court enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which t he following principle is relevant for our purpose:This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal.The question in the present case is whether additional surcharge was livable for the A.Y. 1963-64 under the relevant Finance Act. The assessees contention was that it has no income which was liable to be assessed to income-tax inasmuch as its entire income was exempt under Section 81(1)(a). In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessees contention that it was business income and therefore the liability of surcharge was not attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, no doubt for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle.Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V. R. Y.K.N. Kallappa Chettiar v. Commissioner of Income Tax, C.I.T v. Ogale Class Works Ltd., and Keshav Mills Co. Ltd. v. Commissioner of Income Tax Bombay North, Ahmedabad, by the learned counsel for the appellant and Commissioner of Income Tax, Bihar and Orissa v. kirkend Coal Co.,and Kusunben D. Mahadevia v. Commissioner of Income Tax, Bombay City, by the learned counsel for the Revenue. We do not, however , think it necessary to refer to them, since the situation present herein was not present in those cases. The principles of these decisions does not in any manner run contrary to the one affirmed by us herein, which is consistent with the one enunciated in Scindia Steam Navigation
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Marketing and Advertising Associates Private Limited Vs. Telerad Private Limited | show that a particular representation has been made and that a party other party acted upon that representation to his detriment. In the present case there is no representation whatever on the face of the consent terms or on the face of the order passed on the basis of the consent terms that Telerad Private limited would not apply for extension of time. Therefore, there was no estoppel against them in so applying. The view the learned judge took was, with respect, quite correct. (47) WE are also in agreement with the findings of the learned judge that the debtor-company had done all it could to remedy the inadvertent mistake as a result of which the payment was delayed only by five days and that after the delay they offered to pay the last instalment remaining to be paid under the consent order, though it had not still fallen due but that offer had been rejected by the appellant. The facts on this question are clear and stated in the judgment of the learned judge himself. On 5th September, 1968, the debtor-company offered to pay Rs. 25,000 which was the amount of the instalment till then defaulted, but objection was taken that the full amount alone could then be offered and that objection was upheld by the learned judge. Then what happened is noted in the judgment under appeal which is dated 23rd September, 1968 :"in fact, the applicant-company has, in the course of the hearing of this summons, offered to hand over to the petitioners not only the said pay-slip for Rs. 25,000 but also the balance of Rs. 15,000 which has not yet fallen due and which under the consent terms was payable on the 30th of September, 1968, by another pay-slip which they had with them ready in court and which would complete the payment of the entire amount of Rs. 1,50,000 provided for in the consent terms. That offer was also declined by Mr. Cooper on behalf of the petitioners. "(48) THE debtor-company has also produced before us a certificate of a notary public in support of its offer of payment of Rs. 40,000 and it appears from all this that the amount of Rs. 40,000 was offered to be paid by the debtor-company on the 23rd September, 1968, and on 25th September, 1968. The appellants have not disputed these facts but the contention is that there is no proof that the debtor-company had an amount sufficient to meet the balance unpaid under the consent terms. As to that also debtor-company produced for inspection of counsel for the appellants the banks statements of accounts from which it does appear that debtor-company still enjoyed overdraft facility of almost Rs. 80,000 in account No. 2 against which it had drawn the cheque in account No. 1 which came to be dishonoured, due to the error as regards the correct account. (49) NO doubt these are facts which have transpired subsequent to the order under appeal, but where it is a matter of judging whether the discretion vested in the trial judge was correctly exercised or not, we can see no reason why we should not take into account these circumstances which have subsequently arisen. It is settled law that the court may take into account subsequent events in determining an appeal. We are satisfied that the debtor-company was able to pay the amount of Rs. 40,000 and that in fact it made a valid offer of payment of Rs. 40,000 on the 23rd and 25th September, 1968, in full satisfaction of the balance due out of the amount of Rs. 1,50,000. (50) THE position between the parties, therefore, is that a creditor has filed a petition for winding up a company alleging that the company owed him Rs. 2,12,699. 52; that the parties agreed that rs. 1,50,000 was payable by the debtor-company to the appellants and as regards that amount set out consent terms upon which an order was passed. As to the balance the parties agreed to settle it between themselves or, in the absence of settlement, to refer it to the arbitration of Mr. Divan. Therefore, so far as the balance is concerned, nothing turns upon it in this appeal. As regards the amount of Rs. 1,50,000 it is clear that the debtor-company was able to pay and made a valid offer to pay the balance out of it. Although it was not a payment as provided in the consent terms, the fact remains that they did offer to pay up the full amount and could have paid it. The question then is, should this court in appeal lend its assistance to a petition for winding up the company when, although the petitioner is being paid the full amount which he bargained for, he deliberately does not accept it and insists on the company being wound up. We do not think that we can lend the aid of the court to such a party. (51) ALTHOUGH in the foregoing discussion we have dealt with the arguments as if it were a question of execution of a decree and order we must stress here that the learned single judge was exercising was jurisdiction under the Companies Act and that under the Companies Act many more circumstances than the mere debt payable by the debtor-company and receivable by the creditor have to be considered. There is, for instance, the interest of the whole body of shareholders and the court has to determine taking into account all circumstances whether the company is unable to pay its debts. The petition was made under section 433 (e) read with section 434 (1) (a) of the Companies Act and in exercise of its powers under the Act it seems to us that the court has a clear discretion notwithstanding the indebtedness of the company to order or not to order the admission of the petition for winding up of the company. That discretion, the trial judge has, in our opinion, correctly exercised. | 0[ds](7) AS far as the first of the four propositions formulated by Mr. Cooper is concerned, viz. , that rule 7 of the Companies (Court) Rules cannot authorize extension of time under an order made by consent of parties, he has relied strongly on a very recent decision of the Supreme Court in the case of Hukumchand v. Bansilal (A. I. R. 1968 S. C. 86; 70 Bom. L. R. 114). The said case was not a case under rule 7 of the Companies (Court) Rules, but Mr. Cooper has sought to apply the principle which, he says, is laid down therein in regard to section 148 of the Civil Procedure code, to rule 7 of the Companies (Court) Rules with which the court is concerned in the present case. The facts of Hukumchands case were rather complicated, but they may be stated in a simplified form for the purpose of the present case. The respondents before the Supreme Court, who were members of ahousing society, had created a mortgage of their property in favour of that society. The Registrar ofSocieties passed an order in the nature of a preliminary decree for sale on the mortgage at the instance of the society in its favour. As the amount was not paid within the time fixed by the said order, the property in question was sold on the 7th of April, 1958, and was purchased by the appellant as the highest bidder. On 3rd May, 1958, one of the respondents applied under Order 21, rule 90, of the Code of Civil Procedure, for setting aside that sale on the ground of material irregularly and fraud in publishing and conducting it. At the hearing of the said application on the 7th of October, 1958, it was agreed between the parties that the time to deposit the amount of the mortgage decree should be extended till 21st November, 1958, and that the application under Order 21, rule 90, should be allowed to be dismissed as withdrawn. The executing court passed an order in accordance with those terms arrived at between the parties and dismissed the application under Order 21, rule 90. On 20th November, 1958, an application was made by the respondents for extension of time for one day beyond the 21st of November, 1958, which was a holiday, and that application came up for hearing before the court on the 22nd of November, 1958. The respondents, however, did not deposit any amount in court on that day. The court took the view that the time which had been fixed by consent of parties could not be extended by the court and it, therefore, rejected the application for extension of time, and thereafter confirmed the sale as required by Order 21, rule 92, Civil Procedure Code. After an appeal to the District Court and to a single judge of the High court, and a Letters Patent Appeal to a Division Bench which set aside the order of confirmation of sale and held that the court could extend time for depositing the amount of the decree, the matter was taken up in appeal to the Supreme Court. The Supreme Court proceeded to consider the question on the footing that Order 34, rule 5, of the Civil Procedure Code, applied and took the view (at pages([1968] 70 Bom. L. R. 114)) that unlike Order 34, rule 4 (2), Order 34, rule 5 (1) did not contain any provision for extension of time and postponement of confirmation of sale, and that the provisions of Order 21, rule 92 (1) made it absolutely clear that if an application under Order 21, rule 90 was disallowed, the court "has to make an order confirming the sale". The Supreme Court stated in its judgment (at page 117) that the provisions of Order 34, rule 5 and Order 21, rule 92 must be given a harmonious interpretation, and when so interpreted, there was no question of time being granted under Order 34, rule 5, and if the provisions of Order 21, rule 92 (1) applied, the sale "must be confirmed", unless before the confirmation the mortgagor has deposited the amount as permitted by Order 34, rule 5, which he had not done in the case before the Supreme Court. The Supreme Court, therefore, took the view (at page 118) that once the application under Order 21, rule 90 had been dismissed on 7th october, 1958, "the court was bound to confirm the sale but for the compromise between the parties giving time up to November 21, 1958". It was then observed in the judgment of the supreme Court (at page 118 ([1968] 70 Bom. L. R. 114)) that though the executing court had not referred to Order 21, rule 92, in its order, it held that it should not grant time in the absence of agreement between the parties, because Order 21, rule 92 required that as the application under order 21, rule 90 had been dismissed, the sale must be confirmed, and the Supreme Court was of opinion that the executing court was right in doing so. The Supreme Court then proceeded to observe (at page 118 ([1968] 70 Bom. L. R. 114)) :"we are of the view that in the circumstances it was not open to the executing court to extend time Without consent of parties, for time between October 7, 1958, and November 21, 1958, was granted by consent of parties. Section 148 of the Civil Procedure Code would not apply in these circumstances.THE Supreme Court, therefore, allowed the appeal and held that the sale stood confirmed in favour of the appellant. On first impression, the said decision of the Supreme Court does appear to lay down the proposition for which it was cited by Mr. Cooper, and indeed Mr. Nariman conceded that it did lay down that proposition. Mr. Nariman, however, sought to draw a distinction between the provisions of section 148 of the Code of Civil Procedure which were referred to by the Supreme Court in Hukumchands case ([1968] 70 Bom. L. R. 114; A. I. R. 1968 s. C. 86, 89), and the provisions of rule 7 of the Companies (Court) Rules which, according to him, were much wider and would even authorise the enlargement of the time fixed under a consent order. In my opinion, however, there is no distinction between the provisions of section 148 and rule 7 of the Companies (Court) Rules which can be said to be material for the purpose on the point I am now considering. As, however, the question as to whether the time fixed by a consent order can be enlarged under the relevant statutory provisions or rules, is purely a question of law, the court is not bound to proceed on the basis of a concession by counsel on that point and be driven to misconstrue a decision of the Supreme Court in Hukumchands case ([1968] 70 Bom. L. R. 114; A. I. R. 1968 S. C. 86, 89) very carefully and a close scrutiny of that judgment has made me come to the conclusion that it is no authority for the proposition that section 148, Civil Procedure Code, does not apply to a consent order. In view of the fact that on a harmonious interpretation of Order 34, rule 5, and Order 21, rule 92 there is no power in the court to extend time, and the sale "must" be confirmed, unless before the confirmation the mortgagor has deposited the amount as permitted by Order 34, rule 5, section 148, Civil procedure Code, cannot apply and the only way in which time could be extended would be consent of parties. To invoke section 148, Civil Procedure Code, in such a case would be to render the provisions of Order 34, rule 5, read with Order 21, rule 92, nugatory, and that is what the Supreme Court meant when it stated (at page 118 ([1968] 70 Bom. L. R. 114; A. I. R. 1968 s. C. 86, 89)) that section 148, Civil Procedure Code, would not apply "in these circumstances". The Supreme Court has, however, not laid down the general proposition that section 148 cannot apply to consent orders. The only observation which might convey the said impression is the statement (at page 118 (1968) 70 Bom. L. R. 114) : "we cannot, therefore, accept the contention that time was not granted by consent of parties and, therefore, the court had power under section 148 to extend time which had already been granted". That statement must, however, be read in the context of the said paragraph which deals with a contention that was advanced on behalf of the respondents which is mentioned at the beginning of the said paragraph, and it is because the contention was put in that form that it was negatived by the Supreme Court in the words just quoted by me. In my opinion, that statement was not intended to convey or lay down the general rule that section 148 does not apply to consent orders, as Mr. Cooper has contended. The position, therefore, is that the view taken by Wadia J. in the case Yusuf v. Abdullabhai (A. I. R 1932 Bom. 615) already cited above, that the words "any order" in rule 288 of the Bombay High court (O. S.) Rules, 1930 (which was identical with the present rule 310 and is the same in all material respects as rule 7 of the Companies (Court) Rules) are wide enough to include an order made by consent of parties, still prevails and is the correct view. The first contention of Mr. Cooper must, therefore standAS far as the second submission of Mr. Cooper is concerned, viz. , that the said order was aorder and the court has no jurisdiction to set it aside after the time fixed had already expired and the court had become functus officio, in view of the conclusion at which I have arrived that an order admitting apetition is not in the nature of a final order but is procedural order, the present application falls within the decision of the Supreme Court in mahant Ram Dass case (A. I. R. 1961 S. C. 882) which was made under section 151, Civil procedure Code, and the third petition which was made under section 151, Civil Procedure code, read with order 47, rule 1, of that Code were both made after the time fixed under theorder had expired, and yet the Supreme Court held (at page 884, paras. 5 and 6)that the court should have exercised its powers and extended the time even on those two petitions. I must, therefore, hold that the court has the jurisdiction to extend time under rule 7 of the Companies (Court) Rules, even though it is aorder and the time fixed has already expired. In my opinion, as the court is still seized of the case, no question of its having become functus officio arises atAS far as the third contention of Mr. Cooper relating to the estoppel is concerned, I hold that the facts of the present case do not attract the rule of estoppel. As laid down by the Supreme court in the case of Gyarsi Bai v. Dhansukh Lal (A. I. R. 1965 S. C. 1055, 1061), to invoke the doctrine of estoppel, three conditions must be satisfied : (1) a representation by a person to another, (2) the other should have acted upon that representation, and (3) such action should have been detrimental to the interests of the persons to whom the representation has been made. There is no representation which the company has made in the present case on the basis of which the petitioners have acted to their prejudice. The consent terms do not contain any representation that the company would not apply for extension of time for the making of any of the deposits. Even if the consent terms are construed as implying such a representation, I do not see how that representation has caused the applicants to act upon it to their prejudice. I fail to see how an application for extension of time by reason of a few days inadvertent delay in making one of the payments stipulated for in the consent terms can cause any prejudice so as to found a plea of estoppel. I have no hesitation in rejecting this contention of Mr. CooperAS far as the last contention of Mr. Cooper is concerned, viz, that having regard to the merits of this case, even if the court has jurisdiction to extend time, it should not exercise its discretion in favour of the company, I am afraid, that contention is alsoI do not see that prejudice would have been caused to the petitioners if they had accepted payment on the 5th September, 1968, when the company offered payment to them, and, in my opinion, the conduct of the petitioners in declining to accept that payment was perverse, or in any event somewhat difficult to understand. The company, on the other hand, has done all it could to remedy the inadvertent mistake as a result of which the payment was delayed only by five days, and at the hearing of this summons the company has even offered to pay the last instalment remaining to be paid under the consent order which has not still fallen due, but that offer has also been rejected unceremoniously by the petitioners. In my opinion, far from the conduct of the company being such as to disentitle them to the relief which they have sought on the summons, it is the petitioners conduct that is devoid of merit. In the result, I make the summons absolute in terms of prayer (a) and extend the time for payment of the sum of Rs. 25,000 which was payable by the applicants to the petitioners under the consent terms dated 24th April, 1968, on 30th August, 1968, to 27th September, 1968. The company would beto make payment of the said amount, as well as of the last instalment which falls due on or before 30th September, 1968, in cash and well in time. Though the petitioners have adopted an attitude in respect of which I have indicated my disapproval in this judgment, since the company is being granted an indulgence under this order, it must pay the petitioners cost of thisdo not see how even having regard to those words following the expression "an order of the court", it can be legitimately urged that the words "an order of the court" do not comprise within their ambit an order passed upon consent. Both those expressions "doing of any act" and "taking of any proceedings" can equally well come into operation in a consent order. They do not, therefore, by implication negative a consent order being included within the expression "an order of theWE are supported in this conclusion by a comparison of rule 288 of the Bombay High Court rules to which we have referred and which is in pari materia. In fact the point has been decided in the judgment of a single judge of this court in Yusuf Ismailbhai Abdullabhai Lalji v. Abdullabhai Lalji ([1932] 34 Bom. L. R. 880; A. I. R. 1932 Bom. 615, 616) . This is what Wadia J. in that case said at page 883 :"by applying to the court for enlargement of the time fixed by the order of October 9, 1930, the defendant No. 10 and the parties who support him do not in substance wish to have the order set aside or even to vary it except in respect of the time at which it is to be carried out. All the parties, as I have said except defendant No. 9, are agreed that the time for the sale of the salt works should be enlarged, and I have the power to enlarge the time fixed by the order under rule 288, provided I am satisfied that a good case has been made out for the enlargement upon the merits of the application. The words any order in rule 288 are wide enough to include an order by consent. "(28) IN our opinion, and we say so with respect, that was a correct view to take of rule 288. It is a provision which is in pari materia with rule 7 of the Companies Court Rules with which we are concerned and therefore the ratio of that decision will equally apply to the construction of rule 7. We have already said that the use of the word "any" in rule 288 and the word "an" in the present rule will not make any substantial difference. Thus it seems to us that the power to condone the delay and enlarge the time can clearly by spelt out upon the provisions of rule 7 and if that power be there, which was the principal point of contest before the learned single judge, then the only question which survives is whether that power was rightly exercised in favour of the respondent. But before we deal with that question it is necessary to notice the other contentions advanced on behalf of thethe first place we do not see what is really implied by saying that an order is automatic orEvery order passed upon consent makes provision for the fulfillment of certain terms by either party and usually provides for what is the consequence of breach of any of itsIN that sense every order is an order which isbut we do not see how, assuming that an order isin this sense, it can necessarily be inferred that the courts jurisdiction to pass such orders as it deems fit in the interests of justice, can be limited or taken away. Turning to the consent terms upon which the order was passed it is clear that the consequence of theof the instalments is provided in clause 4 of the consent terms and the consequences which flow are four in number. Firstly, that the petition for winding up would stand admitted; secondly, that the creditor (the appellants before us) would be at liberty forthwith to apply for consequential directions regarding advertisement and returnable date; thirdly, that thewould not be able to oppose such a application and, lastly, that the entire amount of Rs. 1,50,000 or the balance remaining due on the date of default would become payable immediately. Though these consequences are provided in the settlement itself and the order passed on the basis of the settlement, we cannot see how these consequences lead to the conclusion that the courts power of extension of time is in any way curbed or taken away. None of these clauses refers to the question of extension of time or the condonation of delay in the payment of the instalments and we think that much more than is stated in clause 4 would be necessary before an outer of the statutory power of the court conferred by rule 7 can beNOW, it seems to us that Hukumchands case (A. I. R. 1968 S. C. 86), does not lay down any general principle, such as has been contended for, that a consent order can only be set aside by consent and not otherwise. In our opinion, Hukumchands case (A. I. R. 1968 S. C. 86) was a case where the provisions of Order 21, rule 92, read with rules 89, 90 and 91 came into play and, whatever may have been the view taken of the provisions contained in those rules earlier, the principle was settled by the decision of the Privy Council in Nanhelal v. Umrao Singh (A. I. R. 1931 P. C. 33). In Nanhelals case (A. I. R. 1931 P. C. 33) the Privy Council laid down that Order 21, rules 89, 90 and 91, of the Code of Civil Procedure, were complementary to Order 21, rule 92. They indicated that execution proceedings arising in consequence of an application under order 21, rule 2, are proceeding only between the judgment debtor and thewhen no other interests had come into being but "when once a sale has been effected, a third partys interest intervenes, and there is nothing in this rule (Order 21, rule 2) to suggest that it is to be disregarded. The only means by which thecan get rid of a sale, which has been duly carried out, are those embodied in rule 89, viz. , by depositing in court the amount for the recovery of which the property was sold, together with 5 per cent. on the purchase money which goes to the purchaser as statutory compensation, and this remedy can only be pursued within 30 days of the sale : see article 166, Schedule I, Limitation Act, 1908 (as the Act then stood). That this is so is, in their Lordships opinion, clear under the wording of rule 92, which provides that in such a case (i. e. , where the sale has been duly carried out), if no application is made under rule 99, "the court shall make an order confirming the sale and thereupon the sale shall become absolute. "(38) NOW it seems to us that this view of the Privy Council was directly before the Supreme court in Hukumchands case (A. I. R. 1968 S. C. 86) and the Supreme Court affirmed thatobservation of the District Judge that the court has always the power to postpone passing orders confirming sale of immovable property is in our view incorrect, in the face of the provisions contained in Order XXI, rule 92 (1). That provision makes it absolutely clear that if no application is made under rule 89, rule 90 or rule 91 or where such application is made and disallowed, the court has to make an order confirming the sale and thereupon the sale becomes absolute. It is not open to the court to go on fixing date after date and postponing confirmation of sale merely to accommodateIf that were so, the court may go on postponing confirmation of sale for years in order to accommodate aWhat Order XXI, rule 92 contemplates is that where conditions thereunder are satisfied an order for confirmation must follow. "(39) IT will thus be seen that in this case the Supreme Court were not concerned with any general principle regarding consent orders, but they were concerned with mere application of the provisions of Order XXI, rule 92, read with rules 89, 90 and 91 and since rule 92, which has been quoted above by the Supreme Court, expressly enjoined that unless an application under order XXI, rules 89, 90 or 91, is made, they held that the court is bound to confirm the sale under order XXI, rule 92. Therefore, in that case the Supreme Court took the view that the sale ought to be confirmed and there was no scope for grant of extension of time. That is not the same thing in saying, as has been argued in the present case, that a consent order can never permit a court to extend time except upon further consent of the parties. In our opinion, the decision in Hukumchands case (A. I. R. 1968 S. C. 86) does not lay down the general proposition for which the appellants contend in the presentTHESE remarks were made in view of the special facts in that case. If one turns to paragraph 2 of that judgment one finds that the preliminary mortgage decree which was passed on a compromise between the parties on 2nd August, 1933, and by that preliminary decree the sum due was to be paid in two instalments and on default of both the instalments a final decree was to be passed, but the express term of the compromise was that no further time was to be granted and the last date of payment was thus 31st January, 1935. It was in view of this express agreement between the parties that no further time was to be granted, that learned judge held that the power of the court to grant time was taken away by the agreement of the parties which by being incorporated in the decree became also an act of the court. The position, therefore, is clear. The mere fact that an order is passed by consent or the mere fact that the order contains terms which are to come into effect automatically or, in other words, that the order isdoes not necessarily imply that the courts power to extend time is taken away, but there may be cases where the parties by express terms can shut out the power of the court by showing their intention not to ask the aid of the court at all, as, for instance, in Vyankatraos case (A. I. R. 1952 Nag. 185) where the parties had agreed that no further time was to be granted. Short of such special circumstances, therefore, it is clear that even in the case of consent orders, as in the case of orders having automatic operation, the power of the court to extend time would beLOOKED at from this point of view it is clear to us that the consent terms and the order passed thereupon clearly kept the matter alive in the present case. This stipulation as to default in clause 4 was that, in the event of there being a default in payment, four consequences would follow, namely, (1) that the petition for winding up was to stand admitted; (2) that the petitioner was at liberty to apply for consequential directions for advertisement and returnable date; (3) that thewould not oppose that application and (4) that the amount of Rs. 1,50,000 or the balance remaining unpaid would become exigible forthwith. Now the very fact that the parties contemplated that the orders of the court will be solicited shows that as between the parties they had not put an end to the matter and had left it open to theto obtain further orders from the court. Clause No. 2 also indicates the same. There is no indication therefore in clause 4 to suggest that it was the intention of the parties that the order upon consent should be, so too say, a Code in itself taking effect automatically without any further reference to theSO far we have discussed the question upon the terms of clause 4 alone, but it seems to us that, when we turn to consider the concluding clause of the order (clause 5 of the consent terms), it becomes clear beyond doubt that the order did not put an end to the matter between the parties and the order was not aorder. The concluding clause of the order says : "in the event of Rs. 1. 50,000 (rupees one lakh fifty thousand only) being paid as aforesaid petition to stand dismissed. . . . . . " The expression "as aforesaid" necessarily refers back to clause 4, for, though the instalments are prescribed by clause 1 what is to happen on default of payment of instalments is prescribed by clause 4. If one reads clauses 1 and 4 in conjunction with clause 5, it is clear that the parties contemplated that upon Rs. 1,50,000 being paid in terms mentioned above, the petition was to stand dismissed. Clause 5 was an independent provision controlling both clauses 1 and 4 and, if so, it seems to us that it clearly gave tothe right to pay rs. 1,50,000 and get the petition dismissed without reference to the time limited in clause 4 or clause 1. Of course it was contended on behalf of the respondents before us and rightly contended that clause 5 only comes into operation on payment which, in any case, has not been done in the present case. We shall presently show that in fact on the 25th September, 1968, the full amount of the balance, namely, Rs. 40,000 was clearly offered to the appellants by theIf so, though it would not amount to a payment, we can see no reason why we should not take this fact into account. After all, the order passed by the learned judge was a discretionary order and, in considering whether the discretion was properly exercised, the circumstance that the entire balance was offered to be paid, can and ought to be taken into account and, it taken into account, we do not see any reason why we should interfere with the discretion exercised by the learned judge. Upon this ground it would really be unnecessary to go into the further question whether further consent is necessary in order to modify the consent order although we have discussed itSO far as the question of estoppel is concerned, we are also in agreement with the view taken by the learned judge, relying upon the decision in Gyarsi Bai v. Dhansukh Lal (A. I. R. 1965 S. C. 1055), for the purposes of establishing an estoppel a party must show that a particular representation has been made and that a party other party acted upon that representation to his detriment. In the present case there is no representation whatever on the face of the consent terms or on the face of the order passed on the basis of the consent terms that Telerad Private limited would not apply for extension of time. Therefore, there was no estoppel against them in so applying. The view the learned judge took was, with respect, quiteWE are also in agreement with the findings of the learned judge that thehad done all it could to remedy the inadvertent mistake as a result of which the payment was delayed only by five days and that after the delay they offered to pay the last instalment remaining to be paid under the consent order, though it had not still fallen due but that offer had been rejected by the appellant. The facts on this question are clear and stated in the judgment of the learned judge himself. On 5th September, 1968, theoffered to pay Rs. 25,000 which was the amount of the instalment till then defaulted, but objection was taken that the full amount alone could then be offered and that objection was upheld by the learned judge. Then what happened is noted in the judgment under appeal which is dated 23rd September, 1968 :"in fact, thehas, in the course of the hearing of this summons, offered to hand over to the petitioners not only the saidfor Rs. 25,000 but also the balance of Rs. 15,000 which has not yet fallen due and which under the consent terms was payable on the 30th of September, 1968, by anotherwhich they had with them ready in court and which would complete the payment of the entire amount of Rs. 1,50,000 provided for in the consent terms. That offer was also declined by Mr. Cooper on behalf of the petitioners.NO doubt these are facts which have transpired subsequent to the order under appeal, but where it is a matter of judging whether the discretion vested in the trial judge was correctly exercised or not, we can see no reason why we should not take into account these circumstances which have subsequently arisen. It is settled law that the court may take into account subsequent events in determining an appeal. We are satisfied that thewas able to pay the amount of Rs. 40,000 and that in fact it made a valid offer of payment of Rs. 40,000 on the 23rd and 25th September, 1968, in full satisfaction of the balance due out of the amount of Rs.THE position between the parties, therefore, is that a creditor has filed a petition for winding up a company alleging that the company owed him Rs. 2,12,699. 52; that the parties agreed that rs. 1,50,000 was payable by theto the appellants and as regards that amount set out consent terms upon which an order was passed. As to the balance the parties agreed to settle it between themselves or, in the absence of settlement, to refer it to the arbitration of Mr. Divan. Therefore, so far as the balance is concerned, nothing turns upon it in this appeal. As regards the amount of Rs. 1,50,000 it is clear that thewas able to pay and made a valid offer to pay the balance out of it. Although it was not a payment as provided in the consent terms, the fact remains that they did offer to pay up the full amount and could have paid it. The question then is, should this court in appeal lend its assistance to a petition for winding up the company when, although the petitioner is being paid the full amount which he bargained for, he deliberately does not accept it and insists on the company being wound up. We do not think that we can lend the aid of the court to such aALTHOUGH in the foregoing discussion we have dealt with the arguments as if it were a question of execution of a decree and order we must stress here that the learned single judge was exercising was jurisdiction under the Companies Act and that under the Companies Act many more circumstances than the mere debt payable by theand receivable by the creditor have to be considered. There is, for instance, the interest of the whole body of shareholders and the court has to determine taking into account all circumstances whether the company is unable to pay its debts. The petition was made under section 433 (e) read with section 434 (1) (a) of the Companies Act and in exercise of its powers under the Act it seems to us that the court has a clear discretion notwithstanding the indebtedness of the company to order or not to order the admission of the petition for winding up of the company. That discretion, the trial judge has, in our opinion, correctly exercised. | 0 | 12,969 | 6,324 | ### Instruction:
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show that a particular representation has been made and that a party other party acted upon that representation to his detriment. In the present case there is no representation whatever on the face of the consent terms or on the face of the order passed on the basis of the consent terms that Telerad Private limited would not apply for extension of time. Therefore, there was no estoppel against them in so applying. The view the learned judge took was, with respect, quite correct. (47) WE are also in agreement with the findings of the learned judge that the debtor-company had done all it could to remedy the inadvertent mistake as a result of which the payment was delayed only by five days and that after the delay they offered to pay the last instalment remaining to be paid under the consent order, though it had not still fallen due but that offer had been rejected by the appellant. The facts on this question are clear and stated in the judgment of the learned judge himself. On 5th September, 1968, the debtor-company offered to pay Rs. 25,000 which was the amount of the instalment till then defaulted, but objection was taken that the full amount alone could then be offered and that objection was upheld by the learned judge. Then what happened is noted in the judgment under appeal which is dated 23rd September, 1968 :"in fact, the applicant-company has, in the course of the hearing of this summons, offered to hand over to the petitioners not only the said pay-slip for Rs. 25,000 but also the balance of Rs. 15,000 which has not yet fallen due and which under the consent terms was payable on the 30th of September, 1968, by another pay-slip which they had with them ready in court and which would complete the payment of the entire amount of Rs. 1,50,000 provided for in the consent terms. That offer was also declined by Mr. Cooper on behalf of the petitioners. "(48) THE debtor-company has also produced before us a certificate of a notary public in support of its offer of payment of Rs. 40,000 and it appears from all this that the amount of Rs. 40,000 was offered to be paid by the debtor-company on the 23rd September, 1968, and on 25th September, 1968. The appellants have not disputed these facts but the contention is that there is no proof that the debtor-company had an amount sufficient to meet the balance unpaid under the consent terms. As to that also debtor-company produced for inspection of counsel for the appellants the banks statements of accounts from which it does appear that debtor-company still enjoyed overdraft facility of almost Rs. 80,000 in account No. 2 against which it had drawn the cheque in account No. 1 which came to be dishonoured, due to the error as regards the correct account. (49) NO doubt these are facts which have transpired subsequent to the order under appeal, but where it is a matter of judging whether the discretion vested in the trial judge was correctly exercised or not, we can see no reason why we should not take into account these circumstances which have subsequently arisen. It is settled law that the court may take into account subsequent events in determining an appeal. We are satisfied that the debtor-company was able to pay the amount of Rs. 40,000 and that in fact it made a valid offer of payment of Rs. 40,000 on the 23rd and 25th September, 1968, in full satisfaction of the balance due out of the amount of Rs. 1,50,000. (50) THE position between the parties, therefore, is that a creditor has filed a petition for winding up a company alleging that the company owed him Rs. 2,12,699. 52; that the parties agreed that rs. 1,50,000 was payable by the debtor-company to the appellants and as regards that amount set out consent terms upon which an order was passed. As to the balance the parties agreed to settle it between themselves or, in the absence of settlement, to refer it to the arbitration of Mr. Divan. Therefore, so far as the balance is concerned, nothing turns upon it in this appeal. As regards the amount of Rs. 1,50,000 it is clear that the debtor-company was able to pay and made a valid offer to pay the balance out of it. Although it was not a payment as provided in the consent terms, the fact remains that they did offer to pay up the full amount and could have paid it. The question then is, should this court in appeal lend its assistance to a petition for winding up the company when, although the petitioner is being paid the full amount which he bargained for, he deliberately does not accept it and insists on the company being wound up. We do not think that we can lend the aid of the court to such a party. (51) ALTHOUGH in the foregoing discussion we have dealt with the arguments as if it were a question of execution of a decree and order we must stress here that the learned single judge was exercising was jurisdiction under the Companies Act and that under the Companies Act many more circumstances than the mere debt payable by the debtor-company and receivable by the creditor have to be considered. There is, for instance, the interest of the whole body of shareholders and the court has to determine taking into account all circumstances whether the company is unable to pay its debts. The petition was made under section 433 (e) read with section 434 (1) (a) of the Companies Act and in exercise of its powers under the Act it seems to us that the court has a clear discretion notwithstanding the indebtedness of the company to order or not to order the admission of the petition for winding up of the company. That discretion, the trial judge has, in our opinion, correctly exercised.
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namely, Rs. 40,000 was clearly offered to the appellants by theIf so, though it would not amount to a payment, we can see no reason why we should not take this fact into account. After all, the order passed by the learned judge was a discretionary order and, in considering whether the discretion was properly exercised, the circumstance that the entire balance was offered to be paid, can and ought to be taken into account and, it taken into account, we do not see any reason why we should interfere with the discretion exercised by the learned judge. Upon this ground it would really be unnecessary to go into the further question whether further consent is necessary in order to modify the consent order although we have discussed itSO far as the question of estoppel is concerned, we are also in agreement with the view taken by the learned judge, relying upon the decision in Gyarsi Bai v. Dhansukh Lal (A. I. R. 1965 S. C. 1055), for the purposes of establishing an estoppel a party must show that a particular representation has been made and that a party other party acted upon that representation to his detriment. In the present case there is no representation whatever on the face of the consent terms or on the face of the order passed on the basis of the consent terms that Telerad Private limited would not apply for extension of time. Therefore, there was no estoppel against them in so applying. The view the learned judge took was, with respect, quiteWE are also in agreement with the findings of the learned judge that thehad done all it could to remedy the inadvertent mistake as a result of which the payment was delayed only by five days and that after the delay they offered to pay the last instalment remaining to be paid under the consent order, though it had not still fallen due but that offer had been rejected by the appellant. The facts on this question are clear and stated in the judgment of the learned judge himself. On 5th September, 1968, theoffered to pay Rs. 25,000 which was the amount of the instalment till then defaulted, but objection was taken that the full amount alone could then be offered and that objection was upheld by the learned judge. Then what happened is noted in the judgment under appeal which is dated 23rd September, 1968 :"in fact, thehas, in the course of the hearing of this summons, offered to hand over to the petitioners not only the saidfor Rs. 25,000 but also the balance of Rs. 15,000 which has not yet fallen due and which under the consent terms was payable on the 30th of September, 1968, by anotherwhich they had with them ready in court and which would complete the payment of the entire amount of Rs. 1,50,000 provided for in the consent terms. That offer was also declined by Mr. Cooper on behalf of the petitioners.NO doubt these are facts which have transpired subsequent to the order under appeal, but where it is a matter of judging whether the discretion vested in the trial judge was correctly exercised or not, we can see no reason why we should not take into account these circumstances which have subsequently arisen. It is settled law that the court may take into account subsequent events in determining an appeal. We are satisfied that thewas able to pay the amount of Rs. 40,000 and that in fact it made a valid offer of payment of Rs. 40,000 on the 23rd and 25th September, 1968, in full satisfaction of the balance due out of the amount of Rs.THE position between the parties, therefore, is that a creditor has filed a petition for winding up a company alleging that the company owed him Rs. 2,12,699. 52; that the parties agreed that rs. 1,50,000 was payable by theto the appellants and as regards that amount set out consent terms upon which an order was passed. As to the balance the parties agreed to settle it between themselves or, in the absence of settlement, to refer it to the arbitration of Mr. Divan. Therefore, so far as the balance is concerned, nothing turns upon it in this appeal. As regards the amount of Rs. 1,50,000 it is clear that thewas able to pay and made a valid offer to pay the balance out of it. Although it was not a payment as provided in the consent terms, the fact remains that they did offer to pay up the full amount and could have paid it. The question then is, should this court in appeal lend its assistance to a petition for winding up the company when, although the petitioner is being paid the full amount which he bargained for, he deliberately does not accept it and insists on the company being wound up. We do not think that we can lend the aid of the court to such aALTHOUGH in the foregoing discussion we have dealt with the arguments as if it were a question of execution of a decree and order we must stress here that the learned single judge was exercising was jurisdiction under the Companies Act and that under the Companies Act many more circumstances than the mere debt payable by theand receivable by the creditor have to be considered. There is, for instance, the interest of the whole body of shareholders and the court has to determine taking into account all circumstances whether the company is unable to pay its debts. The petition was made under section 433 (e) read with section 434 (1) (a) of the Companies Act and in exercise of its powers under the Act it seems to us that the court has a clear discretion notwithstanding the indebtedness of the company to order or not to order the admission of the petition for winding up of the company. That discretion, the trial judge has, in our opinion, correctly exercised.
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Munja Praveen And Ors. Etc.Etc Vs. State Of Telangana And Ors. Etc.Etc | communities categories notified by the unit officers. The fall out vacancies if any due to relinquishment and non joining etc. of selected candidates shall be notified the next recruitment."11. According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment or non-joining of the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment and non-joining unless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads as under:".......I am to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification...."13. We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.16. We may also add that the High Court did not note an earlier Division Bench judgment of the Andhra Pradesh High Court in the case of Government of A.P. & Others v. Ms. Bhagam Dorasanamma & Another (W.P. No.24944 of 2013), wherein the High Court had correctly interpreted the G.O.Ms. in the following manner:"19. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate. In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or non-filling of the same does not arise. The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein is contrary to the very spirit and object of service jurisprudence and we find total lack of justification on the part of the petitioner authorities and such action undoubtedly tantamounts to transgression of Part III of the Constitution of India in the event of testing the same on the touchstone of Article 16 of the Constitution of India."17. Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest. | 1[ds]8. We have heard learned senior counsel/learned counsel for the parties. At the outset, it may be noted that TSNPDCL had issued advertisement for filling up 164 vacancies, TSGENCO had issued advertisement for filling up 856 vacancies, TSSPDCL had issued advertisement for 201 vacancies and TSTRANSCO issued an advertisement to fill up 206 posts. The examinations were conducted by these Corporations on 08.11.2015, 14.11.2015, 22.11.2015 and 29.11.2015 respectively. The results were declared almost simultaneously in which many of the candidates got selected in more than one Corporation. This led to a situation where the candidate selected in more than one Corporation exercised his or her prerogative to produce certificates for verification of qualification, caste etc. before one Corporation. Since the applications had been invited online, the certificates had to be produced after the written test was conducted.9. It appears that faced with a situation where many posts would have remained vacant, the Corporations asked for a clarification from the State Government, which resulted in the letter dated 01.06.2016.According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment orof the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment andunless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads asam to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification....We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest. | 1 | 2,342 | 1,041 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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communities categories notified by the unit officers. The fall out vacancies if any due to relinquishment and non joining etc. of selected candidates shall be notified the next recruitment."11. According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment or non-joining of the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment and non-joining unless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads as under:".......I am to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification...."13. We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.16. We may also add that the High Court did not note an earlier Division Bench judgment of the Andhra Pradesh High Court in the case of Government of A.P. & Others v. Ms. Bhagam Dorasanamma & Another (W.P. No.24944 of 2013), wherein the High Court had correctly interpreted the G.O.Ms. in the following manner:"19. The process of recruitment starts from the date of notifying the vacancies and attains finality with the act of issuing appointment order, offering the post to the selected candidate. In the absence of reaching the said finality of issuing appointment order in respect of subject vacancy, the question of either relinquishment or non-filling of the same does not arise. The interpretation sought to be given by the authorities for denying appointment to the applicant/1st respondent herein is contrary to the very spirit and object of service jurisprudence and we find total lack of justification on the part of the petitioner authorities and such action undoubtedly tantamounts to transgression of Part III of the Constitution of India in the event of testing the same on the touchstone of Article 16 of the Constitution of India."17. Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest.
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8. We have heard learned senior counsel/learned counsel for the parties. At the outset, it may be noted that TSNPDCL had issued advertisement for filling up 164 vacancies, TSGENCO had issued advertisement for filling up 856 vacancies, TSSPDCL had issued advertisement for 201 vacancies and TSTRANSCO issued an advertisement to fill up 206 posts. The examinations were conducted by these Corporations on 08.11.2015, 14.11.2015, 22.11.2015 and 29.11.2015 respectively. The results were declared almost simultaneously in which many of the candidates got selected in more than one Corporation. This led to a situation where the candidate selected in more than one Corporation exercised his or her prerogative to produce certificates for verification of qualification, caste etc. before one Corporation. Since the applications had been invited online, the certificates had to be produced after the written test was conducted.9. It appears that faced with a situation where many posts would have remained vacant, the Corporations asked for a clarification from the State Government, which resulted in the letter dated 01.06.2016.According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the G.O.Ms. admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from clause 9 of the G.O.Ms., which also clarifies that fall out vacancies due to relinquishment orof the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment andunless an appointment letter is issued.12. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads asam to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification....We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.14. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. obviously has been issued, keeping in mind a single selection process. Here, we are dealing with a multiple selection process for different Corporations. The more brilliant candidates were selected in more than one of the Corporations. They obviously cannot join in more than one Corporation. Therefore, if the top four candidates have been selected in all four Corporations, they could only join one of the Corporations and twelve posts would remain vacant, if the interpretation given by the High Court is accepted. This would lead to a position where large number of vacancies would not be filled up.15. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.Normally, the aforesaid judgment should have been followed, but no reference has been made to the same in the impugned judgments.18. We are also of the view that the Government was justified in issuing the letter dated 01.06.2016 in the larger public interest.
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THE DIRECTOR GENERAL (ROAD DEVELOPMENT) NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. AAM AADMI LOKMANCH & ORS | Harrison [1947 WN 191 : 63 TLR 484], Quinn v. Scott [(1965) 1 WLR 1004 : (1965) 2 All ER 588] and Mackie v. Dumbartonshire County Council [1927 WN 247] ). The duty of the owner/occupier of the premises by the side of the road whereon persons lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the premises. The premises must be maintained in a safe state of repair. The owner/occupier cannot escape the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person to keep the premises in safe repairs. In Municipal Corpn. of Delhi v. Subhagwanti [AIR 1966 SC 1750 ] a clock tower which was 80 years old collapsed in Chandni Chowk, Delhi causing the death of a number of persons. Their Lordships held that the owner could not be permitted to take a defence that he neither knew nor ought to have known the danger. [T]he owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect, — said their Lordships. In our opinion the same principle is applicable to the owner of a tree standing by the side of a road. If the tree is dangerous in the sense that on account of any disease or being dead the tree or its branch is likely to fall and thereby injure any passer-by then such a tree or branch must be removed so as to avert the danger to life. It is pertinent to note that it is not the defence of the Municipal Corporation that vis major or an act of God such as a storm, tempest, lightning or extraordinary heavy rain had occurred causing the fall of the branch of the tree and hence the Corporation was not liable. This approach that a statutory corporation or local authority can be held liable in tort for injury occasioned on account of omission to oversee, or defective supervision of its activities contracted out to another agency, was also followed in Vadodara Municipal Corporation v Purshottam V . Muranji 2014 (16) SCC 14 . 64. The terms of the agreement which the NHAI entered into with the concessionaire clearly contemplated the safety of highway users (Clause 18.1.1) and an elaborate highway monitoring mechanism (Clause 19.1). The agreement also required any unusual occurrences to be reported; an independent engineer was required to, and did inspect the highway. The reports of the inspecting engineer reveal that the deficiencies by way of narrowing of water channels, and the unusual collection of debris, were noted. Even before the incident, the NHAI was alive to this; it had separately written to Rathod, and later to the local administration about it through its letter dated 15.04.2011. That letter is revealing; it inter alia, states that: During pre-monsoon rains all the excavated muck has been carried to NH4 alongwith rain water and block Satara bound traffic lane for quite some time. The problem will be severe during heavy rains of July and August. As such safety of highway and tunnel is completely at stake due to indiscriminate cutting of hills on upper side of tunnel and both the end. 65. Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the Highways Act, read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly shows that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAIs correspondence with Rathod, and the local administration, reveal that it was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to Rathod similarly show that it was incumbent upon him to take remedial action. The failure of the NHAI to ensure remedial action, and likewise the failure by Rathod to take measures to prevent the accident, prima facie, disclose their liability. 66. The absence of legal representatives or heirs of the deceased in the proceedings, or the fact that they had initiated independent civil action, in the opinion of this court, was not an impediment, nor could it have precluded the NGT from exercising its jurisdiction, given the gravity of the matter and the danger posed to the members of the public. The initiation of civil action did not mean that the NGT had to either reject the application (as far as it claimed relief for the accident), or await the outcome of the civil suit. This position is clear from the proviso to Section 18(1) which reads as follows: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. 67. The above provision clearly implies that an application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, that procedure was not followed. However, the legal heirs have instituted a suit. The ends of justice would be served if that suit (Special Civil Suit No. 890 of 2014 before the Court of the Civil Judge Senior Division, Pune) is directed to revive and continue it; a direction is issued to the concerned court (Court of the Civil Judge Senior Division, Pune). The directions in this regard by the NGT, towards payment of compensation are to be regarded as indicative of a prima facie determination. | 1[ds]33. A plain reading of the above provisions of the NGT Act would reveal that the tribunal possesses two kinds of power and jurisdiction: one, primary jurisdiction under Sections 14-15, and appellate jurisdiction under Section 16. Under Section 14, the NGT has the power to adjudicate upon disputes relating to civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved relating to the implementation of the enactments specified in Schedule I [Section 14 (1)]. The other provisions [Sections 14(2) and (3)] are incidental to the primary jurisdiction under Section 14(1). Section 15, on the other hand, is couched in wide terms. Section 15(1) provides that compensation or damages can be given by the NGT to victims of pollution and other environmental damage arising under the enactments specified in the Schedule I [Section 15 (1)(a)]; for restitution of property damaged [Section 15(1)(b)] and for restitution of the environment for such area or areas [Section 15(1)(c)]. Section 15(2) is procedural; Section 15(3) prescribes the period of limitation for applications. Section 15(4) enables the NGT to, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.36. A conjoint reading of Sections 14, 15 and the Schedules would lead one to infer that the NGT has circumscribed jurisdiction to deal with, adjudicate, and wherever needed, direct measures such as payment of compensation, or make restitutionary directions in cases where the violation (i.e. harm caused due to pollution or exposure to hazards, etc.) are the result of infraction of any enactment listed in the first schedule. Yet, that, interpretation, in the opinion of this court, is not warranted.37. The reference to Schedule II, in Section 15(4) is not merely by way of events which are actionable in relation to harm caused due to the acts resulting in violation of any enactment under Schedule I. The wide language of that provision enables the tribunal (NGT) to direct, inter alia, payment of compensation, having regard to the damage to public health, property and environment . This interpretation is borne out by a reading of Section 17(2) regarding the apportionment of liability for payment of compensation.38. In the decision of this court reported as Hinch Lal Tiwari v. Kamala Devi 2001 (6) SCC 496 , this court held that ponds constituted public utility and were meant for common use. The court held that ponds could not be allotted or commercialised, and that filling up of ponds was illegal. Recently, in Jitendra Singh v. Ministry of Environment & Ors 2019 SCC OnLine SC 1510, the Court quoted and applied the observations in Hinch Lal (supra), in the context of an appeal directed against an order of the NGT which had summarily dismissed an application under Sections 14 and 15 of the NGT Act seeking directions to cease the filling up of ponds in the Greater Noida Industrial Development Area.43. It is noteworthy that this court clearly held that under Section 15(1)(b) and 15(1)(c), the NGT has the power to make directions and provide for restitution of property damaged and for restitution of the environment for such area or areas as the Tribunal may think fit. It is noteworthy that Section 15(1)(b) & (c) have not been made relatable to Schedule I enactments of the Act. Though a direction for compensation under Section 15(1)(a) is relatable to violation of enactments specified under the first schedule, the power under Section 17 appears to be cast in wider terms.44. As noticed earlier, Section 17 (1) refers to first schedule enactments; it talks of death of, or injury to, any person or damage to any property or environment which has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment in Schedule I. One of the enactments is the Environment Protection Act, 1986 (hereafter EPA).47. Acting under the provisions of the EPA, the Central Government had issued a notification on 14.09.2006, mandating Environmental Impact Assessment (EIA) in exercise of its power under Section 3(2) of the EPA read with Rule 5 of the rules framed thereunder. In terms of this notification, environment impact assessment and clearance was necessary for different processes and industries. Mining too, was included as part of the notification; the only exception was that minor mineral leases for an area below five hectares were exempted. Clearly, therefore, the Central Government included within the purview of the EPA, major and minor mineral extraction.48. Several irregularities were noticed over a period of time, with regard to minor mineral extraction, including sand, and there was need for introducing stringent regulations for those activities. A report of the then Ministry of Environment and Forests (MoEF, now MoEF&CC) submitted in 2010 was critical of the prevailing norms. As a result, this court and the NGT issued orders and directives making ECs compulsory for projects less than five hectares. The Central Government too initiated measures.50. By virtue of a notification, environmental clearance is necessary even for minor mineral extraction where the area of operation is less than 5 hectares; the procedure has been outlined under Appendix XI of that notification. Clearly, therefore, mining of even minor minerals, when resorted to on a large scale (i.e. where more than a few leases or permits are granted), has a potential impact on the environment. In the facts of this case, the state had granted no less than 62 minor mineral permits in the vicinity; unauthorized activity (in the form inter alia, of over-mining and piling of debris) had resulted in the imposition of the penalty. Clearly, there was violation of the EPA in the present case, because Rathods mining lease covered an area in excess of 5 hectares; it fell within the regulatory notification of 2006. There is nothing on record to show that the relevant clearance was obtained by Rathod. Plainly, therefore, the facts of the present case disclosed violation of the EPA- an enactment listed in Schedule I of the NGT Act. This meant that the NGTs jurisdiction under Section 15(1)(a) and Section 17 could not have been disputed.51. This court is of the considered opinion that the expression environment and environmental pollution have to be given a broader meaning, having regard to Parliamentary intent to ensure the objective of the EPA. It effectuates the principles underlying Article 48A of the Constitution of India. The EPA is in essence, an umbrella legislation enacting a broad framework for the central government to coordinate the activities of various central and state authorities established under other laws, such as the Water Act and Air Act. The EPA also effectively enunciates the critical legislative policy for environment protection. It changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. The expansive definition of environment that includes water, air and land and the interrelation which exist among and between water, air and land, other human creatures, plants, micro-organisms and property give an indication of the wide powers conferred on the Central Government. A wide net is cast over the environment related laws. The EPA also empowers the central government to comprehensively control environmental pollution by industrial and related activities. For these reasons, and in view of the above discussion, it is held that the NGT correctly assumed jurisdiction, having regard to the nature of the accident in the facts of this case.52. In the present case, the deceased were concededly travelling on the highway. The incident of flooding occurred, and was caused due to clogging of the water channels. The report of the sub divisional magistrate indicated that the Inspecting Engineer (Arvi Associates, a firm) had given a report after inspection. On behalf of the independent engineering firm appointed by the NHAI, an oral deposition was given before the sub-divisional officer. It was stated that the roadside channel and culvert from where water is disposed of, had been rendered screen blinded and a pipeline of 1.2 m diameter existed there for disposal of water. The necessity of remedial action was communicated to the concessionaire, before the occurrence of the accident. It was also stated that in terms of the instructions of the NHAI, the concessionaire was informed about the deficiency on 15.05.2013 and by a further letter dated 04.06.2013. An action plan for completing pre-monsoon work was sought from the concessionaire. However, the concessionaire did not submit an action plan despite lapse of one month.53. The SDOs report noted that the culvert had been constructed from the new tunnel and was existing from 2004. Apparently a 1m diameter pipe was positioned in the culvert and had made a causeway. One hotel also had constructed an approach road and placed a 950 MM pipe. The existing drainage capacity of the octroi post and the hotel was insufficient due to heavy rains as a result of which rainwater was not totally drained. This water started accumulating on the road. Certain ramps were also constructed by Tata Motors for its convenience; they were removed by the concessionaire; nevertheless, the ramps were prepared again. The existing cross drainage provision was of a sub-culvert -type structure and the size at the time of the old highway was 1m x 1 m. The report further observed that the natural drainage and sides of hills of the highway was adversely affected and had been tampered with. The disposal of water on the right side overhead of the tunnel through the cross train on the old highway via the catch drain and subsequently the channels for the water flow were choked due to development work and adversely affected the clearance of rain water. The report indicates that after the accident on 06.06.2013, the local administration cleared the debris which had created obstacles, to facilitate the free flow of water into the catch drain culvert and further flow of water.56. Acting in furtherance of its powers, the NHAI entered into an agreement with the concessionaire for the construction, operation and maintenance of the highway in question (i.e. the stretch of 140 kms on which the accident occurred).64. The terms of the agreement which the NHAI entered into with the concessionaire clearly contemplated the safety of highway users (Clause 18.1.1) and an elaborate highway monitoring mechanism (Clause 19.1). The agreement also required any unusual occurrences to be reported; an independent engineer was required to, and did inspect the highway. The reports of the inspecting engineer reveal that the deficiencies by way of narrowing of water channels, and the unusual collection of debris, were noted. Even before the incident, the NHAI was alive to this; it had separately written to Rathod, and later to the local administration about it through its letter dated 15.04.2011. That letter is revealing; it inter alia, states that:During pre-monsoon rains all the excavated muck has been carried to NH4 alongwith rain water and block Satara bound traffic lane for quite some time. The problem will be severe during heavy rains of July and August.As such safety of highway and tunnel is completely at stake due to indiscriminate cutting of hills on upper side of tunnel and both the end.65. Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the Highways Act, read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly shows that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAIs correspondence with Rathod, and the local administration, reveal that it was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to Rathod similarly show that it was incumbent upon him to take remedial action. The failure of the NHAI to ensure remedial action, and likewise the failure by Rathod to take measures to prevent the accident, prima facie, disclose their liability.66. The absence of legal representatives or heirs of the deceased in the proceedings, or the fact that they had initiated independent civil action, in the opinion of this court, was not an impediment, nor could it have precluded the NGT from exercising its jurisdiction, given the gravity of the matter and the danger posed to the members of the public. The initiation of civil action did not mean that the NGT had to either reject the application (as far as it claimed relief for the accident), or await the outcome of the civil suit. This position is clear from the proviso to Section 18(1) which reads as follows:Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.67. The above provision clearly implies that an application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, that procedure was not followed. However, the legal heirs have instituted a suit. The ends of justice would be served if that suit (Special Civil Suit No. 890 of 2014 before the Court of the Civil Judge Senior Division, Pune) is directed to revive and continue it; a direction is issued to the concerned court (Court of the Civil Judge Senior Division, Pune). The directions in this regard by the NGT, towards payment of compensation are to be regarded as indicative of a prima facie determination.71. The power and jurisdiction of the NGT under Sections 15(1)(b) and (c) are not restitutionary, in the sense of restoring the environment to the position it was before the practise impugned, or before the incident occurred. The NGTs jurisdiction in one sense is a remedial one, based on a reflexive exercise of its powers. In another sense, based on the nature of the abusive practice, its powers can also be preventive.72. As a quasi-judicial body exercising both appellate jurisdiction over regulatory bodies orders and directions (under Section 16) and its original jurisdiction under Sections 14, 15 and 17 of the NGT Act, the tribunal, based on the cases and applications made before it, is an expert regulatory body. Its personnel include technically qualified and experienced members. The powers it exercises and directions it can potentially issue, impact not merely those before it, but also state agencies and state departments whose views are heard, after which general directions to prevent the future occurrence of incidents that impact the environment, are issued.75. The NGTs directions, though placed in the context of its adjudicatory role, have a wider ramification in the sense that its rulings constitute the appropriate norm which are to be followed by all those engaging in similar activities. Therefore, its orders, contextually in the course of adjudication, also establish and direct behaviour appropriate for future guidance. In these circumstances, given the panoply of the NGTs powers under the NGT Act, which include considering regulatory directions issued by expert regulatory bodies under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Biodiversity Act, 2002 it has to be held that general directions for future guidance, to avoid or prevent injury to the environment for appropriate assimilation in relevant rules, can be given by the NGT.76. Turning next to the question of the correctness of the general directions contained in Para 17(e) of the NGTs order, this court has no manner of doubt that such directions were improper and not justified in the facts of this case. What the NGT had before it, was the report of the SDM and a report commissioned about the nature of the incident. Based on these limited inputs, the tribunal concluded- without any rationale and based on no scientific or technical evidence, or experts opinion, that development and construction should not be carried out within 100 feet of a lowest slope i.e. incline of any hill within its territorial limits, as well as hill-tops. The decisions of this court, including the All Dimasa Students Union case (f.n. 9); Mantri Technoze Pvt. Ltd case (f.n.3); the Hanuman Laxman Aroskar case (f.n. 4) and the Tamil Nadu Pollution Control Board case (f.n. 2) all show that the NGT resorted to the appointment of technical and scientific experts in the relevant field, who studied the issue, made site inspections and furnished reports. Such reports were subjected to discussion by the parties before the NGT, who were also given the opportunity of objecting to or making representations against such reports. Based on a final consideration of all these materials, and the submissions of parties before it, the NGT proceeded to issue directions. This procedure was wholly overlooked by the NGT in the present case.80. So far as plans and developments that were approved before the impugned notification was issued, this court is of the opinion that they cannot be disturbed and the right of the applicants, be they developers, builders or owners of land or plots, cannot be prejudiced or adversely affected. This is evident from a ruling of this court in T. Vijayalakshmi v. Town Planning Member (2006) 8 SCC 502 . This court stated that town planning legislations (like the MRTP Act) are regulatory; and that when a development plan is in force during the proposal for its amendment, courts should not interfere with them on the assumption that the approved plan for building or development, would not be eventually permitted. It was held that:Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force.84. Now, under the provisions of the MRTP Act Section 14 and 22, regional plans and development plans have to take into account features such as soil conservation, preservation of natural features, prevention of flooding etc, while factoring planning for each city or area concerned. In turn, such regional and development plans would constitute the blueprint for local town planning authorities to grant or refuse permission to individual applicants. In these circumstances, the use of Section 154 of the MRTP Act, in the present case, in fact amounted to a modification of all plans - regional, development, etc. Such modification (by way of absolute prohibition in construction) was not preceded by any manner of public consultation, much less previous invitation of objections or consideration of the views of affected parties. It is in this background that one has to consider the argument of the state, which found favour with the High Court, that such notification was issued in public interest.87. Directions can be issued notwithstanding any other provisions of the Act, for implementing or bringing into effect the Central or the State Government programmes, policies or projects or for the efficient administration of this Act or in the larger public interest, issue, from time to time. No doubt, the non-obstante clause has an overriding effect on other provisions of the Act. However, if one keeps in mind that the preparations of regional and development plans are in terms of specific provisions which outline detailed procedures that have to be necessarily followed, in the absence of which, time and again courts have intervened and held that such modifications (without following prescribed procedure or without prescribed consultations) are illegal, the power has to be resorted to for good and adequate reasons. The direction, impugned in the present case, on the face of it, is not premised on any central or state government programmes, policies or projects.88. There are several authorities for the proposition that though an administrative order need not necessarily comply with principles of natural justice such as granting hearing, yet, administrative decisions or orders have to be based on some reasons. In Shri. Sitaram Sugar Mills Company v. Union of India, (1990) 3 SCC 223 ( which concerned the zoning regulations for the purpose of levy sugar under the relevant statutory order, in terms of the Essential Commodities Act), the Supreme Court held as follows:Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be reasonably related to the purposes of the enabling legislation. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, Parliament never intended to give authority to make such rules; they are unreasonable ultra vires.A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness.89. In Cellular Operators Association v. Telecom Regulatory Authority of India, (2016) 7 SCC 703 this court held that subordinate regulatory legislation, can be set aside in judicial review, if they show no rationale or are arbitrary:62. In view of the aforesaid, it is clear that the Quality of Service Regulations and the Consumer Regulations must be read together as part of a single scheme in order to test the reasonableness thereof. The countervailing advantage to service providers by way of the allowance of 2% average call drops per month, which has been granted under the 2009 Quality of Service Regulations, could not have been ignored by the impugned Regulation so as to affect the fundamental rights of the appellants, and having been so ignored, would render the impugned Regulation manifestly arbitrary and unreasonable.63. Secondly, no facts have been shown to us which would indicate that a particular area would be filled with call drops thanks to the fault on the part of the service providers in which consumers would be severely inconvenienced. The mere ipse dixit of the learned Attorney General, without any facts being pleaded to this effect, cannot possibly make an unconstitutional regulation constitutional. We, therefore, hold that a strict penal liability laid down on the erroneous basis that the fault is entirely with the service provider is manifestly arbitrary and unreasonable. Also, the payment of such penalty to a consumer who may himself be at fault, and which gives an unjustifiable windfall to such consumer, is also manifestly arbitrary and unreasonable. In the circumstances, it is not necessary to go into the appellants submissions that call drops take place because of four reasons, three of which are not attributable to the fault of the service provider, which includes sealing and shutting down towers by municipal authorities over which they have no control, or whether they are attributable to only two causes, as suggested by the Attorney General, being network-related causes or user-related causes. Equally, it is not necessary to determine finally as to whether the reason for a call drop can technologically be found out and whether it is a network-related reason or a user-related reason.XXXXXX XXXXXX XXXXXX66. The reason given in the Explanatory Memorandum for compensating the consumer is that the compensation given is only notional. The very notion that only notional compensation is awarded, is also entirely without basis. A consumer may well suffer a call drop after 3 or 4 seconds in a voice call. Whereas the consumer is charged only 4 or 5 paise for such dropped call, the service provider has to pay a sum of rupee one to the said consumer.This cannot be called notional at all. It is also not clear as to why the Authority decided to limit compensation to three call drops per day or how it arrived at the figure of Re 1 to compensate inconvenience caused to the consumer. It is equally unclear as to why the calling party alone is provided compensation because, according to the Explanatory Memorandum, inconvenience is suffered due to the interruption of a call, and such inconvenience is suffered both by the calling party and the person who receives the call. The receiving party can legitimately claim that his inconvenience when a call drops, is as great as that of the calling party. And the receiving party may need to make the second call, in which case he receives nothing, and the calling party receives Re 1 for the additional expense made by the receiving party. All this betrays a complete lack of intelligent care and deliberation in framing such a regulation by the Authority, rendering the impugned Regulation manifestly arbitrary and unreasonable.90. In the present case, the State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14.11.2017. It is not in dispute that the direction was consequential to, and solely based on the directions of the NGT in Para 17(e). As noticed earlier, those directions were not based on any scientific evidence or report of any technical expert. Furthermore, even the impugned notification does not specify what constitutes hills, and how they can be applied in towns and communities set in undulating areas and hilly terrain. This is not only vague, but makes the directions arbitrary as they can be applied at will by the concerned authorities. More importantly, they amount to a blanket change of all regional and development plans. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons why the state issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. That they are based only on the NGTs orders, only underlines the lack of any application of mind on the part of the State, while issuing them. | 1 | 21,130 | 5,171 | ### 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:
Harrison [1947 WN 191 : 63 TLR 484], Quinn v. Scott [(1965) 1 WLR 1004 : (1965) 2 All ER 588] and Mackie v. Dumbartonshire County Council [1927 WN 247] ). The duty of the owner/occupier of the premises by the side of the road whereon persons lawfully pass by, extends to guarding against what may happen just by the side of the premises on account of anything dangerous on the premises. The premises must be maintained in a safe state of repair. The owner/occupier cannot escape the liability for injury caused by any dangerous thing existing on the premises by pleading that he had employed a competent person to keep the premises in safe repairs. In Municipal Corpn. of Delhi v. Subhagwanti [AIR 1966 SC 1750 ] a clock tower which was 80 years old collapsed in Chandni Chowk, Delhi causing the death of a number of persons. Their Lordships held that the owner could not be permitted to take a defence that he neither knew nor ought to have known the danger. [T]he owner is legally responsible irrespective of whether the damage is caused by a patent or a latent defect, — said their Lordships. In our opinion the same principle is applicable to the owner of a tree standing by the side of a road. If the tree is dangerous in the sense that on account of any disease or being dead the tree or its branch is likely to fall and thereby injure any passer-by then such a tree or branch must be removed so as to avert the danger to life. It is pertinent to note that it is not the defence of the Municipal Corporation that vis major or an act of God such as a storm, tempest, lightning or extraordinary heavy rain had occurred causing the fall of the branch of the tree and hence the Corporation was not liable. This approach that a statutory corporation or local authority can be held liable in tort for injury occasioned on account of omission to oversee, or defective supervision of its activities contracted out to another agency, was also followed in Vadodara Municipal Corporation v Purshottam V . Muranji 2014 (16) SCC 14 . 64. The terms of the agreement which the NHAI entered into with the concessionaire clearly contemplated the safety of highway users (Clause 18.1.1) and an elaborate highway monitoring mechanism (Clause 19.1). The agreement also required any unusual occurrences to be reported; an independent engineer was required to, and did inspect the highway. The reports of the inspecting engineer reveal that the deficiencies by way of narrowing of water channels, and the unusual collection of debris, were noted. Even before the incident, the NHAI was alive to this; it had separately written to Rathod, and later to the local administration about it through its letter dated 15.04.2011. That letter is revealing; it inter alia, states that: During pre-monsoon rains all the excavated muck has been carried to NH4 alongwith rain water and block Satara bound traffic lane for quite some time. The problem will be severe during heavy rains of July and August. As such safety of highway and tunnel is completely at stake due to indiscriminate cutting of hills on upper side of tunnel and both the end. 65. Having regard to the duty imposed on the NHAI by virtue of Sections 4 and 5 of the Highways Act, read with Section 16 of the NHAI Act, there can be no manner of doubt that the NHAI was responsible for the maintenance of the highway, including the stretch upon which the accident occurred. The report of the sub-divisional officer clearly shows that inspection reports were furnished to the NHAI shortly before the incident, highlighting the deficiencies; also, the NHAIs correspondence with Rathod, and the local administration, reveal that it was aware of the danger and likelihood of risk to human life, and the foreseeability of the event that actually occurred later. Further, letters addressed by the local administration and the NHAI to Rathod similarly show that it was incumbent upon him to take remedial action. The failure of the NHAI to ensure remedial action, and likewise the failure by Rathod to take measures to prevent the accident, prima facie, disclose their liability. 66. The absence of legal representatives or heirs of the deceased in the proceedings, or the fact that they had initiated independent civil action, in the opinion of this court, was not an impediment, nor could it have precluded the NGT from exercising its jurisdiction, given the gravity of the matter and the danger posed to the members of the public. The initiation of civil action did not mean that the NGT had to either reject the application (as far as it claimed relief for the accident), or await the outcome of the civil suit. This position is clear from the proviso to Section 18(1) which reads as follows: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. 67. The above provision clearly implies that an application without impleading the legal heirs cannot be rejected. At the most, the tribunal has to implead all legal heirs. In the present case, that procedure was not followed. However, the legal heirs have instituted a suit. The ends of justice would be served if that suit (Special Civil Suit No. 890 of 2014 before the Court of the Civil Judge Senior Division, Pune) is directed to revive and continue it; a direction is issued to the concerned court (Court of the Civil Judge Senior Division, Pune). The directions in this regard by the NGT, towards payment of compensation are to be regarded as indicative of a prima facie determination.
### Response:
1
### Explanation:
the purpose of levy sugar under the relevant statutory order, in terms of the Essential Commodities Act), the Supreme Court held as follows:Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. All his decisions, whether characterised as legislative or administrative or quasi-judicial, must be in harmony with the Constitution and other laws of the land. They must be reasonably related to the purposes of the enabling legislation. If they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or do not tend in some degree to the accomplishment of the objects of delegation, court might well say, Parliament never intended to give authority to make such rules; they are unreasonable ultra vires.A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness.89. In Cellular Operators Association v. Telecom Regulatory Authority of India, (2016) 7 SCC 703 this court held that subordinate regulatory legislation, can be set aside in judicial review, if they show no rationale or are arbitrary:62. In view of the aforesaid, it is clear that the Quality of Service Regulations and the Consumer Regulations must be read together as part of a single scheme in order to test the reasonableness thereof. The countervailing advantage to service providers by way of the allowance of 2% average call drops per month, which has been granted under the 2009 Quality of Service Regulations, could not have been ignored by the impugned Regulation so as to affect the fundamental rights of the appellants, and having been so ignored, would render the impugned Regulation manifestly arbitrary and unreasonable.63. Secondly, no facts have been shown to us which would indicate that a particular area would be filled with call drops thanks to the fault on the part of the service providers in which consumers would be severely inconvenienced. The mere ipse dixit of the learned Attorney General, without any facts being pleaded to this effect, cannot possibly make an unconstitutional regulation constitutional. We, therefore, hold that a strict penal liability laid down on the erroneous basis that the fault is entirely with the service provider is manifestly arbitrary and unreasonable. Also, the payment of such penalty to a consumer who may himself be at fault, and which gives an unjustifiable windfall to such consumer, is also manifestly arbitrary and unreasonable. In the circumstances, it is not necessary to go into the appellants submissions that call drops take place because of four reasons, three of which are not attributable to the fault of the service provider, which includes sealing and shutting down towers by municipal authorities over which they have no control, or whether they are attributable to only two causes, as suggested by the Attorney General, being network-related causes or user-related causes. Equally, it is not necessary to determine finally as to whether the reason for a call drop can technologically be found out and whether it is a network-related reason or a user-related reason.XXXXXX XXXXXX XXXXXX66. The reason given in the Explanatory Memorandum for compensating the consumer is that the compensation given is only notional. The very notion that only notional compensation is awarded, is also entirely without basis. A consumer may well suffer a call drop after 3 or 4 seconds in a voice call. Whereas the consumer is charged only 4 or 5 paise for such dropped call, the service provider has to pay a sum of rupee one to the said consumer.This cannot be called notional at all. It is also not clear as to why the Authority decided to limit compensation to three call drops per day or how it arrived at the figure of Re 1 to compensate inconvenience caused to the consumer. It is equally unclear as to why the calling party alone is provided compensation because, according to the Explanatory Memorandum, inconvenience is suffered due to the interruption of a call, and such inconvenience is suffered both by the calling party and the person who receives the call. The receiving party can legitimately claim that his inconvenience when a call drops, is as great as that of the calling party. And the receiving party may need to make the second call, in which case he receives nothing, and the calling party receives Re 1 for the additional expense made by the receiving party. All this betrays a complete lack of intelligent care and deliberation in framing such a regulation by the Authority, rendering the impugned Regulation manifestly arbitrary and unreasonable.90. In the present case, the State of Maharashtra has not shown any material or file containing the reasons behind the directive of 14.11.2017. It is not in dispute that the direction was consequential to, and solely based on the directions of the NGT in Para 17(e). As noticed earlier, those directions were not based on any scientific evidence or report of any technical expert. Furthermore, even the impugned notification does not specify what constitutes hills, and how they can be applied in towns and communities set in undulating areas and hilly terrain. This is not only vague, but makes the directions arbitrary as they can be applied at will by the concerned authorities. More importantly, they amount to a blanket change of all regional and development plans. While such directions can be issued, if situations so warrant, such as in extraordinary or emergent circumstances, the complete absence of any reasons why the state issued them, coupled with the lack of any supporting expert report or input, renders it an arbitrary exercise. That they are based only on the NGTs orders, only underlines the lack of any application of mind on the part of the State, while issuing them.
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Mata Ram Vs. National Insurance Co. Ltd. and Ors | Pinaki Chandra Ghose and Rohinton Fali Nariman, JJ. 1. Leave granted. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court of Himachal Pradesh at Shimla whereby the High Court disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and giving the recovery rights to the insurance company against the Appellant herein. 2. The facts, in brief, are as follows:- (i) The Appellant herein got his tractor and trolley insured with National Insurance Co, Ltd., Respondent No. 1 herein, and that extra premium was also paid for the insurance of the driver of the vehicle and 3 employees. (ii) The vehicle met with an accident. The claimants-proforma Respondents filed claim application in lieu of death of one Mohammad Khatruddin alias Khaba before the Motor Accidents Claims Tribunal (in short the Tribunal). (iii) The Claims Tribunal decided the claim petition on its merit in favour of the claimants and fastened the liability on the insurance company, Respondent No. 1, with a direction to the insurance company to indemnify the insured as the insurance company has charged the premium for 3 persons excluding the driver of the tractor from the owner of the tractor at the time of issuance of the insurance policy. (iv) The insurance company, being aggrieved by the order of Claims Tribunal saddling it with the liability, filed FAO No. 106 of 2009 before the High Court of Himachal Pradesh. (v) The High Court, by impugned judgment disposed of FAO and modified the order passed by the Tribunal holding the insurer liable and giving the recovery rights to the insurance company against the Appellant herein. (vi) Being aggrieved, the Appellant preferred this appeal, by way of special leave. 3. Heard the learned Counsel appearing for the parties. 4. The only question which arises for our consideration is whether the insurance company can be absolved from its liability on the death of a person from indemnifying the insured when insurance company has specifically charged premium from the insured for 3 persons excluding the driver. 5. Learned Counsel appearing for the Appellant contended that the High Court has committed grave error by reversing the well-reasoned award of the Tribunal merely on the basis of finding on presumption in contrary to the evidence available on record and taken us through the evidence on record including the insurance policy. 6. Learned Counsel for the Appellant, in support of his case, drew our attention to a judgment passed by this Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd. (1996-3) 114 P.L.R. 87 (SC), wherein this Court held that the terms of the policy of insurance are not to be construed so strictly and are to be read down to advance the main purpose of the contract and that the exclusion clause of the insurance policy must be read down so as to serve the main purpose of the policy. 7. We have gone through the material available on record including the terms and conditions mentioned in the insurance policy and the judgment of this court cited before us. 8. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the insurance company has charged a premium from the insured for 3 persons excluding the driver, we are of the opinion that the insurance company cannot be absolved from its liability on the death of a person. 9. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question. | 1[ds]7. We have gone through the material available on record including the terms and conditions mentioned in the insurance policy and the judgment of this court cited before us.8. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the insurance company has charged a premium from the insured for 3 persons excluding the driver, we are of the opinion that the insurance company cannot be absolved from its liability on the death of a person.9. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question. | 1 | 693 | 146 | ### 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:
Pinaki Chandra Ghose and Rohinton Fali Nariman, JJ. 1. Leave granted. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court of Himachal Pradesh at Shimla whereby the High Court disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and giving the recovery rights to the insurance company against the Appellant herein. 2. The facts, in brief, are as follows:- (i) The Appellant herein got his tractor and trolley insured with National Insurance Co, Ltd., Respondent No. 1 herein, and that extra premium was also paid for the insurance of the driver of the vehicle and 3 employees. (ii) The vehicle met with an accident. The claimants-proforma Respondents filed claim application in lieu of death of one Mohammad Khatruddin alias Khaba before the Motor Accidents Claims Tribunal (in short the Tribunal). (iii) The Claims Tribunal decided the claim petition on its merit in favour of the claimants and fastened the liability on the insurance company, Respondent No. 1, with a direction to the insurance company to indemnify the insured as the insurance company has charged the premium for 3 persons excluding the driver of the tractor from the owner of the tractor at the time of issuance of the insurance policy. (iv) The insurance company, being aggrieved by the order of Claims Tribunal saddling it with the liability, filed FAO No. 106 of 2009 before the High Court of Himachal Pradesh. (v) The High Court, by impugned judgment disposed of FAO and modified the order passed by the Tribunal holding the insurer liable and giving the recovery rights to the insurance company against the Appellant herein. (vi) Being aggrieved, the Appellant preferred this appeal, by way of special leave. 3. Heard the learned Counsel appearing for the parties. 4. The only question which arises for our consideration is whether the insurance company can be absolved from its liability on the death of a person from indemnifying the insured when insurance company has specifically charged premium from the insured for 3 persons excluding the driver. 5. Learned Counsel appearing for the Appellant contended that the High Court has committed grave error by reversing the well-reasoned award of the Tribunal merely on the basis of finding on presumption in contrary to the evidence available on record and taken us through the evidence on record including the insurance policy. 6. Learned Counsel for the Appellant, in support of his case, drew our attention to a judgment passed by this Court in B.V. Nagaraju v. Oriental Insurance Co. Ltd. (1996-3) 114 P.L.R. 87 (SC), wherein this Court held that the terms of the policy of insurance are not to be construed so strictly and are to be read down to advance the main purpose of the contract and that the exclusion clause of the insurance policy must be read down so as to serve the main purpose of the policy. 7. We have gone through the material available on record including the terms and conditions mentioned in the insurance policy and the judgment of this court cited before us. 8. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the insurance company has charged a premium from the insured for 3 persons excluding the driver, we are of the opinion that the insurance company cannot be absolved from its liability on the death of a person. 9. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question.
### Response:
1
### Explanation:
7. We have gone through the material available on record including the terms and conditions mentioned in the insurance policy and the judgment of this court cited before us.8. After carefully perusing the records of the case and having regard to the fact that the insurance policy clearly shows that the insurance company has charged a premium from the insured for 3 persons excluding the driver, we are of the opinion that the insurance company cannot be absolved from its liability on the death of a person.9. Therefore, in our considered view, the High Court has failed to take note of the said facts in question and modified the order passed by the Tribunal. Furthermore, the judgment of this Court which was cited before us is applicable to the matter in question.
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PRADEEP KUMAR SONTHALIA Vs. DHIRAJ PRASAD SAHU @ DHIRAJ SAHU & ANR | for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge. 54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back to 00:01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m. 55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos. 56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional Secretary, Government of India & ors. (1987) 3 SCC 367 , this Court reiterated the de facto doctrine as one born of necessity and public policy to prevent needless confusion and endless mischief. This Court held that where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. So long as he is clothed with the insignia of the office and exercises its powers and functions, the acts performed by him were held by this Court to be valid. 57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows: We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass. 58. Therefore, it is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament. 59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification. 60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:- A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used | 0[ds]7. It is needless to say that the second question as formulated above would arise only if the answer to the first question is in the affirmative and not otherwise.8. Before proceeding further, we may point out that two ancillary issues namely (i) the non-joinder of the Election Commission of India as a party to the election petition; and (ii) the absence of a specific prayer for recounting of votes, were also dealt with by the High Court. These issues may have gained importance, but for the appeal filed by Shri Dhiraj Prasad Sahu against the findings on Issue Nos. 1, 2, 3 & 5. Therefore, these ancillary issues need not deter us at this stage.13. It is clear as daylight that the event which causes the disqualification under Article 191(1)(e) read with Section 8(3) is a conviction of a person for any of the specified offences. The consequence of such disqualification is that the seat becomes vacant. Obviously therefore, a Member of the Legislative Assembly who has become disqualified and whose seat has become vacant is not entitled to cast his vote for electing a representative from his State under Article 80(4) which provides that the representatives of each State shall be elected by the elected members. His name is liable to be deleted from the list of members of the State Legislative Assembly maintained under Section 152 of the Representation of the People Act, 1951. He ceases to be an elector in relation to election by assembly member and cannot cast his vote.16. We are concerned in this case with sub-section (3) of section 8, as Amit Kumar Mahto was convicted for offences which do not fall either under sub-section (1) or under sub-section (2).17. The disqualification under Section 8 of Act 43 of 1951 is relatable to Article 191(1)(e) of the Constitution. Therefore, any interpretation to Section 8 should be in sync with the Constitutional scheme.18. As this Court had an occasion to point out in Saritha S. Nair vs. Hibi Eden(SLP (C) No. 10678 of 2020 dated 08-12-2020), Section 8(3) of the Act deals both with the conditions of disqualification and with the period of disqualification. As regards the period of disqualification, Section 8(3) is comprehensive in that it indicates both the commencement of the period and its expiry. The date of conviction is prescribed to be the point of commencement of disqualification and the date of completion of a period of six years after release, is prescribed as the point of expiry of the period of disqualification.19. Once the period of disqualification starts running, the seat hitherto held by the person disqualified becomes vacant by virtue of Article 190(3) of the Constitution. While speaking about the seat of the disqualified person becoming vacant, Article 190(3) uses the expression thereupon. We may have to keep this in mind while interpreting the words the date of such conviction.20. One fundamental principle that we may have to keep in mind while interpreting the phrase appearing in Section 8(3) is that in cases of this nature, the Court is not dealing with a fundamental right or a common law right. As pithily stated by this Court in Jyoti Basu vs. Devi Ghosal (1982) 1 SCC 691 , an election dispute lies in a special jurisdiction and hence it has to be exercised without importing concepts familiar to common law and equity, unless they are ingrained in the statute itself. We may usefully extract the relevant portion of the decision in Jyoti Basu which reads as follows: -8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.22. But in our considered view Pasupati Nath Singh hardly supports the contention of the Appellant. In that case the election to the Bihar legislative Assembly from Dumro constituency was in issue. As per the schedule, the filing of nominations was to take place from 13.01.1967 to 20.01.1967. The date of scrutiny of nomination papers was fixed as 21.01.1967. The returning officer, upon scrutiny of nominations on 21.01.1967, rejected the nomination paper of the Appellant before this Court, on the ground that he had not made and subscribed the requisite oath or affirmation as enjoined by clause (a) of Article 173, either before the scrutiny or even subsequently on the date of scrutiny. The question that arose in that case was formulated in paragraph 4 as follows: -4. The short question which arises in this appeal is whether it is necessary for a candidate to make and subscribe the requisite oath or affirmation as enjoined by clause (a) of Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper. In other words, is a candidate entitled to make and subscribe the requisite oath when objection is taken before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination commenced?23. The answer to the above question turned on the interpretation to Section 36(2) of the Act, clause (a) of which used the wordson the date fixed for scrutiny. The contention of the appellant before this court in Pashupati Nath Singh was that he was entitled to take the oath or affirmation, before the Returning Officer, immediately after an objection is made but before the objection was considered by the Returning officer. Since Section 36(2)(a) uses the expression on the date fixed for scrutiny it was contended by the appellant in Pashupati Nath Singh that the whole of the day on which the scrutiny took place was available to him. However, this contention was rejected by this Court in the following manner: -16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath.24. In other words, this Court interpreted the words date in Pashupati Nath Singh, not necessarily to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time. But the running of time got arrested, the moment the nomination of the appellant in Pashupati Nath Singh was taken up for scrutiny. Thus, the benefit of the whole day of 24 hours was not made available by this court in Pashupati Nath Singh to the appellant therein and the act of the Returning officer in drawing the curtains down at the happening of the event namely scrutiny of nomination papers, was upheld by this court in Pashupati Nath Singh.25. In fact, Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question, while in Pashupati Nath Singh the period of conclusion was in issue. If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up, we should, by the very same logic, hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened.26. In fact, the argument of the appellant in this case is a double edged weapon. If the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date, the resulting conundrum cannot be resolved. This why, the emphasis in Pashupati Nath Singh was to provide an interpretation that will avoid confusion.But Prabhu Dayal Sesma arose in the context of Rule 11B of the Rajasthan State and Subordinate Services Rules 1962 which prescribed the minimum and maximum age for participation in the selection for direct recruitment to Rajasthan Administrative Service. The appellant in that case was born on 02.01.1956 and Rule 11B prescribed that an applicant for participation in the selection, must not have attained the age of 28 years on the first day of January, next following the last date fixed for receipt of application. Therefore, when a notification was issued in the year 1983, the upper age limit was to be reckoned as on January 1, 1984. Since the appellant was born on 02.01.1956 and attained the age of 28 years on 01.01.1984, his candidature was rejected. It was in such circumstances that this Court took note of Section 4 of the Indian Majority Act 1875, which stipulated the method of computation of the age of any person. In view of the fact that Rule 11B used the words must not have attained the age of 28 years, this court concluded that the appellant therein attained the said age at 12 oclock midnight when January 1 was born. We should point out here that if Prabu Dayal Sesma concerned a case of retirement, he would be taken to have attained the age of superannuation on January 1 by the very same logic, but at 2400 hours on January 1. But Rule 11B mandated that the candidatemust not have attained. Therefore, Prabhu Dayal Sesma also does not go to the rescue of the appellant.28. Tarun Prasad Chatterjee vs. Dinanath Sharma (2000) 8 SCC 649 , relied upon by the learned senior counsel for the appellant concerned the question of computation of the period of limitation for filing an Election petition under section 81(1) of the R.P. Act 1951.Therefore, this Court referred to Section 9 of the General Clauses Act, 1897 that laid down the manner in which statutes prescribing the commencement and termination of time, can be worded by using expressions such as from and to. But this decision is also of no assistance to the appellant for the simple reason that Section 8(3) of the Act uses the wordfrom as well as the expressionthe date of conviction and Tarun Prasad Chatterjee concerned the interpretation to be given only to the word from.29. In any case, Tarun Prasad Chatterjee need not have gone as far as the General Clauses Act, since Section 12(1) the Limitation Act, 1963 itself provides for the exclusion of the date from which the period of limitation is to be reckoned, while computing the period of limitation.32. We have no doubt that disqualification is not a penal provision and that the object of disqualification is to arrest criminalisation of politics.33. But what triggered the disqualification in this case, under Section 8(3) was a conviction by a criminal Court, for various offences under the Penal Code. Therefore, the phrasethe date of conviction appearing in Section 8(3) should receive an interpretation with respect to the penal provisions under which a person was convicted.34. The rule that a person is deemed innocent until proved guilty is a long-standing principle of constitutional law and cannot be taken to be displaced by the use of merely general words. In law this is known as the principle of legality and clearly applies to the present case. In Pierson vs. Secretary of State for the Home Department (1997) 3 All ER 577, House of Lords held that unless there be clearest provision to the contrary, Parliament is presumed not to legislate contrary to rule of law which enforces minimum standard of fairness both substantive and procedural.35. In our view to hold that a Member of the Legislative Assembly stood disqualified even before he was convicted would grossly violate his substantive right to be treated as innocent until proved guilty. In Australia this principle has been described as an aspect of the rule of law known both to Parliament and the Courts, upon which statutory language will be interpreted(K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47.).36. In the present case, it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word date with the general rule of law since the word date is quite capable of meaning the point of time when the event took place rather than the whole day.37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself.38. To say that this presumption of innocence would evaporate from 00.01 A.M., though the conviction was handed over at 14.30 P.M. would strike at the very root of the most fundamental principle of Criminal Jurisprudence.39. Inasmuch as a conviction for an offence is under a penal law, it cannot be deemed to have effect from a point of time anterior to the conviction itself. As rightly pointed by Dr. A.M. Singhvi, this court held in Union of India vs. M/S G.S Chatha Rice Mills (2020) SCC Online SC 770 that legal fiction cannot prevail over facts where law does not intend it to so prevail. It was a case where a notification was issued by the Government of India under section 8A of the Customs Tariff Act 1975, introducing a tariff on all goods originating in or exported from Pakistan. The notification was uploaded on the e-gazette at 20:46:58 hours on 16.02.2019. The Government of India took a stand that the enhanced rate of duty was applicable even to those who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-gazette. The importers successfully challenged the claim of the customs authorities before the High court and the Union of India came up on appeal to this Court. An extensive analysis was made in Section H of the decision in M/S G.S. Chatha Rice Mills, on the interpretation of the words day and date. After taking note of several decisions, some of which arose under the law of Limitation, some under the law of Insurance and some under the Election law, this Court pointed out that these expressions were construed in varying contexts and that a general position in law, divorced from subject, context and statute, has not been laid down. As succinctly put by this Court, Legislative silences create spaces for creativity and that between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense.41. Cases arising under the law of insurance, have no relevance to cases of disqualification. Even under the law of insurance, different principles of interpretation have been carefully nurtured and developed. For instance, New India Assurance Company Limited vs. Ram Dayal & Ors. (1990) 2 SCC 680 , this Court was concerned with a case where a vehicle had insurance cover upto 31.08.1984, which was not renewed. However, a fresh policy was taken on 28.09.1984. It was on the very same day that the vehicle got involved in an accident. The Motor Accident Claims Tribunal upheld the repudiation of liability by the insurer, but the High Court held that the policy of insurance obtained on the date of the accident became operative from the commencement of the date of insurance, namely from the previous midnight. While upholding the view taken by the High Court, by a short order, this Court referred to In Re F.B. Warren (1938) 2 All ER 331, wherein it was held that a judicial act will be referred to the first moment of the day on which it is done. However, in a subsequent decision in National Insurance Company Limited vs. Jijubhai Nathuji Dabhi & Ors. (1997) 1 SCC 66 , this Court explained the decision in Ram Dayal (supra) by stating that the same would hold good only in the absence of any specific time mentioned in that behalf in the policy of insurance. In Jijubhai Nathuji Dabhi (supra), the Court found that the contract clearly stipulated that it would be operative from 4.00 p.m on 25.10.1983 and that therefore the insurance coverage was not available in respect of an accident that happened before 4.00 p.m. on the same day. The decision in Jijubhai Nathuji Dabhi (supra) was also followed in New India Assurance Company vs. Bhagwati Devi (1998) 6 SCC 534 . 42. It must be remembered that a policy of insurance lies in the realm of contract. Therefore, the interpretation to be given to the terms of such contract would largely depend upon the intent of the parties, with a certain degree of latitude in favour of a party whose bargaining power is not equal to that of other contracting party. Hence, it is not possible for us to adopt the interpretation given to the word the date appearing in a contract of Insurance.43. Accepting the appellants submission would require us to construe the statutory scheme as intending something startling i.e. positing that the consequence precedes the cause. This would be reducing this provision to absurdity and require Courts to hold that a consequence can precede its cause, but according to the learned counsel this is the intended effect of the provision since it states that a convicted person shall be disqualified from the date of his conviction. But we do not agree. The disqualification arising under Section 8(3) of the Act, is the consequence of the conviction and sentence imposed by the criminal Court. In other words, conviction is the cause and disqualification is the consequence. A consequence can never precede the cause. If we accept the contention of the appellant, the consequence will be deemed to have occurred even before the cause surfaced.46. But we do not think that the aforesaid decision can be applied to cases where consequences other than a penalty arise on account of an act or omission. While it is true that a penalty other than the one prescribed by the Statute cannot be imposed for a particular act or omission, the said principle has no place in so far as consequences other than penalty which flow automatically out of such act or omission, are concerned.52. In view of the mandate of Article 188, it was argued before this Court in Pashupati Nath Sukul (supra)that before taking his seat, an elected person is required to take an oath or affirmation and that if he had failed to do so, he could not be counted as a member entitled to vote. Overruling the said contention, this Court held as follows: -We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal. That is how even respondent No. 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation.53. Therefore, it is clear that dehors the liability for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge.54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back to 00:01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m.55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos.57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows:We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass.58. Therefore, it is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament.59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification.60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:-A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used | 0 | 9,413 | 4,862 | ### 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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for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge. 54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back to 00:01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m. 55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos. 56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional Secretary, Government of India & ors. (1987) 3 SCC 367 , this Court reiterated the de facto doctrine as one born of necessity and public policy to prevent needless confusion and endless mischief. This Court held that where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. So long as he is clothed with the insignia of the office and exercises its powers and functions, the acts performed by him were held by this Court to be valid. 57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows: We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass. 58. Therefore, it is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament. 59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification. 60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:- A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used
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appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal. That is how even respondent No. 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation.53. Therefore, it is clear that dehors the liability for penalty under Article 193, the act done by the elected member is not liable to be invalidated, but only in certain circumstances. One of them may be a case like the one on hand apart from cases falling foul of Article 188. But the position would have been different if Shri Amit Kumar Mahto had been convicted and sentenced in the forenoon of 23.03.2018 and yet he voted in the election to the Rajya Sabha in the afternoon with full knowledge.54. The fallacy of the argument of the appellant that wherever the word date is used in a Statute, it should be understood to relate back to 00:01 a.m. can be best understood if we apply the same to a reverse situation. If in a hypothetical situation, the conviction and sentence had taken place in the forenoon and Shri Amit Kumar Mahto had cast his vote in the afternoon, the defeated candidate would not have argued that the voting should be deemed to have taken place at 00:01 a.m.55. In any case the principle that the acts of the officers de facto performed within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos.57. Even in B.R. Kapur (supra), this Court invoked the de facto doctrine to declare as valid, all acts performed by a Chief Minister whose appointment was held to be invalid from day one. Paragraph 57 of the said decision reads as follows:We are aware that the finding that the second respondent could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences. Not only will it mean that the State has had no validly appointed Chief Minister since 14th May, 2001, when the second respondent was sworn in, but also that it has had no validly appointed Council of Ministers, for the Council of Ministers was appointed on the recommendation of the second respondent. It would also mean that all acts of the Government of Tamil Nadu since 14th May, 2001 would become questionable. To alleviate these consequences and in the interest of the administration of the State and its people, who would have acted on the premise that the appointments were legal and valid, we propose to invoke the de facto doctrine and declare that all acts, otherwise legal and valid, performed between 14th May, 2001 and today by the second respondent as Chief Minister, by the members of the Council of Ministers and by the Government of the State shall not be adversely affected by reason only of the order that we now propose to pass.58. Therefore, it is not possible to hold that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 should be treated as invalid on account of the conviction and sentence passed by the criminal Court at 2:30 p.m. on the same day. This conclusion can be drawn through another process of reasoning also. Article 191 (1) of the Constitution deals with five different grounds of disqualification. They are (i) holding an office of profit as specified in the First Schedule; (ii) unsoundness of mind, which stands so declared by a competent Court; (iii) undischarged insolvency; (iv) absence of citizenship of India or acquisition of citizenship of a foreign State etc.; and (v) disqualification by or under any law made by Parliament.59. The interpretation to be given to the expression the date appearing in Section 8(3) of the Representation of the People Act, 1951 will have a bearing upon the interpretation to be given to the date of happening of any one of the above events of disqualification.60. While it may be convenient for the appellant in this case to interpret the expression the date appearing in Section 8(3) with reference to Article 191(1)(e), we may have to see whether the same would fit into the scheme of Article 191(1) in entirety. It may not. If tested against each one of Sub-clauses (a) to (d) of Clause (1) of Article 191 we would find that the interpretation offered by the appellant would not survive. Justice Oliver Wendell Holmes, Jr. in Henry R Towne vs. Mark Eisner 245 U.S. 418 while dealing with the construction of a word in the Constitution as well as a statute, observed:-A word is not a crystal, transparent and unchanged; it is the skin of a living though and may vary greatly in colour and content according to the circumstances and tie in which it is used
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Dhiyan Singh & Another Vs. Jugal Kishore & Another | further forty years, and led Mt. Mohan Dei to believe that they also acknowledged her title to an absolute estate. We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above. Had he questioned the award and reopened the dispute Mt. Mohan Dai would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlals assertion that he too accepted it. Kishan Lals inaction over these years with full knowledge of the facts, as is evident from the deposition of D. W. 2 Dhiyan Singh whose testimony is uncontradicted. and his acceptance of the estate with all its consequential benefits, unquestionably creates an estoppel in him. The witness tells us that:"Kishanlal always accepted this award and acted upon it."He qualifies this in cross-examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mt. Mohan Deis death. The documents file show it was after, so there is no reason why the main-portion of his statement which is uncontradicted, and which would could have been contradicted should not be accepted.19. In March 1929, Mt. Mohan Deis son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner, and in October 1929 when the reversion opened out the estate vested in him, or rather would have vested in him but for the estoppel. The question, therefore, is did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion? We have no doubt he did. The decision of the Judicial Committee which we have just cited, Kinhai Lal v. Brijlal,45 Ind. App 118, is we think, clear on that point. Although other reversioners who do not claim through the one who has consented are not bound, the consenting reversioner is estopped This is beyond dispute when there is an alienation by a limited owner without legal necessity. See Ramgouda Annagouda v. Bnausahab,54 Ind. App 396 at p. 408, where the ground of decision was:"..... but Annagouda himself being a party to and benefiting by the transaction evidenced thereby was precluded from questioning any part of it"In our opinion, the same principles apply to a case of the present kind.20. It was contended, however, on the strength of Bangaswami Gounden v. Nachiappa Gounden, 46 Ind. Ap 72 and Mt. Binda Kuer v. Lalitha Prasad, A. I. R. 1936 P. C. 304 at p. 308, that even if Kishan Lal did take possession in 1889 or 1890 on the strength of a title derived from his father that would not have precluded him from asserting his own rights in a different character when the succession opened out Reliance in particular was placed upon p. 308 of the latter ruling. In our opinion, that decision is to be distinguished.21. In that case the reversion did not fall in till 1916. Long before that, namely in 1868, the next presumptive reversioners entered into a compromise whereby the grandfather of one Jairam who figured in that case obtained a good deal more than be would have been entitled to in the ordinary way But for the compromise this grandfather would have got only one anna 12gundasshare, whereas due to the compromise he got as much as 2 annas 4gundas. The total taking of possession was however deferred under the compromise till the death of one Anandi. Kuer. She died in 1885 and on that date Jairam was entitled to his grandfathers share as both his father and grandfather were dead. Jairam accordingly reaped the benefit of the transaction. But it is to be observed that the extra benefit which he derived was only as to a 12gundasshare because he had an absolute and indefeasible right to 1 anna 12gundasin any event in his own right under a title which did not spring from the compromise.22. Jairam lost 1 anna 4gundasto a creditor Munniram and out of the one anna which he had left from the 2 anna 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500 Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs purchased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12gundasto which he had a good and independent title anyway; and of course unless the plaintiffs 13 gundas could be assigned with certainty to the 12 gundas it would be impossible to say that they had obtained any benefit from the compromise. The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise. They had the right to contest the position and gamble on the possibility of being able to prove the contrary. Their Lordships added:"Unless the plaintiffs individual conduct makes it unjust that they should have a place among Bajrangi Lals reversioners their legal rights should have effect."23. In the other case, Rangaswami Gounden v. Machiappa Gounden,46 Ind. App 72, their Lordships decision about this matter turned on the same sort of point : see p. 87.24. The present case is very different. When Kishan Lal took possession of his fathers property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it. Accordingly, he would have been estopped even if he had claimed in a difference character as reversioner after the succession opened out.25. It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped.26. | 1[ds]8. We do not thinkthese passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do. In our opinion, the arbitrator was confused in his mind both as regards the facts as well as regards the law. His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense.is neither here nor there whether the award was valid, whether the decision fell within the scope of the reference or whether it had any binding character in itself. Even if it was wholly invalid, it was still open to the parties to say: Never mind whether the arbitrator was right or wrong, his decision is fair and sensible, so instead of wasting further time and money in useless litigation. we will accept it and divide the estate in accordance with his findings. That would have been a perfectly right and proper settlement of the dispute, and whether it bound third parties or not it would certainly bind the immediate parties; and that in effect is what they did. By his conduct Brijlal induced . Mohan Dei to believe that this would be the case and on the faith of that representation, namely the acceptance of the award, he induced Mt. Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciables portion of the estate, and he himself obtained a substantial advantage to which he would not other wise have been entitled and enjoyed the benefit of it for the rest of his life; and to his credit be-it said, he never attempted to go behind his decision. In any event, we are clear that that created an estoppel as against Brijlal.In our opinion, the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal v. Brif Lal,45 Ind. App 118 P. C. There also there was a dispute between a limited owner and a person who, but for an unproved claim (adoption) which he put forward, had no right to the estate. The dispute was taken to the Courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years. Later, the succession opened out and the other party to the compromise, who by then had stopped into the reversion, claimed the rest of the estate, which had been assigned to the limited owner. against her personalJudicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit, namely as reversioner, he having been a party to the compromise and having acted on it and induced the other side to alter her position to her detriment, was estopped. We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions arehave no doubt he did. The decision of the Judicial Committee which we have just cited, Kinhai Lal v. Brijlal,45 Ind. App 118, is we think, clear on that point. Although other reversioners who do not claim through the one who has consented are not bound, the consenting reversioner is estopped This is beyond dispute when there is an alienation by a limited owner without legal necessity.The present case is very different. When Kishan Lal took possession of his fathers property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it. Accordingly, he would have been estopped even if he had claimed in a difference character as reversioner after the succession opened out.It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped. | 1 | 4,228 | 783 | ### Instruction:
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further forty years, and led Mt. Mohan Dei to believe that they also acknowledged her title to an absolute estate. We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above. Had he questioned the award and reopened the dispute Mt. Mohan Dai would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlals assertion that he too accepted it. Kishan Lals inaction over these years with full knowledge of the facts, as is evident from the deposition of D. W. 2 Dhiyan Singh whose testimony is uncontradicted. and his acceptance of the estate with all its consequential benefits, unquestionably creates an estoppel in him. The witness tells us that:"Kishanlal always accepted this award and acted upon it."He qualifies this in cross-examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mt. Mohan Deis death. The documents file show it was after, so there is no reason why the main-portion of his statement which is uncontradicted, and which would could have been contradicted should not be accepted.19. In March 1929, Mt. Mohan Deis son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner, and in October 1929 when the reversion opened out the estate vested in him, or rather would have vested in him but for the estoppel. The question, therefore, is did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion? We have no doubt he did. The decision of the Judicial Committee which we have just cited, Kinhai Lal v. Brijlal,45 Ind. App 118, is we think, clear on that point. Although other reversioners who do not claim through the one who has consented are not bound, the consenting reversioner is estopped This is beyond dispute when there is an alienation by a limited owner without legal necessity. See Ramgouda Annagouda v. Bnausahab,54 Ind. App 396 at p. 408, where the ground of decision was:"..... but Annagouda himself being a party to and benefiting by the transaction evidenced thereby was precluded from questioning any part of it"In our opinion, the same principles apply to a case of the present kind.20. It was contended, however, on the strength of Bangaswami Gounden v. Nachiappa Gounden, 46 Ind. Ap 72 and Mt. Binda Kuer v. Lalitha Prasad, A. I. R. 1936 P. C. 304 at p. 308, that even if Kishan Lal did take possession in 1889 or 1890 on the strength of a title derived from his father that would not have precluded him from asserting his own rights in a different character when the succession opened out Reliance in particular was placed upon p. 308 of the latter ruling. In our opinion, that decision is to be distinguished.21. In that case the reversion did not fall in till 1916. Long before that, namely in 1868, the next presumptive reversioners entered into a compromise whereby the grandfather of one Jairam who figured in that case obtained a good deal more than be would have been entitled to in the ordinary way But for the compromise this grandfather would have got only one anna 12gundasshare, whereas due to the compromise he got as much as 2 annas 4gundas. The total taking of possession was however deferred under the compromise till the death of one Anandi. Kuer. She died in 1885 and on that date Jairam was entitled to his grandfathers share as both his father and grandfather were dead. Jairam accordingly reaped the benefit of the transaction. But it is to be observed that the extra benefit which he derived was only as to a 12gundasshare because he had an absolute and indefeasible right to 1 anna 12gundasin any event in his own right under a title which did not spring from the compromise.22. Jairam lost 1 anna 4gundasto a creditor Munniram and out of the one anna which he had left from the 2 anna 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500 Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs purchased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12gundasto which he had a good and independent title anyway; and of course unless the plaintiffs 13 gundas could be assigned with certainty to the 12 gundas it would be impossible to say that they had obtained any benefit from the compromise. The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise. They had the right to contest the position and gamble on the possibility of being able to prove the contrary. Their Lordships added:"Unless the plaintiffs individual conduct makes it unjust that they should have a place among Bajrangi Lals reversioners their legal rights should have effect."23. In the other case, Rangaswami Gounden v. Machiappa Gounden,46 Ind. App 72, their Lordships decision about this matter turned on the same sort of point : see p. 87.24. The present case is very different. When Kishan Lal took possession of his fathers property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it. Accordingly, he would have been estopped even if he had claimed in a difference character as reversioner after the succession opened out.25. It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped.26.
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8. We do not thinkthese passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do. In our opinion, the arbitrator was confused in his mind both as regards the facts as well as regards the law. His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense.is neither here nor there whether the award was valid, whether the decision fell within the scope of the reference or whether it had any binding character in itself. Even if it was wholly invalid, it was still open to the parties to say: Never mind whether the arbitrator was right or wrong, his decision is fair and sensible, so instead of wasting further time and money in useless litigation. we will accept it and divide the estate in accordance with his findings. That would have been a perfectly right and proper settlement of the dispute, and whether it bound third parties or not it would certainly bind the immediate parties; and that in effect is what they did. By his conduct Brijlal induced . Mohan Dei to believe that this would be the case and on the faith of that representation, namely the acceptance of the award, he induced Mt. Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciables portion of the estate, and he himself obtained a substantial advantage to which he would not other wise have been entitled and enjoyed the benefit of it for the rest of his life; and to his credit be-it said, he never attempted to go behind his decision. In any event, we are clear that that created an estoppel as against Brijlal.In our opinion, the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal v. Brif Lal,45 Ind. App 118 P. C. There also there was a dispute between a limited owner and a person who, but for an unproved claim (adoption) which he put forward, had no right to the estate. The dispute was taken to the Courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years. Later, the succession opened out and the other party to the compromise, who by then had stopped into the reversion, claimed the rest of the estate, which had been assigned to the limited owner. against her personalJudicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit, namely as reversioner, he having been a party to the compromise and having acted on it and induced the other side to alter her position to her detriment, was estopped. We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions arehave no doubt he did. The decision of the Judicial Committee which we have just cited, Kinhai Lal v. Brijlal,45 Ind. App 118, is we think, clear on that point. Although other reversioners who do not claim through the one who has consented are not bound, the consenting reversioner is estopped This is beyond dispute when there is an alienation by a limited owner without legal necessity.The present case is very different. When Kishan Lal took possession of his fathers property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it. Accordingly, he would have been estopped even if he had claimed in a difference character as reversioner after the succession opened out.It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped.
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Dharam Dutt & Others Vs. Union of India & Others | of India, the Indian Council of World Affairs (ICWA, for short) had attained an International stature in connection with world affairs and the foreign policies of India vis-a-vis other countries. However, the activities of the Society, i.e. running the Institution, were being complained against by several persons all over the country on account of the sub-standard level of programmes and the activities being conducted, as also about the standard of the maintenance of stock of books, periodicals, etc. in the library. The image and reputation of the Institution drew adverse publicity in the Press. In the counter-affidavit several such instances have been highlighted under the title Glaring Instances of Maladministration" as revealed in the Audit conducted by the Comptroller and Auditor General of India. These instances highlight irregular and incomplete maintenance of accounts, misuse and diversion of funds, and deficits and losses accumulating year by year on account of mismanagement and mal-administration. Photographs have been filed with the counter affidavit showing the state of disrepair of the building and its furniture. Serious irregularities were found to have been committed in the conduct of elections of the Executive Committee, resulting the complete breakdown of the democratic functioning of the Institution. The electoral roll consisted of members who had discontinued their membership. Fruit and vegetable vendors were enrolled as members of the Indian Council of World Affairs, so as to pack the membership with defunct members only to ensure the continuance in office of a certain set of people. Membership fees of all such multiple members were being deposited by a single cheque.11. On the affidavit of the Joint Secretary in the Ministry of External Affairs, Government of India, New Delhi, it has been stated that financial assistance was regularly granted to ICWA by the MEA and Deptt. Of Culture (Ministry of Education). Grants have been given after 1986 by organizations like ICSSR. Adhoc grants had been given by the Deptt. of Culture between 1974-1975 till 1988-1989. The last grant of Rs. 5 lakhs from MEA was in 1985-1986. In 1996-1997, the ICWA management wrote off the Capital Reserve of Rs. 19,38,302/- against the accumulated decifit of Rs. 31,06,897/-. The deficit of the erstwhile ICWA continued to increase till the takeover by the newly incorporated body on 2nd September, 2000. The report of the Special Audit of ICWA by CAG, which commercial on 11.8.2000, highlights unaccounted for liabilities to the extent of Rs. 132.84 lacs, contravention of the provisions of the perpetual lease, non-adjustment of cash drawn for day to day expenses amounting to Rs. 22,48,399.65, and possible misappropriation of funds to the tune of Rs. 1,39,086.10 by inflating the total amount of the salary bills.12. According to the respondents, the property-Sapru House, is situated on land which belongs to the Government of India (Land & Development Office). Large subventions and grants have been given from time to time by the Government of India to the Society wherefrom the building was constructed. The lease of the land was terminated for non-payment of dues as well as for various breaches amounting to misuse committed by the Society. The dues as per the claim of the L & DO worked out to more than Rs. 9 crores. Eviction orders were passed by the Estate Officer, which have been stayed by the High Court. However, having acquired management and control over the Institution and the building and other properties in the year 1990, pursuant to the Ordinance, the Government of India had spent about Rs. 2 crores so as to restore Sapru House to its original condition and make it fit for habitation and use. The Union of India has vehemently denied the allegation of the petitioners that the impugned Ordinance and Legislation were politically motivated. It is submitted that Governments have changed from time to time with different political leanings. However, three Parliamentary Standing Committees appointed at different points of time have recommended the taking over of Sapru House, lamenting the decline in the standard of the Institution. Earlier Ordinances are a matter of history and of mere academic relevance in view of the Parliament having ultimately enacted the Act. As to the impugned Act being in violation of the doctrine of Separation of Powers and in defiance of the decision of the Punjab and Haryana High Court, the respondents have submitted that the decision of the learned single Judge was incorrect. In was put in issue by filing a letters patent appeal, which appeal was disposed of without any adjudication on merits due to the High Court having formed an opinion that the adjudication of the appeal was rendered academic in view of the Ordinance having lapsed. The respondents could not have pressed for decision of the letters patent appeal on merits nor could they have taken the matter further because the High Court or this Court would not have entered into the examination of an issue which was rendered of academic interest only.13. The Union of India has vehemently submitted that the Society has not been touched. It continues to survive as before and, therefore, the question of any fundamental right within the meaning of sub-clause (a) and (c) of clause (1) of Article 19 of the Constitution of India having been breached, does not arise. As the Institution, the Indian Council of World Affairs, is an institution of national importance, the impugned enactment is protected by Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of India.14. In the submission of the Union of India the building and the library have been built out of Government of India funds and subventions, and some donations received from persons of the eminence of former Prime Ministers and the President of India and other dignitaries. The Society does not have any right in any of the properties, as is being claimed by the petitioners. Challenge to Ordinance instructuous (W.P.(C) No. 276 of 2001) 15. Before we enter into examining the merits of the attack laid on the impugned Act, | 0[ds]48. It is well-settled that while dealing with a challenge to the constitutional validity of any legislation, the court should prima facie lean in favour of constitutional and should support the legislation, if it is possible to do so, on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the Court which would make out a case for invalidating the legislation.In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by Clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of Clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as, the sovereignty and integrity of India or public order, decency or morality etc. the onus of showing that restriction is unreasonable would shirt back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be required to substantive the plea of unreasonability. Thus the onus of proof in such like cases is an ongoing shifting process to be consciously observed by the court called upon to decide the constitutional validity of a legislation by reference to Article 19 of the Constitution. The questions: (i) Whether the right claimed is a fundamental right, (ii) whether the restriction is one contemplated by any of the Clauses (2) to (6) of Article 19, and (iii) whether the restriction is reasonable or unreasonable, are all questions which shall have to be decided by keeping in view the substance of the legislation and not being beguiled by the mere appearance of the legislation.50. The impugned Act does not offend the right guaranteed by Article 19(i)(c). It also does not in any manner deprive the members of the Society of their freedom of speech and expression under Article 19(1)(a).We have already pointed out in an earlier part of this judgment that in the present case successive parliamentary committees found substance in the complaints received that an institution of national importance was suffering from mismanagement and maladministration. The Central Government acted on such findings. Circumstances warranting an emergent action satisfied the President of India, resulting in his promulgating ordinances which earlier could not culminate into legislative enactments on account of fortuitous circumstances. At the end the Parliament exercised its legislative power under Art.245 of the Constitution read with Entries 62 and 63 of List I. The legislation cannot be said to be arbitrary orour opinion. In a given set of facts and circumstances, merely because an alternative action under the Societies Registration Act, 1860 could have served the purpose, a case cannot be and is not made out for finding fault with another legislation if the same be within the legislative competence of the Parliament, which it is, as will be seen hereinafter.Be that as it may, we are clearly of the opinion that the judgment dated September 10, 1990, is not correct and we specifically record our overruling of the same. The doctrine of Separation of Powers and the constitutional convention of the three organs of the State, having regard and respect for each other, is enough answer to the plea raised on behalf of the petitioners founded on the doctrine of Separation of Powers. We cannot strike down a legislation which we have on an independent scrutiny held to be within the legislative competence of the enacting legislature merely because the legislature has reenacted the same legal provisions into an act which, ten years before, were incorporated in an ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed. It has to be remembered that by the impugned Act the Parliament has not overruled the judgment of the High Court nor has it declared the same law to be valid which has been pronounced to be void by the court. It would have been better if before passing the Bill into an Act the attention of the Parliament was specifically invited to the factum of an earlier pari materia Ordinance having been annulled by the High Court. If an ordinance invalidated by the High Court is still reenacted into an Act after the pronouncement by the High Court, the subsequent Act would be liable to be annulled once again on finding that the High Court was right in taking the view of the illegality of the Ordinance, which it did. However, as we have already stated, this is not the position obtaining in the present case. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of Separation ofchallenge to the constitutional validity of the impugned Act fails on all the grounds alleged. The legislation is clearly covered by Entries 62 and 63 of List I Schedule.7. Initially at one time, the institution was receiving financial aid from the Government of India. The institution ICWA has been declared to be an institution of national importance by the Act of Parliament. There is no challenge to the validity of such declaration nor do we find any grounds to take a view different from the one taken in the declaration made by the Government of India. Once an institution is declared to be a national importance, the Parliament is competent to make any law governing the management, administration and affairs of such an institution. It is not the case of the petitioners that though the institution is declared and held to be of national importance, yet in enacting other provisions of the impugned Act, the Parliament has encroached upon any field of legislation not available to it. The provisions of the Act fall within the field of legislation meant for the Union of India.72. The various Entries in the three Lists of the Seventh Schedule are legislative heads defining the fields of legislation and should be liberally and widely interpreted. Not only the main matter but also any incidental and ancillary matters are available to be included within the field of the entry. The settled rules of interpretation governing the Entries do not countenance any narrow and pedantic interpretation. The judicial opinion is for giving a large and liberal interpretation to the scope of the Entries. Suffice it to quote from the opinion of the judicial committee of the Privy Council in British Coal Corporation v. The King (AIR 1935 PC 158 , 162) that in interpreting a constituent or organic statute indeed that construction which is most beneficial to the widest possible amplitude of its powers must be adopted. The Federal Court in United Provinces v. Atiqa Begum (AIR 1941 FC 16, 25) observed that none of the items in the Lists is to be read in a narrow or restricted sense and all ancillary or subsidiary matters referable to the words used in the Entry and which can fairly and reasonably be said to be comprehended therein are to be read in the Entry. This approach has been countenanced in several decisions of this Court. (To wit, see Navinchandra Mafatlal v. CIT Bombay City (1955 (1) SCR 829 , 836) Sri Ram Ram Narain Medhi v. The State of Bombay (1959 Supp. (1) SCR | 0 | 2,509 | 1,418 | ### Instruction:
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of India, the Indian Council of World Affairs (ICWA, for short) had attained an International stature in connection with world affairs and the foreign policies of India vis-a-vis other countries. However, the activities of the Society, i.e. running the Institution, were being complained against by several persons all over the country on account of the sub-standard level of programmes and the activities being conducted, as also about the standard of the maintenance of stock of books, periodicals, etc. in the library. The image and reputation of the Institution drew adverse publicity in the Press. In the counter-affidavit several such instances have been highlighted under the title Glaring Instances of Maladministration" as revealed in the Audit conducted by the Comptroller and Auditor General of India. These instances highlight irregular and incomplete maintenance of accounts, misuse and diversion of funds, and deficits and losses accumulating year by year on account of mismanagement and mal-administration. Photographs have been filed with the counter affidavit showing the state of disrepair of the building and its furniture. Serious irregularities were found to have been committed in the conduct of elections of the Executive Committee, resulting the complete breakdown of the democratic functioning of the Institution. The electoral roll consisted of members who had discontinued their membership. Fruit and vegetable vendors were enrolled as members of the Indian Council of World Affairs, so as to pack the membership with defunct members only to ensure the continuance in office of a certain set of people. Membership fees of all such multiple members were being deposited by a single cheque.11. On the affidavit of the Joint Secretary in the Ministry of External Affairs, Government of India, New Delhi, it has been stated that financial assistance was regularly granted to ICWA by the MEA and Deptt. Of Culture (Ministry of Education). Grants have been given after 1986 by organizations like ICSSR. Adhoc grants had been given by the Deptt. of Culture between 1974-1975 till 1988-1989. The last grant of Rs. 5 lakhs from MEA was in 1985-1986. In 1996-1997, the ICWA management wrote off the Capital Reserve of Rs. 19,38,302/- against the accumulated decifit of Rs. 31,06,897/-. The deficit of the erstwhile ICWA continued to increase till the takeover by the newly incorporated body on 2nd September, 2000. The report of the Special Audit of ICWA by CAG, which commercial on 11.8.2000, highlights unaccounted for liabilities to the extent of Rs. 132.84 lacs, contravention of the provisions of the perpetual lease, non-adjustment of cash drawn for day to day expenses amounting to Rs. 22,48,399.65, and possible misappropriation of funds to the tune of Rs. 1,39,086.10 by inflating the total amount of the salary bills.12. According to the respondents, the property-Sapru House, is situated on land which belongs to the Government of India (Land & Development Office). Large subventions and grants have been given from time to time by the Government of India to the Society wherefrom the building was constructed. The lease of the land was terminated for non-payment of dues as well as for various breaches amounting to misuse committed by the Society. The dues as per the claim of the L & DO worked out to more than Rs. 9 crores. Eviction orders were passed by the Estate Officer, which have been stayed by the High Court. However, having acquired management and control over the Institution and the building and other properties in the year 1990, pursuant to the Ordinance, the Government of India had spent about Rs. 2 crores so as to restore Sapru House to its original condition and make it fit for habitation and use. The Union of India has vehemently denied the allegation of the petitioners that the impugned Ordinance and Legislation were politically motivated. It is submitted that Governments have changed from time to time with different political leanings. However, three Parliamentary Standing Committees appointed at different points of time have recommended the taking over of Sapru House, lamenting the decline in the standard of the Institution. Earlier Ordinances are a matter of history and of mere academic relevance in view of the Parliament having ultimately enacted the Act. As to the impugned Act being in violation of the doctrine of Separation of Powers and in defiance of the decision of the Punjab and Haryana High Court, the respondents have submitted that the decision of the learned single Judge was incorrect. In was put in issue by filing a letters patent appeal, which appeal was disposed of without any adjudication on merits due to the High Court having formed an opinion that the adjudication of the appeal was rendered academic in view of the Ordinance having lapsed. The respondents could not have pressed for decision of the letters patent appeal on merits nor could they have taken the matter further because the High Court or this Court would not have entered into the examination of an issue which was rendered of academic interest only.13. The Union of India has vehemently submitted that the Society has not been touched. It continues to survive as before and, therefore, the question of any fundamental right within the meaning of sub-clause (a) and (c) of clause (1) of Article 19 of the Constitution of India having been breached, does not arise. As the Institution, the Indian Council of World Affairs, is an institution of national importance, the impugned enactment is protected by Entries 62 and 63 of List I of the Seventh Schedule to the Constitution of India.14. In the submission of the Union of India the building and the library have been built out of Government of India funds and subventions, and some donations received from persons of the eminence of former Prime Ministers and the President of India and other dignitaries. The Society does not have any right in any of the properties, as is being claimed by the petitioners. Challenge to Ordinance instructuous (W.P.(C) No. 276 of 2001) 15. Before we enter into examining the merits of the attack laid on the impugned Act,
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### Explanation:
Whether the right claimed is a fundamental right, (ii) whether the restriction is one contemplated by any of the Clauses (2) to (6) of Article 19, and (iii) whether the restriction is reasonable or unreasonable, are all questions which shall have to be decided by keeping in view the substance of the legislation and not being beguiled by the mere appearance of the legislation.50. The impugned Act does not offend the right guaranteed by Article 19(i)(c). It also does not in any manner deprive the members of the Society of their freedom of speech and expression under Article 19(1)(a).We have already pointed out in an earlier part of this judgment that in the present case successive parliamentary committees found substance in the complaints received that an institution of national importance was suffering from mismanagement and maladministration. The Central Government acted on such findings. Circumstances warranting an emergent action satisfied the President of India, resulting in his promulgating ordinances which earlier could not culminate into legislative enactments on account of fortuitous circumstances. At the end the Parliament exercised its legislative power under Art.245 of the Constitution read with Entries 62 and 63 of List I. The legislation cannot be said to be arbitrary orour opinion. In a given set of facts and circumstances, merely because an alternative action under the Societies Registration Act, 1860 could have served the purpose, a case cannot be and is not made out for finding fault with another legislation if the same be within the legislative competence of the Parliament, which it is, as will be seen hereinafter.Be that as it may, we are clearly of the opinion that the judgment dated September 10, 1990, is not correct and we specifically record our overruling of the same. The doctrine of Separation of Powers and the constitutional convention of the three organs of the State, having regard and respect for each other, is enough answer to the plea raised on behalf of the petitioners founded on the doctrine of Separation of Powers. We cannot strike down a legislation which we have on an independent scrutiny held to be within the legislative competence of the enacting legislature merely because the legislature has reenacted the same legal provisions into an act which, ten years before, were incorporated in an ordinance and were found to be unconstitutional in an erroneous judgment of the High Court and before the error could be corrected in appeal the Ordinance itself lapsed. It has to be remembered that by the impugned Act the Parliament has not overruled the judgment of the High Court nor has it declared the same law to be valid which has been pronounced to be void by the court. It would have been better if before passing the Bill into an Act the attention of the Parliament was specifically invited to the factum of an earlier pari materia Ordinance having been annulled by the High Court. If an ordinance invalidated by the High Court is still reenacted into an Act after the pronouncement by the High Court, the subsequent Act would be liable to be annulled once again on finding that the High Court was right in taking the view of the illegality of the Ordinance, which it did. However, as we have already stated, this is not the position obtaining in the present case. The impugned Act is not liable to be annulled on the ground of violation of the doctrine of Separation ofchallenge to the constitutional validity of the impugned Act fails on all the grounds alleged. The legislation is clearly covered by Entries 62 and 63 of List I Schedule.7. Initially at one time, the institution was receiving financial aid from the Government of India. The institution ICWA has been declared to be an institution of national importance by the Act of Parliament. There is no challenge to the validity of such declaration nor do we find any grounds to take a view different from the one taken in the declaration made by the Government of India. Once an institution is declared to be a national importance, the Parliament is competent to make any law governing the management, administration and affairs of such an institution. It is not the case of the petitioners that though the institution is declared and held to be of national importance, yet in enacting other provisions of the impugned Act, the Parliament has encroached upon any field of legislation not available to it. The provisions of the Act fall within the field of legislation meant for the Union of India.72. The various Entries in the three Lists of the Seventh Schedule are legislative heads defining the fields of legislation and should be liberally and widely interpreted. Not only the main matter but also any incidental and ancillary matters are available to be included within the field of the entry. The settled rules of interpretation governing the Entries do not countenance any narrow and pedantic interpretation. The judicial opinion is for giving a large and liberal interpretation to the scope of the Entries. Suffice it to quote from the opinion of the judicial committee of the Privy Council in British Coal Corporation v. The King (AIR 1935 PC 158 , 162) that in interpreting a constituent or organic statute indeed that construction which is most beneficial to the widest possible amplitude of its powers must be adopted. The Federal Court in United Provinces v. Atiqa Begum (AIR 1941 FC 16, 25) observed that none of the items in the Lists is to be read in a narrow or restricted sense and all ancillary or subsidiary matters referable to the words used in the Entry and which can fairly and reasonably be said to be comprehended therein are to be read in the Entry. This approach has been countenanced in several decisions of this Court. (To wit, see Navinchandra Mafatlal v. CIT Bombay City (1955 (1) SCR 829 , 836) Sri Ram Ram Narain Medhi v. The State of Bombay (1959 Supp. (1) SCR
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R. Ramakrishna Rao Vs. State of Kerala | the Act puts down as the minimum) after Hotel Brinda was opened in January 1959 and he was entitled to an exemption under the Act for a further period of five years from January 15, 1959. Lastly, he pleaded that if there was a doubt on all these points the matter could only be decided after the doubt was cleared by an order of the Central Government under Section 19A of the Act. His pleas were not accepted by the High Court and the Magistrate and he has raised some of the contentions before us.3. Before we consider the arguments which have been urged before us we may refer to some of the provisions of the Act. Employees Provident Funds Act became law on March 4, 1952 and the scheme was published on September 2, 1952. A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I in which 20 or more persons are employed and (b) to "any other establishment employing 20 or more persons or class of such establishments which the Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here. Since the objection is that Section 16 excludes the establishments for a period we may read that section here :"16. Act not to apply to certain establishments. (1) This Act shall not apply :-(a) to any establishment registered under the Co-operative Societies Act 1912, or under any other law for the time being in force in any State relating to co-operative societies. employing less than fifty persons and working without the aid of power; or(b) to any other establishment employing fifty, or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been set up.Explanation.-For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely be reason of a change in its location.(2) * * * * *Paragraph 26 (1) (a) of the Scheme shows the classes of employees entitled and required to join the Fund. It reads as follows :-"26 (1) (a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment, if on the date of such coming into force he has completed one years continuous service or has actually worked for not less than 240 days during a period of twelve months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other".4. Now the question in this case is that Hotel Brinda commenced only on January 15, 1959 and the number of employees then exceeded 20 for the first time. Under the provisions of Section 16 an exemption from the- Act and the Scheme is claimed for five years and it is submitted no offence was committed because the establishment even if taken together could not be subjected to the provisions till a period of five years had expired from January 15. 1959.5. In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right. | 0[ds]A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I in which 20 or more persons are employed and (b) to "any other establishment employing 20 or more persons or class of such establishments which the Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here.In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right. | 0 | 1,541 | 522 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the Act puts down as the minimum) after Hotel Brinda was opened in January 1959 and he was entitled to an exemption under the Act for a further period of five years from January 15, 1959. Lastly, he pleaded that if there was a doubt on all these points the matter could only be decided after the doubt was cleared by an order of the Central Government under Section 19A of the Act. His pleas were not accepted by the High Court and the Magistrate and he has raised some of the contentions before us.3. Before we consider the arguments which have been urged before us we may refer to some of the provisions of the Act. Employees Provident Funds Act became law on March 4, 1952 and the scheme was published on September 2, 1952. A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I in which 20 or more persons are employed and (b) to "any other establishment employing 20 or more persons or class of such establishments which the Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here. Since the objection is that Section 16 excludes the establishments for a period we may read that section here :"16. Act not to apply to certain establishments. (1) This Act shall not apply :-(a) to any establishment registered under the Co-operative Societies Act 1912, or under any other law for the time being in force in any State relating to co-operative societies. employing less than fifty persons and working without the aid of power; or(b) to any other establishment employing fifty, or more persons or twenty or more, but less than fifty, persons until the expiry of three years in the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been set up.Explanation.-For the removal of doubts, it is hereby declared that an establishment shall not be deemed to be newly set up merely be reason of a change in its location.(2) * * * * *Paragraph 26 (1) (a) of the Scheme shows the classes of employees entitled and required to join the Fund. It reads as follows :-"26 (1) (a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other establishment, if on the date of such coming into force he has completed one years continuous service or has actually worked for not less than 240 days during a period of twelve months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employer, or partly in one and partly in the other".4. Now the question in this case is that Hotel Brinda commenced only on January 15, 1959 and the number of employees then exceeded 20 for the first time. Under the provisions of Section 16 an exemption from the- Act and the Scheme is claimed for five years and it is submitted no offence was committed because the establishment even if taken together could not be subjected to the provisions till a period of five years had expired from January 15. 1959.5. In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right.
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### Explanation:
A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates. It was not contended before us that the relevant parts of the Scheme were not in force. The Act applies to the whole of India and subject to the provisions contained in Section 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I in which 20 or more persons are employed and (b) to "any other establishment employing 20 or more persons or class of such establishments which the Government may by notification in the Official Gazette specify "in this behalf" These establishments come within the (b) and are governed by the appropriate notification issued by the Central Government. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here.In support of this argument Mr B. R. L. Iyengar emphasises that the use of the participle employing in S. 1(3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is reached. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions of the Act and the Scheme are made applicable. This is an ingenious way of putting the matter but is not admissible. The language of Section 16 (1) (b) is very precise. The last thirteen words of the clause from the date on which the establishment is or has been set up, show both cases where the establishment is new and where the establishment is old. The word is shows that a new establishment is meant and the words has been show that the establishment existed before the number is reached. If it was intended to apply the clause to new establishments the words is set up would have been sufficient. The construction sought to be placed would render the words has been otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well as in the future. The intention behind Section 16 read with paragraph 26 quite clearly shows that the period is intended to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded. The use of the participle is therefore immaterial. Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of S. 1 (3) which uses the participle and Clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings. The conclusion of the High Court was thus right.
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Krishna Devi Vs. Keshri Nandan | S. Abdul Nazeer, J.1. Parties in this appeal are close relatives. Krishna Devi, the Appellant/Plaintiff is the daughter of Dharam Singh. Mathura Prasad, the second Defendant was the brother of Dharam Singh and Keshri Nandan Respondent/Defendant No. 1 is the son of Mathura Prasad. The Appellant filed the suit O.S. No. 196/1992 against Keshri Nandan and Mathura Prasad for partition and separate possession of half share in the suit scheduled property. It is her case that the property originally belonged to her grandfather Banshi Dhar. After Banshi Dhars death, her father Dharam Singh and her paternal uncle Mathura Prasad have succeeded to the said property and after the death of her father Dharam Singh, she is entitled for half share in the said property.2. The Defendants have opposed the suit. It is contended that Dharam Singh had executed a sale deed in respect of his fifty per cent share in the said property in favour of the first Defendant. The Plaintiff filed a reply to the written statement contending that the sale deed said to have been executed by Dharam Singh has been obtained by fraud and mis-representation and hence, the said sale deed is not binding upon her.3. The trial court on appreciation of materials on record held that the sale deed said to have been executed by Dharam Singh did not confer any right, title or interest on the Defendants. Consequently, the suit was decreed. The Defendants challenged the said decree by filing Civil Appeal No. 60 of 2001 before the Additional District Judge, Gurgaon. The first Appellate Court set aside the judgment of the trial court and allowed the appeal. The second appeal filed by the Appellant/Plaintiff was dismissed by the High Court.4. Having heard the learned Counsel for the parties, we do not find any merit in this appeal. It cannot be held that the sale deed dated 11.07.1991 executed by Dharam Singh was obtained by fraud or by mis-representation. It is clear that when the sale deed was executed by Dharam Singh, he was having sound state of mind. The Sub-Registrar, who had registered the documents was examined as DW-3. In his evidence he stated that the sale deed was executed by Dharam Singh after he had explained to the parties about contents of the said deed. Ex. D-1 was attested by PW-2 and PW-3. They have nowhere stated in their statements that Dharam Singh was not in good state of mind at the time of the execution of the document. Though it is contended on behalf of the Appellant that Dharam Singh was not keeping well, no medical evidence has been produced in support of the said contention. We do not find any ground to interfere with the judgment of the High Court. | 0[ds]4. Having heard the learned Counsel for the parties, we do not find any merit in this appeal. It cannot be held that the sale deed dated 11.07.1991 executed by Dharam Singh was obtained by fraud or by mis-representation. It is clear that when the sale deed was executed by Dharam Singh, he was having sound state of mind. The Sub-Registrar, who had registered the documents was examined as DW-3. In his evidence he stated that the sale deed was executed by Dharam Singh after he had explained to the parties about contents of the said deed. Ex. D-1 was attested by PW-2 and PW-3. They have nowhere stated in their statements that Dharam Singh was not in good state of mind at the time of the execution of the document. Though it is contended on behalf of the Appellant that Dharam Singh was not keeping well, no medical evidence has been produced in support of the said contention. We do not find any ground to interfere with the judgment of the High Court. | 0 | 502 | 194 | ### 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:
S. Abdul Nazeer, J.1. Parties in this appeal are close relatives. Krishna Devi, the Appellant/Plaintiff is the daughter of Dharam Singh. Mathura Prasad, the second Defendant was the brother of Dharam Singh and Keshri Nandan Respondent/Defendant No. 1 is the son of Mathura Prasad. The Appellant filed the suit O.S. No. 196/1992 against Keshri Nandan and Mathura Prasad for partition and separate possession of half share in the suit scheduled property. It is her case that the property originally belonged to her grandfather Banshi Dhar. After Banshi Dhars death, her father Dharam Singh and her paternal uncle Mathura Prasad have succeeded to the said property and after the death of her father Dharam Singh, she is entitled for half share in the said property.2. The Defendants have opposed the suit. It is contended that Dharam Singh had executed a sale deed in respect of his fifty per cent share in the said property in favour of the first Defendant. The Plaintiff filed a reply to the written statement contending that the sale deed said to have been executed by Dharam Singh has been obtained by fraud and mis-representation and hence, the said sale deed is not binding upon her.3. The trial court on appreciation of materials on record held that the sale deed said to have been executed by Dharam Singh did not confer any right, title or interest on the Defendants. Consequently, the suit was decreed. The Defendants challenged the said decree by filing Civil Appeal No. 60 of 2001 before the Additional District Judge, Gurgaon. The first Appellate Court set aside the judgment of the trial court and allowed the appeal. The second appeal filed by the Appellant/Plaintiff was dismissed by the High Court.4. Having heard the learned Counsel for the parties, we do not find any merit in this appeal. It cannot be held that the sale deed dated 11.07.1991 executed by Dharam Singh was obtained by fraud or by mis-representation. It is clear that when the sale deed was executed by Dharam Singh, he was having sound state of mind. The Sub-Registrar, who had registered the documents was examined as DW-3. In his evidence he stated that the sale deed was executed by Dharam Singh after he had explained to the parties about contents of the said deed. Ex. D-1 was attested by PW-2 and PW-3. They have nowhere stated in their statements that Dharam Singh was not in good state of mind at the time of the execution of the document. Though it is contended on behalf of the Appellant that Dharam Singh was not keeping well, no medical evidence has been produced in support of the said contention. We do not find any ground to interfere with the judgment of the High Court.
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### Explanation:
4. Having heard the learned Counsel for the parties, we do not find any merit in this appeal. It cannot be held that the sale deed dated 11.07.1991 executed by Dharam Singh was obtained by fraud or by mis-representation. It is clear that when the sale deed was executed by Dharam Singh, he was having sound state of mind. The Sub-Registrar, who had registered the documents was examined as DW-3. In his evidence he stated that the sale deed was executed by Dharam Singh after he had explained to the parties about contents of the said deed. Ex. D-1 was attested by PW-2 and PW-3. They have nowhere stated in their statements that Dharam Singh was not in good state of mind at the time of the execution of the document. Though it is contended on behalf of the Appellant that Dharam Singh was not keeping well, no medical evidence has been produced in support of the said contention. We do not find any ground to interfere with the judgment of the High Court.
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Hindustan Machines Tools Ltd Vs. P.N. Kashyap etc | computation thereof has been enumerated in the scheme which reads as under: "It has been decided to introduce a Voluntary Retirement Scheme for the employees of the Company as per the enclosed copy comprising of two parts viz., Scheme `A and Scheme `B. The scheme will be in operation from 1.4.1989 for a period of three months, subject to the following further conditions:i) Scheme A shall be applicable only to the employees of Lamp Unit, Hyderabad in WG Cadre with the terms and conditions specified in Scheme A for a period of three months from 1.4.1989.ii) Scheme B shall be applicable to all the Units/Divisions (including Lamp), Business Group Directorates, other offices and Corporate Office with the terms and conditions specified in the enclosed scheme, for a period of three months from 1.8.1989.iii) The scheme does not confer any right on any employee to have his request for voluntary retirement accepted by the competent authority. Right to accept or reject the application for voluntary retirement shall entirely vest with the Company.iv) Acceptance of application for Voluntary Retirement shall depend inter alia on availability of funds in the respective Units/Divisions/Business Group Directorates, other Offices and Corporate Office.v) The eligible employees requesting for voluntary retirement, subject to acceptance of their requests by the competent authority shall be entitled to such benefits as are specified in the scheme.Such employees may be persuaded to deposit the benefits received, in the Companys Fixed Deposit Scheme.2. The existing Medical Retirement Scheme and Voluntary Retirement Scheme introduced for Hyderabad based Units of the Company shall stand discontinued with the introduction of the above Voluntary Retirement Scheme.3. The Units and areas within the Units, where the Scheme could be implemented will separately be intimated by the DPS.4. The progress of implementation of the Scheme with regard to the number of employees in each cadre and the total amount paid on account of compensation shall be reported to DPS every month." 9. For the computation of the payment of the compensation in terms of the calculation, the `Note postulates that the salary mentioned under Scheme A and B shall mean basic pay, Dearness Allowance, Interim Relief/ad hoc Relief and Personal Pay, if any, and shall be calculated on the basis of a calendar month. In other words, this contract has expressly omitted to mention the revised scale of pay from time to time. The reason would be obvious. An employee who retires on completing the age of 50 years but before the age of 58 years, is not entitled to the payment of any special component of the salary as indicated hereinbefore. On the other hand, he will be entitled only to the retiral benefits as are available under the normal Rules. If the company, in public interest, instead of giving one months notice makes payment of salary in lieu thereof then employee would be entitled to nothing more except other retiral benefits like pension, gratuity etc. The procedure in regard to the calculation of the payment of the compensation and method of computing the compensation has been provided in Para Vl; the details whereof are not material for the purpose of these cases. Para IX of the Special Scheme postulates that retirement on medical grounds in terms of clause 24.1 and voluntarily retirement in terms of clause 24.2(b) and (c) of the Conduct, Discipline and Appeal Rules of the Company shall fall outside the purview of the scheme. In other words, the special scheme excluded such of the employees who voluntarily retired under Rule 24.1 or 24.2(b) and (c) of the Conduct, Discipline and Appeal Rules of the Company. Para Xll in this behalf is more relevant wherein it says that the Chairman and Managing Director shall have power to amend, modify, alter or withdraw the above Scheme either in whole or in part, at his directions, if the circumstances so warrant. In other words, whatever components are enumerated thereunder would be binding on the parties until the Chairman and the Managing Director before acceptance amends, modifies, alters or withdraws the above scheme. 10. It is seen that the Office Order No. 45 dated March 1, 1991 provides that the revised pay scales shall be effective from 1.1.1987 and will remain in force for the period of five years upto 31.12.1991. Clause 2.2 provides that the revised pay scales shall also be applicable on a pro rata basis to those categories of employees who were on the rolls of the company as on 31. 12.1986 but have subsequently separated due to superannuation and voluntary retirement etc. Those who retired on attaining the age of 58 years or voluntarily retired under Rule 24.2(b) or (c), as the case may be, under the Conduct, Discipline and Appeal Rules referred to hereinbefore. The benefits of the revision of pay scales shall not be applicable to those persons who were on the rolls of the Company as on 31.12.1986 but subsequently left the service of the company before the date of issue of Office Order No. 45/90 for any reason, whatsoever, including resignation except the category mentioned in clause 2.2 above. Thereby, the necessary implication is that all those who are covered and stand on the same footing are excluded except to the extent of gratuity, revision of the terminal benefits as mentioned in para 6.13 which postulates that gratuity paid or payable to employees covered under Clause 2.2 will be recalculated on the revised pay subject to the prescribed ceiling. Thus, it could be seen that the distinction has been drawn between employees who retired voluntarily under Rule 24.2 of the Conduct, Discipline and Appeal Rules or the employees who retired under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. Accordingly, the High Court was not right in directing recomputation of the compensation under Office Order No. 45 dated March 1, 1991. | 1[ds]10. It is seen that the Office Order No. 45 dated March 1, 1991 provides that the revised pay scales shall be effective from 1.1.1987 and will remain in force for the period of five years upto 31.12.1991. Clause 2.2 provides that the revised pay scales shall also be applicable on a pro rata basis to those categories of employees who were on the rolls of the company as on 31. 12.1986 but have subsequently separated due to superannuation and voluntary retirement etc. Those who retired on attaining the age of 58 years or voluntarily retired under Rule 24.2(b) or (c), as the case may be, under the Conduct, Discipline and Appeal Rules referred to hereinbefore. The benefits of the revision of pay scales shall not be applicable to those persons who were on the rolls of the Company as on 31.12.1986 but subsequently left the service of the company before the date of issue of Office Order No. 45/90 for any reason, whatsoever, including resignation except the category mentioned in clause 2.2 above. Thereby, the necessary implication is that all those who are covered and stand on the same footing are excluded except to the extent of gratuity, revision of the terminal benefits as mentioned in para 6.13 which postulates that gratuity paid or payable to employees covered under Clause 2.2 will be recalculated on the revised pay subject to the prescribed ceiling. Thus, it could be seen that the distinction has been drawn between employees who retired voluntarily under Rule 24.2 of the Conduct, Discipline and Appeal Rules or the employees who retired under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. Accordingly, the High Court was not right in directing recomputation of the compensation under Office Order No. 45 dated March 1, 1991. | 1 | 2,313 | 360 | ### Instruction:
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computation thereof has been enumerated in the scheme which reads as under: "It has been decided to introduce a Voluntary Retirement Scheme for the employees of the Company as per the enclosed copy comprising of two parts viz., Scheme `A and Scheme `B. The scheme will be in operation from 1.4.1989 for a period of three months, subject to the following further conditions:i) Scheme A shall be applicable only to the employees of Lamp Unit, Hyderabad in WG Cadre with the terms and conditions specified in Scheme A for a period of three months from 1.4.1989.ii) Scheme B shall be applicable to all the Units/Divisions (including Lamp), Business Group Directorates, other offices and Corporate Office with the terms and conditions specified in the enclosed scheme, for a period of three months from 1.8.1989.iii) The scheme does not confer any right on any employee to have his request for voluntary retirement accepted by the competent authority. Right to accept or reject the application for voluntary retirement shall entirely vest with the Company.iv) Acceptance of application for Voluntary Retirement shall depend inter alia on availability of funds in the respective Units/Divisions/Business Group Directorates, other Offices and Corporate Office.v) The eligible employees requesting for voluntary retirement, subject to acceptance of their requests by the competent authority shall be entitled to such benefits as are specified in the scheme.Such employees may be persuaded to deposit the benefits received, in the Companys Fixed Deposit Scheme.2. The existing Medical Retirement Scheme and Voluntary Retirement Scheme introduced for Hyderabad based Units of the Company shall stand discontinued with the introduction of the above Voluntary Retirement Scheme.3. The Units and areas within the Units, where the Scheme could be implemented will separately be intimated by the DPS.4. The progress of implementation of the Scheme with regard to the number of employees in each cadre and the total amount paid on account of compensation shall be reported to DPS every month." 9. For the computation of the payment of the compensation in terms of the calculation, the `Note postulates that the salary mentioned under Scheme A and B shall mean basic pay, Dearness Allowance, Interim Relief/ad hoc Relief and Personal Pay, if any, and shall be calculated on the basis of a calendar month. In other words, this contract has expressly omitted to mention the revised scale of pay from time to time. The reason would be obvious. An employee who retires on completing the age of 50 years but before the age of 58 years, is not entitled to the payment of any special component of the salary as indicated hereinbefore. On the other hand, he will be entitled only to the retiral benefits as are available under the normal Rules. If the company, in public interest, instead of giving one months notice makes payment of salary in lieu thereof then employee would be entitled to nothing more except other retiral benefits like pension, gratuity etc. The procedure in regard to the calculation of the payment of the compensation and method of computing the compensation has been provided in Para Vl; the details whereof are not material for the purpose of these cases. Para IX of the Special Scheme postulates that retirement on medical grounds in terms of clause 24.1 and voluntarily retirement in terms of clause 24.2(b) and (c) of the Conduct, Discipline and Appeal Rules of the Company shall fall outside the purview of the scheme. In other words, the special scheme excluded such of the employees who voluntarily retired under Rule 24.1 or 24.2(b) and (c) of the Conduct, Discipline and Appeal Rules of the Company. Para Xll in this behalf is more relevant wherein it says that the Chairman and Managing Director shall have power to amend, modify, alter or withdraw the above Scheme either in whole or in part, at his directions, if the circumstances so warrant. In other words, whatever components are enumerated thereunder would be binding on the parties until the Chairman and the Managing Director before acceptance amends, modifies, alters or withdraws the above scheme. 10. It is seen that the Office Order No. 45 dated March 1, 1991 provides that the revised pay scales shall be effective from 1.1.1987 and will remain in force for the period of five years upto 31.12.1991. Clause 2.2 provides that the revised pay scales shall also be applicable on a pro rata basis to those categories of employees who were on the rolls of the company as on 31. 12.1986 but have subsequently separated due to superannuation and voluntary retirement etc. Those who retired on attaining the age of 58 years or voluntarily retired under Rule 24.2(b) or (c), as the case may be, under the Conduct, Discipline and Appeal Rules referred to hereinbefore. The benefits of the revision of pay scales shall not be applicable to those persons who were on the rolls of the Company as on 31.12.1986 but subsequently left the service of the company before the date of issue of Office Order No. 45/90 for any reason, whatsoever, including resignation except the category mentioned in clause 2.2 above. Thereby, the necessary implication is that all those who are covered and stand on the same footing are excluded except to the extent of gratuity, revision of the terminal benefits as mentioned in para 6.13 which postulates that gratuity paid or payable to employees covered under Clause 2.2 will be recalculated on the revised pay subject to the prescribed ceiling. Thus, it could be seen that the distinction has been drawn between employees who retired voluntarily under Rule 24.2 of the Conduct, Discipline and Appeal Rules or the employees who retired under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. Accordingly, the High Court was not right in directing recomputation of the compensation under Office Order No. 45 dated March 1, 1991.
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10. It is seen that the Office Order No. 45 dated March 1, 1991 provides that the revised pay scales shall be effective from 1.1.1987 and will remain in force for the period of five years upto 31.12.1991. Clause 2.2 provides that the revised pay scales shall also be applicable on a pro rata basis to those categories of employees who were on the rolls of the company as on 31. 12.1986 but have subsequently separated due to superannuation and voluntary retirement etc. Those who retired on attaining the age of 58 years or voluntarily retired under Rule 24.2(b) or (c), as the case may be, under the Conduct, Discipline and Appeal Rules referred to hereinbefore. The benefits of the revision of pay scales shall not be applicable to those persons who were on the rolls of the Company as on 31.12.1986 but subsequently left the service of the company before the date of issue of Office Order No. 45/90 for any reason, whatsoever, including resignation except the category mentioned in clause 2.2 above. Thereby, the necessary implication is that all those who are covered and stand on the same footing are excluded except to the extent of gratuity, revision of the terminal benefits as mentioned in para 6.13 which postulates that gratuity paid or payable to employees covered under Clause 2.2 will be recalculated on the revised pay subject to the prescribed ceiling. Thus, it could be seen that the distinction has been drawn between employees who retired voluntarily under Rule 24.2 of the Conduct, Discipline and Appeal Rules or the employees who retired under the Special Scheme operating from time to time. The respondents having retired under the Special Scheme are not employees covered under the voluntary retirement under Rule 24.2 of the Conduct, Discipline and Appeal Rules referred to hereinbefore. Accordingly, the High Court was not right in directing recomputation of the compensation under Office Order No. 45 dated March 1, 1991.
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Yogendra Kumar Jaiswal & Others Vs. State of Bihar & Others | an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case. The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property. The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts. 159. We have at the beginning had mentioned that both the Orissa Act and the Bihar Act are almost similar and, wherever required we have adverted to the same while dealing with the Orissa Act. Barring the same, we do not find there is any distinction between the two enactments and, therefore, analysis made by us as regards the Orissa Act will apply to the Bihar Act. 160. It is significant to note here that before the High Court of Patna the validity of a Rule was assailed but the application was not pressed and the High Court has made certain observations. We intend to put the controversy to rest. Rule 12 of the 2010 Rules provides for Special Courts to follow summary procedure. Rule 12(a) and (f) read as under :- (a) On institution of a case or transfer of pending proceeding to the Special Courts, trial shall be held in summary manner. (f) The delinquent public servant shall be put on trial and shall be afforded opportunity to lead evidence in support of his defence. If the special court, on the evidence of delinquent public servant is, prima facie, satisfied that he has been able to discharge his onus, the prosecution shall be called upon to lead its evidence to prove the charges against the delinquent public servant. 161. When the Bihar Act provides to follow the warrant procedure prescribed by the Code for trial of cases before a Magistrate, the 2010 Rules could not have prescribed for summary procedure. The rules have to be in accord with the Act. The rules can supplement the provisions of the Act but decidedly they cannot supplant the same. Therefore, we declare that part of Rule 12 which lays down that the learned Special Judge shall follow summary procedure, is ultra vires the Bihar Act. 162. In view of the foregoing analysis, we proceed to summarise our conclusions :- (i) The Orissa Act is not hit by Article 199 of the Constitution. (ii) The establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution. (iii) The provisions pertaining to declaration and effect of declaration as contained in Section 5 and 6 of the Orissa Act and the Bihar Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness. (iv) The Chapter III of the both the Acts providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution. (v) The procedure provided for confiscation and the proceedings before the Authorised Officer do not cause any discomfort either to Article 14 or to Article 20(3) of the Constitution. (vi) The provision relating to appeal in both the Acts is treated as constitutional on the basis of reasoning that the power subsists with the High Court to extend the order of stay on being satisfied. (vii) The proviso to Section 18(1) of the Orissa Act does not fall foul of Article 21 of the Constitution. (viii) The provisions contained in Section 19 pertaining to refund of confiscated money or property does not suffer from any kind of unconstitutionality. (ix) Sub-rules (a) and (f) Rule 12 of the 2010 Rules being violative of the language employed in the Bihar Act are ultra vires or anything contained therein pertaining to the summary procedure is also declared as ultra vires the Bihar Act. | 0[ds]38. In our considered opinion, the authorities cited by the learned counsel for the appellants do not render much assistance, for the introduction of a bill, as has been held in Mohd. Saeed Siddiqui (supra), comes within the concept of irregularity and it does come with the realm of substantiality. What has been held in the Special Reference No. 1 of 1964 (supra) has to be appositely understood. The factual matrix therein was totally different than the case at hand as we find that the present controversy is wholly covered by the pronouncement in Mohd. Saeed Siddiqui (supra) and hence, we unhesitatingly hold that there is no merit in the submission so assiduously urged by the learned counsel for the appellants43. The present Orissa Act which specifically deals with offences under Section 13(1)(e) and provides for Special Courts for the trial of the said offences has got the assent of the President. It is to be understood that under the 1988 Act the State had the authority to appoint special Judges in respect of all the offences. Presently, one part of the offence has been carved out and after obtaining assent Special Courts have been established. In view of the fact situation, it does not violate Article 247. That apart, the language employed in Article 247 does not take away the jurisdiction of the State legislature for constitution of courtsOn a scrutiny of the judgment of the High Court, it is manifest that on behalf of the State certain communications were placed on record from which the High Court was satisfied that the assent had been properly obtained. In the course of hearing, we have also found that the entire Bill was sent for the assent with the aforesaid forwarding letter and there has been correspondence thereafter. On a perusal of the communication and the finding recorded by the High Court and keeping in view the purpose of communication and taking note of the fact that the entire Bill was sent to the President for obtaining assent, it can safely be concluded that the President was apprised of the reason when the assent was sought. The assent has been given in general terms so as to be effective for all purposes. It cannot be said that the general assent by the President was not obtained. Thus, we are of the considered opinion that the provisions of the Orissa Act are definitely not repugnant to the 1988 Act, the Code of Criminal Procedure, 1973 and the Criminal Law Amendment Ordinance, 194477. We have analysed the scheme under the Prevention ofg Act, 2002. It is clearly demonstrable that the offences under the said Act are different from an offence under the 1988 Act. The offence under the Orissa Act which has been carved out is the offence under Section 13(1)(e) of the 1988 Act and the Orissa Act provides for establishment of Special Courts and also provides for provisions pertaining to confiscation at an interim stage. The entire Prevention ofg Act, 2002, if keenly scrutinized, clearly reveals that it deals with different situations altogether; a different offence which has insegregable nexus with money laundering. True it is, in 2009 an amendment was brought incorporating the 1988 Act in Part B of the Schedule, and the said Part B has been totally deleted in 2013. In view of the same, the submission of the learned counsel for the State is that after deletion of Part B the issue has become academic. Be that as it may, Part B of the Prevention ofg Act, 2002 enumerated offences under the Indian Penal Code, The Narcotic Drugs and Psychotropic Substances Act, 1985; The Explosive Substances Act, 1908; The Unlawful Activities (Prevention) Act, 1967; The Arms Act, 1959; The Wildlife (Protection) Act, 1972; etc. There was a purpose behind the same. There could be offences under the Prevention of78. In view of the aforesaid analysis and keeping in view the law pertaining to repugnancy we have hereinbefore referred to, we are unable to accept the submission of the learned counsel for the appellants that there is repugnancy between the two Acts and the Orissa Act is invalid as no assent was obtained in respect of the Prevention ofg Act, 2002. We may hasten to clarify that we have not addressed the issue on the impact of the deletion of Part B of the Schedule in 2013 as the legislature may have deleted it in its own wisdom83. The stand of the learned counsel for the appellants is that Section 5 of the Orissa Act confers uncanalised and unfettered discretion on the State Government to make a declaration as a consequence of which the delinquent officer will have to face the prosecution in the SpecialNo guidance has been provided and in the absence of any guidance, the exercise of power would be arbitrary and the State Government is at liberty to pick and choose any person as it desires. The impugned judgment would show that the State Government had filed an affidavit on 23.7.2010 and the High Court has quoted certain paragraphs from the said affidavit. The relevant part of the affidavit shows that in the event there is prima facie evidence of the commission of an offence alleged to have been committed by a person who held high public or political office in the State of Orissa as defined under the Act and the Rules, the State Government shall mandatorily make a declaration to that effect and the State Government does not have any discretion on the subject. It has also been asserted that the role of the State Government is limited to be satisfied that the ingredients of Section 5(1) of the Special Courts Act are existent and if the ingredients of Section 5(1) of the Special Courts Act are in existence, the State Government is bound to make a declaration to that effect. Placing reliance on the said affidavit, the High Court has repelled the submission urged on behalf of the petitioners therein. We must say without any reservation that the approach of the High Court is erroneous. Constitutionality of a provision has to be tested within the constitutional parameters. An affidavit filed by an officer of the State Government cannot change the interpretation if it is textually and contextually not permissible137. In the case at hand, the entire proceeding is meant to arrive at the conclusion whether on the basis of the application preferred by the Public Prosecutor and the material brought on record, the whole or any other money or some of the property in question have been acquired illegally and further any money or property or both have been acquired by the means of the offence. After arriving at the said conclusion, the order of confiscation is passed. The order of confiscation is subject to appeal under Section 17 of the Orissa Act. That apart, it is provided under Section 19 where an order of confiscation made under Section 15 is modified or annulled by the High Court in appeal or the where the person affected is acquitted by the special court, the money or property or both shall be returned to the person affected. Thus, it is basically a confiscation which is interim in nature. Therefore, it is not a punishment as envisaged in law and hence, it is difficult to accept the submission that it is al punishment and, accordingly, we repel the said submission140. We have already held that confiscation is not a punishment and hence, Article 20(1) is not violated144. The next aspect we shall address towhether the procedure for confiscation as envisaged under Section 13 to Section 15 suffers from any lack of guidance.We have already opined that the State Government is only required to scrutinise the offence and authorises the Public Prosecutor for the purpose of filing an application for confiscation. The Public Prosecutor, as mandated under Section 13(2) is required to file an application indicating the reasons on the basis of which the State Government believes that the delinquent officer has procured the property by means of the offence. Thus, reasons have to be stated in the application and it has to be clearly averred that the property has been acquired by means of the offence as defined under the Orissa Act. The authorised officer is a judicial officer and is required to afford reasonable opportunity of hearing to the accused or any other person operating the property on his behalf. Discretion is also conferred on the authorised officer to record a finding whether all or any other money or property in question have been acquired illegally. The said authority can drop the proceedings or direct confiscation of all or some properties. Affording of a reasonable opportunity of hearing is not confined only to file affidavits. We are inclined to think that when the delinquent is entitled to furnish an explanation and also put forth his stand, he certainly can bring on record such material to sustain his explanation. Confiscation proceeding as provided under(3) of Section 15 is subject to appeal. In view of the scheme of the Orissa Act, there can be no shadow of doubt that there is ample guidance in the procedure for confiscation. It is not a proceeding where on the basis of launching of prosecution, the properties are confiscated. Therefore, the proceedings relating to confiscation cannot be regarded as violative of article 14 because conferment of unchecked power or lack of guidance145. Learned counsel for the appellants have laid emphasis on the phraseology used in Section 15(3) of the Orissa Act. The said provision stipulates that where the authorised officer records a finding under the Section that any money or property or both have been acquired, by means of the offence, he shall make a declaration subject to the provisions of the Act, then they stand confiscated to the State Government free from all encumbrances. It is submitted that once the property stands confiscated to the State Government free from all encumbrances, the right, title and interest of the person concerned is extinguished. The said submission, in our consideration, is on a very broad canvass. As the scheme of the Orissa Act would show, the confiscation is interim in nature. It does not assume the character of finality. Same is the position in Bihar Act. The accused is entitled to get return of the property or money in case he succeeds in appeal before the High Court against the order passed by the authorised officer or in the ultimate eventuality when the order of acquittal is recorded152. Tested on the aforesaid enunciation of law, it can be stated with certitude that the right conferred on an accused under Article 20(3) is not violated. We reiterate that whatever is produced before the authorised officer is not to be looked into by the trial court and neither the prosecution nor the defence can refer to the same. That is the statutory command. Therefore, the submission astutely canvassed by the learned counsel for the appellants is sans substanceCriticizing the said provision, it is urged by them that by virtue of the provision pertaining to confiscation the delinquent officer/accused is compelled to face a situation where he will be disposed from his dwelling house, the so called protection given under the proviso is an illusory one.It is argued that when the money is confiscated, it is well nigh impossible on his part to deposit the market rent to occupy even for a limitedargument, if we permit ourselves to say so, suffers from a fundamental fallacy. Under the scheme of the Orissa Act, the confiscation does not take place immediately on lodging of an. A detailed procedure has been stipulated which is contain adequate safeguards and thereafter the order is given effect to. The proviso appended to Section 18(1) of the Orissa Act is an exception to give protection to the concerned officer to remain in possession of the house where he resides for a certain period. The person concerned is given protection subject to certain terms. It is to be borne in mind that the confiscation is associated with the property accumulated from theIt is urged that though proviso gives protection, it actually mocks at Article 21 of the. We do not think so. The property is confiscated by way of an interim measure by taking recourse to law which we have held to be constitutionally valid. The submission that the man will be in the streets is an argument in frustration but not founded on reason. Be that as it may, when by determination of the authorised officer for the purpose of confiscation, the plea that he will be ousted from the dwelling house which would play foul of Article 21 of the Constitution, really does not commend acceptance. A person cannot be allowed to indulge in corruption and conceive of protection to his dwelling house after a finding is recorded in the proceeding for confiscation that it is constructed or purchased by way of corrupt means. The person concerned can satisfy the authorised officer or in appeal that the dwelling house where he is residing is acquired from his known sources of income. In such a situation, we are afraid that we cannot accept the submission advanced by the learned counsel for the appellants and, accordingly, the same stands rejected158. The language employed in Section 19 of the Orissa Act has to be appreciated regard being had to the scheme of the said Act. The legislative intent is to curb corruption at high places and requires the accused persons to face trial in the Special Court constituted under the Orissa Act in a speedier manner and also to see that the beneficiaries ofor money do not enjoy the property or money during trial. That apart, the intention is also clear that the Government should not appropriate the money or the property to itself in any manner. Confiscation, we have already opined, is done as an interim measure. The words free from all encumbrances have been given a restricted meaning by us as it follows from the language used in the Orissa Act. Section 19 clearly lays down return of the confiscated money or property or both. It conceives of three situations, namely, modification of the order of confiscation, or annulment of confiscation, or the eventual acquittal. In these conditions, the money or property or both are required to be returned. The words, which we have underlined in Section 19, seem to us, cannot be conferred a wide meaning. They cannot be allowed to convey that the State will not return the property. The key words are in case it is not possible and for any reason. It will be an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case.The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property.The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts. | 0 | 47,343 | 3,145 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case. The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property. The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts. 159. We have at the beginning had mentioned that both the Orissa Act and the Bihar Act are almost similar and, wherever required we have adverted to the same while dealing with the Orissa Act. Barring the same, we do not find there is any distinction between the two enactments and, therefore, analysis made by us as regards the Orissa Act will apply to the Bihar Act. 160. It is significant to note here that before the High Court of Patna the validity of a Rule was assailed but the application was not pressed and the High Court has made certain observations. We intend to put the controversy to rest. Rule 12 of the 2010 Rules provides for Special Courts to follow summary procedure. Rule 12(a) and (f) read as under :- (a) On institution of a case or transfer of pending proceeding to the Special Courts, trial shall be held in summary manner. (f) The delinquent public servant shall be put on trial and shall be afforded opportunity to lead evidence in support of his defence. If the special court, on the evidence of delinquent public servant is, prima facie, satisfied that he has been able to discharge his onus, the prosecution shall be called upon to lead its evidence to prove the charges against the delinquent public servant. 161. When the Bihar Act provides to follow the warrant procedure prescribed by the Code for trial of cases before a Magistrate, the 2010 Rules could not have prescribed for summary procedure. The rules have to be in accord with the Act. The rules can supplement the provisions of the Act but decidedly they cannot supplant the same. Therefore, we declare that part of Rule 12 which lays down that the learned Special Judge shall follow summary procedure, is ultra vires the Bihar Act. 162. In view of the foregoing analysis, we proceed to summarise our conclusions :- (i) The Orissa Act is not hit by Article 199 of the Constitution. (ii) The establishment of Special Courts under the Orissa Act as well as the Bihar Act is not violative of Article 247 of the Constitution. (iii) The provisions pertaining to declaration and effect of declaration as contained in Section 5 and 6 of the Orissa Act and the Bihar Act are constitutionally valid as they do not suffer from any unreasonableness or vagueness. (iv) The Chapter III of the both the Acts providing for confiscation of property or money or both neither violates Article 14 nor Article 20(1) nor Article 21 of the Constitution. (v) The procedure provided for confiscation and the proceedings before the Authorised Officer do not cause any discomfort either to Article 14 or to Article 20(3) of the Constitution. (vi) The provision relating to appeal in both the Acts is treated as constitutional on the basis of reasoning that the power subsists with the High Court to extend the order of stay on being satisfied. (vii) The proviso to Section 18(1) of the Orissa Act does not fall foul of Article 21 of the Constitution. (viii) The provisions contained in Section 19 pertaining to refund of confiscated money or property does not suffer from any kind of unconstitutionality. (ix) Sub-rules (a) and (f) Rule 12 of the 2010 Rules being violative of the language employed in the Bihar Act are ultra vires or anything contained therein pertaining to the summary procedure is also declared as ultra vires the Bihar Act.
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the so called protection given under the proviso is an illusory one.It is argued that when the money is confiscated, it is well nigh impossible on his part to deposit the market rent to occupy even for a limitedargument, if we permit ourselves to say so, suffers from a fundamental fallacy. Under the scheme of the Orissa Act, the confiscation does not take place immediately on lodging of an. A detailed procedure has been stipulated which is contain adequate safeguards and thereafter the order is given effect to. The proviso appended to Section 18(1) of the Orissa Act is an exception to give protection to the concerned officer to remain in possession of the house where he resides for a certain period. The person concerned is given protection subject to certain terms. It is to be borne in mind that the confiscation is associated with the property accumulated from theIt is urged that though proviso gives protection, it actually mocks at Article 21 of the. We do not think so. The property is confiscated by way of an interim measure by taking recourse to law which we have held to be constitutionally valid. The submission that the man will be in the streets is an argument in frustration but not founded on reason. Be that as it may, when by determination of the authorised officer for the purpose of confiscation, the plea that he will be ousted from the dwelling house which would play foul of Article 21 of the Constitution, really does not commend acceptance. A person cannot be allowed to indulge in corruption and conceive of protection to his dwelling house after a finding is recorded in the proceeding for confiscation that it is constructed or purchased by way of corrupt means. The person concerned can satisfy the authorised officer or in appeal that the dwelling house where he is residing is acquired from his known sources of income. In such a situation, we are afraid that we cannot accept the submission advanced by the learned counsel for the appellants and, accordingly, the same stands rejected158. The language employed in Section 19 of the Orissa Act has to be appreciated regard being had to the scheme of the said Act. The legislative intent is to curb corruption at high places and requires the accused persons to face trial in the Special Court constituted under the Orissa Act in a speedier manner and also to see that the beneficiaries ofor money do not enjoy the property or money during trial. That apart, the intention is also clear that the Government should not appropriate the money or the property to itself in any manner. Confiscation, we have already opined, is done as an interim measure. The words free from all encumbrances have been given a restricted meaning by us as it follows from the language used in the Orissa Act. Section 19 clearly lays down return of the confiscated money or property or both. It conceives of three situations, namely, modification of the order of confiscation, or annulment of confiscation, or the eventual acquittal. In these conditions, the money or property or both are required to be returned. The words, which we have underlined in Section 19, seem to us, cannot be conferred a wide meaning. They cannot be allowed to convey that the State will not return the property. The key words are in case it is not possible and for any reason. It will be an assumption to think that for any reason would mean any kind of subjective reason. In certain statutes or enactments the words for any reason can be attributed a wide meaning to subserve the legislative purpose. The term possible, in our considered opinion, may not be given the stature or status of impossible, which is absolute in its connotation, but the word possible, as we perceive, in itself contains certain concept of reason. The reason ascribed by the State has to withstand scrutiny in the strict sense. As indicated before, it may not be conceived in absolute terms like the word impossible, for law does not countenance an impossible thing to be done. Therefore, the construction that is required to be placed on this provision is that the State must clearly demonstrate that it has a real and acceptable reason and hence, it is not possible not to return the money or property or both. Such an interpretation shall save the provision from the vice of unconstitutionality. We think so as there may be situations where it may not be possible on the part of the State to return the property. No illustration need be given because it would depend upon facts of each case.The argument by the appellants is that in such a situation the payment of value determined and the rate of interest provided in the provision is absolutely irrational and the State can appropriate the property.The aforesaid submission, though on a first blush, may look quite attractive, but on a deeper scrutiny, is bound to melt into insignificance. It is to be remembered that the proceeding is initiated for confiscation in respect of the property acquired by the offence as described under the Act. It is done on the basis of certain material brought on record. Ultimately the proceedings may not be successful but if it is not possible to return the property the State cannot be asked to compensate more than what the legislature has thought to be appropriate. It cannot be equated with acquisition. The entire proceeding is initiated regard being had to the rampant corruption at high places in the present day society. Therefore, to think that submission that there has to be adequate compensation would be against the larger public interest. Thus understood, the challenge to the provision on the backdrop of Article 300A has to be treated as unacceptable and we do so. We may hasten to add that any order passed under this provision is always subject to judicial review by the superior courts.
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Glaxo Smithkline Pharmaceuticals Ltd. and Ors Vs. Union of India (UOI) and Ors | drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished. 26. The contention of the learned Additional Solicitor General that the drug could be manufactured up to 31/10/1999 but on and from 1/11/1999 it could be sold only at the price specified in the Order, in our opinion, cannot be accepted. If the first Respondent was entitled to avail the benefit of the exemption notification till the midnight of 31-10-1999, some time would be necessary for it to market the same. There must be some time-lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer. 27. The court while construing an exemption notification cannot lose sight of the ground realities including the process of marketing and sale. The exemption order dated 29-8-1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the Company and the area of exemption is from the operation of the price control. They have a direct nexus. They are correlated with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is dispatched to the distributor. The distributor may dispatch it to the wholesaler. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in the light of the object and purport of the Act. Thus, the decisions relied upon by the learned Additional Solicitor General in Union of India v. Cynamide India Ltd.; Brag Ice & Oil Mills v. Union of India, Shree Meenakshi Mills Ltd. v. Union of India and Panipat Coop. Sugar Mills v. Union of India will have no application. 28. It is true that the 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufactured drug. 29. Not only in terms of the Essential Commodities Act, 1955 but also under various others, for example, Customs and Central Excise Act and the Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramanium that the first Respondent was bound not only to manufacture but also to sell at a price up to 31-10-1999 is correct, the same in our opinion would lead to an absurdity. Such an anomaly and absurdity must be avoided. 12. Not to be deterred by the plain language of the aforesaid judgment, Shri Mukherjee referred us to a later judgment in the Glaxosmithkline case, referred to hereinabove. The issue in that case concerns a price notification issued under the later DPCO of 1995. In the course of arguments, counsel for the Appellants relied upon the Ranbaxy Laboratories case, in order to buttress his submission on the facts of that case. However, the Court distinguished the Ranbaxy judgment in paragraph-60 thereof as follows: 60. The issue before us is quite different and, in our view, the judgment of this Court in Ranbaxy Laboratories does not apply to the present controversy for more than one reason. First, in Ranbaxy Laboratories, the Court was concerned with the exemption notification issued under Para 25 of the 1995 DPCO whereas in the present matters, the issue centres around Paras 14, 16 and 19 of that DPCO. Second, the notification under consideration in Ranbaxy Laboratories was an exemption notification and not a notification for fixation of price. Third, the exemption notification is relatable to the manufacturer of the drugs whereas price fixation notification is related to sale of drug/formulation at a given price. 13. It can be seen that the issue that arose in the Glaxosmithkline case was completely different from the issue that arose in Ranbaxys case and the present case. Ranbaxys case and the present case are directly concerned only with an exemption notification, and not a notification for fixation of price. Also, what is relevant for an exemption notification is the manufacture of drugs, whereas what is relevant for a price fixation notification relates to sale and not manufacture. Obviously, therefore, the Glaxosmithkline decision would have no relevance to the facts of the present case. Coming to Shri Mukherjees arguments based on paragraph 16(3) of the DPCO of 1987, we first set out the said provision: 16(3)-Every manufacturer or importer shall give effect to the price of a bulk drug or formulation, as the case may be, as fixed by the government from time to time within 15 days from the receipt by such manufacturer or importer of the communication in this behalf from the government and issue a supplementary price list in this regard to the dealers, state drugs controllers and the government and indicate necessary reference to such price fixation. 14. Shri Mukherjee has based his argument on the fact that there cannot be two prices for the same bulk drugs or formulation, which is why the period of 15 days is mentioned in paragraph 16(3) so that one price may be fixed by the Government for each bulk drug and formulation from time to time. This argument also need not deter us, for the simple reason that there will only be one price that is fixed for all goods that are manufactured by the Appellant up to 31st December, 1994, and that price will be a price unilaterally determined by the Appellant and will not be fixed under the DPCO. | 1[ds]8. Having heard learned Counsel for the parties, the point with which we are concerned is in a very narrow compass. If paragraph 28, which is set out hereinabove; is perused, it is clear that the exemption relates to drug manufacturing units or classes of such units. The very exemption order which has also been set out by us (supra) again refers only to bulk drugs and formulations based thereupon which are "manufactured" by the company. Further, a reading of the guidelines of 1989 also makes it clear that the exemption only relates to manufacture and has no reference to sale whatsoever9. It will be noticed that the reference is to the date of commencement of commercial production of a bulk drug which has reference to manufacture alone. However, Shri Mukherjee, referred us to Sub-clause (viii) of the aforesaid guidelines in order to argue that after the expiry of the period of exemption, the manufacturer has to submit an application for fixation of the price of a bulk drug under the provisions of the DPCO10. Sub-clause (viii) cannot be read in isolation but must be read as a part of the entire scheme of the guidelines. All that Sub-clause (viii) says is that after the period of exemption, which is after the period which has reference to manufacture and not sale of goods, such goods as are manufactured after the exemption will be subject to the drill of Sub-clause (viii). Read in this light, we do not find any difficulty in rejecting Shri Mukherjees arguments based on this sub-clause11. We are of the view that the matter is no longer res-Integra. In Ranbaxys case, cited by Shri Ganesh, the relevant exemption provision under the DPCO of 1995, referred to in paragraph 19 of the judgment, is almost a verbatim reproduction of the earlier exemption provision i.e. paragraph No. 28 of the DPCO of 1987, with which we are directly concerned13. It can be seen that the issue that arose in the Glaxosmithkline case was completely different from the issue that arose in Ranbaxys case and the present case. Ranbaxys case and the present case are directly concerned only with an exemption notification, and not a notification for fixation of price. Also, what is relevant for an exemption notification is the manufacture of drugs, whereas what is relevant for a price fixation notification relates to sale and not manufacture. Obviously, therefore, the Glaxosmithkline decision would have no relevance to the facts of the present casehis argument also need not deter us, for the simple reason that there will only be one price that is fixed for all goods that are manufactured by the Appellant up to 31st December, 1994, and that price will be a price unilaterally determined by the Appellant and will not be fixed under the DPCO. | 1 | 3,279 | 527 | ### 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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drug as also the maximum price which can be charged have direct relation with manufacture and also the date thereof. The wrapper/foil/containers in which the drug is marketed contains several informations for the general public; one of them being the date of manufacture and the retail price. Various other informations are also required to be furnished. 26. The contention of the learned Additional Solicitor General that the drug could be manufactured up to 31/10/1999 but on and from 1/11/1999 it could be sold only at the price specified in the Order, in our opinion, cannot be accepted. If the first Respondent was entitled to avail the benefit of the exemption notification till the midnight of 31-10-1999, some time would be necessary for it to market the same. There must be some time-lag between the period the drug is manufactured and the actual sale by a retail dealer to the customer. 27. The court while construing an exemption notification cannot lose sight of the ground realities including the process of marketing and sale. The exemption order dated 29-8-1995 is clear and unambiguous. By reason thereof what has been exempted is the drug which was manufactured by the Company and the area of exemption is from the operation of the price control. They have a direct nexus. They are correlated with each other. While construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is dispatched to the distributor. The distributor may dispatch it to the wholesaler. A few others may deal with the same before it reaches the hands of the retailer. The manufacturer cannot supervise or oversee as to how others would be dealing with its product. All statutes have to be considered in the light of the object and purport of the Act. Thus, the decisions relied upon by the learned Additional Solicitor General in Union of India v. Cynamide India Ltd.; Brag Ice & Oil Mills v. Union of India, Shree Meenakshi Mills Ltd. v. Union of India and Panipat Coop. Sugar Mills v. Union of India will have no application. 28. It is true that the 1995 Order was to control the price and not the manufacture. But there cannot be any doubt that the price is that of a manufactured drug. 29. Not only in terms of the Essential Commodities Act, 1955 but also under various others, for example, Customs and Central Excise Act and the Weights and Measures Act (if applicable) several informations are required to be furnished. If the submission of Mr. Gopal Subramanium that the first Respondent was bound not only to manufacture but also to sell at a price up to 31-10-1999 is correct, the same in our opinion would lead to an absurdity. Such an anomaly and absurdity must be avoided. 12. Not to be deterred by the plain language of the aforesaid judgment, Shri Mukherjee referred us to a later judgment in the Glaxosmithkline case, referred to hereinabove. The issue in that case concerns a price notification issued under the later DPCO of 1995. In the course of arguments, counsel for the Appellants relied upon the Ranbaxy Laboratories case, in order to buttress his submission on the facts of that case. However, the Court distinguished the Ranbaxy judgment in paragraph-60 thereof as follows: 60. The issue before us is quite different and, in our view, the judgment of this Court in Ranbaxy Laboratories does not apply to the present controversy for more than one reason. First, in Ranbaxy Laboratories, the Court was concerned with the exemption notification issued under Para 25 of the 1995 DPCO whereas in the present matters, the issue centres around Paras 14, 16 and 19 of that DPCO. Second, the notification under consideration in Ranbaxy Laboratories was an exemption notification and not a notification for fixation of price. Third, the exemption notification is relatable to the manufacturer of the drugs whereas price fixation notification is related to sale of drug/formulation at a given price. 13. It can be seen that the issue that arose in the Glaxosmithkline case was completely different from the issue that arose in Ranbaxys case and the present case. Ranbaxys case and the present case are directly concerned only with an exemption notification, and not a notification for fixation of price. Also, what is relevant for an exemption notification is the manufacture of drugs, whereas what is relevant for a price fixation notification relates to sale and not manufacture. Obviously, therefore, the Glaxosmithkline decision would have no relevance to the facts of the present case. Coming to Shri Mukherjees arguments based on paragraph 16(3) of the DPCO of 1987, we first set out the said provision: 16(3)-Every manufacturer or importer shall give effect to the price of a bulk drug or formulation, as the case may be, as fixed by the government from time to time within 15 days from the receipt by such manufacturer or importer of the communication in this behalf from the government and issue a supplementary price list in this regard to the dealers, state drugs controllers and the government and indicate necessary reference to such price fixation. 14. Shri Mukherjee has based his argument on the fact that there cannot be two prices for the same bulk drugs or formulation, which is why the period of 15 days is mentioned in paragraph 16(3) so that one price may be fixed by the Government for each bulk drug and formulation from time to time. This argument also need not deter us, for the simple reason that there will only be one price that is fixed for all goods that are manufactured by the Appellant up to 31st December, 1994, and that price will be a price unilaterally determined by the Appellant and will not be fixed under the DPCO.
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8. Having heard learned Counsel for the parties, the point with which we are concerned is in a very narrow compass. If paragraph 28, which is set out hereinabove; is perused, it is clear that the exemption relates to drug manufacturing units or classes of such units. The very exemption order which has also been set out by us (supra) again refers only to bulk drugs and formulations based thereupon which are "manufactured" by the company. Further, a reading of the guidelines of 1989 also makes it clear that the exemption only relates to manufacture and has no reference to sale whatsoever9. It will be noticed that the reference is to the date of commencement of commercial production of a bulk drug which has reference to manufacture alone. However, Shri Mukherjee, referred us to Sub-clause (viii) of the aforesaid guidelines in order to argue that after the expiry of the period of exemption, the manufacturer has to submit an application for fixation of the price of a bulk drug under the provisions of the DPCO10. Sub-clause (viii) cannot be read in isolation but must be read as a part of the entire scheme of the guidelines. All that Sub-clause (viii) says is that after the period of exemption, which is after the period which has reference to manufacture and not sale of goods, such goods as are manufactured after the exemption will be subject to the drill of Sub-clause (viii). Read in this light, we do not find any difficulty in rejecting Shri Mukherjees arguments based on this sub-clause11. We are of the view that the matter is no longer res-Integra. In Ranbaxys case, cited by Shri Ganesh, the relevant exemption provision under the DPCO of 1995, referred to in paragraph 19 of the judgment, is almost a verbatim reproduction of the earlier exemption provision i.e. paragraph No. 28 of the DPCO of 1987, with which we are directly concerned13. It can be seen that the issue that arose in the Glaxosmithkline case was completely different from the issue that arose in Ranbaxys case and the present case. Ranbaxys case and the present case are directly concerned only with an exemption notification, and not a notification for fixation of price. Also, what is relevant for an exemption notification is the manufacture of drugs, whereas what is relevant for a price fixation notification relates to sale and not manufacture. Obviously, therefore, the Glaxosmithkline decision would have no relevance to the facts of the present casehis argument also need not deter us, for the simple reason that there will only be one price that is fixed for all goods that are manufactured by the Appellant up to 31st December, 1994, and that price will be a price unilaterally determined by the Appellant and will not be fixed under the DPCO.
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Alok Kaushik Vs. Mrs Bhuvaneshwari Ramanathan and Others | professional and the expenses shall constitute insolvency resolution process costs. Explanation.– For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 16. Where an application for withdrawal is filed under Section 12A of the IBC, a provision has been made in Regulation 30A(7) in regard to the deposit of expenses. Regulation 30A(7) provides as follows: 30A . Withdrawal of application. […] (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. 17. Clause 2 of Regulation 30A, which is referred to in clause 7, is as follows: (2) The application under sub-regulation (1) shall be made in formFA of the Schedule accompanied by a bank guarantee– (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of subregulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of subregulation (1). 18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms: 71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. (emphasis supplied) 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority. 20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs. | 1[ds]18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms:71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority.20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs. | 1 | 2,785 | 793 | ### 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:
professional and the expenses shall constitute insolvency resolution process costs. Explanation.– For the purposes of this regulation, expenses include the fee to be paid to the resolution professional, fee to be paid to insolvency professional entity, if any, and fee to be paid to professionals, if any, and other expenses to be incurred by the resolution professional. 16. Where an application for withdrawal is filed under Section 12A of the IBC, a provision has been made in Regulation 30A(7) in regard to the deposit of expenses. Regulation 30A(7) provides as follows: 30A . Withdrawal of application. […] (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code. 17. Clause 2 of Regulation 30A, which is referred to in clause 7, is as follows: (2) The application under sub-regulation (1) shall be made in formFA of the Schedule accompanied by a bank guarantee– (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of subregulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of subregulation (1). 18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms: 71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist. (emphasis supplied) 19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority. 20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs.
### Response:
1
### Explanation:
18. Regulation 30(A) would not apply specifically to the present situation, since it deals with a case where an application is withdrawn under Section 12A of the IBC. The appellant is justified in contending that there must be a forum within the ambit and purview of the IBC which has the jurisdiction to make a determination on a claim of the present nature, which has been instituted by a valuer who was appointed in pursuance of the initiation of the CIRP by the RP. After the NCLAT set aside the CIRP and remitted the proceedings to the NCLT to decide on the CIRP costs, the NCLT held that it was rendered functus officio in relation to the appellants claim. This, in our view, would be an incorrect reading of the jurisdiction of the NCLT as an Adjudicating Authority under the IBC. In a recent judgment in Gujarat Urja Vikas Nigam Limited vs Amit Gupta and Others 2021 SCC OnLine SC 194, this Court clarified the jurisdiction of the NCLT/NCLAT under Section 60(5)(c) of the IBC in the following terms:71. The institutional framework under the IBC contemplated the establishment of a single forum to deal with matters of insolvency, which were distributed earlier across multiple fora…Therefore, considering the text of Section 60(5)(c) and the interpretation of similar provisions in other insolvency related statutes, NCLT has jurisdiction to adjudicate disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor. However, in doing do, we issue a note of caution to the NCLT and NCLAT to ensure that they do not usurp the legitimate jurisdiction of other courts, tribunals and fora when the dispute is one which does not arise solely from or relate to the insolvency of the Corporate Debtor. The nexus with the insolvency of the Corporate Debtor must exist19. Though the CIRP was set aside later, the claim of the appellant as registered valuer related to the period when he was discharging his functions as a registered valuer appointed as an incident of the CIRP. The NCLT would have been justified in exercising its jurisdiction under Section 60(5)(c) of the IBC and, in exercise of our jurisdiction under Article 142 of the Constitution, we accordingly order and direct that in a situation such as the present case, the Adjudicating Authority is sufficiently empowered under Section 60(5)(c) of the IBC to make a determination of the amount which is payable to an expert valuer as an intrinsic part of the CIRP costs. Regulation 34 of the IRP Regulations defines insolvency resolution process cost to include the fees of other professionals appointed by the RP. Whether any work has been done as claimed and if so, the nature of the work done by the valuer is something which need not detain this Court, since it is purely a factual matter to be assessed by the Adjudicating Authority.20. The NCLT in its order dated 29 June 2020, while dismissing the application of the appellant for the payment of fees, observed that the Insolvency and Bankruptcy Board of India (IBBI) is the competent authority to deal with allegations against the RP relating to their failure to discharge statutory duties (paragraph 7). Section 217 of the IBC empowers a person aggrieved by the functioning of an RP to file a complaint to the IBBI. If the IBBI believes on the receipt of the complaint that any RP has contravened the provisions of IBC, or the rules, regulations or directions issued by the IBBI, it can, under Section 218 of the IBC, direct an inspection or investigation. Under Section 220 of the IBC, IBBI can constitute a disciplinary committee to consider the report submitted by the investigating authority. If the disciplinary committee is satisfied that sufficient cause exists, it can impose a penalty. The availability of a grievance redressal mechanism under the IBC against an insolvency professional does not divest the NCLT of its jurisdiction under Section 60(5)(c) of the IBC to consider the amount payable to the appellant. In any event, the purpose of such a grievance redressal mechanism is to penalize errant conduct of the RP and not to determine the claims of other professionals which form part of the CIRP costs.
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Lajwanti Vs. Lal Chand And Ors | the Act did not apply to involuntary dismantling of factories and that the issue raised by the Subordinate Judge in this connection did not arise but in fact it had been decided against the landlord by the High Court in Revision. According to him, the order of the High Court went to show that S. 3 of Act XX of 1948 covered delivery of possession even in execution of the order of the Rent Controller for otherwise the revision application would have been accepted by him straightway. In the result he dismissed the execution petition. 9. The appellant went up in Second Appeal to the High Court at Chandigarh. A single Judge of that Court dismissed the appeal. The decree-holder filed a Letters Patent Appeal. Although of the view that delivery of possession was not barred in execution of the decree by Act XX of 1948, the Division Bench concluded that so far as the parties before it were concerned, the matter had become res judicata in consequence of the decisions of the executing court and the first appellate court on the first execution application and the decision of a single Judge in revision on the previous occasion in the second execution application. S. 3, sub-s- (1) of East Punjab Act XX of 1948 provides as follows:"No person shall, without the written permission of the State Government or of an officer authorised in this behalf by the State Government, dismantle any factory or remove from a factory any spare parts kept for maintaining the machinery of the factory in order." The Act which contains only eight sections makes no reference to any decree for possession against the owner of a factory. By ordering delivery of possession of the premises, the executing court does not make an order for dismantling a factory and a bailiff charged with execution of a warrant for possession does not infringe the above provision of law by rendering possession of the property to the decree-holder. So far as the judgment-debtor, the owner of the factory, is concerned it would be his look-out to take the matter up with the State Government if necessary, and we have no doubt that in a case like this where there is no collusion between the decree-holder and the judgment-debtors the State Government would not prosecute the judgment-debators or refuse to accord sanction to the judgment-debtors for removal of the machinery from the premises of which they could not lawfully continue in possession. 10. It appears that the Subordinate Judge, the District Judge and the Judges of the Punjab High Court were all of the view that the Act did not bar the delivery of possession in execution of a decree. 11. In our opinion there was no final order about the inexecutability of the decree on the first application for execution which was consigned to the record room by order dated July 25, 1953. Further, the judgment of the learned single judge of the Punjab High Court dated July 13, 1955 did not decide the question as to whether the decree for possession would be inexecutable in view of Act XX of 1948. He stated expressly that it was not possible for him to decide whether the execution of the decree would defeat the provisions of S. 3 of Punjab Act XX o 1948 and being unable to come to a decision on the record he remanded the matter to the court of execution. He found himself unable to interpret the section on the evidence before him. The proceedings subsequent to the remand order culminated in the order of the Division Bench from which the present appeal arises. The order dated July 13, 1955 was not a final order which put a seal on the proceedings. 12. The course of litigation subsequent to the order for eviction in 1950 is truly amazing. For 17 years the decree-holder has been unable to reap the fruits of the decree although practically all the courts felt that the Act of 1948 could not be called in aid by the judgment-debtors to resist execution by delivery of possession. We cannot but condemn in very strong terms the attitude of the judgment-debtors who to say the least, are persons who have little regard for sanctity of their own solemn promise made before a court of law. On June 29, 1950 in Miscellaneous Civil Appeal No. 89 of 1950 they stated on oath that they had reached an agreement with the landlord that they would "remain on the premises only up till 31st March 1951 when they would of their own accord vacate the premises" and on their failure to do so the landlord would be entitled to take out execution against them. Even before the time to vacate the premises came one of the judgment debtors filed a suit for a perpetual injunction to restrain the decree-holder from obtaining possession in terms of the consent order of 29th June,1950. The suit was dismissed on July 11, 1951. The judgment-debtors also most the appeal filed against that dismissal. At every step and turn for nearly two decades they have successfully resisted delivery of possession by raising an illusory plea. 13. Learned counsel for the respondents argued that even now his clients can urge the plea that the decree was not executable because of the provisions of Act XX of 1948. According to him, the agreement was in contravention of statute and the respondents could not be estopped from pleading or proving facts which would render the agreement void. His case was that Act XX of 1948 being in force on June 29, 1950 any agreement arrived at between the parties in contravention of its provisions would not be binding on the parties. No exception can be taken to the broad proposition of law but no question of estoppel ever arose in this case because Act XX of 1948 did not operate as a bar to the delivery of possession of premises in execution of a decree. | 1[ds]11. In our opinion there was no final order about the inexecutability of the decree on the first application for execution which was consigned to the record room by order dated July 25, 1953. Further, the judgment of the learned single judge of the Punjab High Court dated July 13, 1955 did not decide the question as to whether the decree for possession would be inexecutable in view of Act XX of 1948. He stated expressly that it was not possible for him to decide whether the execution of the decree would defeat the provisions of S. 3 of Punjab Act XX o 1948 and being unable to come to a decision on the record he remanded the matter to the court of execution. He found himself unable to interpret the section on the evidence before him. The proceedings subsequent to the remand order culminated in the order of the Division Bench from which the present appeal arises. The order dated July 13, 1955 was not a final order which put a seal on the proceedings12. The course of litigation subsequent to the order for eviction in 1950 is truly amazing. For 17 years the decree-holder has been unable to reap the fruits of the decree although practically all the courts felt that the Act of 1948 could not be called in aid by the judgment-debtors to resist execution by delivery of possession. We cannot but condemn in very strong terms the attitude of the judgment-debtors who to say the least, are persons who have little regard for sanctity of their own solemn promise made before a court of law. On June 29, 1950 in Miscellaneous Civil Appeal No. 89 of 1950 they stated on oath that they had reached an agreement with the landlord that they would "remain on the premises only up till 31st March 1951 when they would of their own accord vacate the premises" and on their failure to do so the landlord would be entitled to take out execution against them. Even before the time to vacate the premises came one of the judgment debtors filed a suit for a perpetual injunction to restrain the decree-holder from obtaining possession in terms of the consent order of 29th June,1950. The suit was dismissed on July 11, 1951. The judgment-debtors also most the appeal filed against that dismissal. At every step and turn for nearly two decades they have successfully resisted delivery of possession by raising an illusory plea13. Learned counsel for the respondents argued that even now his clients can urge the plea that the decree was not executable because of the provisions of Act XX of 1948. According to him, the agreement was in contravention of statute and the respondents could not be estopped from pleading or proving facts which would render the agreement void. His case was that Act XX of 1948 being in force on June 29, 1950 any agreement arrived at between the parties in contravention of its provisions would not be binding on the parties. No exception can be taken to the broad proposition of law but no question of estoppel ever arose in this case because Act XX of 1948 did not operate as a bar to the delivery of possession of premises in execution of a decree. | 1 | 2,185 | 584 | ### 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 did not apply to involuntary dismantling of factories and that the issue raised by the Subordinate Judge in this connection did not arise but in fact it had been decided against the landlord by the High Court in Revision. According to him, the order of the High Court went to show that S. 3 of Act XX of 1948 covered delivery of possession even in execution of the order of the Rent Controller for otherwise the revision application would have been accepted by him straightway. In the result he dismissed the execution petition. 9. The appellant went up in Second Appeal to the High Court at Chandigarh. A single Judge of that Court dismissed the appeal. The decree-holder filed a Letters Patent Appeal. Although of the view that delivery of possession was not barred in execution of the decree by Act XX of 1948, the Division Bench concluded that so far as the parties before it were concerned, the matter had become res judicata in consequence of the decisions of the executing court and the first appellate court on the first execution application and the decision of a single Judge in revision on the previous occasion in the second execution application. S. 3, sub-s- (1) of East Punjab Act XX of 1948 provides as follows:"No person shall, without the written permission of the State Government or of an officer authorised in this behalf by the State Government, dismantle any factory or remove from a factory any spare parts kept for maintaining the machinery of the factory in order." The Act which contains only eight sections makes no reference to any decree for possession against the owner of a factory. By ordering delivery of possession of the premises, the executing court does not make an order for dismantling a factory and a bailiff charged with execution of a warrant for possession does not infringe the above provision of law by rendering possession of the property to the decree-holder. So far as the judgment-debtor, the owner of the factory, is concerned it would be his look-out to take the matter up with the State Government if necessary, and we have no doubt that in a case like this where there is no collusion between the decree-holder and the judgment-debtors the State Government would not prosecute the judgment-debators or refuse to accord sanction to the judgment-debtors for removal of the machinery from the premises of which they could not lawfully continue in possession. 10. It appears that the Subordinate Judge, the District Judge and the Judges of the Punjab High Court were all of the view that the Act did not bar the delivery of possession in execution of a decree. 11. In our opinion there was no final order about the inexecutability of the decree on the first application for execution which was consigned to the record room by order dated July 25, 1953. Further, the judgment of the learned single judge of the Punjab High Court dated July 13, 1955 did not decide the question as to whether the decree for possession would be inexecutable in view of Act XX of 1948. He stated expressly that it was not possible for him to decide whether the execution of the decree would defeat the provisions of S. 3 of Punjab Act XX o 1948 and being unable to come to a decision on the record he remanded the matter to the court of execution. He found himself unable to interpret the section on the evidence before him. The proceedings subsequent to the remand order culminated in the order of the Division Bench from which the present appeal arises. The order dated July 13, 1955 was not a final order which put a seal on the proceedings. 12. The course of litigation subsequent to the order for eviction in 1950 is truly amazing. For 17 years the decree-holder has been unable to reap the fruits of the decree although practically all the courts felt that the Act of 1948 could not be called in aid by the judgment-debtors to resist execution by delivery of possession. We cannot but condemn in very strong terms the attitude of the judgment-debtors who to say the least, are persons who have little regard for sanctity of their own solemn promise made before a court of law. On June 29, 1950 in Miscellaneous Civil Appeal No. 89 of 1950 they stated on oath that they had reached an agreement with the landlord that they would "remain on the premises only up till 31st March 1951 when they would of their own accord vacate the premises" and on their failure to do so the landlord would be entitled to take out execution against them. Even before the time to vacate the premises came one of the judgment debtors filed a suit for a perpetual injunction to restrain the decree-holder from obtaining possession in terms of the consent order of 29th June,1950. The suit was dismissed on July 11, 1951. The judgment-debtors also most the appeal filed against that dismissal. At every step and turn for nearly two decades they have successfully resisted delivery of possession by raising an illusory plea. 13. Learned counsel for the respondents argued that even now his clients can urge the plea that the decree was not executable because of the provisions of Act XX of 1948. According to him, the agreement was in contravention of statute and the respondents could not be estopped from pleading or proving facts which would render the agreement void. His case was that Act XX of 1948 being in force on June 29, 1950 any agreement arrived at between the parties in contravention of its provisions would not be binding on the parties. No exception can be taken to the broad proposition of law but no question of estoppel ever arose in this case because Act XX of 1948 did not operate as a bar to the delivery of possession of premises in execution of a decree.
### Response:
1
### Explanation:
11. In our opinion there was no final order about the inexecutability of the decree on the first application for execution which was consigned to the record room by order dated July 25, 1953. Further, the judgment of the learned single judge of the Punjab High Court dated July 13, 1955 did not decide the question as to whether the decree for possession would be inexecutable in view of Act XX of 1948. He stated expressly that it was not possible for him to decide whether the execution of the decree would defeat the provisions of S. 3 of Punjab Act XX o 1948 and being unable to come to a decision on the record he remanded the matter to the court of execution. He found himself unable to interpret the section on the evidence before him. The proceedings subsequent to the remand order culminated in the order of the Division Bench from which the present appeal arises. The order dated July 13, 1955 was not a final order which put a seal on the proceedings12. The course of litigation subsequent to the order for eviction in 1950 is truly amazing. For 17 years the decree-holder has been unable to reap the fruits of the decree although practically all the courts felt that the Act of 1948 could not be called in aid by the judgment-debtors to resist execution by delivery of possession. We cannot but condemn in very strong terms the attitude of the judgment-debtors who to say the least, are persons who have little regard for sanctity of their own solemn promise made before a court of law. On June 29, 1950 in Miscellaneous Civil Appeal No. 89 of 1950 they stated on oath that they had reached an agreement with the landlord that they would "remain on the premises only up till 31st March 1951 when they would of their own accord vacate the premises" and on their failure to do so the landlord would be entitled to take out execution against them. Even before the time to vacate the premises came one of the judgment debtors filed a suit for a perpetual injunction to restrain the decree-holder from obtaining possession in terms of the consent order of 29th June,1950. The suit was dismissed on July 11, 1951. The judgment-debtors also most the appeal filed against that dismissal. At every step and turn for nearly two decades they have successfully resisted delivery of possession by raising an illusory plea13. Learned counsel for the respondents argued that even now his clients can urge the plea that the decree was not executable because of the provisions of Act XX of 1948. According to him, the agreement was in contravention of statute and the respondents could not be estopped from pleading or proving facts which would render the agreement void. His case was that Act XX of 1948 being in force on June 29, 1950 any agreement arrived at between the parties in contravention of its provisions would not be binding on the parties. No exception can be taken to the broad proposition of law but no question of estoppel ever arose in this case because Act XX of 1948 did not operate as a bar to the delivery of possession of premises in execution of a decree.
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M.C. Mehta Vs. Union of India & Others | not comply with BS-IV emission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradual phase-out is now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as a whole.53. There is no doubt, therefore, that the various notifications issued and the amendments made to the Rules must be read cumulatively in a purposive manner with the objective of enhancing or protecting further deterioration of the quality of the air we breathe from a continuing and continuous onslaught of pollutants.Office memorandum of 3rd March, 201554. In was submitted by learned counsel for the interveners that inherent in the manufacture of BS-III compliant vehicles was their entitlement to sell such vehicles any time on or after 1st April, 2017 until the accumulated stock is exhausted. Given the experience of the past, they legitimately expected that they would be allowed to clear the accumulated stock. We questioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answer - the answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.55. In this context, reference was made to the most recent office memorandum dated 3rd March, 2015 issued by the Ministry of Road Transport and Highways. It was submitted that the office memorandum made clear the intention of the various notifications, namely, to ensure the manufacture of only BS-IV compliant vehicles after 1st April, 2017 and at the same time ensure that BS-III compliant vehicles manufactured on or before 31st March, 2017 are protected and registered. This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby that BS-III compliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and register BS-III compliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture of BS-III compliant vehicles till the very last day and then plead the necessity of clearing accumulated stock of BS-III vehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in the country.Blaming EPCA57. It was also contended by learned counsel for the interveners that the automobile industry (as indeed any other industry) needs stability, certainty and predictability in the regulatory regime. This is undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration of BS-III compliant vehicles on or after 1st April, 2017. Unfortunately, finger-pointing and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration of BS-III compliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and take pro-active steps to significantly decrease the production of BS-III compliant vehicles and correspondingly significantly increase the production of BS-IV compliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting that BS-IV compliant vehicles reduce pollution by 80% of particulate matter as compared to BS-III compliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating that BS-IV fuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock of BS-III compliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us. | 1[ds]In other words, we take it that the Government was and issupporting the reduction of vehicular pollution by controlling the emission norms and complying with the Bharat Stage standards keeping in view the auto fuel policy and the Report of the Expert Committee referred to by the Parliamentary Standing Committee.In our opinion, the interveners have completely ignored the history of the last a decade or so which led to the introduction of Bharat Stage norms and their implementation in a phased manner. The Auto Fuel Policy was announced by the Government of India, as mentioned by the Parliamentary Standing Committee, taking into account, inter alia, the rapid growth in the automobile industry and the increasing number of vehicular population which had become "one of the major causes in the phenomenal rise of air pollution in India." The Standing Committee noted that air pollution is caused by several factors but the dramatic rise in vehicular emissions has compounded the problem.39. It is quite evident therefore that given the recent history and unfolding of events, it was incumbent upon the automobile industry to modulate its views and give secondary importance to commercial profits and takesteps to reduce vehicular pollution. It seems that the automobile industry was quite sanguine that its desire for selling accumulated stock ofcompliant vehicles even after 1st April, 2017 would be acceded to. This is evident from the past practice when it had become necessary, in one sense, for the Government of India to virtually submit to the commercial interests of the automobile industry by permitting the registration ofcompliant vehicles in some cities while permitting the sale and registration ofII compliant vehicles in other cities even after thedate of 1st April, 2005 till the accumulated stock is exhausted.exhausted.41. No one knows, nor were we told how long these accumulated stock were expected to last or actually lasted. But the fact of the matter is that we would have expected the automobile industry to have shown some responsibility and taken a positive approach to reduce vehicular pollution and ensure thatvehicles are not manufactured so that air pollution in the country does not continue unabated and to take measures to curtail the phenomenal rise in air pollution recognized by the Parliamentary Standing Committee.The sum and substance of the discussion is that the automobile industry had, at the very minimum, awarning that it would have to consider issues relating to air pollution as a part of its manufacturing activities and production strategy and thereafter the industry had more than five years to plan out its activities and revisit the strategy, but did not do so.45. On the contrary the automobile industry gave a variety of excuses for not making adjustments for the benefit of the people of the country. Similarly, efforts of the Government to regulate and reduce vehicular emissions were not given the support that they deserved, including taking advantage of time granted for phased introduction ofcomplaint vehicles as per the Government policy. It was submitted during the hearing that the sale ofcompliant vehicles would depend on market forces; at one time it was submitted that demonetization (which took place in November, 2016) upset their plans; at another time it was submitted that some models are slow moving and therefore could not be sold and yet at another time it was submitted that weak market conditions did not make it possible for the industry to dispose of the existingcompliant stock. None of these explanations justify the failure of the automobile industry to increase the production ofcompliant vehicles, in spite of sufficient notice of aand reduce the production ofcompliant vehicles. The attempt, sadly, seems to have been to push all concerned to the wall by putting before them a fait accompli situation and by ignoring the concerns of millions of our country men and women who are entitled to breathe fresh air or at least breathe less polluted air. As is apparent from the figures relating to the production ofIV compliant vehicles supplied to us, this activity and inactivity has been entirely for commercial benefits and to avoid the cost of upgrading availablerespect, this submission cannot be accepted. The health of every person in our country is important and we are more than reluctant to accept any submission that the health of the people can be compromised, even in the smallest measure, for the commercial interests of the automobile industry or of any industry for that matter. Additionally, given that the life of such vehicles would be at least 10 years (as submitted by the interveners) the concern is not only for the present population of the country but for future generations who also have an entitlement to breathe pollution free air. This is what sustainable development andequity is all about.Learned Amicus is right that the entire issue must be looked at in a particular context, as a matter of public health and as a matter of public concern. It is a matter of common knowledge that polluted air can lead to a variety of health problems and this is evident from a casual visit to the website of the CPCB and the World Health Organization. Admittedly, the use ofauto fuel reduces particulate matter in the air by 80% as compared toauto fuel. Under these circumstances, it cannot be said that learned Amicus erroneously seeks a prohibition on the sale and registration ofcompliant vehicles on and from 1st April, 2017.Additionally, if the entire scheme laid out by the Governmentof discouraging the manufacture of polluting vehicles and gradually phasing them out coupled with their gradual replacement with fuel efficient vehicles, availability of cleaner and greener fuel and compliance with fuel emission norms is appreciated in a much larger context rather than on a notification by notification basisthe objective behind the scheme would be apparent. The Government could very well have issued one single notification way back in 2010 that with effect from 1st April, 2017 the manufacture, sale and registration of vehicles that do not comply withemission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradualis now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as aquestioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answerthe answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby thatcompliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and registercompliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture ofcompliant vehicles till the very last day and then plead the necessity of clearing accumulated stock ofvehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in theis undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration ofcompliant vehicles on or after 1st April, 2017. Unfortunately,and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration ofcompliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and takesteps to significantly decrease the production ofcompliant vehicles and correspondingly significantly increase the production ofcompliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting thatcompliant vehicles reduce pollution by 80% of particulate matter as compared tocompliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating thatfuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock ofcompliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us. | 1 | 6,983 | 1,856 | ### 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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not comply with BS-IV emission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradual phase-out is now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as a whole.53. There is no doubt, therefore, that the various notifications issued and the amendments made to the Rules must be read cumulatively in a purposive manner with the objective of enhancing or protecting further deterioration of the quality of the air we breathe from a continuing and continuous onslaught of pollutants.Office memorandum of 3rd March, 201554. In was submitted by learned counsel for the interveners that inherent in the manufacture of BS-III compliant vehicles was their entitlement to sell such vehicles any time on or after 1st April, 2017 until the accumulated stock is exhausted. Given the experience of the past, they legitimately expected that they would be allowed to clear the accumulated stock. We questioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answer - the answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.55. In this context, reference was made to the most recent office memorandum dated 3rd March, 2015 issued by the Ministry of Road Transport and Highways. It was submitted that the office memorandum made clear the intention of the various notifications, namely, to ensure the manufacture of only BS-IV compliant vehicles after 1st April, 2017 and at the same time ensure that BS-III compliant vehicles manufactured on or before 31st March, 2017 are protected and registered. This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby that BS-III compliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and register BS-III compliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture of BS-III compliant vehicles till the very last day and then plead the necessity of clearing accumulated stock of BS-III vehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in the country.Blaming EPCA57. It was also contended by learned counsel for the interveners that the automobile industry (as indeed any other industry) needs stability, certainty and predictability in the regulatory regime. This is undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration of BS-III compliant vehicles on or after 1st April, 2017. Unfortunately, finger-pointing and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration of BS-III compliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and take pro-active steps to significantly decrease the production of BS-III compliant vehicles and correspondingly significantly increase the production of BS-IV compliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting that BS-IV compliant vehicles reduce pollution by 80% of particulate matter as compared to BS-III compliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating that BS-IV fuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock of BS-III compliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us.
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that matter. Additionally, given that the life of such vehicles would be at least 10 years (as submitted by the interveners) the concern is not only for the present population of the country but for future generations who also have an entitlement to breathe pollution free air. This is what sustainable development andequity is all about.Learned Amicus is right that the entire issue must be looked at in a particular context, as a matter of public health and as a matter of public concern. It is a matter of common knowledge that polluted air can lead to a variety of health problems and this is evident from a casual visit to the website of the CPCB and the World Health Organization. Admittedly, the use ofauto fuel reduces particulate matter in the air by 80% as compared toauto fuel. Under these circumstances, it cannot be said that learned Amicus erroneously seeks a prohibition on the sale and registration ofcompliant vehicles on and from 1st April, 2017.Additionally, if the entire scheme laid out by the Governmentof discouraging the manufacture of polluting vehicles and gradually phasing them out coupled with their gradual replacement with fuel efficient vehicles, availability of cleaner and greener fuel and compliance with fuel emission norms is appreciated in a much larger context rather than on a notification by notification basisthe objective behind the scheme would be apparent. The Government could very well have issued one single notification way back in 2010 that with effect from 1st April, 2017 the manufacture, sale and registration of vehicles that do not comply withemission norms would be prohibited. It did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradualis now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as aquestioned learned counsel for the interveners on the time required for disposal of the accumulated stock. No one gave any definite answerthe answers varied from about 5 and 6 months to one year and hedged in with conditions dependent upon market forces and slow moving models. Perhaps Siri would have given a more definite answer.This is clear from the statement in the office memorandum that there is no bar on vehicles produced prior to the above time lines, meaning thereby thatcompliant vehicles manufactured on or before 31st March, 2017 could be sold or registered keeping in view the past practice.56. In our opinion, the only reasonable construction of the office memorandum (issued two years ago) would be that subject to the occurrence of some extraordinary or unforeseen event, should it become necessary to sell and registercompliant vehicles on or after 1st April, 2017 limited exceptions on a case to case basis could be claimed and considered. The office memorandum cannot reasonably be interpreted as a carte blanche to the automobile industry to continue the manufacture ofcompliant vehicles till the very last day and then plead the necessity of clearing accumulated stock ofvehicles. This would make a mockery of the efforts of all concerned in regulating vehicular emissions and virtually enabling the interveners to emasculate an important component of the right to life guaranteed by Article 21 of the Constitution, namely, the entitlement of millions of our country men and women to breathe less polluted air and ignore public health issues in conducting their business. We cannot be asked to shut our eyes to the phenomenal rise in pollution levels in theis undoubtedly true but that stability, certainty and predictability was apparent from the time the National Auto Fuel Policy was announced in 2003. Rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame EPCA for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration ofcompliant vehicles on or after 1st April, 2017. Unfortunately,and blame games do not lead anyone anywhere and deserve to be discouraged.58. In any event, the fact is that EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration ofcompliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers. The clear intention of EPCA was to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and takesteps to significantly decrease the production ofcompliant vehicles and correspondingly significantly increase the production ofcompliant vehicles. Unfortunately, SIAM did not heed the caution but expressed the view that it would be difficult to ensure compliance. We were also told that EPCA had no jurisdiction or authority to give such a direction. However, that is not an issue of concern at the present moment.59. EPCA also pointed out in the meeting thatcompliant vehicles reduce pollution by 80% of particulate matter as compared tocompliant vehicles, but even this had no effect.60. The meeting convened by EPCA was followed up by the CPCB when it wrote to SIAM on 10th December, 2016 reiterating thatfuel would be available all over the country from 1st April, 2017 and that the automobile industry should ensure that the stock ofcompliant vehicles are exhausted before that date for reasons mentioned in the minutes of the meeting held on 19th October, 2016. Even this had no effect on SIAM. Therefore, to blame EPCA for their problems is rather unfair of the interveners.61. However one may look at the issue of air pollution, it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all of us.
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Ketan V. Parekh Vs. Special Director,Dir.Of Enforcement&Anr | be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act.24. The issue deserves to be considered from another angle. By taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit specified in order dated 26.7.2010 which, in turn, is based on paragraph 45 of the judgment of this Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement (supra). Indeed, it is not even the case of the appellants that they had filed appeals under Section 35 of the Act within 30 days computed from 26.7.2010. Therefore, the Division Bench of the Bombay High Court rightly observed that even though the issue relating to jurisdiction of the Delhi High Court to grant time to the appellants to file appeals is highly debatable, the time specified in the order passed by the Delhi High Court cannot be extended.25. In view of the above discussion, we hold that the impugned order does not suffer from any legal infirmity.26. Notwithstanding the above conclusion, we have considered the submission of Shri Ranjit Kumar that the appellants are facing huge financial crises and the Appellate Tribunal committed serious error by not entertaining their prayer to dispense with the requirement of deposit of the amount of penalty in its entirety, but have not felt convinced. In our considered view, the appellants miserably failed to make out a case, which could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty. The appellants have the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment may have been passed by the judicial and quasi judicial forums. However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption. 27. In this context, reference can usefully be made to the judgment of this Court in Benara Values Ltd. v. Commissioner of Central Excise (2006) 13 SCC 347 . In that case, a two Judge Bench interpreted Section 35-F of the Central Excise Act, 1944, which is pari materia to Section 19(1) of the Act, referred to the judgments in Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436 , Samarias Trading Co. (P) Ltd. v. S. Samuel (1984) 4 SCC 666 , Commissioner of Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260 and observed: "Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of the Revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view.As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka that under Indian conditions expression "undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.For a hardship to be "undue" it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue." 28. The same view was reiterated in Indu Nissan Oxo Chemicals Industries Ltd. v. Union of India (2007) 13 SCC 487 by considering proviso to Section 129-E of the Customs Act, 1962, which is almost identical to Section 19 of the Act. 29. | 0[ds]A careful reading of the above reproduced averments shows that there was not even a whisper in the applications field by the appellants that they had been prosecuting remedy before a wrong forum, i.e. the Delhi High Court with due diligence and in good faith. Not only this, the prayer made in the applications was for condonation of 1056 days delay and not for exclusion of the time spent in prosecuting the writ petitions before the Delhi High Court. This shows that the appellants were seeking to invoke Section 5 of the Limitation Act, which, as mentioned above, cannot be pressed into service in view of the language of Section 35 of the Act and interpretation of similar provisions by this Court.23. There is another reason why the benefit of Section 14 of the Limitation Act cannot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent Advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The promptness with which the learned senior counsel appearing for appellant - Kartik K. Parekh made a statement before the Delhi High Court on 7.11.2007 that the writ petition may be converted into an appeal and considered on merits is a clear indication of the appellants unwillingness to avail remedy before the High Court, i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. It is not possible to believe that as on 7.11.2007, the appellants and their Advocates were not aware of the judgment of this Court in Ambica Industries v. Commissioner of Central Excise (2007) 6 SCC 769 whereby dismissal of the writ petition by the Delhi High Court on the ground of lack of territorial jurisdiction was confirmed and it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act.24. The issue deserves to be considered from another angle. By taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit specified in order dated 26.7.2010 which, in turn, is based on paragraph 45 of the judgment of this Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement (supra). Indeed, it is not even the case of the appellants that they had filed appeals under Section 35 of the Act within 30 days computed from 26.7.2010. Therefore, the Division Bench of the Bombay High Court rightly observed that even though the issue relating to jurisdiction of the Delhi High Court to grant time to the appellants to file appeals is highly debatable, the time specified in the order passed by the Delhi High Court cannot be extended.25. In view of the above discussion, we hold that the impugned order does not suffer from any legal infirmity.26. Notwithstanding the above conclusion, we have considered the submission of Shri Ranjit Kumar that the appellants are facing huge financial crises and the Appellate Tribunal committed serious error by not entertaining their prayer to dispense with the requirement of deposit of the amount of penalty in its entirety, but have not felt convinced. In our considered view, the appellants miserably failed to make out a case, which could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty. The appellants have the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment may have been passed by the judicial and quasi judicial forums. However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption. | 0 | 10,862 | 1,112 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act.24. The issue deserves to be considered from another angle. By taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit specified in order dated 26.7.2010 which, in turn, is based on paragraph 45 of the judgment of this Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement (supra). Indeed, it is not even the case of the appellants that they had filed appeals under Section 35 of the Act within 30 days computed from 26.7.2010. Therefore, the Division Bench of the Bombay High Court rightly observed that even though the issue relating to jurisdiction of the Delhi High Court to grant time to the appellants to file appeals is highly debatable, the time specified in the order passed by the Delhi High Court cannot be extended.25. In view of the above discussion, we hold that the impugned order does not suffer from any legal infirmity.26. Notwithstanding the above conclusion, we have considered the submission of Shri Ranjit Kumar that the appellants are facing huge financial crises and the Appellate Tribunal committed serious error by not entertaining their prayer to dispense with the requirement of deposit of the amount of penalty in its entirety, but have not felt convinced. In our considered view, the appellants miserably failed to make out a case, which could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty. The appellants have the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment may have been passed by the judicial and quasi judicial forums. However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption. 27. In this context, reference can usefully be made to the judgment of this Court in Benara Values Ltd. v. Commissioner of Central Excise (2006) 13 SCC 347 . In that case, a two Judge Bench interpreted Section 35-F of the Central Excise Act, 1944, which is pari materia to Section 19(1) of the Act, referred to the judgments in Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436 , Samarias Trading Co. (P) Ltd. v. S. Samuel (1984) 4 SCC 666 , Commissioner of Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260 and observed: "Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of the Revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view.As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka that under Indian conditions expression "undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.For a hardship to be "undue" it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.The other aspect relates to imposition of condition to safeguard the interests of the Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue." 28. The same view was reiterated in Indu Nissan Oxo Chemicals Industries Ltd. v. Union of India (2007) 13 SCC 487 by considering proviso to Section 129-E of the Customs Act, 1962, which is almost identical to Section 19 of the Act. 29.
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before a wrong forum, i.e. the Delhi High Court with due diligence and in good faith. Not only this, the prayer made in the applications was for condonation of 1056 days delay and not for exclusion of the time spent in prosecuting the writ petitions before the Delhi High Court. This shows that the appellants were seeking to invoke Section 5 of the Limitation Act, which, as mentioned above, cannot be pressed into service in view of the language of Section 35 of the Act and interpretation of similar provisions by this Court.23. There is another reason why the benefit of Section 14 of the Limitation Act cannot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent Advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The promptness with which the learned senior counsel appearing for appellant - Kartik K. Parekh made a statement before the Delhi High Court on 7.11.2007 that the writ petition may be converted into an appeal and considered on merits is a clear indication of the appellants unwillingness to avail remedy before the High Court, i.e. the Bombay High Court which had the exclusive jurisdiction to entertain an appeal under Section 35 of the Act. It is not possible to believe that as on 7.11.2007, the appellants and their Advocates were not aware of the judgment of this Court in Ambica Industries v. Commissioner of Central Excise (2007) 6 SCC 769 whereby dismissal of the writ petition by the Delhi High Court on the ground of lack of territorial jurisdiction was confirmed and it was observed that the parties cannot be allowed to indulge in forum shopping. It has not at all surprised us that after having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act.24. The issue deserves to be considered from another angle. By taking advantage of the liberty given by the learned Single Judge of the Delhi High Court, the appellants invoked the jurisdiction of the Bombay High Court under Section 35 of the Act. However, while doing so, they violated the time limit specified in order dated 26.7.2010 which, in turn, is based on paragraph 45 of the judgment of this Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement (supra). Indeed, it is not even the case of the appellants that they had filed appeals under Section 35 of the Act within 30 days computed from 26.7.2010. Therefore, the Division Bench of the Bombay High Court rightly observed that even though the issue relating to jurisdiction of the Delhi High Court to grant time to the appellants to file appeals is highly debatable, the time specified in the order passed by the Delhi High Court cannot be extended.25. In view of the above discussion, we hold that the impugned order does not suffer from any legal infirmity.26. Notwithstanding the above conclusion, we have considered the submission of Shri Ranjit Kumar that the appellants are facing huge financial crises and the Appellate Tribunal committed serious error by not entertaining their prayer to dispense with the requirement of deposit of the amount of penalty in its entirety, but have not felt convinced. In our considered view, the appellants miserably failed to make out a case, which could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty. The appellants have the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in respect of which orders of attachment may have been passed by the judicial and quasi judicial forums. However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption.
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Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore & Others | Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-s. (3) of S. 81. In that view of the matter sub-s. (3) of S. 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised before us.16. We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the Rules in the Conduct of Election Rules. 1961; therefore there was a failure to comply with the proviso to sub-s. (1) of S. 83 of the Act. The argument further is that an election petition under S. 81 must comply with the provisions of S. 83 and unless it complies with those provisions, it is not an election petition under S. 81.17. We think that this contention has been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the Oaths Commissioner had made a mistake in the verification portion of the affidavit. The Tribunal said :"It appears that due to inexperience of the Oaths Commissioner instead of "verified before me" words, "verified by me" have been written. The signature of the deponent has been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner. According to the prescribed form the verification should be "solemnly affirmed or sworn by" "such and such" on "such and such date" before me".The verification of the affidavit of the petitioner is apparently not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily, as the provisions of S. 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also."18. This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition.19. Turning now to Election Petition No. 295 of 1962 the defect as to the time and place of verification is, as we have said earlier, not a fatal defect. It is a matter which comes within cl. (c) of sub-s. (1) of S. 83 and the defect can be remedied in accordance with the principles of the Code of Civil Procedure relating to the verification of pleadings. As to the four enclosures which were not re-produced in the copy served on the appellant, the position was this. In the original petition there was an endorsement to the following effect :"Enclosed :1. Two copies of the grounds of election petition.2. Original treasury receipt of Rs. 2,000/- as security deposit.3. Certified copy of the order of the Returning Officer rejecting the nomination dated 22-1-1962.4. Vakalatnama duly stamped."20. In the copy served on the appellant the original treasury receipt of Rs. 2,000/- deposited by way of security was not re-produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition (Paragraph 9) that such a deposit had been made. The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us, that a copy of the Vakalatnama was not required under sub-s. (3) of S. 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sub-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case.21. In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition.22. | 0[ds]Section 82 then provided aspetitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so(4) of S. 90 then provided that notwithstanding anything contained in S. 85, the tribunal may dismiss an election petition which does not comply with the provisions of Ss. 81, 83 or117. There has been a change of law since that decision. Section 82 has been re-cast and sub-s. (3) of S. 90 now states that the tribunal shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Therefore we do not think that the decision in 1954 SCR 892 : (AIR 1954 SC 210 ) is determinative of the problem before us. We need not however pursue this question any further, because we have held that in the present case there was no contravention of the provisions of S. 82.We agree with the view expressed by the Election Tribunal. We have pointed out that sub-s. (4) of Sec. 90 originally referred to three sections, namely, Ss. 81, 83 and 117. It said that notwithstanding anything contained in S. 85 the Tribunal might dismiss an election petition which did not comply with the provisions of S. 81, S. 83 or S. 117. Section 90 was amended by Act 27 of 1956. Sub-section (3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. There was a further amendment by Act 40 of 1961 and sub-s. (3) of s. 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant section in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in theCode of Civil Procedure, 1908 for the verification of pleadings as required by cl. (c) of sub-s. (1) of S. 83 is fatal to the maintainability of the petition.We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Sub-section (3) of S. 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in sub-sec. (3) of S. 81.Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-s. (3) of S. 81. In that view of the matter sub-s. (3) of S. 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised beforethe copy served on the appellant the original treasury receipt of Rs. 2,000/- deposited by way of security was not re-produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition (Paragraph 9) that such a deposit had been made. The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us, that a copy of the Vakalatnama was not required under sub-s. (3) of S. 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sub-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case.In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition. | 0 | 5,636 | 1,045 | ### Instruction:
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Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-s. (3) of S. 81. In that view of the matter sub-s. (3) of S. 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised before us.16. We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the Rules in the Conduct of Election Rules. 1961; therefore there was a failure to comply with the proviso to sub-s. (1) of S. 83 of the Act. The argument further is that an election petition under S. 81 must comply with the provisions of S. 83 and unless it complies with those provisions, it is not an election petition under S. 81.17. We think that this contention has been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the Oaths Commissioner had made a mistake in the verification portion of the affidavit. The Tribunal said :"It appears that due to inexperience of the Oaths Commissioner instead of "verified before me" words, "verified by me" have been written. The signature of the deponent has been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner. According to the prescribed form the verification should be "solemnly affirmed or sworn by" "such and such" on "such and such date" before me".The verification of the affidavit of the petitioner is apparently not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioners petition summarily, as the provisions of S. 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also."18. This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition.19. Turning now to Election Petition No. 295 of 1962 the defect as to the time and place of verification is, as we have said earlier, not a fatal defect. It is a matter which comes within cl. (c) of sub-s. (1) of S. 83 and the defect can be remedied in accordance with the principles of the Code of Civil Procedure relating to the verification of pleadings. As to the four enclosures which were not re-produced in the copy served on the appellant, the position was this. In the original petition there was an endorsement to the following effect :"Enclosed :1. Two copies of the grounds of election petition.2. Original treasury receipt of Rs. 2,000/- as security deposit.3. Certified copy of the order of the Returning Officer rejecting the nomination dated 22-1-1962.4. Vakalatnama duly stamped."20. In the copy served on the appellant the original treasury receipt of Rs. 2,000/- deposited by way of security was not re-produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition (Paragraph 9) that such a deposit had been made. The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us, that a copy of the Vakalatnama was not required under sub-s. (3) of S. 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sub-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case.21. In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition.22.
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Section 82 then provided aspetitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so(4) of S. 90 then provided that notwithstanding anything contained in S. 85, the tribunal may dismiss an election petition which does not comply with the provisions of Ss. 81, 83 or117. There has been a change of law since that decision. Section 82 has been re-cast and sub-s. (3) of S. 90 now states that the tribunal shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Therefore we do not think that the decision in 1954 SCR 892 : (AIR 1954 SC 210 ) is determinative of the problem before us. We need not however pursue this question any further, because we have held that in the present case there was no contravention of the provisions of S. 82.We agree with the view expressed by the Election Tribunal. We have pointed out that sub-s. (4) of Sec. 90 originally referred to three sections, namely, Ss. 81, 83 and 117. It said that notwithstanding anything contained in S. 85 the Tribunal might dismiss an election petition which did not comply with the provisions of S. 81, S. 83 or S. 117. Section 90 was amended by Act 27 of 1956. Sub-section (3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. There was a further amendment by Act 40 of 1961 and sub-s. (3) of s. 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant section in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in theCode of Civil Procedure, 1908 for the verification of pleadings as required by cl. (c) of sub-s. (1) of S. 83 is fatal to the maintainability of the petition.We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Sub-section (3) of S. 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in sub-sec. (3) of S. 81.Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant; therefore there was no failure to comply with the last part of sub-s. (3) of S. 81. In that view of the matter sub-s. (3) of S. 90 was not attracted and there was no question of dismissing the election petition under that sub-section by reason of any failure to comply with the provisions of S. 81. This disposes of the second preliminary objection raised beforethe copy served on the appellant the original treasury receipt of Rs. 2,000/- deposited by way of security was not re-produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition (Paragraph 9) that such a deposit had been made. The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us, that a copy of the Vakalatnama was not required under sub-s. (3) of S. 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sub-s. (3) of S. 81 were filed. The only grievance made is that the endorsement "two copies" was not repeated in the enclosure portion of the copy served on the appellant. We have already explained what is meant by the word "copy" in sub-s. (3) of S. 81 and we are of the view that the defect pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case.In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the ground mentioned in his petition dated April 4, 1963. The intervener supported the argument advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the interveners petition.
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Ravi Paul Vs. Union Of India | any provision in Rule 8(b) which enables an Army Officer or a re-employed Army Officer to count his Army service for the purpose of seniority in the CRPF. We are, therefore, unable to uphold the decision of Delhi High Court in U. B. S. Teotia and others v. Union of India and others (supra). For the same reasons the observations in the order dated January 21, 1986 passed by this Court in special leave petitions arising out of Delhi High Court decision in U. B. S. Teotias case (supra) that ``the respondents are the Army Officers within the meaning of Rule 8 of the CRPF Rules and they are entitled to add the length of their unbroken service as ECOs and SSCOs for the purpose of reckoning their seniority, cannot be regarded as based on a correct interpretation of Rule 8 of the CRPF Rules. The said observations must, therefore, be confined to that particular case only. 23. It has, however, been contended by learned counsel for the petitioners (in Writ Petition No. 146 of 1992) that the said petitioners were absorbed/appointed as Assistant Commandants in the BSF after being selected for appointment by the Special Selection Board which had also selected the SSCOs for absorption in the CRPF and that there is no rational basis for treating those SSCOs thus selected by the Special Selection Board, who were all similarly situate prior to their selection, differently in the matter of fixation of seniority merely on the fortuitous circumstance that out of them those who were assigned to the CRPF, would get the benefit of their past service in the Army, while those like the petitioners, who were assigned to the BSF would be denied the said benefit. In our view, there is no merit in this contention. The CRPF and the BSF are two distinct forces governed by separate statutory provisions. The fact that in the CRPF, the benefit of past service in the Army has been given to SSCOs who were absorbed/appointed after selection by the Special Selection Board during the period 1974-78 on account of the provisions of Rule 8(b) of CRPF Rules, as construed by the Delhi High Court, does not mean that the said benefit should also be made available to the petitioners who were absorbed/appointed as Assistant Commandants in the BSF, though in the BSF there is no rule similar to Rule 8(b) of the CRPF Rules which confers this benefit. On the other hand, the said benefit has been expressly denied to the officers who were so absorbed/appointed, inasmuch as prior to the recruitment, the Government of India has clearly indicated in the letter dated September 6, 1972 that service rendered as SSRCOs will not count towards seniority and pension. This stipulation was also incorporated in the letter of appointment of the petitioners when they were absorbed/appointed as Assistant Commandants in the BSF. In the said letter it is expressly stated that the benefit of the past service in the Army would not be available for the purpose of seniority. From the letter of the Government of India dated September 6, 1972 it appears that this policy was for recruitment of released ECOs/SSRCOs as Assistant Commandants/Company Commanders (Dy. S.P.) in the BSF, CRPF and Assam Rifles, etc. Merely because the said policy which was applicable to all released SSCOs who were to be absorbed/appointed in the various para-military forces of the Government of India could not be given effect in CRPF on account of Rule 8(b) of the CRPF Rules, would not mean that the said policy in its application to the BSF, where there is no such legal impediment, suffers from the vice of discrimination. 24. It has also been urged by the learned counsel for the petitioners (in Writ Petition No. 146 of 1992) that ECOs who were absorbed/appointed to the BSF during the period of 1967-71 have been given the benefit of counting their past service in the Army for the purpose of seniority and that there is no reason why similar benefit should not have been extended to SSCOs, like the petitioners, who were absorbed/appointed to the BSF during the period 1974-78 and that the denial of such benefit to the petitioners results in arbitrary and invidious discrimination and denial of the right to equality guaranteed under the Constitution. We are unable to agree. The ECOs who were absorbed/appointed to the BSF during the period 1967-71 has joined Army during emergency in the wake of the Chinese aggression. By joining the Army when the country needed their services they had made a sacrifice. Keeping in view the sacrifice made by them, the Government of India evolved a policy whereunder they were given certain benefit of their Army service for counting their seniority on re-employment in public services after their release from the Army. Moreover, they were absorbed in the BSF at a time when there was need for competent officers in the BSF and in order to attract such officers in the BSF it was considered necessary to give the benefit of the service of the Army for the purpose of seniority in the BSF to the officers who were absorbed/appointed in the BSF during the period 1967-71. The SSCOs have joined the Army as a career after the Emergency resulting from the Chinese aggression was over. When they were absorbed/appointed to the BSF during the period 1974-78 there was a change in the policy of the Government of India and the benefit of the service in the Army was not to be given to the SSCOs who were absorbed/appointed in the BSF after release from the Army. This condition was expressly mentioned in their letters of appointment and they opted to join the BSF knowing fully well that their Army service would not be counted for seniority in the BSF. The ECOs who were absorbed/appointed in the BSF during the period 1974-78 are officers belonging to two different categories and they cannot be regarded as persons similarly situate. | 0[ds]22. It would thus appear that Rule 8(b)(i) of the CRPF Rules only governs the seniority as between Army Officers inter se, Army Officers and re-employed Army Officers inter se, Indian Police Services Officers inter se, and non-Army and Army Officers of equivalent rank inter se. The expression ``rank in this Rule means the rank in CRPF. There is nothing in Rule B(b) to indicate that the earlier Army Service of an Army Officer or re-employed Army Officer is to be counted for the purpose of seniority in CRPF. Since Rule 8(b)(i) is silent in this regard executive instructions can be issued by the Central Government for the purpose of giving benefit of Army service to Army Officers or re-employed Army Officers. With that end in view the Government of India, in its letter dated July 5, 1972 addressed to the Director General BSF and CRPF as well as I.G. (ITBP) and Secretary (Home), Arunachal Pradesh Administration, has laid down certain principles for the purpose of fixation of seniority of ex-ECOs appointed in the BSF, CRPF, ITBP and Assam Rifles. The said principles were, however, applicable only to ex-ECOs who were absorbed/appointed in these forces during the period 1967 to 1970. In U. B. S. Teotia and others v. Union of India and others (supra) the Delhi High Court has construed Rule 8 of the CRPF Rules to mean that Army Officers who are re- employed or Army Officers who came on deputation, have to retain their original seniority and will get the benefit for their Army Services. We are unable to read Rule 8 as having such an effect. In our opinion, the said Rule when it says that ``an Army Officer shall maintain his seniority as between Army Officers within a particular rank and an Army Officer re-employed in the Central Reserve Police Force shall maintain his Army Service between Army Officers within a particular rank only means that amongst Army Officers inter se and re-employed Army Officers and an Army Officer inter se their seniority to a particular rank in the CRPF would be fixed on the basis of their seniority in the Army. We have not found any provision in Rule 8(b) which enables an Army Officer or a re-employed Army Officer to count his Army service for the purpose of seniority in the CRPF. We are, therefore, unable to uphold the decision of Delhi High Court in U. B. S. Teotia and others v. Union of India and others (supra). For the same reasons the observations in the order dated January 21, 1986 passed by this Court in special leave petitions arising out of Delhi High Court decision in U. B. S. Teotias case (supra) that ``the respondents are the Army Officers within the meaning of Rule 8 of the CRPF Rules and they are entitled to add the length of their unbroken service as ECOs and SSCOs for the purpose of reckoning their seniority, cannot be regarded as based on a correct interpretation of Rule 8 of the CRPF Rules. The said observations must, therefore, be confined to that particular caseCRPF and the BSF are two distinct forces governed by separate statutory provisions. The fact that in the CRPF, the benefit of past service in the Army has been given to SSCOs who were absorbed/appointed after selection by the Special Selection Board during the period 1974-78 on account of the provisions of Rule 8(b) of CRPF Rules, as construed by the Delhi High Court, does not mean that the said benefit should also be made available to the petitioners who were absorbed/appointed as Assistant Commandants in the BSF, though in the BSF there is no rule similar to Rule 8(b) of the CRPF Rules which confers this benefit. On the other hand, the said benefit has been expressly denied to the officers who were so absorbed/appointed, inasmuch as prior to the recruitment, the Government of India has clearly indicated in the letter dated September 6, 1972 that service rendered as SSRCOs will not count towards seniority and pension. This stipulation was also incorporated in the letter of appointment of the petitioners when they were absorbed/appointed as Assistant Commandants in the BSF. In the said letter it is expressly stated that the benefit of the past service in the Army would not be available for the purpose of seniority. From the letter of the Government of India dated September 6, 1972 it appears that this policy was for recruitment of released ECOs/SSRCOs as Assistant Commandants/Company Commanders (Dy. S.P.) in the BSF, CRPF and Assam Rifles, etc. Merely because the said policy which was applicable to all released SSCOs who were to be absorbed/appointed in the various para-military forces of the Government of India could not be given effect in CRPF on account of Rule 8(b) of the CRPF Rules, would not mean that the said policy in its application to the BSF, where there is no such legal impediment, suffers from the vice ofECOs who were absorbed/appointed to the BSF during the period 1967-71 has joined Army during emergency in the wake of the Chinese aggression. By joining the Army when the country needed their services they had made a sacrifice. Keeping in view the sacrifice made by them, the Government of India evolved a policy whereunder they were given certain benefit of their Army service for counting their seniority on re-employment in public services after their release from the Army. Moreover, they were absorbed in the BSF at a time when there was need for competent officers in the BSF and in order to attract such officers in the BSF it was considered necessary to give the benefit of the service of the Army for the purpose of seniority in the BSF to the officers who were absorbed/appointed in the BSF during the period 1967-71. The SSCOs have joined the Army as a career after the Emergency resulting from the Chinese aggression was over. When they were absorbed/appointed to the BSF during the period 1974-78 there was a change in the policy of the Government of India and the benefit of the service in the Army was not to be given to the SSCOs who were absorbed/appointed in the BSF after release from the Army. This condition was expressly mentioned in their letters of appointment and they opted to join the BSF knowing fully well that their Army service would not be counted for seniority in the BSF. The ECOs who were absorbed/appointed in the BSF during the period 1974-78 are officers belonging to two different categories and they cannot be regarded as persons similarlyAppeal No. 4127 ofWrit Petition filed by the appellants challenging the fixation of seniority of respondents was rightly dismissed by the High Court because the letters of appointment of ex- ECOs it was expressly stated that their Army service shall be counted towards seniority.a condition was not prohibited by any provision of the CRPF Rules or BSF Act and the rules made thereunder. Hence, it cannot be said that the fixation of seniority of the respondents suffers from any legal infirmity. | 0 | 7,195 | 1,301 | ### Instruction:
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any provision in Rule 8(b) which enables an Army Officer or a re-employed Army Officer to count his Army service for the purpose of seniority in the CRPF. We are, therefore, unable to uphold the decision of Delhi High Court in U. B. S. Teotia and others v. Union of India and others (supra). For the same reasons the observations in the order dated January 21, 1986 passed by this Court in special leave petitions arising out of Delhi High Court decision in U. B. S. Teotias case (supra) that ``the respondents are the Army Officers within the meaning of Rule 8 of the CRPF Rules and they are entitled to add the length of their unbroken service as ECOs and SSCOs for the purpose of reckoning their seniority, cannot be regarded as based on a correct interpretation of Rule 8 of the CRPF Rules. The said observations must, therefore, be confined to that particular case only. 23. It has, however, been contended by learned counsel for the petitioners (in Writ Petition No. 146 of 1992) that the said petitioners were absorbed/appointed as Assistant Commandants in the BSF after being selected for appointment by the Special Selection Board which had also selected the SSCOs for absorption in the CRPF and that there is no rational basis for treating those SSCOs thus selected by the Special Selection Board, who were all similarly situate prior to their selection, differently in the matter of fixation of seniority merely on the fortuitous circumstance that out of them those who were assigned to the CRPF, would get the benefit of their past service in the Army, while those like the petitioners, who were assigned to the BSF would be denied the said benefit. In our view, there is no merit in this contention. The CRPF and the BSF are two distinct forces governed by separate statutory provisions. The fact that in the CRPF, the benefit of past service in the Army has been given to SSCOs who were absorbed/appointed after selection by the Special Selection Board during the period 1974-78 on account of the provisions of Rule 8(b) of CRPF Rules, as construed by the Delhi High Court, does not mean that the said benefit should also be made available to the petitioners who were absorbed/appointed as Assistant Commandants in the BSF, though in the BSF there is no rule similar to Rule 8(b) of the CRPF Rules which confers this benefit. On the other hand, the said benefit has been expressly denied to the officers who were so absorbed/appointed, inasmuch as prior to the recruitment, the Government of India has clearly indicated in the letter dated September 6, 1972 that service rendered as SSRCOs will not count towards seniority and pension. This stipulation was also incorporated in the letter of appointment of the petitioners when they were absorbed/appointed as Assistant Commandants in the BSF. In the said letter it is expressly stated that the benefit of the past service in the Army would not be available for the purpose of seniority. From the letter of the Government of India dated September 6, 1972 it appears that this policy was for recruitment of released ECOs/SSRCOs as Assistant Commandants/Company Commanders (Dy. S.P.) in the BSF, CRPF and Assam Rifles, etc. Merely because the said policy which was applicable to all released SSCOs who were to be absorbed/appointed in the various para-military forces of the Government of India could not be given effect in CRPF on account of Rule 8(b) of the CRPF Rules, would not mean that the said policy in its application to the BSF, where there is no such legal impediment, suffers from the vice of discrimination. 24. It has also been urged by the learned counsel for the petitioners (in Writ Petition No. 146 of 1992) that ECOs who were absorbed/appointed to the BSF during the period of 1967-71 have been given the benefit of counting their past service in the Army for the purpose of seniority and that there is no reason why similar benefit should not have been extended to SSCOs, like the petitioners, who were absorbed/appointed to the BSF during the period 1974-78 and that the denial of such benefit to the petitioners results in arbitrary and invidious discrimination and denial of the right to equality guaranteed under the Constitution. We are unable to agree. The ECOs who were absorbed/appointed to the BSF during the period 1967-71 has joined Army during emergency in the wake of the Chinese aggression. By joining the Army when the country needed their services they had made a sacrifice. Keeping in view the sacrifice made by them, the Government of India evolved a policy whereunder they were given certain benefit of their Army service for counting their seniority on re-employment in public services after their release from the Army. Moreover, they were absorbed in the BSF at a time when there was need for competent officers in the BSF and in order to attract such officers in the BSF it was considered necessary to give the benefit of the service of the Army for the purpose of seniority in the BSF to the officers who were absorbed/appointed in the BSF during the period 1967-71. The SSCOs have joined the Army as a career after the Emergency resulting from the Chinese aggression was over. When they were absorbed/appointed to the BSF during the period 1974-78 there was a change in the policy of the Government of India and the benefit of the service in the Army was not to be given to the SSCOs who were absorbed/appointed in the BSF after release from the Army. This condition was expressly mentioned in their letters of appointment and they opted to join the BSF knowing fully well that their Army service would not be counted for seniority in the BSF. The ECOs who were absorbed/appointed in the BSF during the period 1974-78 are officers belonging to two different categories and they cannot be regarded as persons similarly situate.
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said principles were, however, applicable only to ex-ECOs who were absorbed/appointed in these forces during the period 1967 to 1970. In U. B. S. Teotia and others v. Union of India and others (supra) the Delhi High Court has construed Rule 8 of the CRPF Rules to mean that Army Officers who are re- employed or Army Officers who came on deputation, have to retain their original seniority and will get the benefit for their Army Services. We are unable to read Rule 8 as having such an effect. In our opinion, the said Rule when it says that ``an Army Officer shall maintain his seniority as between Army Officers within a particular rank and an Army Officer re-employed in the Central Reserve Police Force shall maintain his Army Service between Army Officers within a particular rank only means that amongst Army Officers inter se and re-employed Army Officers and an Army Officer inter se their seniority to a particular rank in the CRPF would be fixed on the basis of their seniority in the Army. We have not found any provision in Rule 8(b) which enables an Army Officer or a re-employed Army Officer to count his Army service for the purpose of seniority in the CRPF. We are, therefore, unable to uphold the decision of Delhi High Court in U. B. S. Teotia and others v. Union of India and others (supra). For the same reasons the observations in the order dated January 21, 1986 passed by this Court in special leave petitions arising out of Delhi High Court decision in U. B. S. Teotias case (supra) that ``the respondents are the Army Officers within the meaning of Rule 8 of the CRPF Rules and they are entitled to add the length of their unbroken service as ECOs and SSCOs for the purpose of reckoning their seniority, cannot be regarded as based on a correct interpretation of Rule 8 of the CRPF Rules. The said observations must, therefore, be confined to that particular caseCRPF and the BSF are two distinct forces governed by separate statutory provisions. The fact that in the CRPF, the benefit of past service in the Army has been given to SSCOs who were absorbed/appointed after selection by the Special Selection Board during the period 1974-78 on account of the provisions of Rule 8(b) of CRPF Rules, as construed by the Delhi High Court, does not mean that the said benefit should also be made available to the petitioners who were absorbed/appointed as Assistant Commandants in the BSF, though in the BSF there is no rule similar to Rule 8(b) of the CRPF Rules which confers this benefit. On the other hand, the said benefit has been expressly denied to the officers who were so absorbed/appointed, inasmuch as prior to the recruitment, the Government of India has clearly indicated in the letter dated September 6, 1972 that service rendered as SSRCOs will not count towards seniority and pension. This stipulation was also incorporated in the letter of appointment of the petitioners when they were absorbed/appointed as Assistant Commandants in the BSF. In the said letter it is expressly stated that the benefit of the past service in the Army would not be available for the purpose of seniority. From the letter of the Government of India dated September 6, 1972 it appears that this policy was for recruitment of released ECOs/SSRCOs as Assistant Commandants/Company Commanders (Dy. S.P.) in the BSF, CRPF and Assam Rifles, etc. Merely because the said policy which was applicable to all released SSCOs who were to be absorbed/appointed in the various para-military forces of the Government of India could not be given effect in CRPF on account of Rule 8(b) of the CRPF Rules, would not mean that the said policy in its application to the BSF, where there is no such legal impediment, suffers from the vice ofECOs who were absorbed/appointed to the BSF during the period 1967-71 has joined Army during emergency in the wake of the Chinese aggression. By joining the Army when the country needed their services they had made a sacrifice. Keeping in view the sacrifice made by them, the Government of India evolved a policy whereunder they were given certain benefit of their Army service for counting their seniority on re-employment in public services after their release from the Army. Moreover, they were absorbed in the BSF at a time when there was need for competent officers in the BSF and in order to attract such officers in the BSF it was considered necessary to give the benefit of the service of the Army for the purpose of seniority in the BSF to the officers who were absorbed/appointed in the BSF during the period 1967-71. The SSCOs have joined the Army as a career after the Emergency resulting from the Chinese aggression was over. When they were absorbed/appointed to the BSF during the period 1974-78 there was a change in the policy of the Government of India and the benefit of the service in the Army was not to be given to the SSCOs who were absorbed/appointed in the BSF after release from the Army. This condition was expressly mentioned in their letters of appointment and they opted to join the BSF knowing fully well that their Army service would not be counted for seniority in the BSF. The ECOs who were absorbed/appointed in the BSF during the period 1974-78 are officers belonging to two different categories and they cannot be regarded as persons similarlyAppeal No. 4127 ofWrit Petition filed by the appellants challenging the fixation of seniority of respondents was rightly dismissed by the High Court because the letters of appointment of ex- ECOs it was expressly stated that their Army service shall be counted towards seniority.a condition was not prohibited by any provision of the CRPF Rules or BSF Act and the rules made thereunder. Hence, it cannot be said that the fixation of seniority of the respondents suffers from any legal infirmity.
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Roop Chand Vs. State of Punjab & Another | or disposed of by such officer and may pass such order in reference thereto as it thinks fit. Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." 21. Now this power of the State Government is distinct from the power s. 21(4) and is in the nature of revision. This gives an overall control to the State Government to see that the orders passed by its officers are legal and are proper because one illegal or improper order may start a chain of reactions which may disturb the whole scheme of consolidation and prevent its coming into effect. One order passed at any stage under s. 21 of the Act by which a land- owner gets more than his share or is given a different area to that which is provided in the repartition scheme may lead to the undoing of the whole scheme and may set at naught the whole scheme of consolidation. It is for that purpose that the State Government has been given the power under s. 42 which is further clear from the fact that under the proviso to s. 42 the Government is expressly given the power to set aside proceedings ex parte in regard to which it is satisfied that there has been an element of unlawful consideration. This would apply equally to an order under s. 21(4) by a delegate as to any other order improperly obtained.The Government has necessarily to act through its officers and as consolidation has to take place in several villages, where the rights of a large number of landowners are affected, it cannot always appoint as a final appellate authority, persons who correspond to a Financial Commissioner under the Land Revenue Act of the Punjab; and as the orders of such officers become immune from challenge in courts and can in certain cases affect the whole scheme the State Government has been given the power of overall control over all actions of its officers and at all stages. In the present case the officer who exercised the appellate power was Mr. Avtar Singh Brar, Assistant Director, Consoli- dation of Holdings, Ambala. Naturally the Government had to appoint an officer of a higher status to see that no improper or illegal order was passed and for that purpose its powers under s. 42 were delegated to the Director of Consolidation of Holdings. 22. The language of s. 42 shows that an overall control is given to the State Government over all consolidation proceedings and at all stages. In that section are mentioned firstly any order passed by an officer, secondly a scheme prepared or confirmed, thirdly a partition made by any officer under the Act. They are all equally subject to the power of the State Government unders. 42 The order tinder s. 21 (4) by a delegate is an order of repartition and would even apart from the fact that it is an order of an officer be subject to the revisional powers of the State Government under s. 42. Therefore the statute must be taken to have authorised the State Government to reconsider the scheme confirmed by its delegate. If in that case the power is exercisable by the State Government there does not seem to be any reason why that power is not exercisable when its delegate passes an order under s. 21 (4) and thus makes an order in regard to repartition. So read the extent of the power of the State Government under s. 42 extends equally to any order passed by its officers whether of confirmation of a scheme or of repartition and whether the power is exercised by the officer making the order acting under authority expressly given to him under the Act or it is delegated to him by the State Government under s. 41 of the Act. If this power were not to be inferred from s. 42 then no kind of illegality or impropriety would be liable to correction. This argument receives further support from the power given to the State Government where it is satisfied that proceedings have been vitiated by unlawful consideration. If this power was not there then any order howsoever obtained would remain immune from all control of higher officials and would lead to a great deal of inconvenience if not injustice.The view of the Punjab High Court in Lakha Singh v. Director Consolidation of Holdings, Punjab(A.I. R. (1959) Punj. 157.) which was a case under a similar provision of the Pepsu State in our opinion is a correct interpretation of s. 41 of the Pepsu Act corresponding to s. 42 of the Act. In that case it was held that the appellate powers are concerned with the grievances of the appellant and those who are arrayed as parties In the appeal but s. 42 gives an overriding power to the Government to consider. any order of its officers under the Act and to make such orders as would subserve the objects and purposes of consolidation proceedings. The change in allotment, as a result of an appeal, may produce a chain of reactions and affect the rights of a number of persons which cannot be satisfactorily adjusted in appeal but under its general powers the Government may make such orders as would prevent the right of all or a large number of landowners from being affected. Without such a power, as we have said above the whole scheme of consolidation may fail because there would be no remedy in a civil court and finality being given to the appellate order would produce an impasse which must necessarily defeat the object of the Act and the process of consolidation. 23. In this view of the matter, in our opinion, this petition is without force and is dismissed with costs. BY COURT: 24. | 1[ds]We think that this is the correct position, and we wish to make it clear that we are not basing ourselves on the concession made by the learned Advocate- General. We feel no doubt that an order passed by an officer of the Government cannot be an order passed by the Government itself.The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under s. 21 (4) to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government ? We think it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by s. 21 (4). That section gives the power to the Government. it would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its power but such a power when delegated remain, ; the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the GovernmentAn agent of course exercises no powers of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under s. 41 (1) of the power of the Government under s. 21 (4), is for the purposes of the Act an order of the Government. If it were not so and it were to be held that the order had been made by the officer himself and was not an order of the Government-and of course it had to be one or the other-then we would have an order made by a person on whom the Act did not confer any power to make it. That would be an impossible situation. There can be no order except as authorised by the Act. What is true of s. 21 (4) would be true of all other provisions in the Act conferring powers on the Government which can be delegated to an officer under s. 41 (1). If we are wrong in the view that we have taken, then in the case of an order made by an officer as delegate of the Governments power under s. 21 (4) we would have an appeal entertained to and decided by one who had no power himself under the Act to do either. Plainly, none of these things could be done.Again, if an order passed by an officer to whom a power had been delegated by the Government under s. 41(1) was an order passed by the officer then an order made by an officer to whom power under s. 42 had been delegated would be an order by an officer within the meaning of s. 42. That order would then be liable to be interfered with by the Government under s. 42 and if such interference is again not by the Government itself but by another officer as its delegate, then in that way the process of interference might be repeated for ever. Obviously an interpretation leading to such, a; result cannot be correct. It is of some interest to point out here that in the present case the order tinder s. 42, that is, the impugned order had not been made by the Government itself but by the Director, Consolidation of Hol- dings, to whom the Governments power under that section had been delegatedWe will assume that power can be exercised in respect of the same order only once. But even so it seems to us that if the order by a delegate officer is an order within s. 42, then the power under that section can be exercised repeatedly. This will appear clearly if we take an illustration. Suppose delegate officer A makes an order under s. 21 (4). This order can be interfered with by the Government under s. 42. Now suppose the Government delegates its power under s. 42 to officer B and officer B then makes an order under s. 42 as delegate of Government. That would be an order made by a delegate officer and capable-of being interfered with under s. 42. This exercise of power would be in respect of an order of officer B and therefore not in respect of the same order in respect of which power under s. 42 had been once exercised, namely, the order by officer A. Now assume this time delegate officer C exercises Governments power under s. 42. Again the order made by him would be interfered with under s. 42. Repeated exercise of power would be in respect of successive orders and never in respect of the same order. In this way finality in the matter can never be reached. We must reject an interpretation which prevents finality being reached. On the interpretation that we have suggested the matter would be finally decided; the power under s. 42 cannot be exercised more than once in respect of the same matter.We think there are other reasons leading to the view that the order contemplated by s. 42 is an order made by an officer in his own right. The words "The State Government may...... call for and examine the record of any case pending before or disposed of by such officer" in the section clearly indicate that the records are not in the possession of the Government but are in the possession of somebody else in his own right and therefore it is that the Government is given power to "call for" those records. It would not be necessary to give the Government expressly the power to call for records if the records were with the Governments delegate, for such delegate would be even without such express power, within the control of the Government. The records with the delegate would really be records in the possession of the Government. Furthermore, the expression "call for" the records is one familiar to courts of law. It occurs in s. 115 of theCode of Civil Procedurewhere a superior court which therefore, is a different court, is given the power to call for the records of a subordinate court. It may reasonably be presumed that by using the familiar words " call for" the records, the legislature indicated that the officer whose order was to be interfered with under s. 42 was an officer exercising independent powers and therefore a subordinate officer and not an officer exercising powers delegated by the GovernmentWe think that this is a pointless contention. When the Act permits an order to be made, it must at the same time indicate, as the present Act does, who is to make the order. Obviously, a man in the street cannot make an order under the Act. Therefore the question that has, arisen in the present case cannot be answered simply by saying that the words "under the Act" refer to the word "order" alone. It cannot be that an order under the Act can be made by any officer whatsoever. If the contention of the learned Advocate-General was right, then even an order made by the Government itself under s. 21(4) would be liable to interference under s. 42, but as already stated he concedes that this cannot be done. Quite clearly s. 42 does not contemplate all orders whatsoever made under the ActThis objection to the petition is also without foundation. From what we have earlier said about the provisions of the Act it would appear that the object of the scheme is to give to a person affected by it right in the lands allotted to him under the repartition made pursuant to the scheme in the place of his right in lands which were pooled and which he previously held. Now under ss. 23, 24 and 25 taken together, the original right to lands come to an end and a right to the substituted lands spring up upon possession being delivered of the new allotments as mentioned in these sections. It is not necessary to refer to the provisions of these sections in detail for this, it is agreed, is the substance of them. It may be that possession has not yet been delivered in terms of the Act and, therefore, in a manner of speaking, the petitioners original right to land has not yet come to an end nor has his new right come into existence. But it is obvious that if the impugned order is allowed to stand, then it is the intention of the respondent State and the respondent Hari Singh to carry it into effect. If the impugned order stands, Hari Singh would be entitled to ask for delivery of possession of the lands given to him under that order and the respondent State would be bound to give him such possession. The petitioner would have no means of opposing possession being so given. Immediately upon such delivery of possession the petitioners original right to his lands would disappear. Therefore it seems to us/that the inevitable result of the order is to affect the petitioners right to property illegally. It may be that just now the right has not been affected and there is only a threat that it will be affected. But we think that the threat is sufficiently serious and the petitioner is not bound to wait till his right has actually been affected more particularly as it is not disputed that it would inevitably be affected.in the result we would allow the petition and issue a writ quashing the order purported to be made by the Director, Consolidation of Holdings, Punjab on July 21, 1956, under s. 42 of the Act. The petitioner will be entitled to the costs of this petition. | 1 | 7,921 | 1,852 | ### Instruction:
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or disposed of by such officer and may pass such order in reference thereto as it thinks fit. Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration." 21. Now this power of the State Government is distinct from the power s. 21(4) and is in the nature of revision. This gives an overall control to the State Government to see that the orders passed by its officers are legal and are proper because one illegal or improper order may start a chain of reactions which may disturb the whole scheme of consolidation and prevent its coming into effect. One order passed at any stage under s. 21 of the Act by which a land- owner gets more than his share or is given a different area to that which is provided in the repartition scheme may lead to the undoing of the whole scheme and may set at naught the whole scheme of consolidation. It is for that purpose that the State Government has been given the power under s. 42 which is further clear from the fact that under the proviso to s. 42 the Government is expressly given the power to set aside proceedings ex parte in regard to which it is satisfied that there has been an element of unlawful consideration. This would apply equally to an order under s. 21(4) by a delegate as to any other order improperly obtained.The Government has necessarily to act through its officers and as consolidation has to take place in several villages, where the rights of a large number of landowners are affected, it cannot always appoint as a final appellate authority, persons who correspond to a Financial Commissioner under the Land Revenue Act of the Punjab; and as the orders of such officers become immune from challenge in courts and can in certain cases affect the whole scheme the State Government has been given the power of overall control over all actions of its officers and at all stages. In the present case the officer who exercised the appellate power was Mr. Avtar Singh Brar, Assistant Director, Consoli- dation of Holdings, Ambala. Naturally the Government had to appoint an officer of a higher status to see that no improper or illegal order was passed and for that purpose its powers under s. 42 were delegated to the Director of Consolidation of Holdings. 22. The language of s. 42 shows that an overall control is given to the State Government over all consolidation proceedings and at all stages. In that section are mentioned firstly any order passed by an officer, secondly a scheme prepared or confirmed, thirdly a partition made by any officer under the Act. They are all equally subject to the power of the State Government unders. 42 The order tinder s. 21 (4) by a delegate is an order of repartition and would even apart from the fact that it is an order of an officer be subject to the revisional powers of the State Government under s. 42. Therefore the statute must be taken to have authorised the State Government to reconsider the scheme confirmed by its delegate. If in that case the power is exercisable by the State Government there does not seem to be any reason why that power is not exercisable when its delegate passes an order under s. 21 (4) and thus makes an order in regard to repartition. So read the extent of the power of the State Government under s. 42 extends equally to any order passed by its officers whether of confirmation of a scheme or of repartition and whether the power is exercised by the officer making the order acting under authority expressly given to him under the Act or it is delegated to him by the State Government under s. 41 of the Act. If this power were not to be inferred from s. 42 then no kind of illegality or impropriety would be liable to correction. This argument receives further support from the power given to the State Government where it is satisfied that proceedings have been vitiated by unlawful consideration. If this power was not there then any order howsoever obtained would remain immune from all control of higher officials and would lead to a great deal of inconvenience if not injustice.The view of the Punjab High Court in Lakha Singh v. Director Consolidation of Holdings, Punjab(A.I. R. (1959) Punj. 157.) which was a case under a similar provision of the Pepsu State in our opinion is a correct interpretation of s. 41 of the Pepsu Act corresponding to s. 42 of the Act. In that case it was held that the appellate powers are concerned with the grievances of the appellant and those who are arrayed as parties In the appeal but s. 42 gives an overriding power to the Government to consider. any order of its officers under the Act and to make such orders as would subserve the objects and purposes of consolidation proceedings. The change in allotment, as a result of an appeal, may produce a chain of reactions and affect the rights of a number of persons which cannot be satisfactorily adjusted in appeal but under its general powers the Government may make such orders as would prevent the right of all or a large number of landowners from being affected. Without such a power, as we have said above the whole scheme of consolidation may fail because there would be no remedy in a civil court and finality being given to the appellate order would produce an impasse which must necessarily defeat the object of the Act and the process of consolidation. 23. In this view of the matter, in our opinion, this petition is without force and is dismissed with costs. BY COURT: 24.
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if we take an illustration. Suppose delegate officer A makes an order under s. 21 (4). This order can be interfered with by the Government under s. 42. Now suppose the Government delegates its power under s. 42 to officer B and officer B then makes an order under s. 42 as delegate of Government. That would be an order made by a delegate officer and capable-of being interfered with under s. 42. This exercise of power would be in respect of an order of officer B and therefore not in respect of the same order in respect of which power under s. 42 had been once exercised, namely, the order by officer A. Now assume this time delegate officer C exercises Governments power under s. 42. Again the order made by him would be interfered with under s. 42. Repeated exercise of power would be in respect of successive orders and never in respect of the same order. In this way finality in the matter can never be reached. We must reject an interpretation which prevents finality being reached. On the interpretation that we have suggested the matter would be finally decided; the power under s. 42 cannot be exercised more than once in respect of the same matter.We think there are other reasons leading to the view that the order contemplated by s. 42 is an order made by an officer in his own right. The words "The State Government may...... call for and examine the record of any case pending before or disposed of by such officer" in the section clearly indicate that the records are not in the possession of the Government but are in the possession of somebody else in his own right and therefore it is that the Government is given power to "call for" those records. It would not be necessary to give the Government expressly the power to call for records if the records were with the Governments delegate, for such delegate would be even without such express power, within the control of the Government. The records with the delegate would really be records in the possession of the Government. Furthermore, the expression "call for" the records is one familiar to courts of law. It occurs in s. 115 of theCode of Civil Procedurewhere a superior court which therefore, is a different court, is given the power to call for the records of a subordinate court. It may reasonably be presumed that by using the familiar words " call for" the records, the legislature indicated that the officer whose order was to be interfered with under s. 42 was an officer exercising independent powers and therefore a subordinate officer and not an officer exercising powers delegated by the GovernmentWe think that this is a pointless contention. When the Act permits an order to be made, it must at the same time indicate, as the present Act does, who is to make the order. Obviously, a man in the street cannot make an order under the Act. Therefore the question that has, arisen in the present case cannot be answered simply by saying that the words "under the Act" refer to the word "order" alone. It cannot be that an order under the Act can be made by any officer whatsoever. If the contention of the learned Advocate-General was right, then even an order made by the Government itself under s. 21(4) would be liable to interference under s. 42, but as already stated he concedes that this cannot be done. Quite clearly s. 42 does not contemplate all orders whatsoever made under the ActThis objection to the petition is also without foundation. From what we have earlier said about the provisions of the Act it would appear that the object of the scheme is to give to a person affected by it right in the lands allotted to him under the repartition made pursuant to the scheme in the place of his right in lands which were pooled and which he previously held. Now under ss. 23, 24 and 25 taken together, the original right to lands come to an end and a right to the substituted lands spring up upon possession being delivered of the new allotments as mentioned in these sections. It is not necessary to refer to the provisions of these sections in detail for this, it is agreed, is the substance of them. It may be that possession has not yet been delivered in terms of the Act and, therefore, in a manner of speaking, the petitioners original right to land has not yet come to an end nor has his new right come into existence. But it is obvious that if the impugned order is allowed to stand, then it is the intention of the respondent State and the respondent Hari Singh to carry it into effect. If the impugned order stands, Hari Singh would be entitled to ask for delivery of possession of the lands given to him under that order and the respondent State would be bound to give him such possession. The petitioner would have no means of opposing possession being so given. Immediately upon such delivery of possession the petitioners original right to his lands would disappear. Therefore it seems to us/that the inevitable result of the order is to affect the petitioners right to property illegally. It may be that just now the right has not been affected and there is only a threat that it will be affected. But we think that the threat is sufficiently serious and the petitioner is not bound to wait till his right has actually been affected more particularly as it is not disputed that it would inevitably be affected.in the result we would allow the petition and issue a writ quashing the order purported to be made by the Director, Consolidation of Holdings, Punjab on July 21, 1956, under s. 42 of the Act. The petitioner will be entitled to the costs of this petition.
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Babu Varghese Vs. Bar Council Of Kerala | members was obtained by 27-1-1997 which is the date on which the term of the Kerala Bar Council expired. Since the majority of the members had not expressed their approval by that date in favour of the resolution, no "action" was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8-2-1997, passed a resolution extending the term of the Kerala Bar Council by six months under the proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no "action" was taken as the majority opinion had not been obtained by 27-1-1997 nor even thereafter, BCI or the Kerala Bar Council cannot legally feed back upon Rule 6 to contend that the resolution adopted on 8-2-1997 would relate back to the date on which the resolution under Rule 6 was circulated 35. Learned counsel for the respondents have placed strong reliance on the decision of this Court in Parmeshwari Prasad Gupta v. Union of India ( 1973 SC 510) in support of their contention that "confirmation" would relate back to the date on which "action" was taken. This case is clearly distinguishable. Here, the services of the General Manager of the company were terminated by a resolution passed at a meeting of the Directors, of which notice to one of the Directors was not given. This meeting was held on 16-12-1953 and the services were terminated by a letter of the Chairman dated 17-12-1953. The decision taken by the company in terminating the service at the earlier meeting, of which notice was not given to one of the Directors, was confirmed in a regularly convened meeting on 23-12-1953. It was in this context that this Court held that although the earlier meeting at which the Resolution for terminating the services of the General Manager was adopted was not valid as notice to one of the Directors was not given, the subsequent meeting at which the resolution of confirmation was adopted, would cure the Affects and the subsequent resolution would relate back to the date on which "action" was taken and the services were terminated. That is to say, the termination would be effective from the date on which the original resolution was adopted. The decision was essentially based on the effect of 14 "confirmation" in a regularly convened meeting on the "action" which had already been taken. It was this defect which was cured by a resolution of confirmation at the subsequent meeting and it was held that this resolution would relate back to the date on which the services were terminated 36. This principle cannot be applied in the instant case. BCI, as pointed out earlier, took no "action" on the basis of the resolution circulated to its members. In fact, it abandoned the whole process and adopted a resolution of extension only at its meeting on 8-2-1997 which would not relate back to the date of circulation as "mere circulation" is not "action" and that too, based on a majority opinion, within the meaning of Rule 6 which was required to be confirmed 37. Learned counsel for the respondents in their written submissions have referred to the dictionary meaning of the word "confirm" or "confirmation" in support of their argument that it has the effect of validating the earlier act. We appreciate their effort and add to their research the maxim, "confirmation ones supplet defectus, licet id quod actum est ab initio non value" (confirmation supplies all defects, though that which had been done was not valid at the beginning). But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27-1-1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8-2-1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by BCI 38. Lastly, it was contended by learned counsel for the respondents that the elections already having been held and the members having been in office for more than one and a half years, this Court should not intervene, specially as the appellants could have challenged the elections by way of an election petition which was not done. This contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi v. Surjit Singh (1980 SC 308) is a complete answer to this contention 39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the writ petition. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by BCI in terms of the provisions contained in Section 8-A which are imperative in character. Since the Kerala Bar Council has ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the election, held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council 40. Queerly, the Kerala High Court, merely after looking into the correspondence between the State Bar Council and the Bar Council of India as also the resolution adopted on 8-2-1997, came to the conclusion that the term of the State Bar Council shall be treated to have been extended before the expiry of the original term. This view, in our opinion, is wholly erroneous and contrary to the mandatory provisions contained in the Act and the Rules framed thereunder. | 1[ds]19. Since in the instant case a resolution for extension of the term of the Kerala Bar Council was sought to be passed by the process of circulation as provided by Rule 6 and the High Court has found it to have been validly done, it was this Rule which constituted the focal point of debate by both the sides in this appeal26. A perusal of this resolution indicates that the extension in the term was granted under the proviso to Section 8-A of the Act. The resolution does not speak of "confirmation" as, indeed, there could hot he any confirmation" as no action on the resolution which was circulated to the members was taken possibly because only eight had responded and that too, very late, as the term of the State Bar Council had already expired on 27-1-199729. In the instant case, process for "action", no doubt, was initiated, but no action was taken. The resolution for extension of the term of the Kerala Bar Council was circulated on 13-1-1997 or 14-1-1997 and the opinion of eight members was also received but no "action" was taken on that basis nor was any member intimated of the "action" taken. By the time the opinion of the eight members was obtained, the term of the Kerala Bar Council stood expired on 27-1-1997. By that date, namely, by 27-1-1997, only four members, namely, Mr. Ashok Desai (15-1-1997), Mr. Ashok Deb (18-1-1997), Mr. D. V. Patil (25-1-1997) and Mr. Jagannath Patnaik (25-1-1997) had indicated their approval. But that was not enough as the Rule itself provides that "action" will not be taken unless agreed to by a majority of the members. Since there were eighteen members in BCI, the opinion of four of the members was wholly irrelevant and insufficient for "action" being taken. On that basis, no extension could be granted, nor was it granted30. We may point it out that the process for extension of the term of the Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all33. Now, BCI could act in the matter in three ways(a) It could convene its meeting by giving 14 days notice to all its members under Rule I and pass a resolution extending the term of the Kerala Bar Council(b) It could convene the meeting on a short notice under Rule 1 and pass the above resolution(c) It could act under Rule 6 by circulating the resolution to all its members and on obtaining the opinion of the majority, extend the term of the Kerala Bar Council subject to confirmation at the next meeting34. BCI did not adopt the modes available to it under (a) and (b), but invoked the provisions of Rule 6 and adopted the mode indicated at (c). It circulated the resolution to its members proposing extension in the term of the Kerala Bar Council by six months. The opinion of only four of the members was obtained by 27-1-1997 which is the date on which the term of the Kerala Bar Council expired. Since the majority of the members had not expressed their approval by that date in favour of the resolution, no "action" was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8-2-1997, passed a resolution extending the term of the Kerala Bar Council by six months under the proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no "action" was taken as the majority opinion had not been obtained by 27-1-1997 nor even thereafter, BCI or the Kerala Bar Council cannot legally feed back upon Rule 6 to contend that the resolution adopted on 8-2-1997 would relate back to the date on which the resolution under Rule 6 was circulatedThis case is clearly distinguishable36. This principle cannot be applied in the instant case. BCI, as pointed out earlier, took no "action" on the basis of the resolution circulated to its members. In fact, it abandoned the whole process and adopted a resolution of extension only at its meeting on 8-2-1997 which would not relate back to the date of circulation as "mere circulation" is not "action" and that too, based on a majority opinion, within the meaning of Rule 6 which was required to be confirmedWe appreciate their effort and add to their research the maxim, "confirmation ones supplet defectus, licet id quod actum est ab initio non value" (confirmation supplies all defects, though that which had been done was not valid at the beginning). But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27-1-1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8-2-1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by BCIThis contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi v. Surjit Singh (1980 SC 308) is a complete answer to this contention39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the writ petition. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by BCI in terms of the provisions contained in Section 8-A which are imperative in character. Since the Kerala Bar Council has ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the election, held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council40. Queerly, the Kerala High Court, merely after looking into the correspondence between the State Bar Council and the Bar Council of India as also the resolution adopted on 8-2-1997, came to the conclusion that the term of the State Bar Council shall be treated to have been extended before the expiry of the original term. This view, in our opinion, is wholly erroneous and contrary to the mandatory provisions contained in the Act and the Rules framed thereunder. | 1 | 6,262 | 1,299 | ### Instruction:
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members was obtained by 27-1-1997 which is the date on which the term of the Kerala Bar Council expired. Since the majority of the members had not expressed their approval by that date in favour of the resolution, no "action" was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8-2-1997, passed a resolution extending the term of the Kerala Bar Council by six months under the proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no "action" was taken as the majority opinion had not been obtained by 27-1-1997 nor even thereafter, BCI or the Kerala Bar Council cannot legally feed back upon Rule 6 to contend that the resolution adopted on 8-2-1997 would relate back to the date on which the resolution under Rule 6 was circulated 35. Learned counsel for the respondents have placed strong reliance on the decision of this Court in Parmeshwari Prasad Gupta v. Union of India ( 1973 SC 510) in support of their contention that "confirmation" would relate back to the date on which "action" was taken. This case is clearly distinguishable. Here, the services of the General Manager of the company were terminated by a resolution passed at a meeting of the Directors, of which notice to one of the Directors was not given. This meeting was held on 16-12-1953 and the services were terminated by a letter of the Chairman dated 17-12-1953. The decision taken by the company in terminating the service at the earlier meeting, of which notice was not given to one of the Directors, was confirmed in a regularly convened meeting on 23-12-1953. It was in this context that this Court held that although the earlier meeting at which the Resolution for terminating the services of the General Manager was adopted was not valid as notice to one of the Directors was not given, the subsequent meeting at which the resolution of confirmation was adopted, would cure the Affects and the subsequent resolution would relate back to the date on which "action" was taken and the services were terminated. That is to say, the termination would be effective from the date on which the original resolution was adopted. The decision was essentially based on the effect of 14 "confirmation" in a regularly convened meeting on the "action" which had already been taken. It was this defect which was cured by a resolution of confirmation at the subsequent meeting and it was held that this resolution would relate back to the date on which the services were terminated 36. This principle cannot be applied in the instant case. BCI, as pointed out earlier, took no "action" on the basis of the resolution circulated to its members. In fact, it abandoned the whole process and adopted a resolution of extension only at its meeting on 8-2-1997 which would not relate back to the date of circulation as "mere circulation" is not "action" and that too, based on a majority opinion, within the meaning of Rule 6 which was required to be confirmed 37. Learned counsel for the respondents in their written submissions have referred to the dictionary meaning of the word "confirm" or "confirmation" in support of their argument that it has the effect of validating the earlier act. We appreciate their effort and add to their research the maxim, "confirmation ones supplet defectus, licet id quod actum est ab initio non value" (confirmation supplies all defects, though that which had been done was not valid at the beginning). But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27-1-1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8-2-1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by BCI 38. Lastly, it was contended by learned counsel for the respondents that the elections already having been held and the members having been in office for more than one and a half years, this Court should not intervene, specially as the appellants could have challenged the elections by way of an election petition which was not done. This contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi v. Surjit Singh (1980 SC 308) is a complete answer to this contention 39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the writ petition. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by BCI in terms of the provisions contained in Section 8-A which are imperative in character. Since the Kerala Bar Council has ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the election, held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council 40. Queerly, the Kerala High Court, merely after looking into the correspondence between the State Bar Council and the Bar Council of India as also the resolution adopted on 8-2-1997, came to the conclusion that the term of the State Bar Council shall be treated to have been extended before the expiry of the original term. This view, in our opinion, is wholly erroneous and contrary to the mandatory provisions contained in the Act and the Rules framed thereunder.
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initiated, but no action was taken. The resolution for extension of the term of the Kerala Bar Council was circulated on 13-1-1997 or 14-1-1997 and the opinion of eight members was also received but no "action" was taken on that basis nor was any member intimated of the "action" taken. By the time the opinion of the eight members was obtained, the term of the Kerala Bar Council stood expired on 27-1-1997. By that date, namely, by 27-1-1997, only four members, namely, Mr. Ashok Desai (15-1-1997), Mr. Ashok Deb (18-1-1997), Mr. D. V. Patil (25-1-1997) and Mr. Jagannath Patnaik (25-1-1997) had indicated their approval. But that was not enough as the Rule itself provides that "action" will not be taken unless agreed to by a majority of the members. Since there were eighteen members in BCI, the opinion of four of the members was wholly irrelevant and insufficient for "action" being taken. On that basis, no extension could be granted, nor was it granted30. We may point it out that the process for extension of the term of the Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all33. Now, BCI could act in the matter in three ways(a) It could convene its meeting by giving 14 days notice to all its members under Rule I and pass a resolution extending the term of the Kerala Bar Council(b) It could convene the meeting on a short notice under Rule 1 and pass the above resolution(c) It could act under Rule 6 by circulating the resolution to all its members and on obtaining the opinion of the majority, extend the term of the Kerala Bar Council subject to confirmation at the next meeting34. BCI did not adopt the modes available to it under (a) and (b), but invoked the provisions of Rule 6 and adopted the mode indicated at (c). It circulated the resolution to its members proposing extension in the term of the Kerala Bar Council by six months. The opinion of only four of the members was obtained by 27-1-1997 which is the date on which the term of the Kerala Bar Council expired. Since the majority of the members had not expressed their approval by that date in favour of the resolution, no "action" was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8-2-1997, passed a resolution extending the term of the Kerala Bar Council by six months under the proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no "action" was taken as the majority opinion had not been obtained by 27-1-1997 nor even thereafter, BCI or the Kerala Bar Council cannot legally feed back upon Rule 6 to contend that the resolution adopted on 8-2-1997 would relate back to the date on which the resolution under Rule 6 was circulatedThis case is clearly distinguishable36. This principle cannot be applied in the instant case. BCI, as pointed out earlier, took no "action" on the basis of the resolution circulated to its members. In fact, it abandoned the whole process and adopted a resolution of extension only at its meeting on 8-2-1997 which would not relate back to the date of circulation as "mere circulation" is not "action" and that too, based on a majority opinion, within the meaning of Rule 6 which was required to be confirmedWe appreciate their effort and add to their research the maxim, "confirmation ones supplet defectus, licet id quod actum est ab initio non value" (confirmation supplies all defects, though that which had been done was not valid at the beginning). But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27-1-1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8-2-1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by BCIThis contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi v. Surjit Singh (1980 SC 308) is a complete answer to this contention39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the writ petition. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by BCI in terms of the provisions contained in Section 8-A which are imperative in character. Since the Kerala Bar Council has ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the election, held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council40. Queerly, the Kerala High Court, merely after looking into the correspondence between the State Bar Council and the Bar Council of India as also the resolution adopted on 8-2-1997, came to the conclusion that the term of the State Bar Council shall be treated to have been extended before the expiry of the original term. This view, in our opinion, is wholly erroneous and contrary to the mandatory provisions contained in the Act and the Rules framed thereunder.
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The State Of Uttar Pradeshand Others Vs. H. H. Maharaja Brijendra Singh | been held by the owner thereof under a purchase made before the first day of April, 1948, but after the first day of September, 1939, by a registered document, or a decree for pre-emption between the aforesaid dates, the compensation shall be the price actually paid by the purchaser or the amount on payment of which he may have acquired the land in the decree for pre-emption, as the case may be.3. The High Court held that these two provisos were invalid and that devoid of these offending provisos, S. 11 (1) of the Act was not invalid and consequently the order of the appellants was a valid order and thus the writ for certiorari was refused.4. In regard to the prayer for a writ of mandamus, the High Court observed:"Nor do we think that we should order the issue of mandamus directing the Compensation Officer in determining the compensation payable to the petitioners to ignore the provisos to S. 11(1). We have held those provisos to be invalid. The Compensation Officer, for some reason of which we are not aware, has not yet embarked on the task of determining the compensation, but when he does so we assume that he will be guided by the opinion we have expressed; we cannot assume that he will act otherwise.5. The petition was therefore dismissed but the appellants were ordered to pay costs. It is against this judgment that the appellants have appealed to this Court on a certificate.6. No objection was taken by the respondent to the competency of the appeal on the ground that the petition had been dismissed and the legality of the certificate has not been challenged before us.7. The only question for decision is whether the two provisos to S. 11 (1) of the Act are unconstitutional because of the provisions of S. 299 (2) of the Government of India Act,1935. The Constitution was amended by the Constitution (First Amendment) Act, 1951 and Art. 31-B was inserted in the Constitution which is as follows:"Without prejudice to the generality of the provisions contained in Art. 31A, none of the facts and Regulations specified in the Ninth Schedule for any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.8. By S. 5 of the Constitution (Fourth Amendment) Act of 1955 which was published on April 27, 1955, the Act was included in the Schedule and is item 15. It was argued on behalf of the appellants that by the inclusion of the Act in the Ninth Schedule, the ground of unconstitutionality of the Act because of S. 299 (2) of the Government of India Act is no longer available to the respondent and that what was provided as a safeguard in S. 299 (2) of the Government of India Act has been incorporated in the Constitution and therefore any unconstitutionality arising as a result of contravention of S. 299(2) of the Government of India Act is cured by Art. 31-B of the Constitution. This question was raised and decided in Dhirubha Devisingh Gohil v. State of Bombay, 1955-1 SCR 691 at p. 695 : ( (S) AIR 1955 SC 47 at p. 49). It was held that S. 299 (2) of the Government of India Act was in substance a fundamental right which was lifted bodily as it were from the Government of India Act into Part III of the Constitution. Therefore the protection under Art. 31-B against the violation of the fundamental rights mentioned therein must extend to the rights under S. 299 of the Government of India Act also. The following passage from that judgment at page 695 (of SCR): (at p. 49 of AIR) is important and applicable to the facts of the present case:"What article 31-B protects is not a mere contravention of the provisions of Part III of the Constitution but an attack on the grounds that the impugned Act is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part: One of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under S. 299 of the Government of India Act.9. In view of the judgment of this Court in Dhirubha Devisingh Gohils case, 1955-1 SCR 691 : ( (S) AIR 1955 SC 47 )the ground of unconstitutionality based on the contravention of S. 299 of the Government of India Act would not be available to the respondent. But it was argued on behalf of the respondent that the amendment of the Constitution which came after the decision of the Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reliance was placed upon the judgment of this Court in Saghir Ahmad v. State of U. P., 1955-1 SCR 707 at pp. 727, 728 : (AIR 1954 SC 728 at pp. 739-740).But in the present case the provisions of the Act have been specifically saved from any attack on their constitutionality as a consequence of Art. 31-B read with the Ninth Schedule, the effect of which is that the Act cannot be deemed to be void or ever to have become void on the ground of its being hit by the operation of the Government of India Act. | 1[ds]9. In view of the judgment of this Court in Dhirubha Devisingh Gohils case, 1955-1 SCR 691 : ( (S) AIR 1955 SC 47 )the ground of unconstitutionality based on the contravention of S. 299 of the Government of India Act would not be available to the respondent. But it was argued on behalf of the respondent that the amendment of the Constitution which came after the decision of the Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reliance was placed upon the judgment of this Court in Saghir Ahmad v. State of U. P., 1955-1 SCR 707 at pp. 727, 728 : (AIR 1954 SC 728 at pp. 739-740).But in the present case the provisions of the Act have been specifically saved from any attack on their constitutionality as a consequence of Art. 31-B read with the Ninth Schedule, the effect of which is that the Act cannot be deemed to be void or ever to have become void on the ground of its being hit by the operation of the Government of India Act. | 1 | 1,889 | 209 | ### 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:
been held by the owner thereof under a purchase made before the first day of April, 1948, but after the first day of September, 1939, by a registered document, or a decree for pre-emption between the aforesaid dates, the compensation shall be the price actually paid by the purchaser or the amount on payment of which he may have acquired the land in the decree for pre-emption, as the case may be.3. The High Court held that these two provisos were invalid and that devoid of these offending provisos, S. 11 (1) of the Act was not invalid and consequently the order of the appellants was a valid order and thus the writ for certiorari was refused.4. In regard to the prayer for a writ of mandamus, the High Court observed:"Nor do we think that we should order the issue of mandamus directing the Compensation Officer in determining the compensation payable to the petitioners to ignore the provisos to S. 11(1). We have held those provisos to be invalid. The Compensation Officer, for some reason of which we are not aware, has not yet embarked on the task of determining the compensation, but when he does so we assume that he will be guided by the opinion we have expressed; we cannot assume that he will act otherwise.5. The petition was therefore dismissed but the appellants were ordered to pay costs. It is against this judgment that the appellants have appealed to this Court on a certificate.6. No objection was taken by the respondent to the competency of the appeal on the ground that the petition had been dismissed and the legality of the certificate has not been challenged before us.7. The only question for decision is whether the two provisos to S. 11 (1) of the Act are unconstitutional because of the provisions of S. 299 (2) of the Government of India Act,1935. The Constitution was amended by the Constitution (First Amendment) Act, 1951 and Art. 31-B was inserted in the Constitution which is as follows:"Without prejudice to the generality of the provisions contained in Art. 31A, none of the facts and Regulations specified in the Ninth Schedule for any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.8. By S. 5 of the Constitution (Fourth Amendment) Act of 1955 which was published on April 27, 1955, the Act was included in the Schedule and is item 15. It was argued on behalf of the appellants that by the inclusion of the Act in the Ninth Schedule, the ground of unconstitutionality of the Act because of S. 299 (2) of the Government of India Act is no longer available to the respondent and that what was provided as a safeguard in S. 299 (2) of the Government of India Act has been incorporated in the Constitution and therefore any unconstitutionality arising as a result of contravention of S. 299(2) of the Government of India Act is cured by Art. 31-B of the Constitution. This question was raised and decided in Dhirubha Devisingh Gohil v. State of Bombay, 1955-1 SCR 691 at p. 695 : ( (S) AIR 1955 SC 47 at p. 49). It was held that S. 299 (2) of the Government of India Act was in substance a fundamental right which was lifted bodily as it were from the Government of India Act into Part III of the Constitution. Therefore the protection under Art. 31-B against the violation of the fundamental rights mentioned therein must extend to the rights under S. 299 of the Government of India Act also. The following passage from that judgment at page 695 (of SCR): (at p. 49 of AIR) is important and applicable to the facts of the present case:"What article 31-B protects is not a mere contravention of the provisions of Part III of the Constitution but an attack on the grounds that the impugned Act is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part: One of the rights secured to a person by Part III of the Constitution is a right that his property shall be acquired only for public purposes and under a law authorising such acquisition and providing for compensation which is either fixed by the law itself or regulated by principles specified by the law. That is also the very right which was previously secured to the person under S. 299 of the Government of India Act.9. In view of the judgment of this Court in Dhirubha Devisingh Gohils case, 1955-1 SCR 691 : ( (S) AIR 1955 SC 47 )the ground of unconstitutionality based on the contravention of S. 299 of the Government of India Act would not be available to the respondent. But it was argued on behalf of the respondent that the amendment of the Constitution which came after the decision of the Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reliance was placed upon the judgment of this Court in Saghir Ahmad v. State of U. P., 1955-1 SCR 707 at pp. 727, 728 : (AIR 1954 SC 728 at pp. 739-740).But in the present case the provisions of the Act have been specifically saved from any attack on their constitutionality as a consequence of Art. 31-B read with the Ninth Schedule, the effect of which is that the Act cannot be deemed to be void or ever to have become void on the ground of its being hit by the operation of the Government of India Act.
### Response:
1
### Explanation:
9. In view of the judgment of this Court in Dhirubha Devisingh Gohils case, 1955-1 SCR 691 : ( (S) AIR 1955 SC 47 )the ground of unconstitutionality based on the contravention of S. 299 of the Government of India Act would not be available to the respondent. But it was argued on behalf of the respondent that the amendment of the Constitution which came after the decision of the Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reliance was placed upon the judgment of this Court in Saghir Ahmad v. State of U. P., 1955-1 SCR 707 at pp. 727, 728 : (AIR 1954 SC 728 at pp. 739-740).But in the present case the provisions of the Act have been specifically saved from any attack on their constitutionality as a consequence of Art. 31-B read with the Ninth Schedule, the effect of which is that the Act cannot be deemed to be void or ever to have become void on the ground of its being hit by the operation of the Government of India Act.
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AIR INDIA EXPRESS LTD Vs. CAPT. GURDARSHAN KAUR SANDHU | however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter. 12. In the light of the aforementioned principles the issue whether the respondent could have withdrawn her letter of resignation depends upon answers to the following questions: A) Whether the stipulation of the notice period in the CAR is intended to safeguard the interest of the employee? ; and B) Whether the provisions of the CAR and the governing principles stipulated therein are in the nature of special provisions coming within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra (1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228 thereby disabling the respondent from withdrawing her resignation? 13. The CAR acknowledges that it takes considerable period to train a pilot to operate an aircraft and that as a part of the training, the new incumbent will be required to pass technical and performance examinations and will have to undergo simulator and flying training and to undertake skill test to satisfy the requirements. Even after imparting of such training, said person would function only as a co-pilot till he reaches the level of expertise required of a pilot. The CAR states that the resignation without minimum notice of six months could result in last minute cancellation of flights and harassment to passengers. As the pilots are highly skilled personnel, a decision was taken that any act on part of the pilots including resignation from the airlines without minimum notice period of six months be treated as an act against public interest. The CAR, therefore, provides:- a) During the notice period neither the pilot shall refuse to undertake flight duties nor shall the employer deprive the pilot of his legitimate rights and privileges. b) In case the air transport undertaking resorts to reduction in the salaries/perks, the pilot will be free to make a request for his release before the expiry of the notice period c) On the expiry of the notice period an appropriate NOC shall be issued by the air transport undertaking d) The notice period of six months could however be reduced if the NOC was provided to the pilot and his resignation was accepted earlier than six months. In terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months notice in case she desired to leave the services of the appellant. 14. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such eventuality, the guiding idea or parameter is public interest. The stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra (1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228 , and the respondent could not have withdrawn the resignation. 15. The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 03.07.2017 had three relevant statements: - 1. I am tendering my resignation letter. 2. Please consider this as my six months notice period 3. If any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentioned. The first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment. The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR. | 1[ds]After the respondent was not allowed to join her duties, it appears that she was employed as a pilot with Jet Airways for some time. However, with the closing of operations of Jet Airways, she is not presently holding any position as pilot in any airline11. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/postIn terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months notice in case she desired to leave the services of the appellant14. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such eventuality, the guiding idea or parameter is public interestThe stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra(1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228, and the respondent could not have withdrawn the resignation15. The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 03.07.2017 had three relevant statements:1. I am tendering my resignation letter2. Please consider this as my six months notice periodIf any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentionedThe first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment. The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR. | 1 | 7,952 | 745 | ### 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:
however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter. 12. In the light of the aforementioned principles the issue whether the respondent could have withdrawn her letter of resignation depends upon answers to the following questions: A) Whether the stipulation of the notice period in the CAR is intended to safeguard the interest of the employee? ; and B) Whether the provisions of the CAR and the governing principles stipulated therein are in the nature of special provisions coming within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra (1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228 thereby disabling the respondent from withdrawing her resignation? 13. The CAR acknowledges that it takes considerable period to train a pilot to operate an aircraft and that as a part of the training, the new incumbent will be required to pass technical and performance examinations and will have to undergo simulator and flying training and to undertake skill test to satisfy the requirements. Even after imparting of such training, said person would function only as a co-pilot till he reaches the level of expertise required of a pilot. The CAR states that the resignation without minimum notice of six months could result in last minute cancellation of flights and harassment to passengers. As the pilots are highly skilled personnel, a decision was taken that any act on part of the pilots including resignation from the airlines without minimum notice period of six months be treated as an act against public interest. The CAR, therefore, provides:- a) During the notice period neither the pilot shall refuse to undertake flight duties nor shall the employer deprive the pilot of his legitimate rights and privileges. b) In case the air transport undertaking resorts to reduction in the salaries/perks, the pilot will be free to make a request for his release before the expiry of the notice period c) On the expiry of the notice period an appropriate NOC shall be issued by the air transport undertaking d) The notice period of six months could however be reduced if the NOC was provided to the pilot and his resignation was accepted earlier than six months. In terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months notice in case she desired to leave the services of the appellant. 14. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such eventuality, the guiding idea or parameter is public interest. The stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra (1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228 , and the respondent could not have withdrawn the resignation. 15. The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 03.07.2017 had three relevant statements: - 1. I am tendering my resignation letter. 2. Please consider this as my six months notice period 3. If any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentioned. The first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment. The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR.
### Response:
1
### Explanation:
After the respondent was not allowed to join her duties, it appears that she was employed as a pilot with Jet Airways for some time. However, with the closing of operations of Jet Airways, she is not presently holding any position as pilot in any airline11. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/postIn terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months notice in case she desired to leave the services of the appellant14. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such eventuality, the guiding idea or parameter is public interestThe stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra(1978) 2 SCC 301 and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228, and the respondent could not have withdrawn the resignation15. The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 03.07.2017 had three relevant statements:1. I am tendering my resignation letter2. Please consider this as my six months notice periodIf any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentionedThe first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment. The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR.
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State Of West Bengal & Ors Vs. Washi Ahmed Etc | sealed containers and the only question which, therefore, requires to be considered is whether green ginger can be regarded as vegetable commonly known as "sabji, tarkari or sak". Now, the word "vegetable" is not defined in the Act but it is well-settled as a result of several decisions of this Court of which we may mentioned only two, namely, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C.); A.I.R. 1961 S.C. 1325.), and Motipur Zamindary Co. Ltd. v. State of Bihar ([1962] 13 S.T.C. 1 (S.C.); A.I.R. 1962 S.C. 660.), that this word, being a word of every day use, must be construed not in any technical sense, not from any botanical point of view, but as understood in common parlance. The question which arose in Ramavatars case ([1961] 12 S.T.C. 286 (S.C.); A.I.R. 1961 S.C. 1325.) was whether betel leaves are "vegetables" and this Court held that they are not included within that term. This Court quoted with approval the following passage from the Judgment of the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants Association, Santra Market, Nagpur v. State of Madhya Pradesh ([1956] 7 S.T.C. 99 at 102 (S.C.).) :"In our opinion, the word vegetables cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term vegetables is to be understood as commonly understood denoting those classes of vegetable matter what are grown in kitchen gardens and are used for the table", and observed that "the word vegetable in taxing statutes is to be understood as in common parlance, i.e., denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table." This meaning of the word "vegetable" was reiterated by this Court in Motipur Zamindary case ([1962] 13 S.T.C. 1 (S.C.); A.I.R. 1962 S.C. 660.), where this Court was called upon to consider whether sugarcane can be regarded as vegetable and it was held by this Court that sugarcane cannot be said to fall within the definition of the word "vegetable". It is interesting to note that the same principle of construction in relating to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock, B., pointed out in Grenfell v. Inland Revenue Commissioners ((1876) 1 Ex. D. 242 at 248.) that:"if a statute contains language which is capable of being construed in a popular sense such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words "popular sense", that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King ((1952) 1 D.L.R. 385.), while interpreting the words "fruit" and "vegetable" in the Excise Act :"They are ordinary words in every day use and are, therefore, to be construed according to their popular sense." The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea ((1824) 9 Wheaton (U.S.) 430 at 435.), where the learned Judge said that"the particular words used by the legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the legislature does not suppose our merchants to be naturalists, or geologists, or botanists". 3. It will, therefore, be seen that the word "vegetable" in item 6 of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Now, obviously green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the sales tax authorities showing that the railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnightly showing the rates in the municipal market. There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word "vegetable" as understood in common parlance. That apart, we find that item 6 speaks not simply of vegetables but "vegetables - commodity known as sabji, tarkari or sak" and the Division Bench of the High Court held green ginger to fall within the meaning of the words "sabji, tarkari or sak". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two Judges of the High Court who may reasonably be expected to be quite conversant with that language. 4. We are accordingly of the view that green ginger is included within the meaning of the words "vegetables - commonly known as sabji, tarkari to sak" in item 6 of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act. 5. | 0[ds]It is interesting to note that the same principle of construction in relating to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock, B., pointed out in Grenfellv. Inland Revenue Commissioners ((1876) 1 Ex. D. 242 at248.) that"if a statute contains language which is capable of being construed in a popular sense such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words "popular sense", that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it"3. It will, therefore, be seen that the word "vegetable" in item 6 of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with ther with which the statute is dealing would attribute to it" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Now, obviously green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the sales tax authorities showing that the railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnightly showing the rates in the municipal market. There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word "vegetable" as understood in common parlance. That apart, we find that item 6 speaks not simply of vegetables but "vegetablescommodity known as sabji, tarkari or sak" and the Division Bench of the High Court held green ginger to fall within the meaning of the words "sabji, tarkari or sak". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two Judges of the High Court who may reasonably be expected to be quite conversant with that language.We are accordingly of the view that green ginger is included within the meaning of the words "vegetablescommonly known as sabji, tarkari to sak" in item 6 of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act. | 0 | 1,605 | 561 | ### Instruction:
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sealed containers and the only question which, therefore, requires to be considered is whether green ginger can be regarded as vegetable commonly known as "sabji, tarkari or sak". Now, the word "vegetable" is not defined in the Act but it is well-settled as a result of several decisions of this Court of which we may mentioned only two, namely, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C.); A.I.R. 1961 S.C. 1325.), and Motipur Zamindary Co. Ltd. v. State of Bihar ([1962] 13 S.T.C. 1 (S.C.); A.I.R. 1962 S.C. 660.), that this word, being a word of every day use, must be construed not in any technical sense, not from any botanical point of view, but as understood in common parlance. The question which arose in Ramavatars case ([1961] 12 S.T.C. 286 (S.C.); A.I.R. 1961 S.C. 1325.) was whether betel leaves are "vegetables" and this Court held that they are not included within that term. This Court quoted with approval the following passage from the Judgment of the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants Association, Santra Market, Nagpur v. State of Madhya Pradesh ([1956] 7 S.T.C. 99 at 102 (S.C.).) :"In our opinion, the word vegetables cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term vegetables is to be understood as commonly understood denoting those classes of vegetable matter what are grown in kitchen gardens and are used for the table", and observed that "the word vegetable in taxing statutes is to be understood as in common parlance, i.e., denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table." This meaning of the word "vegetable" was reiterated by this Court in Motipur Zamindary case ([1962] 13 S.T.C. 1 (S.C.); A.I.R. 1962 S.C. 660.), where this Court was called upon to consider whether sugarcane can be regarded as vegetable and it was held by this Court that sugarcane cannot be said to fall within the definition of the word "vegetable". It is interesting to note that the same principle of construction in relating to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock, B., pointed out in Grenfell v. Inland Revenue Commissioners ((1876) 1 Ex. D. 242 at 248.) that:"if a statute contains language which is capable of being construed in a popular sense such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words "popular sense", that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King ((1952) 1 D.L.R. 385.), while interpreting the words "fruit" and "vegetable" in the Excise Act :"They are ordinary words in every day use and are, therefore, to be construed according to their popular sense." The same rule was expressed in slightly different language by Story, J., in 200 Chests of Tea ((1824) 9 Wheaton (U.S.) 430 at 435.), where the learned Judge said that"the particular words used by the legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the legislature does not suppose our merchants to be naturalists, or geologists, or botanists". 3. It will, therefore, be seen that the word "vegetable" in item 6 of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Now, obviously green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the sales tax authorities showing that the railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnightly showing the rates in the municipal market. There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word "vegetable" as understood in common parlance. That apart, we find that item 6 speaks not simply of vegetables but "vegetables - commodity known as sabji, tarkari or sak" and the Division Bench of the High Court held green ginger to fall within the meaning of the words "sabji, tarkari or sak". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two Judges of the High Court who may reasonably be expected to be quite conversant with that language. 4. We are accordingly of the view that green ginger is included within the meaning of the words "vegetables - commonly known as sabji, tarkari to sak" in item 6 of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act. 5.
### Response:
0
### Explanation:
It is interesting to note that the same principle of construction in relating to words used in a taxing statute has also been adopted in English, Canadian and American courts. Pollock, B., pointed out in Grenfellv. Inland Revenue Commissioners ((1876) 1 Ex. D. 242 at248.) that"if a statute contains language which is capable of being construed in a popular sense such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words "popular sense", that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it"3. It will, therefore, be seen that the word "vegetable" in item 6 of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning "that sense which people conversant with ther with which the statute is dealing would attribute to it" and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table. Now, obviously green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable. The assessee in fact placed evidence before the sales tax authorities showing that the railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carriage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it fortnightly showing the rates in the municipal market. There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word "vegetable" as understood in common parlance. That apart, we find that item 6 speaks not simply of vegetables but "vegetablescommodity known as sabji, tarkari or sak" and the Division Bench of the High Court held green ginger to fall within the meaning of the words "sabji, tarkari or sak". We should certainly be very slow to disturb a meaning placed on these words in Bengali language by two Judges of the High Court who may reasonably be expected to be quite conversant with that language.We are accordingly of the view that green ginger is included within the meaning of the words "vegetablescommonly known as sabji, tarkari to sak" in item 6 of Schedule I and its sales must be held to be exempt from tax under section 6 of the Act.
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Anandji Haridas & Co. Pvt. Ltd Vs. Engineering Mazdoor Sangh & Anr | Court of Bombay. The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deduction depreciation. Therefore, it could not claim deduction at a rate higher than 55% in calculating the available surplus. In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with law. Hence this appeal by the Company.5. Broadly, the scheme of the Bonus Act is this: At first, the gross profits derived by an employer from an establishment are calculated in the manner specified in the First Schedule, or the Second Schedule, whichever may be applicable (S. 4). On the basis of such gross profits, the available surplus for the particular accounting year is computed. This is done by deducting therefrom the sums referred to in Sec. 6. According to Clause (c) of Section 6, one of the sums so deductible is:"Subject to the provisions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year".6. Section 7, to which S. 6 (c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated. Clause (e) of Section is material. It runs thus:"no account shall be taken of any rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefore mentioned in this section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of any industry?7. The rates of income-tax applicable to Private Ltd. Companies under Paragraph F Part I of the First Schedule fixed by the Finance Act, 1966, are as follows:"I. In the case of a domestic Company(A) (1) ......(2) where the Company is not a company in which the public are substantially interested.(i) in the case of an industrial Company(1) on so much of the total income as does not exceed Rs. 10,00,000 55 per cent. (2) on the balance, if any of the total income - 60 per cent(ii) in any other case - 65 per cent of the total income".It is not disputed that the Company being an industrial Company with total income for the relevant year not exceeding Rs. 10,00,000, the rate of tax under the above Paragraph I (A) (2) (i), applicable to it, was 55 per cent, and not 65 per cent, of the total income. However, Mr. Bhandares contention is that this was only a concessional rate and not the normal rate which was prescribed under Clause (ii) of the above Paragraph I (A) (2). The point pressed into argument is that this ten per cent concession in the tax-rate was given to Industrial Companies with a view to promote development of Industry and as such, must be deemed to he a "relief" or "rebate" in the payment of direct tax of the kind contemplated by Section 7 (e) of the Act. Reliance for this contention has been placed on, the speech of the Finance Minister on the Budget of 1966-67, wherein he proposed to provide "certain reliefs" which he considered necessary providing a suitable climate of growth", and in that context described the rate of 55% tax on Industrial Companies as a "concessional rate".8. We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.9. As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.10. In the case before us, the language of Section 7 (e) is crystal clear and self-contained. It indicates in unmistakable terms that the rebate or relief in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it most be a rebate or relief" allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry. In the present case, condition (i) is lacking.11. The Finance Act, 1966, does not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.12. The High Court was, therefore, right in holding that it was not permissible to use the speech of the Finance Minister to construe the clear language of the statute. | 0[ds]are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.In the case before us, the language of Section 7 (e) is crystal clear and self-contained. It indicates in unmistakable terms that the rebate or relief in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it most be a rebate or relief" allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry. In the present case, condition (i) is lacking.11. The Finance Act, 1966, does not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.12. The High Court was, therefore, right in holding that it was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.As regards the costs, the delay in payment of the bonus caused by the pendency of this appeal has been amply compensated vice this, Courts order dated February 17, 1972, which is to this effect:"The order of ex parte stay is made absolute on the condition that the petitioner-appellant shall pay six per cent interest on any amount that is found payable by the appellant to the respondent-workmen from the date the award become enforceable till the disposal of the appeal in this Court, in case the appeal fails in this Court." | 0 | 1,605 | 395 | ### Instruction:
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Court of Bombay. The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deduction depreciation. Therefore, it could not claim deduction at a rate higher than 55% in calculating the available surplus. In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with law. Hence this appeal by the Company.5. Broadly, the scheme of the Bonus Act is this: At first, the gross profits derived by an employer from an establishment are calculated in the manner specified in the First Schedule, or the Second Schedule, whichever may be applicable (S. 4). On the basis of such gross profits, the available surplus for the particular accounting year is computed. This is done by deducting therefrom the sums referred to in Sec. 6. According to Clause (c) of Section 6, one of the sums so deductible is:"Subject to the provisions of Section 7, any direct tax which the employer is liable to pay for the accounting year in respect of his income, profits and gains during that year".6. Section 7, to which S. 6 (c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated. Clause (e) of Section is material. It runs thus:"no account shall be taken of any rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefore mentioned in this section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act, for the development of any industry?7. The rates of income-tax applicable to Private Ltd. Companies under Paragraph F Part I of the First Schedule fixed by the Finance Act, 1966, are as follows:"I. In the case of a domestic Company(A) (1) ......(2) where the Company is not a company in which the public are substantially interested.(i) in the case of an industrial Company(1) on so much of the total income as does not exceed Rs. 10,00,000 55 per cent. (2) on the balance, if any of the total income - 60 per cent(ii) in any other case - 65 per cent of the total income".It is not disputed that the Company being an industrial Company with total income for the relevant year not exceeding Rs. 10,00,000, the rate of tax under the above Paragraph I (A) (2) (i), applicable to it, was 55 per cent, and not 65 per cent, of the total income. However, Mr. Bhandares contention is that this was only a concessional rate and not the normal rate which was prescribed under Clause (ii) of the above Paragraph I (A) (2). The point pressed into argument is that this ten per cent concession in the tax-rate was given to Industrial Companies with a view to promote development of Industry and as such, must be deemed to he a "relief" or "rebate" in the payment of direct tax of the kind contemplated by Section 7 (e) of the Act. Reliance for this contention has been placed on, the speech of the Finance Minister on the Budget of 1966-67, wherein he proposed to provide "certain reliefs" which he considered necessary providing a suitable climate of growth", and in that context described the rate of 55% tax on Industrial Companies as a "concessional rate".8. We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.9. As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.10. In the case before us, the language of Section 7 (e) is crystal clear and self-contained. It indicates in unmistakable terms that the rebate or relief in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it most be a rebate or relief" allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry. In the present case, condition (i) is lacking.11. The Finance Act, 1966, does not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.12. The High Court was, therefore, right in holding that it was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.
### Response:
0
### Explanation:
are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.In the case before us, the language of Section 7 (e) is crystal clear and self-contained. It indicates in unmistakable terms that the rebate or relief in the payment of any direct tax in order to fall within the purview of this clause must satisfy two conditions, viz., (i) that it most be a rebate or relief" allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act", and further, (ii) that it must be a relief or rebate for the development of any Industry. In the present case, condition (i) is lacking.11. The Finance Act, 1966, does not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that this difference in the rates is allowed as a rebate or relief under any other extant law relating to direct taxes.12. The High Court was, therefore, right in holding that it was not permissible to use the speech of the Finance Minister to construe the clear language of the statute.As regards the costs, the delay in payment of the bonus caused by the pendency of this appeal has been amply compensated vice this, Courts order dated February 17, 1972, which is to this effect:"The order of ex parte stay is made absolute on the condition that the petitioner-appellant shall pay six per cent interest on any amount that is found payable by the appellant to the respondent-workmen from the date the award become enforceable till the disposal of the appeal in this Court, in case the appeal fails in this Court."
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Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia | of the Arbitration Act, 1940 contending therein that since the "leave and license" agreement contained an arbitration clause for resolving all kinds of disputes arising between the parties in relation to the "leave and license" agreement and the disputes had arisen between the parties in relation to the "leave and license" agreement, such disputes could only be resolved by the arbitrator as agreed by the parties in the agreement. It was contended that the civil suit was, therefore, not maintainable and the disputes for which the suit has been filed be referred to the arbitrator for their adjudication. 21. This Court (Three Judge Bench) speaking through Justice O. Chinnappa Reddy rejected the application filed by the tenant under Section 8 of the Act and held, inter alia, that the civil suit filed by the landlord was maintainable. It was held that the disputes of such nature cannot be referred to the arbitrator. 22. This is what Their Lordships held as under: "24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain, the Court of Small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent-licensor landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant-licensee tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee tenant and the dispute between them relating to the possession of the licensed demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the arbitrator has none to adjudicate upon the dispute between the parties." 23. Yet in another case of Booz Allen & Hamilton Inc. (supra), this Court (two Judge Bench) speaking through R.V.Raveendran J. laid down the following proposition of law after examining the question as to which cases are arbitrable and which are non-arbitrable: "36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes." (emphasis supplied) 24. Keeping in view the law laid down by this Court in aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the Courts below were right in dismissing the appellants application filed under Section 8 of the Act and thereby were justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator. 25. Learned counsel for the appellant, however, argued that the provisions of the Delhi Rent Act,1955 are not applicable to the premises by virtue of Section 3(c) of the Act and hence the law laid down in the aforementioned two cases would not apply. We do not agree. 26. The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises.27. We have gone through the decisions cited by the learned counsel for the appellant in support of her contention. Having gone through the same, we are of the considered opinion that firstly, some decisions are rendered by the High Court; Secondly, remaining decisions are distinguishable on facts and lastly, in the light of two authoritative decisions of this Court, which are directly on the point and continue to hold the field, no reliance can be placed by the learned counsel for the appellant on any decision of the High Court. Indeed, any such decision of the High Court, which has taken view contrary to the view of this Court, the same stands overruled. Such is the case here.28. We, therefore, need not deal with any other submissions of learned counsel for the appellant which, in our opinion, really do not arise in the light of what we have held supra. | 0[ds]17. Having heard learned senior counsel for the parties at length and on perusal of the record of the case, we find no merit in the appeal.18. In our considered opinion, the question involved in the appeal remains no longer res integra and stands answered by two decisions of this Court in Natraj Studios (P) Ltd. v. Navrang Studios & Another, 1981(1) R.C.R.(Rent) 350 : 1981(1) SCC 523 and Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. & Ors., (2011) 5 SCC 532 against the appellant and in favour of the respondent.Keeping in view the law laid down by this Court in aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the Courts below were right in dismissing the appellants application filed under Section 8 of the Act and thereby were justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator.The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises.27. We have gone through the decisions cited by the learned counsel for the appellant in support of her contention. Having gone through the same, we are of the considered opinion that firstly, some decisions are rendered by the High Court; Secondly, remaining decisions are distinguishable on facts and lastly, in the light of two authoritative decisions of this Court, which are directly on the point and continue to hold the field, no reliance can be placed by the learned counsel for the appellant on any decision of the High Court. Indeed, any such decision of the High Court, which has taken view contrary to the view of this Court, the same stands overruled. Such is the case here.28. We, therefore, need not deal with any other submissions of learned counsel for the appellant which, in our opinion, really do not arise in the light of what we have helddo not agree. | 0 | 2,409 | 573 | ### Instruction:
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of the Arbitration Act, 1940 contending therein that since the "leave and license" agreement contained an arbitration clause for resolving all kinds of disputes arising between the parties in relation to the "leave and license" agreement and the disputes had arisen between the parties in relation to the "leave and license" agreement, such disputes could only be resolved by the arbitrator as agreed by the parties in the agreement. It was contended that the civil suit was, therefore, not maintainable and the disputes for which the suit has been filed be referred to the arbitrator for their adjudication. 21. This Court (Three Judge Bench) speaking through Justice O. Chinnappa Reddy rejected the application filed by the tenant under Section 8 of the Act and held, inter alia, that the civil suit filed by the landlord was maintainable. It was held that the disputes of such nature cannot be referred to the arbitrator. 22. This is what Their Lordships held as under: "24. In the light of the foregoing discussion and the authority of the precedents, we hold that both by reason of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and by reason of the broader considerations of public policy mentioned by us earlier and also in Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain, the Court of Small Causes has and the arbitrator has not the jurisdiction to decide the question whether the respondent-licensor landlord is entitled to seek possession of the two Studios and other premises together with machinery and equipment from the appellant-licensee tenant. That this is the real dispute between the parties is abundantly clear from the petition filed by the respondents in the High Court of Bombay, under Section 8 of the Arbitration Act seeking a reference to Arbitration. The petition refers to the notices exchanged by the parties, the respondent calling upon the appellant to hand over possession of the Studios to him and the appellant claiming to be a tenant or protected licensee in respect of the Studios. The relationship between the parties being that of licensor-landlord and licensee tenant and the dispute between them relating to the possession of the licensed demised premises, there is no help from the conclusion that the Court of Small Causes alone has the jurisdiction and the arbitrator has none to adjudicate upon the dispute between the parties." 23. Yet in another case of Booz Allen & Hamilton Inc. (supra), this Court (two Judge Bench) speaking through R.V.Raveendran J. laid down the following proposition of law after examining the question as to which cases are arbitrable and which are non-arbitrable: "36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes." (emphasis supplied) 24. Keeping in view the law laid down by this Court in aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the Courts below were right in dismissing the appellants application filed under Section 8 of the Act and thereby were justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator. 25. Learned counsel for the appellant, however, argued that the provisions of the Delhi Rent Act,1955 are not applicable to the premises by virtue of Section 3(c) of the Act and hence the law laid down in the aforementioned two cases would not apply. We do not agree. 26. The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises.27. We have gone through the decisions cited by the learned counsel for the appellant in support of her contention. Having gone through the same, we are of the considered opinion that firstly, some decisions are rendered by the High Court; Secondly, remaining decisions are distinguishable on facts and lastly, in the light of two authoritative decisions of this Court, which are directly on the point and continue to hold the field, no reliance can be placed by the learned counsel for the appellant on any decision of the High Court. Indeed, any such decision of the High Court, which has taken view contrary to the view of this Court, the same stands overruled. Such is the case here.28. We, therefore, need not deal with any other submissions of learned counsel for the appellant which, in our opinion, really do not arise in the light of what we have held supra.
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17. Having heard learned senior counsel for the parties at length and on perusal of the record of the case, we find no merit in the appeal.18. In our considered opinion, the question involved in the appeal remains no longer res integra and stands answered by two decisions of this Court in Natraj Studios (P) Ltd. v. Navrang Studios & Another, 1981(1) R.C.R.(Rent) 350 : 1981(1) SCC 523 and Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. & Ors., (2011) 5 SCC 532 against the appellant and in favour of the respondent.Keeping in view the law laid down by this Court in aforementioned two decisions and applying the same to the facts of this case, we have no hesitation to hold that both the Courts below were right in dismissing the appellants application filed under Section 8 of the Act and thereby were justified in holding that the civil suit filed by the respondent was maintainable for grant of reliefs claimed in the plaint despite parties agreeing to get the disputes arising therefrom to be decided by the arbitrator.The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section 3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and the civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter, it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises.27. We have gone through the decisions cited by the learned counsel for the appellant in support of her contention. Having gone through the same, we are of the considered opinion that firstly, some decisions are rendered by the High Court; Secondly, remaining decisions are distinguishable on facts and lastly, in the light of two authoritative decisions of this Court, which are directly on the point and continue to hold the field, no reliance can be placed by the learned counsel for the appellant on any decision of the High Court. Indeed, any such decision of the High Court, which has taken view contrary to the view of this Court, the same stands overruled. Such is the case here.28. We, therefore, need not deal with any other submissions of learned counsel for the appellant which, in our opinion, really do not arise in the light of what we have helddo not agree.
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Commissioner Of Income-Tax, Madras Vs. Mahalakshmi Textile Mills | fitted with rubber aprons to the spinning machinery, removal of ring-frames from certain existing parts, introduction, inter alia, of ball-bearing jockey-pulleys for converting the original band-drivers to tape-drivers and other additions and alterations in the drafting mechanism. 2. The Income-tax Officer disallowed the claim of the assessee for Rs. 93, 215 because it was not admissible as "development rebate" since the introduction of Casablanca conversion system did not involve installation of "new machinery". The Appellate Assistant Commissioner agreed with the Income-tax Officer. In appeal to the Appellate Tribunal besides submitting the claim that expenditure was allowable as development rebate, the assessee urged that the amount laid out for introducing the Casablanca conversion system was in any event expenditure allowable under Section 10 (2) (v) of the Indian Income-tax Act. The Tribunal inspected the spinning factory of the assessee and studied the working of the machinery with the Casablanca conversion system in the process of spinning yarn. They also considered the literature published by the manufacturers of Casablanca conversion system and the relevant notification issued by the Ministry of Commerce, Government of India, defining the import policy, and held that as a result of "the stress and strain of production over a long period there was need for change in the plant and that the assessee had replaced old parts by introducing the Casablanca conversion system. In the view of the Tribunal the expenditure incurred for introducing the Casablanca conversion system though not admissible as development rebate, was admissible as an allowance under Section 10 (2) (v) of the Indian Income-tax Act. 3. The Tribunal then referred the following two questions to the- High Court of Judicature at Madras:"(1) whether on the facts and in the circumstances of the case, the Tribunal had jurisdiction to decide whether the sum of Rs. 93,215 constituted an allowable item of expenditure under Section l0 (2) (v) of the Act ? (2) whether on the facts and in the circumstances of the case, the sum of Rupees 93, 215 or any portion thereof is allowable as an expenditure incurred for current repairs under Section l0 (2) (v) of the Act?" The High Court accepted the finding recorded by the Tribunal that by the introduction of the Casablanca conversion system no new machinery or plant was installed, but the introduction of the system amounted "to fitting of improved versions of certain minor parts" and expenditure in that behalf was of revenue nature. The High Court also held that the Tribunal had jurisdiction to permit the assessee to raise a new contention which was not raised before the Departmental authorities. The Commissioner has appealed to this Court, with special leave. 4. The Tribunal had evidence before it from which it could be concluded that by introducing the Casablanca conversion system the assessee made current repairs to the machinery and plant. The High Court observed that certain moving parts of the machinery had because of "wear and tear" to be periodically replaced and when it was found that the old type of replacement parts were not available in the market the assessee introduced the Casablanca conversion system, but thereby there was merely replacement of certain parts which were a modified version of the older parts. Counsel for the Commissioner has not challenged these findings and the answer to the second question recorded in the affirmative by the High Court must be accepted. 5. By the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the Departmental authorities is canvassed.Under sub-section (4) of Section 33 of the Indian Income-tax Act, 1922, the Appellate Tribunal is competent to pass such orders on the appeal "as it thinks fit." There is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the Departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the Departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him. 6. The Tribunal in the present case was of the opinion that in order to adjust the tax liability of the assessee it was necessary to ascertain the true nature of the Casablanca conversion system. The assessee had, it is true, contended that the introduction of the Casablanca conversion system was of the nature of machinery or plant which being new had been installed for the purpose of business within the meaning of S. l0 (2)(vi-b) of the Indian Income-tax Act. The Tribunal rejected the claim of the assessee but on that account the Tribunal was not bound to disallow the claim of the assessee for allowance of the amount spent if it was a permissible allowance on another ground. The Tribunal on investigation of the true nature of the alterations made by the introduction of the Casablanca conversion system came to the conclusion that it did not amount to installation of new machinery or plant, but it amounted in substance to current repairs to the existing machinery. 7.The subject-matter of the appeal in the present case was the right of the assessee to claim allowance for Rs. 93,215. Whether the allowance was admissible under one head or the other of sub-sec. (2) of Section 10 the subject-matter for the appeal remained the same, and the Tribunal having held that the expenditure incurred fell within the terms of Section 10 (2) (v), though not under Section 10 (2) (vi-b), it had jurisdiction to admit that expenditure as a permissible allowance in the computation of the taxable income of the assessee. 8. The High Court was, therefore, right in answering the first question in the affirmative. 9. | 0[ds]Counsel for the Commissioner has not challenged these findings and the answer to the second question recorded in the affirmative by the High Court must be acceptedBy the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the Departmental authorities is canvassedThe assessee had, it is true, contended that the introduction of the Casablanca conversion system was of the nature of machinery or plant which being new had been installed for the purpose of business within the meaning of S. l0 (2)(vi-b) of the Indian Income-tax Actsubject-matter of the appeal in the present case was the right of the assessee to claim allowance for Rs. 93,215. Whether the allowance was admissible under one head or the other of sub-sec. (2) of Section 10 the subject-matter for the appeal remained the same, and the Tribunal having held that the expenditure incurred fell within the terms of Section 10 (2) (v), though not under Section 10 (2) (vi-b), it had jurisdiction to admit that expenditure as a permissible allowance in the computation of the taxable income of the assesseeThe High Court was, therefore, right in answering the first question in the affirmative. | 0 | 1,187 | 228 | ### Instruction:
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fitted with rubber aprons to the spinning machinery, removal of ring-frames from certain existing parts, introduction, inter alia, of ball-bearing jockey-pulleys for converting the original band-drivers to tape-drivers and other additions and alterations in the drafting mechanism. 2. The Income-tax Officer disallowed the claim of the assessee for Rs. 93, 215 because it was not admissible as "development rebate" since the introduction of Casablanca conversion system did not involve installation of "new machinery". The Appellate Assistant Commissioner agreed with the Income-tax Officer. In appeal to the Appellate Tribunal besides submitting the claim that expenditure was allowable as development rebate, the assessee urged that the amount laid out for introducing the Casablanca conversion system was in any event expenditure allowable under Section 10 (2) (v) of the Indian Income-tax Act. The Tribunal inspected the spinning factory of the assessee and studied the working of the machinery with the Casablanca conversion system in the process of spinning yarn. They also considered the literature published by the manufacturers of Casablanca conversion system and the relevant notification issued by the Ministry of Commerce, Government of India, defining the import policy, and held that as a result of "the stress and strain of production over a long period there was need for change in the plant and that the assessee had replaced old parts by introducing the Casablanca conversion system. In the view of the Tribunal the expenditure incurred for introducing the Casablanca conversion system though not admissible as development rebate, was admissible as an allowance under Section 10 (2) (v) of the Indian Income-tax Act. 3. The Tribunal then referred the following two questions to the- High Court of Judicature at Madras:"(1) whether on the facts and in the circumstances of the case, the Tribunal had jurisdiction to decide whether the sum of Rs. 93,215 constituted an allowable item of expenditure under Section l0 (2) (v) of the Act ? (2) whether on the facts and in the circumstances of the case, the sum of Rupees 93, 215 or any portion thereof is allowable as an expenditure incurred for current repairs under Section l0 (2) (v) of the Act?" The High Court accepted the finding recorded by the Tribunal that by the introduction of the Casablanca conversion system no new machinery or plant was installed, but the introduction of the system amounted "to fitting of improved versions of certain minor parts" and expenditure in that behalf was of revenue nature. The High Court also held that the Tribunal had jurisdiction to permit the assessee to raise a new contention which was not raised before the Departmental authorities. The Commissioner has appealed to this Court, with special leave. 4. The Tribunal had evidence before it from which it could be concluded that by introducing the Casablanca conversion system the assessee made current repairs to the machinery and plant. The High Court observed that certain moving parts of the machinery had because of "wear and tear" to be periodically replaced and when it was found that the old type of replacement parts were not available in the market the assessee introduced the Casablanca conversion system, but thereby there was merely replacement of certain parts which were a modified version of the older parts. Counsel for the Commissioner has not challenged these findings and the answer to the second question recorded in the affirmative by the High Court must be accepted. 5. By the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the Departmental authorities is canvassed.Under sub-section (4) of Section 33 of the Indian Income-tax Act, 1922, the Appellate Tribunal is competent to pass such orders on the appeal "as it thinks fit." There is nothing in the Income-tax Act which restricts the Tribunal to the determination of questions raised before the departmental authorities. All questions whether of law or of fact which relate to the assessment of the assessee may be raised before the Tribunal. If for reasons recorded by the Departmental authorities in rejecting a contention raised by the assessee, grant of relief to him on another ground is justified, it would be open to the Departmental authorities and the Tribunal, and indeed they would be under a duty to grant that relief. The right of the assessee to relief is not restricted to the plea raised by him. 6. The Tribunal in the present case was of the opinion that in order to adjust the tax liability of the assessee it was necessary to ascertain the true nature of the Casablanca conversion system. The assessee had, it is true, contended that the introduction of the Casablanca conversion system was of the nature of machinery or plant which being new had been installed for the purpose of business within the meaning of S. l0 (2)(vi-b) of the Indian Income-tax Act. The Tribunal rejected the claim of the assessee but on that account the Tribunal was not bound to disallow the claim of the assessee for allowance of the amount spent if it was a permissible allowance on another ground. The Tribunal on investigation of the true nature of the alterations made by the introduction of the Casablanca conversion system came to the conclusion that it did not amount to installation of new machinery or plant, but it amounted in substance to current repairs to the existing machinery. 7.The subject-matter of the appeal in the present case was the right of the assessee to claim allowance for Rs. 93,215. Whether the allowance was admissible under one head or the other of sub-sec. (2) of Section 10 the subject-matter for the appeal remained the same, and the Tribunal having held that the expenditure incurred fell within the terms of Section 10 (2) (v), though not under Section 10 (2) (vi-b), it had jurisdiction to admit that expenditure as a permissible allowance in the computation of the taxable income of the assessee. 8. The High Court was, therefore, right in answering the first question in the affirmative. 9.
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Counsel for the Commissioner has not challenged these findings and the answer to the second question recorded in the affirmative by the High Court must be acceptedBy the first question the jurisdiction of the Tribunal to allow a plea inconsistent with the plea raised before the Departmental authorities is canvassedThe assessee had, it is true, contended that the introduction of the Casablanca conversion system was of the nature of machinery or plant which being new had been installed for the purpose of business within the meaning of S. l0 (2)(vi-b) of the Indian Income-tax Actsubject-matter of the appeal in the present case was the right of the assessee to claim allowance for Rs. 93,215. Whether the allowance was admissible under one head or the other of sub-sec. (2) of Section 10 the subject-matter for the appeal remained the same, and the Tribunal having held that the expenditure incurred fell within the terms of Section 10 (2) (v), though not under Section 10 (2) (vi-b), it had jurisdiction to admit that expenditure as a permissible allowance in the computation of the taxable income of the assesseeThe High Court was, therefore, right in answering the first question in the affirmative.
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New Delhi Municipal Committee Vs. Life Insurance Corporation of India & Others | any time and robs that power of its meaningful content. We are clear that the Full Bench is wrong in its conclusion that the "expression at any time in Section 67.. . . . has reference only to the point of time when the list can be amended". 16. We may in passing observe, though that aspect of the matter ceases to have importance in the view we are disposed to take, that the High Court further fell into an error in applying the ratio of its judgment to the facts before it. It held that an amendment can operate only on the year ensuing the one in which it is made, but in working out this principle, it unwittingly gave some retrospective effect to the impugned amendments. It has declared that the amendment made in January 1967 will be effective for the year 1966-67 and that made in February 1968 will be effective for the year 1967-68. Consistently with its reasoning, it should have held that the two amendments would be effective for the years 1967-68 and 1968-69 respectively, each year commencing on April 1 and ending with March 31, But that, as we said, is not relevant. 17. The decision of this Court in Punjab National Bank on which for the LIC relies does not support the view contended for by him. In that case a building belonging to the Punjab National Bank was not entered in the assessment list which was to be operative for the period April 1, 1958 to March 31, 1959. That list was amended on December 21, 1959, The only point that arose from consideration in the appeal, as is expressly mentioned by Mathew, J., in his judgment, was whether the Municipal Committee was entitled to include the building in the assessment list which was operative from April 1, 1959 to March 31, 1960 by amending it in December 1959. Repelling the Banks contention that the list once finalised could not be amended thereafter, the Court held that the amendment was effective for the year during which the original list was operative. 18. Finally, we are unable to accept the contention of the learned Counsel for the LIC that the question which arises for our consideration in these appeals is concluded by a decision of this Court in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [(1976) 3 SCR 883 : (1976) 4 SCC 830.] . That is a decision on the Bombay Municipal Boroughs act, 18 of 1925, and as the judgment of Bhagwati, J., in that very case says, in interpreting a particular provision of a statute the court must consider other parts of that statute and read the statute as a whole. We have discussed the entire scheme of the Punjab Municipal Act and have pointed out how on a consideration of its various provisions it is not possible to sustain the view taken by the High Court. 19. In Municipal Corporation of City of Hubli, on which the respondent strongly relies the Corporation followed the due procedure for the assessment year 1951-52 except that the list of assessment containing the revised assessment was authenticated on July 24, 1952 which was after the expiry of the official year on March 31, 1952. The Corporation having sought to levy property tax in accordance with the revised rates for the year 1951-52, a suit was filed by the assessees for a declaration that it was not entitled to recover the tax at the revised rates for that year. The suit was decreed by the trial Court and the High Court. In appeal to this Court, two contentions were raised on behalf of the Municipal Corporation, namely, that (1) the authentication of the assessment list in order to be valid and effective need not be made before the expiry of the official year to which the assessment list relates and (2) the suit was barred under Section 206A of the Act. We are not concerned with the second question nor indeed with the first; but in order to understand the respondents argument it is necessary to state that this Court held on the first question that an assessment list intended for a particular year must be authenticated before the expiry of the previous official year and that if it is not so authenticated it will not give rise to any liability in the rate-payers to pay the tax for the year for which it is intended to be effective. This pronouncement does not touch the points in controversy before us. 20. Nor indeed can any assistance be derived from the interpretation put on Section 82(3) of the Bombay Act in that case. That provision contemplates, inter alia, amendments or alterations in two cases : (i) Those in regard to buildings constructed, altered, added to or reconstructed, and (ii) those in regard to other cases. As regards the first category. Section 82(3) of the Bombay Municipal Boroughs Act provides that the amendment or alteration shall have the same effect as if it had been made in the case of a building constructed, altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs. As regards the second category, namely the "other cases", the alteration takes effect as if it had been made "on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed". The discussion of this sub-section at page 890 of the report is in respect of the second category of cases in regard to which there is an express statutory provision that the amendment takes effect only from the earliest day of the official year current when the amendment is made. We do not think that there is any parallel between Section 82(3) of the Bombay Act and Section 67 of the Punjab Municipal Act. | 1[ds]In the instant case, a part of the basement is alleged to have escaped assessment and if that be true, we are unable to understand that the assessee, the LIC here, could in face of Section 67 raise a contention that the assessment lists of past years, though faulty, cannot now be corrected. The Municipal Committee has to find funds, within the limits of its authority, for discharging its statutory obligations. But the argument is that if, through mistake or oversight, or even due to fraud, a property has escaped assessment, the mistake cannot be corrected retrospectively and the fraud has to be suffered except in regard to a correction limited to the ensuing year. This is denying to the expression "at any time" even its plain, grammatical meaning, quite apart from ignoring the context in which it occurs and the beneficent purpose of its incorporation. The expression must, in our opinion be given its full force and effect which requires the recognition of the Committees power to amend an assessment list even after the expiry of the year following the one in which the list was finalised by due authentication12. Section 66 and 67 have to be read as two integral parts of a scheme which the legislature has prescribed for preparation, assessment and amendment of assessment lists. After preparing under Section 63 an assessment list of all buildings and lands on which a tax is proposed to be imposed, the Committee has to invite, hear and enquire into objections to the proposed assessment. The revision of valuation and assessment is then to be completed under Section 66 by incorporating in the list such amendments as are considered necessary after deciding upon objections. The tax so assessed in the authenticated list becomes under Section 66(1) the tax for the year commencing on the first day of January or first day of April next ensuing as the Committee may determine. But the scheme contemplated by Section 66 is subject to an important condition mentioned in the section itself, namely, that the tax assessed under an authenticated list becomes the tax for the particular period, "subject to such amendments as may thereafter, be duly made". The word "thereafter" means "after the list is finalised on the completion of revision of valuation and assessment" and "duly made" evidently refers to the exercise of the amending power under Section 67. Thus, the two sections read together yield the result that the list can be amended at any time after its finalisation, subject of course to the prescription of reasonableness14. Section 68A, it is true, came into force in 1974 but by providing a striking contrast with Section 67, it facilitates a clearer understanding of this latter section. Section 68A provides briefly that if any property is erroneously valued or assessed through fraud, accident or mistake, the prescribed authority may amend the assessment already made and thereupon the amended assessment list shall be deemed to have been amended with effect from the first day of January, or April, or July, or October next following the month in which the order of amendment is passed. Section 68A does not deal with cases in which a property has escaped assessment altogether. It deals with that limited class of cases in which a property has been included in the assessment list but has been erroneously valued or assessed. In such cases of erroneous valuation or assessment, the amendments made in the assessment lists have no retrospective operation with the result that valuation or assessment already made, though erroneous remains valid for the past years. Amendments falling within Section 68A operate in the future and can be effective only from the dates mentioned in the section and not from any earlier point of time. A comparison of the provisions of Section 68A with those of Section 67 shows that the words of limitation contained in the former section as regards the time from which an amendment can come into force are conspicuously absent in the latter. Since the purpose of Section 67 is to bring to assessment properties which have altogether escaped assessment, the legislature evidently thought that amendments made under it should have a wider operation as contrasted with those made under Section 68A15. The Full Bench of the High Court, with respect, has missed the real point in the case. It says that since by Section 66, both the unamended and the amended lists operate with effect from the year commencing on the first day of January or April "next ensuing", "the list settled under Section 66 together with the amendments, if any, is to operate prospectively in and for the financial year next following and not for any previous year". That the amended list operates prospectively is correct because after all, the amendment is made to the original list and that list has prospective operation. As we have explained above, each assessment list is effective for the ensuing year, so that the list settled before March 31, operates for the year commencing with the ensuing April 1 and ending with March 31 following. But the list in force for such an ensuing year can under Section 67 be amended at any time with the result that when a list which was finalised say on March 25, 1970 is amended in August 1973, the amendment becomes effective for the year for which the list itself was effective, that is to say, for the year April 1, 1970 to March 31, 1971. The words "next ensuing" which occur in Section 66 cannot, as the High Court thinks, be co-related to the date of the amendment so as to mean "the year next ensuing after the year in which the amendment is made". This reasoning overlooks the true purpose and purport of the Committees power to amend a list at any time and robs that power of its meaningful content. We are clear that the Full Bench is wrong in its conclusion that the "expression at any time in Section 67.. . . . has reference only to the point of time when the list can be amended"16. We may in passing observe, though that aspect of the matter ceases to have importance in the view we are disposed to take, that the High Court further fell into an error in applying the ratio of its judgment to the facts before it. It held that an amendment can operate only on the year ensuing the one in which it is made, but in working out this principle, it unwittingly gave some retrospective effect to the impugned amendments. It has declared that the amendment made in January 1967 will be effective for the year 1966-67 and that made in February 1968 will be effective for the year 1967-68. Consistently with its reasoning, it should have held that the two amendments would be effective for the years 1967-68 and 1968-69 respectively, each year commencing on April 1 and ending with March 31, But that, as we said, is not relevant17. The decision of this Court in Punjab National Bank on which for the LIC relies does not support the view contended for by him. In that case a building belonging to the Punjab National Bank was not entered in the assessment list which was to be operative for the period April 1, 1958 to March 31, 1959. That list was amended on December 21, 1959, The only point that arose from consideration in the appeal, as is expressly mentioned by Mathew, J., in his judgment, was whether the Municipal Committee was entitled to include the building in the assessment list which was operative from April 1, 1959 to March 31, 1960 by amending it in December 1959. Repelling the Banks contention that the list once finalised could not be amended thereafter, the Court held that the amendment was effective for the year during which the original list was operative18. Finally, we are unable to accept the contention of the learned Counsel for the LIC that the question which arises for our consideration in these appeals is concluded by a decision of this Court in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [(1976) 3 SCR 883 : (1976) 4 SCC 830.] . That is a decision on the Bombay Municipal Boroughs act, 18 of 1925, and as the judgment of Bhagwati, J., in that very case says, in interpreting a particular provision of a statute the court must consider other parts of that statute and read the statute as a whole. We have discussed the entire scheme of the Punjab Municipal Act and have pointed out how on a consideration of its various provisions it is not possible to sustain the view taken by the High Court19. In Municipal Corporation of City of Hubli, on which the respondent strongly relies the Corporation followed the due procedure for the assessment year 1951-52 except that the list of assessment containing the revised assessment was authenticated on July 24, 1952 which was after the expiry of the official year on March 31, 1952. The Corporation having sought to levy property tax in accordance with the revised rates for the year 1951-52, a suit was filed by the assessees for a declaration that it was not entitled to recover the tax at the revised rates for that year. The suit was decreed by the trial Court and the High Court. In appeal to this Court, two contentions were raised on behalf of the Municipal Corporation, namely, that (1) the authentication of the assessment list in order to be valid and effective need not be made before the expiry of the official year to which the assessment list relates and (2) the suit was barred under Section 206A of the Act. We are not concerned with the second question nor indeed with the first; but in order to understand the respondents argument it is necessary to state that this Court held on the first question that an assessment list intended for a particular year must be authenticated before the expiry of the previous official year and that if it is not so authenticated it will not give rise to any liability in the rate-payers to pay the tax for the year for which it is intended to be effective. This pronouncement does not touch the points in controversy before us20. Nor indeed can any assistance be derived from the interpretation put on Section 82(3) of the Bombay Act in that case. That provision contemplates, inter alia, amendments or alterations in two cases : (i) Those in regard to buildings constructed, altered, added to or reconstructed, and (ii) those in regard to other cases. As regards the first category. Section 82(3) of the Bombay Municipal Boroughs Act provides that the amendment or alteration shall have the same effect as if it had been made in the case of a building constructed, altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs. As regards the second category, namely the "other cases", the alteration takes effect as if it had been made "on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed". The discussion of this sub-section at page 890 of the report is in respect of the second category of cases in regard to which there is an express statutory provision that the amendment takes effect only from the earliest day of the official year current when the amendment is made. We do not think that there is any parallel between Section 82(3) of the Bombay Act and Section 67 of the Punjab Municipal Act. | 1 | 4,637 | 2,179 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
any time and robs that power of its meaningful content. We are clear that the Full Bench is wrong in its conclusion that the "expression at any time in Section 67.. . . . has reference only to the point of time when the list can be amended". 16. We may in passing observe, though that aspect of the matter ceases to have importance in the view we are disposed to take, that the High Court further fell into an error in applying the ratio of its judgment to the facts before it. It held that an amendment can operate only on the year ensuing the one in which it is made, but in working out this principle, it unwittingly gave some retrospective effect to the impugned amendments. It has declared that the amendment made in January 1967 will be effective for the year 1966-67 and that made in February 1968 will be effective for the year 1967-68. Consistently with its reasoning, it should have held that the two amendments would be effective for the years 1967-68 and 1968-69 respectively, each year commencing on April 1 and ending with March 31, But that, as we said, is not relevant. 17. The decision of this Court in Punjab National Bank on which for the LIC relies does not support the view contended for by him. In that case a building belonging to the Punjab National Bank was not entered in the assessment list which was to be operative for the period April 1, 1958 to March 31, 1959. That list was amended on December 21, 1959, The only point that arose from consideration in the appeal, as is expressly mentioned by Mathew, J., in his judgment, was whether the Municipal Committee was entitled to include the building in the assessment list which was operative from April 1, 1959 to March 31, 1960 by amending it in December 1959. Repelling the Banks contention that the list once finalised could not be amended thereafter, the Court held that the amendment was effective for the year during which the original list was operative. 18. Finally, we are unable to accept the contention of the learned Counsel for the LIC that the question which arises for our consideration in these appeals is concluded by a decision of this Court in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [(1976) 3 SCR 883 : (1976) 4 SCC 830.] . That is a decision on the Bombay Municipal Boroughs act, 18 of 1925, and as the judgment of Bhagwati, J., in that very case says, in interpreting a particular provision of a statute the court must consider other parts of that statute and read the statute as a whole. We have discussed the entire scheme of the Punjab Municipal Act and have pointed out how on a consideration of its various provisions it is not possible to sustain the view taken by the High Court. 19. In Municipal Corporation of City of Hubli, on which the respondent strongly relies the Corporation followed the due procedure for the assessment year 1951-52 except that the list of assessment containing the revised assessment was authenticated on July 24, 1952 which was after the expiry of the official year on March 31, 1952. The Corporation having sought to levy property tax in accordance with the revised rates for the year 1951-52, a suit was filed by the assessees for a declaration that it was not entitled to recover the tax at the revised rates for that year. The suit was decreed by the trial Court and the High Court. In appeal to this Court, two contentions were raised on behalf of the Municipal Corporation, namely, that (1) the authentication of the assessment list in order to be valid and effective need not be made before the expiry of the official year to which the assessment list relates and (2) the suit was barred under Section 206A of the Act. We are not concerned with the second question nor indeed with the first; but in order to understand the respondents argument it is necessary to state that this Court held on the first question that an assessment list intended for a particular year must be authenticated before the expiry of the previous official year and that if it is not so authenticated it will not give rise to any liability in the rate-payers to pay the tax for the year for which it is intended to be effective. This pronouncement does not touch the points in controversy before us. 20. Nor indeed can any assistance be derived from the interpretation put on Section 82(3) of the Bombay Act in that case. That provision contemplates, inter alia, amendments or alterations in two cases : (i) Those in regard to buildings constructed, altered, added to or reconstructed, and (ii) those in regard to other cases. As regards the first category. Section 82(3) of the Bombay Municipal Boroughs Act provides that the amendment or alteration shall have the same effect as if it had been made in the case of a building constructed, altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs. As regards the second category, namely the "other cases", the alteration takes effect as if it had been made "on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed". The discussion of this sub-section at page 890 of the report is in respect of the second category of cases in regard to which there is an express statutory provision that the amendment takes effect only from the earliest day of the official year current when the amendment is made. We do not think that there is any parallel between Section 82(3) of the Bombay Act and Section 67 of the Punjab Municipal Act.
### Response:
1
### Explanation:
list at any time and robs that power of its meaningful content. We are clear that the Full Bench is wrong in its conclusion that the "expression at any time in Section 67.. . . . has reference only to the point of time when the list can be amended"16. We may in passing observe, though that aspect of the matter ceases to have importance in the view we are disposed to take, that the High Court further fell into an error in applying the ratio of its judgment to the facts before it. It held that an amendment can operate only on the year ensuing the one in which it is made, but in working out this principle, it unwittingly gave some retrospective effect to the impugned amendments. It has declared that the amendment made in January 1967 will be effective for the year 1966-67 and that made in February 1968 will be effective for the year 1967-68. Consistently with its reasoning, it should have held that the two amendments would be effective for the years 1967-68 and 1968-69 respectively, each year commencing on April 1 and ending with March 31, But that, as we said, is not relevant17. The decision of this Court in Punjab National Bank on which for the LIC relies does not support the view contended for by him. In that case a building belonging to the Punjab National Bank was not entered in the assessment list which was to be operative for the period April 1, 1958 to March 31, 1959. That list was amended on December 21, 1959, The only point that arose from consideration in the appeal, as is expressly mentioned by Mathew, J., in his judgment, was whether the Municipal Committee was entitled to include the building in the assessment list which was operative from April 1, 1959 to March 31, 1960 by amending it in December 1959. Repelling the Banks contention that the list once finalised could not be amended thereafter, the Court held that the amendment was effective for the year during which the original list was operative18. Finally, we are unable to accept the contention of the learned Counsel for the LIC that the question which arises for our consideration in these appeals is concluded by a decision of this Court in Municipal Corporation of City of Hubli v. Subha Rao Hanumantharao Prayag [(1976) 3 SCR 883 : (1976) 4 SCC 830.] . That is a decision on the Bombay Municipal Boroughs act, 18 of 1925, and as the judgment of Bhagwati, J., in that very case says, in interpreting a particular provision of a statute the court must consider other parts of that statute and read the statute as a whole. We have discussed the entire scheme of the Punjab Municipal Act and have pointed out how on a consideration of its various provisions it is not possible to sustain the view taken by the High Court19. In Municipal Corporation of City of Hubli, on which the respondent strongly relies the Corporation followed the due procedure for the assessment year 1951-52 except that the list of assessment containing the revised assessment was authenticated on July 24, 1952 which was after the expiry of the official year on March 31, 1952. The Corporation having sought to levy property tax in accordance with the revised rates for the year 1951-52, a suit was filed by the assessees for a declaration that it was not entitled to recover the tax at the revised rates for that year. The suit was decreed by the trial Court and the High Court. In appeal to this Court, two contentions were raised on behalf of the Municipal Corporation, namely, that (1) the authentication of the assessment list in order to be valid and effective need not be made before the expiry of the official year to which the assessment list relates and (2) the suit was barred under Section 206A of the Act. We are not concerned with the second question nor indeed with the first; but in order to understand the respondents argument it is necessary to state that this Court held on the first question that an assessment list intended for a particular year must be authenticated before the expiry of the previous official year and that if it is not so authenticated it will not give rise to any liability in the rate-payers to pay the tax for the year for which it is intended to be effective. This pronouncement does not touch the points in controversy before us20. Nor indeed can any assistance be derived from the interpretation put on Section 82(3) of the Bombay Act in that case. That provision contemplates, inter alia, amendments or alterations in two cases : (i) Those in regard to buildings constructed, altered, added to or reconstructed, and (ii) those in regard to other cases. As regards the first category. Section 82(3) of the Bombay Municipal Boroughs Act provides that the amendment or alteration shall have the same effect as if it had been made in the case of a building constructed, altered, added to or reconstructed on the day on which such construction, alteration, addition or reconstruction was completed or on the day on which the new construction, alteration, addition or reconstruction was first occupied, whichever first occurs. As regards the second category, namely the "other cases", the alteration takes effect as if it had been made "on the earliest day in the current official year on which the circumstances justifying the entry or alteration existed". The discussion of this sub-section at page 890 of the report is in respect of the second category of cases in regard to which there is an express statutory provision that the amendment takes effect only from the earliest day of the official year current when the amendment is made. We do not think that there is any parallel between Section 82(3) of the Bombay Act and Section 67 of the Punjab Municipal Act.
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Baidya Nath Mandi Vs. State of West Bengal & Others | Khanna, J. 1. This is a petition for the issuance of a writ of habeas corpus by Baidya Nath Mandi, who has been ordered to be detained under Section 3 of the Maintenance of Internal Security Act. 2. No return in opposition to the petition has been filed, but Mr. Chatterjee on behalf of the respondents has at the hearing admitted the following facts. The original order for the detention of the petitioner under Section 3 of the Maintenance of Internal Security Act was made by the District Magistrate Burdwan on December 22, 1971. The petitioner was thereafter arrested and was kept in detention. While the petitioner was in detention, this Court gave its judgment in the case of Shambhu Nath Sarkar v. State of West Bengal, W. P. No. 266 of 1972, dated 19-4-1973 = (reported in AIR 1973 SC 1425 = 1973 Cri LJ 1155). After the aforesaid decision, the State of West Bengal directed that the petitioner be released. The petitioner was, accordingly, released on April 25, 1973. The same day, according to Mr. Chatterjee, a fresh order for the detention of the petitioner was made by the District Magistrate Burdwan under Section 3 of the Maintenance of Internal Security Act. The grounds on which the fresh order of detention was made on April 25, 1973, were the same upon the basis of which the earlier order for the detention of the petitioner had been made on December 22, 1971. 3. We find that the facts of the present case have a close similarity to those of Chotka Hembram v. State of West Bengal, W. P No. 841 of 1973, D/- 29-8-1973 = (reported in AIR 1974 SC 432 = 1974 Cri LJ 449), wherein upon similar facts we quashed the order for the detention of the detenu. Following the aforesaid decision, we quash the order for the detention of the petitioner and direct that he be set at liberty. | 1[ds]3. We find that the facts of the present case have a close similarity to those of Chotka Hembram v. State of West Bengal, W. P No. 841 of 1973, D/3 = (reported in AIR 1974 SC 432 = 1974 Cri LJ 449), wherein upon similar facts we quashed the order for the detention of the detenu. Following the aforesaid decision, we quash the order for the detention of the petitioner and direct that he be set at liberty. | 1 | 364 | 93 | ### 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:
Khanna, J. 1. This is a petition for the issuance of a writ of habeas corpus by Baidya Nath Mandi, who has been ordered to be detained under Section 3 of the Maintenance of Internal Security Act. 2. No return in opposition to the petition has been filed, but Mr. Chatterjee on behalf of the respondents has at the hearing admitted the following facts. The original order for the detention of the petitioner under Section 3 of the Maintenance of Internal Security Act was made by the District Magistrate Burdwan on December 22, 1971. The petitioner was thereafter arrested and was kept in detention. While the petitioner was in detention, this Court gave its judgment in the case of Shambhu Nath Sarkar v. State of West Bengal, W. P. No. 266 of 1972, dated 19-4-1973 = (reported in AIR 1973 SC 1425 = 1973 Cri LJ 1155). After the aforesaid decision, the State of West Bengal directed that the petitioner be released. The petitioner was, accordingly, released on April 25, 1973. The same day, according to Mr. Chatterjee, a fresh order for the detention of the petitioner was made by the District Magistrate Burdwan under Section 3 of the Maintenance of Internal Security Act. The grounds on which the fresh order of detention was made on April 25, 1973, were the same upon the basis of which the earlier order for the detention of the petitioner had been made on December 22, 1971. 3. We find that the facts of the present case have a close similarity to those of Chotka Hembram v. State of West Bengal, W. P No. 841 of 1973, D/- 29-8-1973 = (reported in AIR 1974 SC 432 = 1974 Cri LJ 449), wherein upon similar facts we quashed the order for the detention of the detenu. Following the aforesaid decision, we quash the order for the detention of the petitioner and direct that he be set at liberty.
### Response:
1
### Explanation:
3. We find that the facts of the present case have a close similarity to those of Chotka Hembram v. State of West Bengal, W. P No. 841 of 1973, D/3 = (reported in AIR 1974 SC 432 = 1974 Cri LJ 449), wherein upon similar facts we quashed the order for the detention of the detenu. Following the aforesaid decision, we quash the order for the detention of the petitioner and direct that he be set at liberty.
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Commissioner of Income Tax Vs. A. R. Adaikappa Chettiar and Others | 1. These appeals are preferred by the Revenue against the decision of the Madras High Court. The question that was referred by the Tribunal under section 66(1) of Indian Income-tax Act, 1922, Was : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in deleting the additions made under section 2(6C)(iii) of the Indian Income-tax Act, 1922, and under section 40(c) of the Income-tax Act, 1961 ?" * 2. The assessee was the managing agent of a particular company. The company had provided him a car which he used for his private purposes also. Applying the provisions of section 2(6C)(iii) of the 1922 Act, the Income-tax Officer disallowed certain amount from the assessment of the company. Thereafter, the Income-tax Officer concerned with the individual assessment of managing agent added that account in his individual assessment. The question arose whether the said addition can be made in the individual assessment of the managing agent. 3. The question has to be answered with reference to definition of income in section 2(6C) of the Indian Income-tax Act, 1922. The definition includes several items. The only sub-clause which is relevant for the present purpose is sub-clause (iii) which read thus : "2(6C) income includes - ....(iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid;...." * 4. In other words, the question was whether the said benefit can be included in the income of the managing agent by virtue of sub-clause (iii) in the definition of income. For this sub-clause to apply, it is necessary that the person who obtained certain benefit must have had substantial interest in the company as specified in the said section. The finding is that the assessee herein did not hold a substantial interest in the relevant company. Once this is so, no further question arises. It was really unnecessary for the High Court to go into and express an opinion on the question whether any benefit obtained unauthorisedly falls within the said sub-clause or not. So far as we are concerned, it is enough for us to say that the assessee did not hold a substantial interest in the company nor was he a relative of such person. 5. | 0[ds]The question has to be answered with reference to definition of income in section 2(6C) of the IndianAct, 1922. The definition includes several items. The onlywhich is relevant for the present purpose is(iii) which read thusii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid;...."other words, the question was whether the said benefit can be included in the income of the managing agent by virtue of(iii) in the definition of income. For thisto apply, it is necessary that the person who obtained certain benefit must have had substantial interest in the company as specified in the said section. The finding is that the assessee herein did not hold a substantial interest in the relevant company. Once this is so, no further question arises. It was really unnecessary for the High Court to go into and express an opinion on the question whether any benefit obtained unauthorisedly falls within the saidor not. So far as we are concerned, it is enough for us to say that the assessee did not hold a substantial interest in the company nor was he a relative of such person. | 0 | 557 | 332 | ### 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. These appeals are preferred by the Revenue against the decision of the Madras High Court. The question that was referred by the Tribunal under section 66(1) of Indian Income-tax Act, 1922, Was : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in deleting the additions made under section 2(6C)(iii) of the Indian Income-tax Act, 1922, and under section 40(c) of the Income-tax Act, 1961 ?" * 2. The assessee was the managing agent of a particular company. The company had provided him a car which he used for his private purposes also. Applying the provisions of section 2(6C)(iii) of the 1922 Act, the Income-tax Officer disallowed certain amount from the assessment of the company. Thereafter, the Income-tax Officer concerned with the individual assessment of managing agent added that account in his individual assessment. The question arose whether the said addition can be made in the individual assessment of the managing agent. 3. The question has to be answered with reference to definition of income in section 2(6C) of the Indian Income-tax Act, 1922. The definition includes several items. The only sub-clause which is relevant for the present purpose is sub-clause (iii) which read thus : "2(6C) income includes - ....(iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid;...." * 4. In other words, the question was whether the said benefit can be included in the income of the managing agent by virtue of sub-clause (iii) in the definition of income. For this sub-clause to apply, it is necessary that the person who obtained certain benefit must have had substantial interest in the company as specified in the said section. The finding is that the assessee herein did not hold a substantial interest in the relevant company. Once this is so, no further question arises. It was really unnecessary for the High Court to go into and express an opinion on the question whether any benefit obtained unauthorisedly falls within the said sub-clause or not. So far as we are concerned, it is enough for us to say that the assessee did not hold a substantial interest in the company nor was he a relative of such person. 5.
### Response:
0
### Explanation:
The question has to be answered with reference to definition of income in section 2(6C) of the IndianAct, 1922. The definition includes several items. The onlywhich is relevant for the present purpose is(iii) which read thusii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent. of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person aforesaid;...."other words, the question was whether the said benefit can be included in the income of the managing agent by virtue of(iii) in the definition of income. For thisto apply, it is necessary that the person who obtained certain benefit must have had substantial interest in the company as specified in the said section. The finding is that the assessee herein did not hold a substantial interest in the relevant company. Once this is so, no further question arises. It was really unnecessary for the High Court to go into and express an opinion on the question whether any benefit obtained unauthorisedly falls within the saidor not. So far as we are concerned, it is enough for us to say that the assessee did not hold a substantial interest in the company nor was he a relative of such person.
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Gurdayal Singh Fiji Vs. State of Punjab and Others | AMARENDRA NATH SEN, J. 1. Gurdayal Singh Fiji, a member of the Punjab Provincial Civil Service, has presented this writ petition in person and he has argued his own case in person. The main grievance of the Petitioner in this writ petition appears to be against the non-inclusion of his name in the I.A.S. Select List. 2. It is the case of the petitioner that he is one of the senior-most persons in the service with a consistently good record of service on the whole, but because of two adverse remarks by two officers, certificate of integrity has not been given to him. The Petitioner submits that the adverse remarks made against him were mala fide and unjustified and the refusal to grant him a certificate of integrity and not to include his name in the I.A.S. Select List is wrongful and illegal.3. As this writ petition may be disposed of on a short point, it doe s not become necessary for us to set out at length the various facts and circumstances of this case. The Petitioner has taken us through the records and the various documents filed in support of his case made in the writ petition. 4. In view of the grievance made by the Petitioner as to non-inclusion of his name in the Select List, this Court by an order(l) passed on 9.3.1979 directed the I. A. S. Selection Committee to hold a special meeting to consider the question of inclusion of the name of the Petitioner in the Select List. Pursuant to the order passed by this Court, I.A.S. Selection Committee held a special meeting on the 21.7.1979 and the Selection Committee found the Petitioner to be unsuitable for inclusion in the Select List. It may be noted that the I.A.S. Selection Committee which prepares the Select List is an independent body and recommendations of the I.A.S. Selection Committee further require to be approved by the Union Public Service Commission. The decision taken by the I A.S. Selection Committee at the meeting held on 21.7.1979 pursuant to the order of this Court refusing to include the Petitioner in the Select List was approved by the Union Public Service Commission which agreed with the recommendation. An affidavit has also been filed by Shri D.C. Mishra, Director, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi. The averments made in this affidavit go to establish that the cas e of the Petitioner for inclusion in the Select List was properly considered by the Selection Committee on merits As we have earlier noticed, the Selection Committee is an independent body and there is nothing on record to pursuade us to hold that th e decision of the Selection Committee was not properly arrived at on consideration of the merits of the case and was, in any way, otherwise motivated. The Petitioner cannot claim to be included in the Select List as a matter of right. The Select List is prepared by the Selection Committee on consideration of the merits on the basis of suitability of the officer concerned and recommendations made by the Selection Committee have to be approved by the Union Public service Commission.As the Selection Committee has not considered the Petitioner to be suitable to be included in Select List and the Union Public Service Commission has agreed with the recommendation of the Selection Committee, the claim of the Petitioner for inclusion in the select List must fail. 5. There is another aspect of the matter which goes to establish that the case of the Petitioner for inclusion in the Select List cannot now be considered. The Petitioner is now SS years of age an d the age bar in the matter of inclusion in the Select List debars the Petitioner from being included in the Select List. | 0[ds]In view of the grievance made by the Petitioner as to non-inclusion of his name in the Select List, this Court by an order(l) passed on 9.3.1979 directed the I. A. S. Selection Committee to hold a special meeting to consider the question of inclusion of the name of the Petitioner in the Select List. Pursuant to the order passed by this Court, I.A.S. Selection Committee held a special meeting on the 21.7.1979 and the Selection Committee found the Petitioner to be unsuitable for inclusion in the Select List. It may be noted that the I.A.S. Selection Committee which prepares the Select List is an independent body and recommendations of the I.A.S. Selection Committee further require to be approved by the Union Public Service Commission. The decision taken by the I A.S. Selection Committee at the meeting held on 21.7.1979 pursuant to the order of this Court refusing to include the Petitioner in the Select List was approved by the Union Public Service Commission which agreed with the recommendation. An affidavit has also been filed by Shri D.C. Mishra, Director, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi. The averments made in this affidavit go to establish that the cas e of the Petitioner for inclusion in the Select List was properly considered by the Selection Committee on merits As we have earlier noticed, the Selection Committee is an independent body and there is nothing on record to pursuade us to hold that th e decision of the Selection Committee was not properly arrived at on consideration of the merits of the case and was, in any way, otherwise motivated. The Petitioner cannot claim to be included in the Select List as a matter of right. The Select List is prepared by the Selection Committee on consideration of the merits on the basis of suitability of the officer concerned and recommendations made by the Selection Committee have to be approved by the Union Public service Commission.As the Selection Committee has not considered the Petitioner to be suitable to be included in Select List and the Union Public Service Commission has agreed with the recommendation of the Selection Committee, the claim of the Petitioner for inclusion in the select List must failThere is another aspect of the matter which goes to establish that the case of the Petitioner for inclusion in the Select List cannot now be considered. The Petitioner is now SS years of age an d the age bar in the matter of inclusion in the Select List debars the Petitioner from being included in the Select List. | 0 | 684 | 466 | ### 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:
AMARENDRA NATH SEN, J. 1. Gurdayal Singh Fiji, a member of the Punjab Provincial Civil Service, has presented this writ petition in person and he has argued his own case in person. The main grievance of the Petitioner in this writ petition appears to be against the non-inclusion of his name in the I.A.S. Select List. 2. It is the case of the petitioner that he is one of the senior-most persons in the service with a consistently good record of service on the whole, but because of two adverse remarks by two officers, certificate of integrity has not been given to him. The Petitioner submits that the adverse remarks made against him were mala fide and unjustified and the refusal to grant him a certificate of integrity and not to include his name in the I.A.S. Select List is wrongful and illegal.3. As this writ petition may be disposed of on a short point, it doe s not become necessary for us to set out at length the various facts and circumstances of this case. The Petitioner has taken us through the records and the various documents filed in support of his case made in the writ petition. 4. In view of the grievance made by the Petitioner as to non-inclusion of his name in the Select List, this Court by an order(l) passed on 9.3.1979 directed the I. A. S. Selection Committee to hold a special meeting to consider the question of inclusion of the name of the Petitioner in the Select List. Pursuant to the order passed by this Court, I.A.S. Selection Committee held a special meeting on the 21.7.1979 and the Selection Committee found the Petitioner to be unsuitable for inclusion in the Select List. It may be noted that the I.A.S. Selection Committee which prepares the Select List is an independent body and recommendations of the I.A.S. Selection Committee further require to be approved by the Union Public Service Commission. The decision taken by the I A.S. Selection Committee at the meeting held on 21.7.1979 pursuant to the order of this Court refusing to include the Petitioner in the Select List was approved by the Union Public Service Commission which agreed with the recommendation. An affidavit has also been filed by Shri D.C. Mishra, Director, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi. The averments made in this affidavit go to establish that the cas e of the Petitioner for inclusion in the Select List was properly considered by the Selection Committee on merits As we have earlier noticed, the Selection Committee is an independent body and there is nothing on record to pursuade us to hold that th e decision of the Selection Committee was not properly arrived at on consideration of the merits of the case and was, in any way, otherwise motivated. The Petitioner cannot claim to be included in the Select List as a matter of right. The Select List is prepared by the Selection Committee on consideration of the merits on the basis of suitability of the officer concerned and recommendations made by the Selection Committee have to be approved by the Union Public service Commission.As the Selection Committee has not considered the Petitioner to be suitable to be included in Select List and the Union Public Service Commission has agreed with the recommendation of the Selection Committee, the claim of the Petitioner for inclusion in the select List must fail. 5. There is another aspect of the matter which goes to establish that the case of the Petitioner for inclusion in the Select List cannot now be considered. The Petitioner is now SS years of age an d the age bar in the matter of inclusion in the Select List debars the Petitioner from being included in the Select List.
### Response:
0
### Explanation:
In view of the grievance made by the Petitioner as to non-inclusion of his name in the Select List, this Court by an order(l) passed on 9.3.1979 directed the I. A. S. Selection Committee to hold a special meeting to consider the question of inclusion of the name of the Petitioner in the Select List. Pursuant to the order passed by this Court, I.A.S. Selection Committee held a special meeting on the 21.7.1979 and the Selection Committee found the Petitioner to be unsuitable for inclusion in the Select List. It may be noted that the I.A.S. Selection Committee which prepares the Select List is an independent body and recommendations of the I.A.S. Selection Committee further require to be approved by the Union Public Service Commission. The decision taken by the I A.S. Selection Committee at the meeting held on 21.7.1979 pursuant to the order of this Court refusing to include the Petitioner in the Select List was approved by the Union Public Service Commission which agreed with the recommendation. An affidavit has also been filed by Shri D.C. Mishra, Director, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, New Delhi. The averments made in this affidavit go to establish that the cas e of the Petitioner for inclusion in the Select List was properly considered by the Selection Committee on merits As we have earlier noticed, the Selection Committee is an independent body and there is nothing on record to pursuade us to hold that th e decision of the Selection Committee was not properly arrived at on consideration of the merits of the case and was, in any way, otherwise motivated. The Petitioner cannot claim to be included in the Select List as a matter of right. The Select List is prepared by the Selection Committee on consideration of the merits on the basis of suitability of the officer concerned and recommendations made by the Selection Committee have to be approved by the Union Public service Commission.As the Selection Committee has not considered the Petitioner to be suitable to be included in Select List and the Union Public Service Commission has agreed with the recommendation of the Selection Committee, the claim of the Petitioner for inclusion in the select List must failThere is another aspect of the matter which goes to establish that the case of the Petitioner for inclusion in the Select List cannot now be considered. The Petitioner is now SS years of age an d the age bar in the matter of inclusion in the Select List debars the Petitioner from being included in the Select List.
|
Ahmedabad Advance Mills Limited, Mihir Textile Limited Vs. Collector of Customs, Bombay | Counsel for the appellant invited our attention to a letter which appellant has addressed to "Ministry of Industry, Udyog Bhawan, Maulana Azad Road, New Delhi" as proof of such application. Learned Additional Solicitor General contended that the said letter could not be treated as the application contemplated in the proviso to Entry 84.66, as the ministry of Industry is not the prescribed authority for granting registration.Even assuming that the said letter should have been treated as the application contemplated in the proviso can the appellant legally claim the relief of concessional duty? Two circumstances have been highlighted against his claim. First is that though the appellant got the import licence on 22-10-1980 he did not make any application for registration for almost six months there after. Second is that even the letter which he claims to be the prescribed application was sent only a month before clearance of the goods from the port and during the remaining period he could not except the Central Government to rush through all the formalities necessary for granting registration. If any hasty steps were adopted on the application the resultant order would have been vulnerable to be assailed as an act done with undue haste. In this context learned Additional Solicitor General referred us to the following observations made by Jeevan Reddy, J i n S.B. International Ltd &Others vs. Assistant Director General of Foreign Trade &Others, "On receipt of the application, the authorities have to satisfy them selves about the correctness of the contents of the application. They also have to satisfy them selves that the application satisfies all the requirements of the scheme and the Other applicable provisions of law, if any. In a country like ours, where abuse of such facilities is rampant, reasonable time has to be afforded to the authorities to process the application. What is a reasonable time, of course, depends on the facts of each case. No hard and fact limit can be prescribed". Learned counsel for the appellant raised an alternative contention that the deficiency in the contract for obtaining the concessions should not have been taken so seriously and the Customs Authorities should have granted the reliefs as the appellants had performed their part complying with the conditions. Non-compliance of the conditions, according to the counsel, was only due to the lapses on the part of the authorities concerned. This contention was expatiated to the extent that the conditions prescribed in the proviso to entry No. 84.66 are merely directory and not mandatory. According to the counsel, the conditions prescribed, if interpreted strictly, would result in the denial of concessional reliefs which statute has conferred on the citizen.In support of that contention, counsel invited our attention to the decision of a Constitution Bench of this Court in State of U.P. vs. Manbodhan Lal Srivastava 1958 SCR 533 , wherein their Lordships were considering the implication of non-compliance with the conditions provided in Article 320(3) of the Constitution on an order imposing punishment to a Government servant without reference to the Public Service Commission. While considering that question learned Judges made a reference to the Privy Council decision in Montreal Street Railway Company vs. Normandin 1917 AIR(PC) 142 and the Federal Court decision in Biswanath Khemka Vs. Rmperor AIR 104 &FC 67. The Constitution Bench held that the provisions of Article 320(3) are not mandatory and non-compliance of those provisions does not afford any cause of action in a court of law. Privy Council in the above quoted decision has observed that the question whether provisions in a statute are directory or imperative depends upon the object of the statute and no general rule can be laid down. "When the provisions of the statute relate to the performance of a public duty and the case is such that to hold null and void sets done in neglect of this duty would work serious general inconvenience or injustice to person who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory." * This is not a case where a certain provision is mandatory or directory. Here the question is whether concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directory. In Formica India Division vs. Collector of Central Excise, 1955 (77) ELT 511, non-compliance with Rule 56A of the Central Excise Rule, 1944 was held to be insufficient to deny the benefit of a notification to the assessee. But the said benefit was afforded on the special circumstances of a case as could be seen from the following words.The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to the captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore , not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirement of Rule 56A. Nor can we find support from the ratio in BOI Finance Ltd. vs. The Custodian &Others, that " infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering into buy-back arrangements do not invalidate such contracts entered into between the banks and its customer s" as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional duty. The re is no legal foundation for both the appellants to secure the reliefs prescribed in Entry No. 84.66 of the Customs Tariff. | 0[ds]That fact is not disputed before us and as the appellants were aware of position they choose to pay full Customs duty for making the clearance. Learned counsel contended that the importer is not to be blamed fore with the conditions prescribed in the entry because all what should have been done by the m and what remained to be done was only that part which the authorities had to do in the matter. Obviously the aforesaid contention has no legs to stand at least in one case wherein no application was made at all for registration of the contract before the goods were clearedof the conditions, according to the counsel, was only due to the lapses on the part of the authorities concerned. This contention was expatiated to the extent that the conditions prescribed in the proviso to entry No. 84.66 are merely directory and not mandatoryThis is not a case where a certain provision is mandatory or directory. Here the question is whether concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directoryIn Formica India Division vs. Collector of Central Excise, 1955 (77) ELT 511,e with Rule 56A of the Central Excise Rule, 1944 was held to be insufficient to deny the benefit of a notification to the assessee. But the said benefit was afforded on the special circumstances of a case as could be seen from the following words.The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to the captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore , not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirement of Rule 56ANor can we find support from the ratio in BOI Finance Ltd. vs. The Custodian, that " infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering intok arrangements do not invalidate such contracts entered into between the banks and its customer s" as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional dutyThe re is no legal foundation for both the appellants to secure the reliefs prescribed in Entry No. 84.66 of the Customs Tariff. | 0 | 2,216 | 481 | ### 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:
Counsel for the appellant invited our attention to a letter which appellant has addressed to "Ministry of Industry, Udyog Bhawan, Maulana Azad Road, New Delhi" as proof of such application. Learned Additional Solicitor General contended that the said letter could not be treated as the application contemplated in the proviso to Entry 84.66, as the ministry of Industry is not the prescribed authority for granting registration.Even assuming that the said letter should have been treated as the application contemplated in the proviso can the appellant legally claim the relief of concessional duty? Two circumstances have been highlighted against his claim. First is that though the appellant got the import licence on 22-10-1980 he did not make any application for registration for almost six months there after. Second is that even the letter which he claims to be the prescribed application was sent only a month before clearance of the goods from the port and during the remaining period he could not except the Central Government to rush through all the formalities necessary for granting registration. If any hasty steps were adopted on the application the resultant order would have been vulnerable to be assailed as an act done with undue haste. In this context learned Additional Solicitor General referred us to the following observations made by Jeevan Reddy, J i n S.B. International Ltd &Others vs. Assistant Director General of Foreign Trade &Others, "On receipt of the application, the authorities have to satisfy them selves about the correctness of the contents of the application. They also have to satisfy them selves that the application satisfies all the requirements of the scheme and the Other applicable provisions of law, if any. In a country like ours, where abuse of such facilities is rampant, reasonable time has to be afforded to the authorities to process the application. What is a reasonable time, of course, depends on the facts of each case. No hard and fact limit can be prescribed". Learned counsel for the appellant raised an alternative contention that the deficiency in the contract for obtaining the concessions should not have been taken so seriously and the Customs Authorities should have granted the reliefs as the appellants had performed their part complying with the conditions. Non-compliance of the conditions, according to the counsel, was only due to the lapses on the part of the authorities concerned. This contention was expatiated to the extent that the conditions prescribed in the proviso to entry No. 84.66 are merely directory and not mandatory. According to the counsel, the conditions prescribed, if interpreted strictly, would result in the denial of concessional reliefs which statute has conferred on the citizen.In support of that contention, counsel invited our attention to the decision of a Constitution Bench of this Court in State of U.P. vs. Manbodhan Lal Srivastava 1958 SCR 533 , wherein their Lordships were considering the implication of non-compliance with the conditions provided in Article 320(3) of the Constitution on an order imposing punishment to a Government servant without reference to the Public Service Commission. While considering that question learned Judges made a reference to the Privy Council decision in Montreal Street Railway Company vs. Normandin 1917 AIR(PC) 142 and the Federal Court decision in Biswanath Khemka Vs. Rmperor AIR 104 &FC 67. The Constitution Bench held that the provisions of Article 320(3) are not mandatory and non-compliance of those provisions does not afford any cause of action in a court of law. Privy Council in the above quoted decision has observed that the question whether provisions in a statute are directory or imperative depends upon the object of the statute and no general rule can be laid down. "When the provisions of the statute relate to the performance of a public duty and the case is such that to hold null and void sets done in neglect of this duty would work serious general inconvenience or injustice to person who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory." * This is not a case where a certain provision is mandatory or directory. Here the question is whether concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directory. In Formica India Division vs. Collector of Central Excise, 1955 (77) ELT 511, non-compliance with Rule 56A of the Central Excise Rule, 1944 was held to be insufficient to deny the benefit of a notification to the assessee. But the said benefit was afforded on the special circumstances of a case as could be seen from the following words.The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to the captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore , not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirement of Rule 56A. Nor can we find support from the ratio in BOI Finance Ltd. vs. The Custodian &Others, that " infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering into buy-back arrangements do not invalidate such contracts entered into between the banks and its customer s" as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional duty. The re is no legal foundation for both the appellants to secure the reliefs prescribed in Entry No. 84.66 of the Customs Tariff.
### Response:
0
### Explanation:
That fact is not disputed before us and as the appellants were aware of position they choose to pay full Customs duty for making the clearance. Learned counsel contended that the importer is not to be blamed fore with the conditions prescribed in the entry because all what should have been done by the m and what remained to be done was only that part which the authorities had to do in the matter. Obviously the aforesaid contention has no legs to stand at least in one case wherein no application was made at all for registration of the contract before the goods were clearedof the conditions, according to the counsel, was only due to the lapses on the part of the authorities concerned. This contention was expatiated to the extent that the conditions prescribed in the proviso to entry No. 84.66 are merely directory and not mandatoryThis is not a case where a certain provision is mandatory or directory. Here the question is whether concessional relief of duty which is made dependent on the satisfaction of certain conditions can be granted without compliance of such conditions. No matter even if the conditions are only directoryIn Formica India Division vs. Collector of Central Excise, 1955 (77) ELT 511,e with Rule 56A of the Central Excise Rule, 1944 was held to be insufficient to deny the benefit of a notification to the assessee. But the said benefit was afforded on the special circumstances of a case as could be seen from the following words.The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to the captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore , not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirement of Rule 56ANor can we find support from the ratio in BOI Finance Ltd. vs. The Custodian, that " infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering intok arrangements do not invalidate such contracts entered into between the banks and its customer s" as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional dutyThe re is no legal foundation for both the appellants to secure the reliefs prescribed in Entry No. 84.66 of the Customs Tariff.
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Dunichand Hakim And Others Vs. Deputy Commissioner (Deputy Custodian Evacuee Property | is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing. Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to put forward their case before the allotment was cancelled.17. The order of the Deputy Custodian General dated the 2nd December, 1953, rejecting the petitioners revision supports this. That order shows that the Assistant Custodian issued a notice to the petitioners to show cause why the allotment of first grade land while they were all second grade claimants, should not be cancelled. The petitioners appeared before him on the 9th May, 1952. Their statements were recorded and they admitted that their land was second grade, where upon the Assistant Custodian made a report to the Deputy Custodian made recommending that the allotment be cancelled. The Deputy Custodian acting upon this report cancelled the petitioners allotment in village Dhakala on the 1st July, 1952.18. This point was raised before the Deputy Custodian General also but he held that Section 12 of the Central Act did not require notice of cancellation to be issued to the petitioners and in any case the order in question was not without jurisdiction, as there had been substantial compliance with the provisions of rule 14. It was contended, however, that the order of cancellation was made by the Deputy Custodian and that order was bad as he did not give the petitioners any notice before passing the order. The Assistant Custodian who was acting under the orders of the Deputy Custodian had already heard the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already been heard.19. The Deputy Custodian had filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.20. We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them. Even if the order of cancellation was passed during the operation of a stay order, the order of cancellation cannot be challenged on that ground.21. The next contention urged is that the order of cancellation is opposed to the order of the Ministry of Rehabilitation dated the 14th May, 1953, whereby the authorities were prohibited from cancelling allotments if the orders in respect of them had not been implemented by the 22nd July, 1952. We think this contention is also devoid of merit. It appears that the question of amendment of sub-rule 6 of rule 14 of the Central Rules was the subject of correspondence between the Central Government and the East Punjab Government reference is made in the letter of the 14th May, 1953, to a Notification issued by the Central Government on the 22nd July, 1952, according to which orders cancelling allotments passed after a specified date were to be implemented only if they fall under the category of underserved and excessive allotments.22. It is stated that the object of this Notification was to stabilize quasi permanent allotments, but upon a representation by the State Government the provisions restricting the implementation of orders passed before the specified date was relaxed and the State Government was given powers to implement their orders by the 22nd July, 1952. The Central Government after further consideration decided that all orders passed before the 22nd July 1952, but not implemented until the 6th May, 1953, shall be kept in abeyance except in the following cases :(a) Undeserved allotment,(b) Excessive allotment.(c) ............................23. It was further decided that no other order hereafter be implemented until a decision to the contrary is issued by the Central Government. The Letter added that the Ministry of Law was being consulted with a view to making the necessary amendments in the Rules. In pursuance of this decision the East Punjab Government issued instructions to the Deputy Commissioners. There was some dispute about the meaning of the word Implementation but before a further reference was made to the Central Government, the Punjab Government decided that among allotees of land status quo should be maintained and that if as a result of an order of cancellation passed before the 22nd July, 1952, the possession of an allottee had not been given over by the 6th May to the new allottee, it shall remain with the original allottee.24. This correspondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub-rule 6 of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.It is clear, therefore, that the central Government merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force. Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.Sub-rule 6 to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than undeserved or excessive allotments, once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under Section 54, it cannot have the effect of restoring what had been lost.25. | 0[ds]The various evacuee property Ordinance passed by the Central or the State Government from time to time which were eventually replaced by the Central Act No. XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until such time as a final decision was reached by the Government of India as to its ultimate14 (2) which is one of the rules framed under Section 56, specifies the circumstances under which leases and allotments can be cancelled or varied. Sub-rule 3 says that the Custodian may evict a person who has secured an allotment by misrepresentation or by fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements.Sub-rule (4) requires the Custodian before passing any order of cancellation or variation of the terms of lease, to serve the person or person concerned with a notice to show cause against the order proposed to be made and to afford him a reasonable opportunity of being heard. No notice is provided for cancellation of an allotment under theobvious answer to this differentiation appears to be that a lease is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing. Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to put forward their case before the allotment wasAssistant Custodian who was acting under the orders of the Deputy Custodian had already heard the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already beenDeputy Custodian had filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them. Even if the order of cancellation was passed during the operation of a stay order, the order of cancellation cannot be challenged on thatcorrespondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub-rule 6 of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.It is clear, therefore, that the central Government merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force. Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.Sub-rule 6 to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than undeserved or excessive allotments, once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under Section 54, it cannot have the effect of restoring what had been lost. | 0 | 3,009 | 668 | ### 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:
is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing. Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to put forward their case before the allotment was cancelled.17. The order of the Deputy Custodian General dated the 2nd December, 1953, rejecting the petitioners revision supports this. That order shows that the Assistant Custodian issued a notice to the petitioners to show cause why the allotment of first grade land while they were all second grade claimants, should not be cancelled. The petitioners appeared before him on the 9th May, 1952. Their statements were recorded and they admitted that their land was second grade, where upon the Assistant Custodian made a report to the Deputy Custodian made recommending that the allotment be cancelled. The Deputy Custodian acting upon this report cancelled the petitioners allotment in village Dhakala on the 1st July, 1952.18. This point was raised before the Deputy Custodian General also but he held that Section 12 of the Central Act did not require notice of cancellation to be issued to the petitioners and in any case the order in question was not without jurisdiction, as there had been substantial compliance with the provisions of rule 14. It was contended, however, that the order of cancellation was made by the Deputy Custodian and that order was bad as he did not give the petitioners any notice before passing the order. The Assistant Custodian who was acting under the orders of the Deputy Custodian had already heard the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already been heard.19. The Deputy Custodian had filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.20. We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them. Even if the order of cancellation was passed during the operation of a stay order, the order of cancellation cannot be challenged on that ground.21. The next contention urged is that the order of cancellation is opposed to the order of the Ministry of Rehabilitation dated the 14th May, 1953, whereby the authorities were prohibited from cancelling allotments if the orders in respect of them had not been implemented by the 22nd July, 1952. We think this contention is also devoid of merit. It appears that the question of amendment of sub-rule 6 of rule 14 of the Central Rules was the subject of correspondence between the Central Government and the East Punjab Government reference is made in the letter of the 14th May, 1953, to a Notification issued by the Central Government on the 22nd July, 1952, according to which orders cancelling allotments passed after a specified date were to be implemented only if they fall under the category of underserved and excessive allotments.22. It is stated that the object of this Notification was to stabilize quasi permanent allotments, but upon a representation by the State Government the provisions restricting the implementation of orders passed before the specified date was relaxed and the State Government was given powers to implement their orders by the 22nd July, 1952. The Central Government after further consideration decided that all orders passed before the 22nd July 1952, but not implemented until the 6th May, 1953, shall be kept in abeyance except in the following cases :(a) Undeserved allotment,(b) Excessive allotment.(c) ............................23. It was further decided that no other order hereafter be implemented until a decision to the contrary is issued by the Central Government. The Letter added that the Ministry of Law was being consulted with a view to making the necessary amendments in the Rules. In pursuance of this decision the East Punjab Government issued instructions to the Deputy Commissioners. There was some dispute about the meaning of the word Implementation but before a further reference was made to the Central Government, the Punjab Government decided that among allotees of land status quo should be maintained and that if as a result of an order of cancellation passed before the 22nd July, 1952, the possession of an allottee had not been given over by the 6th May to the new allottee, it shall remain with the original allottee.24. This correspondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub-rule 6 of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.It is clear, therefore, that the central Government merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force. Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.Sub-rule 6 to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than undeserved or excessive allotments, once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under Section 54, it cannot have the effect of restoring what had been lost.25.
### Response:
0
### Explanation:
The various evacuee property Ordinance passed by the Central or the State Government from time to time which were eventually replaced by the Central Act No. XXXI of 1950, further confirm that the policy underlying the legislation was to provide for the administration of evacuee property for the time being and to manage it until such time as a final decision was reached by the Government of India as to its ultimate14 (2) which is one of the rules framed under Section 56, specifies the circumstances under which leases and allotments can be cancelled or varied. Sub-rule 3 says that the Custodian may evict a person who has secured an allotment by misrepresentation or by fraud or if he is found to be in possession of more than one evacuee property or in occupation of accommodation in excess of his requirements.Sub-rule (4) requires the Custodian before passing any order of cancellation or variation of the terms of lease, to serve the person or person concerned with a notice to show cause against the order proposed to be made and to afford him a reasonable opportunity of being heard. No notice is provided for cancellation of an allotment under theobvious answer to this differentiation appears to be that a lease is granted for a definite period and it is only fair to give the lessee a notice before his lease is terminated before the expiry of the stipulated period, whereas the allottee of land under the quasi permanent settlement stands on a different footing. Be that as it may, the question seems to be academical in the present case, as the petitioners were given full opportunity to put forward their case before the allotment wasAssistant Custodian who was acting under the orders of the Deputy Custodian had already heard the petitioners and recorded their statements, and there was no point in hearing the petitioners again when they had already beenDeputy Custodian had filed an affidavit to the effect that a notice was given to the petitioners to explain on the 9th May, 1952, as to why their allotment should not be cancelled, that they appeared on the 9th May, 1952, that their statements were recorded and that their allotments were cancelled on the 1st July, 1952.We hold, therefore, that there is no merit in the contention that the order of the Deputy Custodian was without jurisdiction as it was passed in the absence of the petitioners and without hearing them. Even if the order of cancellation was passed during the operation of a stay order, the order of cancellation cannot be challenged on thatcorrespondence merely shows that the Central Government enunciated a certain policy on the subject of amending sub-rule 6 of rule 14, pending the advice of the Law Ministry, but apparently the policy was not given effect to and no rule was framed in pursuance of the decision.It is clear, therefore, that the central Government merely issued interim instructions pending the amendment of the rule but no rule was framed to give effect to those instructions which in consequence did not acquire any statutory force. Mere stay of implementation of the orders contained in the statement of policy did not wipe out the effect of the cancellation.Sub-rule 6 to rule 14 was subsequently added but not as it was intended to be with the result that the old orders of cancellation stood such as orders based on grounds other than undeserved or excessive allotments, once the order of cancellation was passed by the Deputy Custodian, the petitioners lost their right to possession and even if the letter of the 14th May, 1953, is treated as a direction by the Central Government under Section 54, it cannot have the effect of restoring what had been lost.
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Khedut Sahakari Ginning & Pressing Societyltd Vs. State Of Gujarat | again is an authority given by the members to the Society.Bye-law 55 provides :"If it is found necessary and beneficial to sell goods which may be in stock by only other system which may be having connection with the forward market except the hedge system described in the above clause the managing committee can sell goods by the said system by making discussion with the officer of the union affecting the sale."26. This is also an authority given to the Society by its members to deal with their goods in a specified manner.27. It must be remembered that by and large the farmers are illiterate. They do not know the ways of business. The general belief is that taking advantage of the ignorance and illiteracy of the farmers, businessmen exploit them. To avoid such exploitation, the Act authorised the formation of Co-operative Societies of the farmers through which they can sell their goods. Those Societies merely function as agents for the farmers who are their members. By becoming members of those Societies and subscribing to their bye-laws, they had given large powers to their agents so that their produce may be sold in the best possible manner. None of the bye-laws of the Society goes to show that the Society had purchased the goods entrusted to it by its members.28. The High Court has referred to number of decisions that under the bye-laws of the Society, the Society must be held to have purchased the cotton and cotton seeds sold by it. We see no basis for that contention. The question whether a particular agreement is an agreement of sale or an agreement of agency has to be declared on the basis of the terms of that agreement. Decisions rendered on the basis of other agreements may be useful for finding out the principles to be applied in finding out the true character of an agreement but whose decisions cannot conclude the question before the court as no two agreements are likely to be similar. The nature of each agreement has to be decided on its own terms.29. The Tribunal, the High Court as well as the Council for the State have placed great deal of reliance on the decision of this court in Rohtas Industries Ltd.s case (supra). Therein the assessee was a limited liability company manufacturing cement. The assessee and some other cement manufacturing companies entered into an agreement with the Cement Marketing Company of India Ltd., whereby, the marketing company was appointed as the sole and exclusive sales manager for the sale of cement manufacturing companies and the manufacturing companies agreed not to sell directly or indirectly any cement to any person save and except through the marketing company. The manufacturing companies were entitled to be paid a certain sum per ton of cement supplied by them or at such other rate as might be decided upon by the directors of the marketing company. The marketing company was authorised to sell cement at such price or prices and on such terms as it might in its sole discretion think fit and it agreed to distribute to the manufacturing companies, in proportion to the number of tons of cement of every variety and kind suplied by the manufacturing companies, the whole of its net profit less 6 per cent, on its paid up capital. The question was whether the transactions between the assessee and the marketing company were sales or their relationship was that of agent and principal. The court held that the cement delivered, despatched or consigned by the assessee to the marketing company or to its orders or in accordance with its directions was sold by the assessee to the marketing company and the same was therefore liable to be taxed under the Bihar Sales Tax Act, 1544. This Court came to that conclusion on the basis of the various clauses in the agreement. One of the clauses in the agreement relied on by this Court for coming to the conclusion that the agreement in question was an agreement of sale was that the marketing company had to pay certain price for the cement supplied to it and that price was ordinarily required to be fixed having regard to the cost of production. Further the marketing company was entitled to fix price at which the cement was to be sold and such price could be even less than the cost of manufacture. It is true that some of the clauses in that agreement are similar to those we are considering in this case yet no clause in that agreement mentioned that the cement manufacturing companies were merely entrusting their cement to the marketing company nor was there any provision in that agreement for the marketing company to advance loans to the manufacturers on the security of the cement entrusted to it. Further the manufacturing companies were not required to pay any interest on the amount paid to them by the marketing company. Hence we are unable to agree with the High Court and the Tribunal that the ratio of the decision in Rohtas Industries Ltd.s case (supra) governs the fact of this case.30. The decision of this Court in Hafizdin Mohd. Haji Abdulla vs. State of Maharashtra does not support the contention of the State. Therein this Court on an examination of various clauses in the agreement held that the relationship between the assessee and its representatives was that of agent and principal and not of vendors and purchasers. Therefore the State can seek no assistance from that decision.31. Counsel for the State relied on the decision of the High Court of Madhya Pradesh in Ramchandra Rathore & Bros. vs. Commissioner of Sales Tax, Madhya Pradesh and the decision of the Bombay High Court in Versova Koli Sahakari Vahatuk Sangh Ltd. vs. State of Maharashtra in support of the State case. In our opinion the agreements considered in those decisions are wholly different in nature than the bye-laws with which we are concerned in this case. | 1[ds]14. This bye-law clearly indicates that the members of the Society are merely entrusting their goods to the Society and not selling them to the Society. That is made further clear by the fact that the Society may advance loans upto 75 per cent of the estimated value of the goods entrusted to it on the security of those goods and those advances will carry interest. If those goods are sold to the Society then there can be no question of any entrustment for can the Society advance any money on the security of its own goods. If the transactions are sales in favour of the Society then the amounts to be paid by the Society would be purchase price. Such a payment cannot be made on the security of goods nor can that payment carry any interest.We fail to see how this bye-law can lend any assistance in support of the case pleaded by the State. That bye-law makes it clear that the goods in question come into the hands of the Society for sale or for their management through the Society. But the person who entrusts those goods because of this bye-law is deemed to have empowered the society to pledge the same.This bye-law refers to the goods of the members of the Society and not the goods of the Society. Because of that bye-law the members of the Society, who are bound by that bye-law must be deemed to have authorised the Society to pool their goods grade them, if necessary and sell them either after ginning or without ginning. That bye-law also prescribes mode in which the price fetched should be distributed amongst the persons whose goods are sold. The Society is the agent of all its members. Its principles are many. Because of the various bye-laws, the several principals must be deemed to have appointed a common agent-the Society-for disposing of their goods in the manner most advantageous to them. To achieve that object they must be held to have empowered the Society to pool their goods, grade them if necessary, and sell them either after ginning or without ginning. Such an authority in our opinion does not violate the law of agency.19. A person can be an agent for more than one principal and if all his principals jointly authorise him to pool their goods and sell them and pay the sale price to them in the manner prescribed by them, he does not cease to be an agent. The question whether and when an agent with the authority of his principals pools together the goods of its principals grades them and sells them, ceases to be an agent and becomes a purchaser was considered by the Mysore High Court in Sherule Fazle and Co. vs. Commercial Tax Officer, Additional Circle, S. Kanara, Manglore and Anr. There in the High Court held that he does not cease to be an agent. We agree with the ratio of that decision.It must be remembered that by and large the farmers are illiterate. They do not know the ways of business. The general belief is that taking advantage of the ignorance and illiteracy of the farmers, businessmen exploit them. To avoid such exploitation, the Act authorised the formation of Co-operative Societies of the farmers through which they can sell their goods. Those Societies merely function as agents for the farmers who are their members. By becoming members of those Societies and subscribing to their bye-laws, they had given large powers to their agents so that their produce may be sold in the best possible manner. None of the bye-laws of the Society goes to show that the Society had purchased the goods entrusted to it by its members.28. The High Court has referred to number of decisions that under the bye-laws of the Society, the Society must be held to have purchased the cotton and cotton seeds sold by it. We see no basis for that contention. The question whether a particular agreement is an agreement of sale or an agreement of agency has to be declared on the basis of the terms of that agreement. Decisions rendered on the basis of other agreements may be useful for finding out the principles to be applied in finding out the true character of an agreement but whose decisions cannot conclude the question before the court as no two agreements are likely to be similar. The nature of each agreement has to be decided on its own terms.29. The Tribunal, the High Court as well as the Council for the State have placed great deal of reliance on the decision of this court in Rohtas Industries Ltd.s case (supra). Therein the assessee was a limited liability company manufacturing cement. The assessee and some other cement manufacturing companies entered into an agreement with the Cement Marketing Company of India Ltd., whereby, the marketing company was appointed as the sole and exclusive sales manager for the sale of cement manufacturing companies and the manufacturing companies agreed not to sell directly or indirectly any cement to any person save and except through the marketing company. The manufacturing companies were entitled to be paid a certain sum per ton of cement supplied by them or at such other rate as might be decided upon by the directors of the marketing company. The marketing company was authorised to sell cement at such price or prices and on such terms as it might in its sole discretion think fit and it agreed to distribute to the manufacturing companies, in proportion to the number of tons of cement of every variety and kind suplied by the manufacturing companies, the whole of its net profit less 6 per cent, on its paid up capital. The question was whether the transactions between the assessee and the marketing company were sales or their relationship was that of agent and principal. The court held that the cement delivered, despatched or consigned by the assessee to the marketing company or to its orders or in accordance with its directions was sold by the assessee to the marketing company and the same was therefore liable to be taxed under the Bihar Sales Tax Act, 1544. This Court came to that conclusion on the basis of the various clauses in the agreement. One of the clauses in the agreement relied on by this Court for coming to the conclusion that the agreement in question was an agreement of sale was that the marketing company had to pay certain price for the cement supplied to it and that price was ordinarily required to be fixed having regard to the cost of production. Further the marketing company was entitled to fix price at which the cement was to be sold and such price could be even less than the cost of manufacture. It is true that some of the clauses in that agreement are similar to those we are considering in this case yet no clause in that agreement mentioned that the cement manufacturing companies were merely entrusting their cement to the marketing company nor was there any provision in that agreement for the marketing company to advance loans to the manufacturers on the security of the cement entrusted to it. Further the manufacturing companies were not required to pay any interest on the amount paid to them by the marketing company. Hence we are unable to agree with the High Court and the Tribunal that the ratio of the decision in Rohtas Industries Ltd.s case (supra) governs the fact of this case.30. The decision of this Court in Hafizdin Mohd. Haji Abdulla vs. State of Maharashtra does not support the contention of the State. Therein this Court on an examination of various clauses in the agreement held that the relationship between the assessee and its representatives was that of agent and principal and not of vendors and purchasers. Therefore the State can seek no assistance from thatour opinion the agreements considered in those decisions are wholly different in nature than the bye-laws with which we are concerned in this case.Form the above provisions, it is clear that the object of the Society is not to purchase or sell any cotton seeds on its own behalf. The membership of the Society is confined to farmers of the villages mentioned in7 (a) and tosocieties of the Taluks mentioned therein.37 deals with the powers of the managing committee. For our present purpose only cls. 7, 14, 16 and 18 of that2. These provisions clearly go to indicate that the Society was selling the produce of others and not its own goods. Its duty is to arrange to sell the agricultural produce of its members. | 1 | 4,209 | 1,536 | ### 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:
again is an authority given by the members to the Society.Bye-law 55 provides :"If it is found necessary and beneficial to sell goods which may be in stock by only other system which may be having connection with the forward market except the hedge system described in the above clause the managing committee can sell goods by the said system by making discussion with the officer of the union affecting the sale."26. This is also an authority given to the Society by its members to deal with their goods in a specified manner.27. It must be remembered that by and large the farmers are illiterate. They do not know the ways of business. The general belief is that taking advantage of the ignorance and illiteracy of the farmers, businessmen exploit them. To avoid such exploitation, the Act authorised the formation of Co-operative Societies of the farmers through which they can sell their goods. Those Societies merely function as agents for the farmers who are their members. By becoming members of those Societies and subscribing to their bye-laws, they had given large powers to their agents so that their produce may be sold in the best possible manner. None of the bye-laws of the Society goes to show that the Society had purchased the goods entrusted to it by its members.28. The High Court has referred to number of decisions that under the bye-laws of the Society, the Society must be held to have purchased the cotton and cotton seeds sold by it. We see no basis for that contention. The question whether a particular agreement is an agreement of sale or an agreement of agency has to be declared on the basis of the terms of that agreement. Decisions rendered on the basis of other agreements may be useful for finding out the principles to be applied in finding out the true character of an agreement but whose decisions cannot conclude the question before the court as no two agreements are likely to be similar. The nature of each agreement has to be decided on its own terms.29. The Tribunal, the High Court as well as the Council for the State have placed great deal of reliance on the decision of this court in Rohtas Industries Ltd.s case (supra). Therein the assessee was a limited liability company manufacturing cement. The assessee and some other cement manufacturing companies entered into an agreement with the Cement Marketing Company of India Ltd., whereby, the marketing company was appointed as the sole and exclusive sales manager for the sale of cement manufacturing companies and the manufacturing companies agreed not to sell directly or indirectly any cement to any person save and except through the marketing company. The manufacturing companies were entitled to be paid a certain sum per ton of cement supplied by them or at such other rate as might be decided upon by the directors of the marketing company. The marketing company was authorised to sell cement at such price or prices and on such terms as it might in its sole discretion think fit and it agreed to distribute to the manufacturing companies, in proportion to the number of tons of cement of every variety and kind suplied by the manufacturing companies, the whole of its net profit less 6 per cent, on its paid up capital. The question was whether the transactions between the assessee and the marketing company were sales or their relationship was that of agent and principal. The court held that the cement delivered, despatched or consigned by the assessee to the marketing company or to its orders or in accordance with its directions was sold by the assessee to the marketing company and the same was therefore liable to be taxed under the Bihar Sales Tax Act, 1544. This Court came to that conclusion on the basis of the various clauses in the agreement. One of the clauses in the agreement relied on by this Court for coming to the conclusion that the agreement in question was an agreement of sale was that the marketing company had to pay certain price for the cement supplied to it and that price was ordinarily required to be fixed having regard to the cost of production. Further the marketing company was entitled to fix price at which the cement was to be sold and such price could be even less than the cost of manufacture. It is true that some of the clauses in that agreement are similar to those we are considering in this case yet no clause in that agreement mentioned that the cement manufacturing companies were merely entrusting their cement to the marketing company nor was there any provision in that agreement for the marketing company to advance loans to the manufacturers on the security of the cement entrusted to it. Further the manufacturing companies were not required to pay any interest on the amount paid to them by the marketing company. Hence we are unable to agree with the High Court and the Tribunal that the ratio of the decision in Rohtas Industries Ltd.s case (supra) governs the fact of this case.30. The decision of this Court in Hafizdin Mohd. Haji Abdulla vs. State of Maharashtra does not support the contention of the State. Therein this Court on an examination of various clauses in the agreement held that the relationship between the assessee and its representatives was that of agent and principal and not of vendors and purchasers. Therefore the State can seek no assistance from that decision.31. Counsel for the State relied on the decision of the High Court of Madhya Pradesh in Ramchandra Rathore & Bros. vs. Commissioner of Sales Tax, Madhya Pradesh and the decision of the Bombay High Court in Versova Koli Sahakari Vahatuk Sangh Ltd. vs. State of Maharashtra in support of the State case. In our opinion the agreements considered in those decisions are wholly different in nature than the bye-laws with which we are concerned in this case.
### Response:
1
### Explanation:
a purchaser was considered by the Mysore High Court in Sherule Fazle and Co. vs. Commercial Tax Officer, Additional Circle, S. Kanara, Manglore and Anr. There in the High Court held that he does not cease to be an agent. We agree with the ratio of that decision.It must be remembered that by and large the farmers are illiterate. They do not know the ways of business. The general belief is that taking advantage of the ignorance and illiteracy of the farmers, businessmen exploit them. To avoid such exploitation, the Act authorised the formation of Co-operative Societies of the farmers through which they can sell their goods. Those Societies merely function as agents for the farmers who are their members. By becoming members of those Societies and subscribing to their bye-laws, they had given large powers to their agents so that their produce may be sold in the best possible manner. None of the bye-laws of the Society goes to show that the Society had purchased the goods entrusted to it by its members.28. The High Court has referred to number of decisions that under the bye-laws of the Society, the Society must be held to have purchased the cotton and cotton seeds sold by it. We see no basis for that contention. The question whether a particular agreement is an agreement of sale or an agreement of agency has to be declared on the basis of the terms of that agreement. Decisions rendered on the basis of other agreements may be useful for finding out the principles to be applied in finding out the true character of an agreement but whose decisions cannot conclude the question before the court as no two agreements are likely to be similar. The nature of each agreement has to be decided on its own terms.29. The Tribunal, the High Court as well as the Council for the State have placed great deal of reliance on the decision of this court in Rohtas Industries Ltd.s case (supra). Therein the assessee was a limited liability company manufacturing cement. The assessee and some other cement manufacturing companies entered into an agreement with the Cement Marketing Company of India Ltd., whereby, the marketing company was appointed as the sole and exclusive sales manager for the sale of cement manufacturing companies and the manufacturing companies agreed not to sell directly or indirectly any cement to any person save and except through the marketing company. The manufacturing companies were entitled to be paid a certain sum per ton of cement supplied by them or at such other rate as might be decided upon by the directors of the marketing company. The marketing company was authorised to sell cement at such price or prices and on such terms as it might in its sole discretion think fit and it agreed to distribute to the manufacturing companies, in proportion to the number of tons of cement of every variety and kind suplied by the manufacturing companies, the whole of its net profit less 6 per cent, on its paid up capital. The question was whether the transactions between the assessee and the marketing company were sales or their relationship was that of agent and principal. The court held that the cement delivered, despatched or consigned by the assessee to the marketing company or to its orders or in accordance with its directions was sold by the assessee to the marketing company and the same was therefore liable to be taxed under the Bihar Sales Tax Act, 1544. This Court came to that conclusion on the basis of the various clauses in the agreement. One of the clauses in the agreement relied on by this Court for coming to the conclusion that the agreement in question was an agreement of sale was that the marketing company had to pay certain price for the cement supplied to it and that price was ordinarily required to be fixed having regard to the cost of production. Further the marketing company was entitled to fix price at which the cement was to be sold and such price could be even less than the cost of manufacture. It is true that some of the clauses in that agreement are similar to those we are considering in this case yet no clause in that agreement mentioned that the cement manufacturing companies were merely entrusting their cement to the marketing company nor was there any provision in that agreement for the marketing company to advance loans to the manufacturers on the security of the cement entrusted to it. Further the manufacturing companies were not required to pay any interest on the amount paid to them by the marketing company. Hence we are unable to agree with the High Court and the Tribunal that the ratio of the decision in Rohtas Industries Ltd.s case (supra) governs the fact of this case.30. The decision of this Court in Hafizdin Mohd. Haji Abdulla vs. State of Maharashtra does not support the contention of the State. Therein this Court on an examination of various clauses in the agreement held that the relationship between the assessee and its representatives was that of agent and principal and not of vendors and purchasers. Therefore the State can seek no assistance from thatour opinion the agreements considered in those decisions are wholly different in nature than the bye-laws with which we are concerned in this case.Form the above provisions, it is clear that the object of the Society is not to purchase or sell any cotton seeds on its own behalf. The membership of the Society is confined to farmers of the villages mentioned in7 (a) and tosocieties of the Taluks mentioned therein.37 deals with the powers of the managing committee. For our present purpose only cls. 7, 14, 16 and 18 of that2. These provisions clearly go to indicate that the Society was selling the produce of others and not its own goods. Its duty is to arrange to sell the agricultural produce of its members.
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K.V. ANIL MITHRA & ANR Vs. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT & ANR | Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia 2018 (12) SCC 298 . 34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation. 35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect. 36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside. 37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947. 38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases. 39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents. 40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case. 41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case. | 1[ds]20. It is an admitted case of the parties that Act 1947 is applicable on the 1st respondent-University and they are under an obligation to comply with the provisions of the Act 1947. It is also admitted that the 1st respondent is the employer as defined under Section 2(g) and the dispute which was raised is an industrial dispute as defined under Section 2(k) and the present appellants are the workmen as defined under Section 2(s) and the termination which was given effect to by the 1st respondent was a retrenchment as defined under Section 2(oo) and it is not the case of the 1st respondent that their termination falls in any of the exceptions defined under Section 2(oo) of the Act 1947.The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of Section 25F of the Act 1947.25. This can be noticed from the term retrenchment as defined under Section 2(oo) which in unequivocal terms clearly postulates that termination of the service of a workman for any reason whatsoever provided it does not fall in any of the exception clause of Section 2(oo), every termination is a retrenchment and the employer is under an obligation to comply with the twin conditions of Section 25F of the Act 1947 before the retrenchment is given effect to obviously in reference to such termination where the workman has served for more than 240 days in the preceding 12 months from the alleged date of termination given effect to as defined under Section 25B of the Act.26. This Court in State Bank of India(supra) while examining the retrenchment of various nature of employments questioning the interpretation of Section 2(oo) of the Act held as under:-8. Without further ado, we reach the conclusion that if the workman swims into the harbour of Section 25-F, he cannot be retrenched without payment, at the time of retrenchment, compensation computed as prescribed therein read with Section 25-B(2). But, argues the appellant, all these obligations flow only out of retrenchment, not termination outside that species -of snapping employment. What, then, is retrenchment? The key to this vexed question is to be found in Section 2(oo) which reads thus:2. (oo) retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—(a) voluntary retirement of the workman; or(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or(c) termination of the service of a workman on the ground of continued ill-health;For any reason whatsoever — very wide and almost admitting of no exception. Still, the employer urges that when the order of appointment carries an automatic cessation of service, the period of employment works itself out by efflux of time, not by act of employer. Such cases are outside the concept of retrenchment and cannot entail the burdensome conditions of Section 25-F. Of course, that a one year and ten months nine-days employment, hedged is with an express condition of temporariness and automatic cessation, may look like being in a different street (if we may use a colloquialism) from telling a man off by retrenching him. To retrench is to cut down. You cannot retrench without trenching or cutting. But dictionaries are not dictators of statutory construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Section 2(oo) is the master of the situation and the Court cannot truncate its amplitude.9. A breakdown of Section 2(oo) unmistakably expands the semantics of retrenchment. Termination ... for any reason whatsoever are the key words. Whatever the reason, every termination spells retrenchment. So the sole question is, has the employees service been terminated? Verbal apparel apart, the substance is decisive. A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term. To protect the weak against the strong this policy of comprehensive definition has been effectuated. Termination embraces not merely the act of termination by the employer, but the fact of termination howsoever produced. Maybe, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the armour of Section 25-F and Section 2(oo). Without speculating on possibilities, we may agree that retrenchment is no longer terra incognita but area covered by an expansive definition. It means to end, conclude, cease. In the present case the employment ceased, concluded, ended on the expiration of one year ten months nine days — automatically may be, but cessation all the same. That to write into the order of appointment the date of termination confers no moksha from Section 25-F(b) is inferable from the proviso to Section 25-F(1) [sic 25-F (a)]. True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract Section 25-F and automatic extinguishment of service by effluxion of time cannot be sufficient. An English case R. v. Secretary of State3 was relied on, where Lord Denning, M.R. observed:I think that the word terminate or termination is by itself ambiguous. It can refer to either of two things — either to termination by notice or to termination by effluxion of time. It is often used in that dual sense in landlord and tenant and in master and servant cases. But there are several indications in this para to show that it refers here only to termination by notice.Buckley, L.J. concurred and said:In my judgment the words are not capable of bearing that meaning. As Counsel for the Secretary of State has pointed out, the verb terminate can be used either transitively or intransitively. A contract may be said to terminate when it comes to an end by effluxion of time, or it may be said to be terminated when it is determined at notice or otherwise by some act of one of the parties. Here in my judgment the word terminated is used in this passage in para 190 in the transitive sense, and it postulates some act by somebody which is to bring the appointment to an end, and is not applicable to a case in which the appointment comes to an end merely by effluxion of time.Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute. So screened, we hold that the transitive and intransitive senses are covered in the current context. Moreover, an employer terminates employment not merely by passing an order as the service runs. He can do so by writing a composite order, one giving employment and the other ending or limiting it. A separate, subsequent determination is not the sole magnetic pull of the provision. A pre-emptive provision to terminate is struck by the same vice as the post-appointment termination. Dexterity of diction cannot defeat the articulated conscience of the provision.27. It was later followed in L. Robert DSouza(supra) and held as under:-25. Assuming we are not right in holding that the appellant had acquired the status of a temporary railway servant and that he continued to belong to the category of casual labour, would the termination of service in the circumstances mentioned by the Railway Administration constitute retrenchment under the Act?26. Section 25-F of the Act provides that no workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the conditions set out in the Act are satisfied. The expression workman is defined as under:2. In this Act, unless there is anything repugnant in the subject or context,—(s) workman means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge, or retrenchment has led to that dispute, but does not include any such person—(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950, or the Navy (Discipline) Act, 1934; or(ii) who is employed in the police service or as an officer or other employee of a prison; or(iii) who is employed mainly in a managerial or administrative capacity; or(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.27. There is no dispute that the appellant would be a workman within the meaning of the expression in Section 2 (s) of the Act. Further, it is incontrovertible that he has rendered continuous service for a period over 20 years. Therefore, the first condition of Section 25-F that appellant is a workman who has rendered service for not less than one year under the Railway Administration, an employer carrying on an industry, and that his service is terminated which for the reasons hereinbefore given would constitute retrenchment. It is immaterial that he is a daily-rated worker. He is either doing manual or technical work and his salary was less than Rs 500 and the termination of his service does not fall in any of the excepted categories. Therefore, assuming that he was a daily-rated worker, once he has rendered continuous uninterrupted service for a period of one year or more, within the meaning of Section 25-F of the Act and his service is terminated for any reason whatsoever and the case does not fall in any of the excepted categories, notwithstanding the fact that Rule 2505 would be attracted, it would have to be read subject to the provisions of the Act. Accordingly the termination of service in this case would constitute retrenchment and for not complying with pro-conditions to valid retrenchment, the order of termination would be illegal and invalid.29. It leaves no manner of doubt that the nature of every termination of a kind, by the service of a workman, for any reason whatsoever, which the Legislature in its wisdom made a clarification in its intention to be known to the employer that such of the workman whose services, if to be terminated, will amount to retrenchment under Section 2(oo) of the Act except those expressly excluded in the section.30. It is not open for us to examine the nature of employment offered to the workman and the manner he had served the employer is beyond the terms of reference made by the appropriate Government dated 8th April, 2003 and the fact is that if the service of the workman has been terminated, it will be termed to be a retrenchment under Section 2(oo) of the Act provided it does not fall under any of those expressly excluded under the section. In every retrenchment, the employer is not under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act but in a case where the workman has been in continuous service for more than 240 days in the preceding 12 months before the alleged date of termination as contemplated under Section 25B, the employer is under an obligation to comply with the twin conditions referred to under clauses (a) and (b) of Section 25F of the Act 1947.31. The consistent view of this Court is that such non-observance has been termed to be void ab initio bad and consequence in the ordinary course has to follow by reinstatement with consequential benefits but it is not held to be automatic and what alternative relief the workman is entitled for on account of non-observance of mandatory requirement of Section 25F of the Act 1947 is open to be considered by the Tribunal/Courts in the facts and circumstances of each case.32. What appropriate relief the workman may be entitled for regarding non-compliance of Section 25F of the Act 1947 has been considered by this Court in Bharat Sanchar Nigam Limited Vs. Bhurumal 2014 (7) SCC 177. The relevant paras are as under:-33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] . Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation.35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect.36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside.37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947.38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases.39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents.40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case.41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case. | 1 | 7,852 | 3,695 | ### Instruction:
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Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose. 35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied. 33. It has been further followed in District Development Officer and Another Vs. Satish Kantilal Amralia 2018 (12) SCC 298 . 34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation. 35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect. 36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside. 37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947. 38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases. 39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents. 40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case. 41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case.
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was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] . Thus when he cannot claim regularisation and he has no right to continue even as a daily- wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.34. In the instant case, the appellants had served as a daily wager in non-teaching staff category from the year 1993-1997 and their services were terminated in sequel to the order dated 24th March, 1997 pursuant to which their services were de-regularized and that has been upheld by the Division Bench of the High Court in writ appeal preferred at the instance of the appellants in the earlier round of litigation.35. In the afore-stated facts, the High Court of Kerala in the earlier round of litigation made certain adverse observations with regard to the nature of appointment as a daily wager but still the alleged termination was left open to examine the effect of non-observance of the Act, 1947 in the appropriate proceedings. Thus, what has been observed by the Division Bench in its Judgment in the earlier round of litigation may not have any relevance so far as the question which has been examined by the Tribunal in answering the reference in affirmative terms regarding non-observance of Section 25F of the Act 1947 and its consequential effect.36. At the same time, the finding which has been recorded by the learned Single Judge and confirmed by the Division Bench of the High Court in the impugned judgment that if the appointment has not been properly made after going through the process of selection as provided under the statutory rules/Ordinance, as the case may be, if such irregular appointments are being terminated, Section 25F will not apply to a case of termination of such appointed employees. The view expressed by the High Court in the impugned judgment, in our considered view, is unsustainable in law and is not in conformity with the scheme of the Act 1947 and deserves to be set aside.37. The submission made by learned counsel for the respondents that after the finding has been recorded by the Division Bench of the High Court in the earlier round of litigation holding the seal of approval on the appointments of the appellants to an act which is conceived in fraud and delivered in deceit, are not entitled to claim benefit under Section 25F of the Act 1947. In our considered view, the submission is without substance for the reason that appointments are made in the instant case on daily wage basis under the orders of the Vice Chancellor who is the competent/appointing authority and merely because their appointments are not in accordance with the procedure prescribed under the Ordinance would not disentitle them from claiming protection under provisions of the Act 1947.38. The judgment in R. Vishwanatha Pillai(supra) on which learned counsel for the respondents has placed reliance was a case where the incumbent sought an appointment as Scheduled Caste candidate. On complaint, it revealed that he was not a member of the Scheduled Caste category and in that reference, a finding was recorded that the appointment has been obtained by fraud. What will be the consequence, it does not have any application in the facts of the instant cases.39. So far as the judgment in Rajasthan Tourism Development Corporation Ltd. and another(supra) is concerned, it was a case where the workmen had not worked for 240 days in the calendar year which is the condition precedent for attracting the provisions of Section 25F of the Act 1947. In those circumstances, a passing reference has been made regarding non-observance of Section 25F of the Act 1947, which, in our view, may not be of any assistance to the respondents.40. The next judgment relied upon in Satluj Jal Vidyut Nigam(supra) is the case of abolition of jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. While examining the abolition of Jagirs under the Act, reference has been made of fraud and deceit which has no application in the facts of the instant case.41. So far as the judgment in Punjab Urban Planning and Development Authority and Another(supra) is concerned, it was a case where three years service was required for seeking regularization of service in terms of circular issued by the authority under its policy dated 23rd January, 2001 and the incumbent had not completed three years of service for seeking regularization but due to some inadvertence, his name was included in the list of candidates who were regularized and after a show cause notice, his services were terminated. In that context, reference has been made which may not have any remote application on the facts of the case.
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Escorts Ltd Vs. Universal Tractor Holding Llc | award by the foreign Court was obtained, the award could not be executed in India. He relied upon Section 9 of the Federal Arbitration Act of U.S. which reads as follows: “Award of arbitrators; confirmation; jurisdiction; procedureIf the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application maybe made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.” 5. Mr. Tripathi submitted that ultimately what one has to see is whether the consent award was a binding one as required under Section 48(1)(e) of the Arbitration and Conciliation Act, 1996 and that unless a confirmation of the award was obtained, the award could not be said to be binding and, therefore, not executable in India. Mr. Tripathi referred to and relied upon paragraph 15 of the judgment of this Court in Oil and Natural Gas Commission Vs. Western Company of North America, (1987) 1 SCC 496 , wherein this Court held that recognition and enforcement of the award will be refused if the award has not become binding on the parties. 6. Mr. Rautray, learned counsel appearing for the respondent, on the other hand, pointed out that the relevant Section of the Federal US Law is concerning the domestic awards and when it comes to foreign awards, there is a separate chapter under the US Law and in that behalf he referred to Section 202 of the said Act which reads as follows: “202. Agreement or award falling under the ConventionAn arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.” 7. He pointed out that the requirement of this double excequatur has been removed in view of the provisions of the New York Convention which has been now adopted under the Arbitration and Conciliation Act, 1996. He further pointed out that even in England, this has been accepted. He referred to and relied upon the judgment in the case of RusseelN.V. V. Oriental Commercial & Shipping Co. (U.K.) Ltd. and Others, reported in (1991) Vol. 2 Lloyds Law Reports 625. He referred to and relied upon an American judgment in the case of Florasynth, Inc. V. Alfred Pickholz, 750 F. 2d 171, to the same effect. 8. The Oriental Commercial & Shipping Companys judgment (supra) refers to the commentary of Dr. Albert Jan van den Berg which noted the features emerging out of the New York Convention. It records that the burden of proving that the award is not enforceable lies on the party which has raised the issue. It also points out that if any such additional procedure is required to be followed, this will be a proceeding of no consideration or any substance. It will be a procedural addition resulting into further delay into getting the fruits of the award of the party which has succeeded. 9. He also drew our attention to certain observations of this Court in paragraph 33 in HarendraH. Mehta an Ors. Vs. Mukesh H. Mehta and Ors., reported in (1995) 5 SCC 108. It was in a situation where a judgment had, in fact, been obtained before going for execution. However, the Court also observed that it was not material for the purpose of enforcement of a foreign award under the Foreign Awards Act that the award in any country other than India is made enforceable by a judgment. 10. We have noted the submissions of both the counsel appearing for the parties. It is also material to note that even as per the requirement of the US Law, a notice of three months is required to be given in case a party does not want the award to be enforced. In the instant case, paragraph 7 of the consent order clearly recorded that the award given by the arbitrator shall be final and binding on the parties. If the petitioner wanted to dispute it, it was required of them to have issued necessary notice which they had not done. The submission of Mr. Tripathy, which was emphasised, was that the respondent ought to proceed for confirmation of the award under the US Law and then come to India for execution. | 0[ds]We have noted the submissions of both the counsel appearing for the parties. It is also material to note that even as per the requirement of the US Law, a notice of three months is required to be given in case a party does not want the award to be enforced. In the instant case, paragraph 7 of the consent order clearly recorded that the award given by the arbitrator shall be final and binding on the parties. If the petitioner wanted to dispute it, it was required of them to have issued necessary notice which they had not done. The submission of Mr. Tripathy, which was emphasised, was that the respondent ought to proceed for confirmation of the award under the US Law and then come to India for execution. | 0 | 1,582 | 145 | ### 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:
award by the foreign Court was obtained, the award could not be executed in India. He relied upon Section 9 of the Federal Arbitration Act of U.S. which reads as follows: “Award of arbitrators; confirmation; jurisdiction; procedureIf the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application maybe made to the United States court in and for the district within which such award was made. Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. If the adverse party is a resident of the district within which the award was made, such service shall be made upon the adverse party or his attorney as prescribed by law for service of notice of motion in an action in the same court. If the adverse party shall be a nonresident, then the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.” 5. Mr. Tripathi submitted that ultimately what one has to see is whether the consent award was a binding one as required under Section 48(1)(e) of the Arbitration and Conciliation Act, 1996 and that unless a confirmation of the award was obtained, the award could not be said to be binding and, therefore, not executable in India. Mr. Tripathi referred to and relied upon paragraph 15 of the judgment of this Court in Oil and Natural Gas Commission Vs. Western Company of North America, (1987) 1 SCC 496 , wherein this Court held that recognition and enforcement of the award will be refused if the award has not become binding on the parties. 6. Mr. Rautray, learned counsel appearing for the respondent, on the other hand, pointed out that the relevant Section of the Federal US Law is concerning the domestic awards and when it comes to foreign awards, there is a separate chapter under the US Law and in that behalf he referred to Section 202 of the said Act which reads as follows: “202. Agreement or award falling under the ConventionAn arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless that relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.” 7. He pointed out that the requirement of this double excequatur has been removed in view of the provisions of the New York Convention which has been now adopted under the Arbitration and Conciliation Act, 1996. He further pointed out that even in England, this has been accepted. He referred to and relied upon the judgment in the case of RusseelN.V. V. Oriental Commercial & Shipping Co. (U.K.) Ltd. and Others, reported in (1991) Vol. 2 Lloyds Law Reports 625. He referred to and relied upon an American judgment in the case of Florasynth, Inc. V. Alfred Pickholz, 750 F. 2d 171, to the same effect. 8. The Oriental Commercial & Shipping Companys judgment (supra) refers to the commentary of Dr. Albert Jan van den Berg which noted the features emerging out of the New York Convention. It records that the burden of proving that the award is not enforceable lies on the party which has raised the issue. It also points out that if any such additional procedure is required to be followed, this will be a proceeding of no consideration or any substance. It will be a procedural addition resulting into further delay into getting the fruits of the award of the party which has succeeded. 9. He also drew our attention to certain observations of this Court in paragraph 33 in HarendraH. Mehta an Ors. Vs. Mukesh H. Mehta and Ors., reported in (1995) 5 SCC 108. It was in a situation where a judgment had, in fact, been obtained before going for execution. However, the Court also observed that it was not material for the purpose of enforcement of a foreign award under the Foreign Awards Act that the award in any country other than India is made enforceable by a judgment. 10. We have noted the submissions of both the counsel appearing for the parties. It is also material to note that even as per the requirement of the US Law, a notice of three months is required to be given in case a party does not want the award to be enforced. In the instant case, paragraph 7 of the consent order clearly recorded that the award given by the arbitrator shall be final and binding on the parties. If the petitioner wanted to dispute it, it was required of them to have issued necessary notice which they had not done. The submission of Mr. Tripathy, which was emphasised, was that the respondent ought to proceed for confirmation of the award under the US Law and then come to India for execution.
### Response:
0
### Explanation:
We have noted the submissions of both the counsel appearing for the parties. It is also material to note that even as per the requirement of the US Law, a notice of three months is required to be given in case a party does not want the award to be enforced. In the instant case, paragraph 7 of the consent order clearly recorded that the award given by the arbitrator shall be final and binding on the parties. If the petitioner wanted to dispute it, it was required of them to have issued necessary notice which they had not done. The submission of Mr. Tripathy, which was emphasised, was that the respondent ought to proceed for confirmation of the award under the US Law and then come to India for execution.
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Swadeshi Cotton Mills Company Limited Vs. Government of U.P. and Others | Hegde, J. 1. This is an appeal by special leave. It is directed against the decision of the Allahabad High Court in a writ petition under Art. 226 of the Constitution. The petitioner was assessed to tax under the U.P. Sales-Tax Act some time in 1949 in respect of the assessment years 1948-49 and 1949-50. He did not go up in appeal against those orders. He accepted the orders of assessment and in compliance thereof, he paid the tax payable under those orders. 2. On January 24, 1956, he filed the writ petition which has given rise to this appeal. Therein, he challenged the validity of the tax imposed on him. He further prayed for an order directing the State of U.P. to refund the tax collected from him. The learned single Judge, before whom the writ petition came, dismissed from him. The learned single Judge, before the writ petition came, dismissed the same on three grounds, viz., the orders impugned were made prior to January 26, 1950, and hence their validity cannot be challenged under Art. 226 of the Constitution : even according to the petitioner, there was an adequate alternative remedy and hence he should not be permitted to invoke the extraordinary jurisdiction of the High Court; and the petitioner was guilty of laches and hence he is not entitled to invoke the jurisdiction of the High Court under Art. 226 of the constitution. 3. We do not think that in this case it is necessary for us to consider whether Art. 226 can be used for challenging the validity of the orders passed prior to January 26, 1950. But we are in agreement with the High Court on the other two grounds. As mentioned earlier, the impugned assessments were made in 2949. The writ petition was filed in 1956. The explanation given by the petitioner for this long delay is that he did not know the correct legal position and he came to know about the same after the decision of the Allahabad High Court in the Commr. of Sales-Tax U.P. v. Modi Food Products Ltd., Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. I norance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law. That apart, even after the High Court rendered its decision in Modi Food Products case, the petitioner did not move the High Court for over several months. There is not satisfactory explanation for that delay. That being so, the High Court was fully justified in refusing to exercise its discretion under Art. 226 of the Constitution in favour of the appellant. 4. We also agree with the High Court that the petitioner had an adequate alternative remedy by way of going up in appeal against impugned orders. He having failed to do so, cannot permitted to invoke the extraordinary jurisdiction of the High Court under Art, 226 of the Constitution. In this connection, we may also note that if the petitioner had institution a suit for refund of tax, the same would have been barred by limitation. | 0[ds]3. We do not think that in this case it is necessary for us to consider whether Art. 226 can be used for challenging the validity of the orders passed prior to January 26, 1950. But we are in agreement with the High Court on the other two grounds. As mentioned earlier, the impugned assessments were made in 2949. The writ petition was filed in 1956. The explanation given by the petitioner for this long delay is that he did not know the correct legal position and he came to know about the same after the decision of the Allahabad High Court in the Commr. ofx U.P. v. Modi Food Products Ltd., Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. I norance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law. That apart, even after the High Court rendered its decision in Modi Food Products case, the petitioner did not move the High Court for over several months. There is not satisfactory explanation for that delay. That being so, the High Court was fully justified in refusing to exercise its discretion under Art. 226 of the Constitution in favour of the appellant4. We also agree with the High Court that the petitioner had an adequate alternative remedy by way of going up in appeal against impugned orders. He having failed to do so, cannot permitted to invoke the extraordinary jurisdiction of the High Court under Art, 226 of the Constitution. In this connection, we may also note that if the petitioner had institution a suit for refund of tax, the same would have been barred by limitation. | 0 | 611 | 342 | ### 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:
Hegde, J. 1. This is an appeal by special leave. It is directed against the decision of the Allahabad High Court in a writ petition under Art. 226 of the Constitution. The petitioner was assessed to tax under the U.P. Sales-Tax Act some time in 1949 in respect of the assessment years 1948-49 and 1949-50. He did not go up in appeal against those orders. He accepted the orders of assessment and in compliance thereof, he paid the tax payable under those orders. 2. On January 24, 1956, he filed the writ petition which has given rise to this appeal. Therein, he challenged the validity of the tax imposed on him. He further prayed for an order directing the State of U.P. to refund the tax collected from him. The learned single Judge, before whom the writ petition came, dismissed from him. The learned single Judge, before the writ petition came, dismissed the same on three grounds, viz., the orders impugned were made prior to January 26, 1950, and hence their validity cannot be challenged under Art. 226 of the Constitution : even according to the petitioner, there was an adequate alternative remedy and hence he should not be permitted to invoke the extraordinary jurisdiction of the High Court; and the petitioner was guilty of laches and hence he is not entitled to invoke the jurisdiction of the High Court under Art. 226 of the constitution. 3. We do not think that in this case it is necessary for us to consider whether Art. 226 can be used for challenging the validity of the orders passed prior to January 26, 1950. But we are in agreement with the High Court on the other two grounds. As mentioned earlier, the impugned assessments were made in 2949. The writ petition was filed in 1956. The explanation given by the petitioner for this long delay is that he did not know the correct legal position and he came to know about the same after the decision of the Allahabad High Court in the Commr. of Sales-Tax U.P. v. Modi Food Products Ltd., Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. I norance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law. That apart, even after the High Court rendered its decision in Modi Food Products case, the petitioner did not move the High Court for over several months. There is not satisfactory explanation for that delay. That being so, the High Court was fully justified in refusing to exercise its discretion under Art. 226 of the Constitution in favour of the appellant. 4. We also agree with the High Court that the petitioner had an adequate alternative remedy by way of going up in appeal against impugned orders. He having failed to do so, cannot permitted to invoke the extraordinary jurisdiction of the High Court under Art, 226 of the Constitution. In this connection, we may also note that if the petitioner had institution a suit for refund of tax, the same would have been barred by limitation.
### Response:
0
### Explanation:
3. We do not think that in this case it is necessary for us to consider whether Art. 226 can be used for challenging the validity of the orders passed prior to January 26, 1950. But we are in agreement with the High Court on the other two grounds. As mentioned earlier, the impugned assessments were made in 2949. The writ petition was filed in 1956. The explanation given by the petitioner for this long delay is that he did not know the correct legal position and he came to know about the same after the decision of the Allahabad High Court in the Commr. ofx U.P. v. Modi Food Products Ltd., Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. I norance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law. That apart, even after the High Court rendered its decision in Modi Food Products case, the petitioner did not move the High Court for over several months. There is not satisfactory explanation for that delay. That being so, the High Court was fully justified in refusing to exercise its discretion under Art. 226 of the Constitution in favour of the appellant4. We also agree with the High Court that the petitioner had an adequate alternative remedy by way of going up in appeal against impugned orders. He having failed to do so, cannot permitted to invoke the extraordinary jurisdiction of the High Court under Art, 226 of the Constitution. In this connection, we may also note that if the petitioner had institution a suit for refund of tax, the same would have been barred by limitation.
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Shibban Lal Saksena Vs. The State Of Uttar Pradeshand Others | is argued in the first place that from the grounds served upon the petitioner under Section 7 of the P. D. Act, it appears clear that the grounds which weighed with the detaining authority in depriving the petitioner of his liberty are that his activities were in the first place prejudicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. From the communication dated the 13th of March 19452 addressed to the petitioner, it appears, however, that the first ground did not exist as a fact and actually the U. P. Government purported to revoke the detention order under sub-clause (iii) of Section 3 (1) (a) of the P. D. Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.6. The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground; are manifestly inadequate and of a partial character and do not enable him to make an effective representation against the order of detention.7. We may say at once that the second contention does not impress us. It is true that the sufficiency of the particulars conveyed to a detenu in accordance with the provision embodied in Article 22 (5) of the Constitution is a justiciable issue the test being whether they are sufficient to enable the detenu to make an effective representation; but we are not satisfied that the particulars supplied to the detenu in the present case are really inadequate and fall short of the constitutional requirement. We do not think, therefore, that there is any substance in this contention.8. The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful consideration. It has been repeatedly held by this court that the power to issue a detention order under Section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that Section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides. Vide the State of Bombay v. Atma Ram, AIR 1951 Supreme Court 157 (A). A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under Section 7 of the Act. What has happened, however, in this case is somewhat peculiar.The Government itself in its communication dated 13th of March 1953 has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or non-existence and cannot be made a ground of detention. The question is, whether in such circumstances the order made under Section 3 (1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the Federal Court in the case of --- Keshav Talpade v. Emperor, AIR 1943 FC 72 (B) seems to us to be quite sound and applicable to the facts of this case.9. We desire to point out that the order which the Government purported to make in this case under S. 11 of the P. D. Act is not one in conformity with the provision of that Section. Section 11 lays down what action that Government is to take after the Advisory Board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order.10. What the Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of Section 3 (1) (a) of the Act. This is now what the Section contemplates. The Government could either confirm the order of detention made under Section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention if it so chooses. As matters stands, we have no other alternative but to hold that the order made on the 5th of January 1953 under Section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal. | 1[ds]5. It is argued in the first place that from the grounds served upon the petitioner under Section 7 of the P. D. Act, it appears clear that the grounds which weighed with the detaining authority in depriving the petitioner of his liberty are that his activities were in the first place prejudicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. From the communication dated the 13th of March 19452 addressed to the petitioner, it appears, however, that the first ground did not exist as a fact and actually the U. P. Government purported to revoke the detention order under sub-clause (iii) of Section 3 (1) (a) of the P. D. Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.6. The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground; are manifestly inadequate and of a partial character and do not enable him to make an effective representation against the order of detention.9. We desire to point out that the order which the Government purported to make in this case under S. 11 of the P. D. Act is not one in conformity with the provision of that Section. Section 11 lays down what action that Government is to take after the Advisory Board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detentionthe Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of Section 3 (1) (a) of the Act. This is now what the Section contemplates. The Government could either confirm the order of detention made under Section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention if it so chooses. As matters stands, we have no other alternative but to hold that the order made on the 5th of January 1953 under Section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal. | 1 | 1,666 | 525 | ### 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:
is argued in the first place that from the grounds served upon the petitioner under Section 7 of the P. D. Act, it appears clear that the grounds which weighed with the detaining authority in depriving the petitioner of his liberty are that his activities were in the first place prejudicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. From the communication dated the 13th of March 19452 addressed to the petitioner, it appears, however, that the first ground did not exist as a fact and actually the U. P. Government purported to revoke the detention order under sub-clause (iii) of Section 3 (1) (a) of the P. D. Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.6. The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground; are manifestly inadequate and of a partial character and do not enable him to make an effective representation against the order of detention.7. We may say at once that the second contention does not impress us. It is true that the sufficiency of the particulars conveyed to a detenu in accordance with the provision embodied in Article 22 (5) of the Constitution is a justiciable issue the test being whether they are sufficient to enable the detenu to make an effective representation; but we are not satisfied that the particulars supplied to the detenu in the present case are really inadequate and fall short of the constitutional requirement. We do not think, therefore, that there is any substance in this contention.8. The first contention raised by the learned counsel raises, however, a somewhat important point which requires careful consideration. It has been repeatedly held by this court that the power to issue a detention order under Section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that Section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides. Vide the State of Bombay v. Atma Ram, AIR 1951 Supreme Court 157 (A). A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under Section 7 of the Act. What has happened, however, in this case is somewhat peculiar.The Government itself in its communication dated 13th of March 1953 has plainly admitted that one of the grounds upon which the original order of detention was passed is unsubstantial or non-existence and cannot be made a ground of detention. The question is, whether in such circumstances the order made under Section 3 (1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This principle, which was recognised by the Federal Court in the case of --- Keshav Talpade v. Emperor, AIR 1943 FC 72 (B) seems to us to be quite sound and applicable to the facts of this case.9. We desire to point out that the order which the Government purported to make in this case under S. 11 of the P. D. Act is not one in conformity with the provision of that Section. Section 11 lays down what action that Government is to take after the Advisory Board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order.10. What the Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of Section 3 (1) (a) of the Act. This is now what the Section contemplates. The Government could either confirm the order of detention made under Section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention if it so chooses. As matters stands, we have no other alternative but to hold that the order made on the 5th of January 1953 under Section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal.
### Response:
1
### Explanation:
5. It is argued in the first place that from the grounds served upon the petitioner under Section 7 of the P. D. Act, it appears clear that the grounds which weighed with the detaining authority in depriving the petitioner of his liberty are that his activities were in the first place prejudicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. From the communication dated the 13th of March 19452 addressed to the petitioner, it appears, however, that the first ground did not exist as a fact and actually the U. P. Government purported to revoke the detention order under sub-clause (iii) of Section 3 (1) (a) of the P. D. Act. In these circumstances, it is contended that the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as no one can say to what extent the bad ground operated on the mind of the detaining authority.6. The other contention raised by the learned counsel is that the particulars, which were supplied to his client in connection with the second ground; are manifestly inadequate and of a partial character and do not enable him to make an effective representation against the order of detention.9. We desire to point out that the order which the Government purported to make in this case under S. 11 of the P. D. Act is not one in conformity with the provision of that Section. Section 11 lays down what action that Government is to take after the Advisory Board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the Advisory Board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detentionthe Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of Section 3 (1) (a) of the Act. This is now what the Section contemplates. The Government could either confirm the order of detention made under Section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention if it so chooses. As matters stands, we have no other alternative but to hold that the order made on the 5th of January 1953 under Section 3 (1) (a) of the Preventive Detention Act is bad in law and the detention of the petitioner is consequently illegal.
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State Of A.P. Vs. T. Yadagiri Reddy | moto action and put the clock back, insofar as, the orders passed by the Tribunal in case of respondents under the Ceiling Act, as also in respect of the Certificates issued under Section 38-B are concerned. We do not see as to how we would order a suo moto action. The cases are entirely different cases. In this case, there has been no fraud as in the reported decisions. Lastly, by way of almost a desperate argument, Shri Sundaravardan urged that under Section 50-B (4) of the Tenancy Act, the Collector has a suo moto power to call for and examine the record relating to any Certificates issued or proceedings taken by Tahsildar under the Section for the purpose of satisfying themselves as to the legality or propriety of such Certificate or as to the regularity of such proceedings, may pass such order in relation thereto as he may think fit. The Learned Senior Counsel argued that this Court had discussed about this issue in 2003 (7) SCC 667 Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others. He suggested that the Certificates issued in favour of the respondents can still be reopened via Section 50-B (4) of the Tenancy Act. We have no doubts that there existed such a power in Collector via the said provision 50-B(4). The question is whether there was any fraud played or any impropriety shown, more particularly, on the part of the respondents herein, in whose favour the said Certificates were granted. When we see the whole conspectus of the facts, it is apparent that at no point of time, have the respondents or even their late father ever played any fraud against any authority, nor did they ever suppress any relevant fact from any authority. They openly came out with a case regarding Agreement executed on 25.2.1956, thereafter, they openly propounded a theory of partition, which theory was accepted by the Tribunal in ceiling matter in their case, as well as, in the case of their father Late Shri T. Papi Reddy and ultimately, they obtained the Certificate under Section 38-B, way back in 1983. Today, 25 years have elapsed after those Certificates have been granted. We do not see any impropriety in the said proceedings, which would justify a suo moto action on the part of the Collector. 23. This Court has considered the nature of that power in the case of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others (cited supra) and observed in para 9:- "9. ...... Use of the words "at any time" in sub-Section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo moto power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo moto power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of the provisions of other Acts (such as Land Ceiling Act)........................" From this, the Learned Senior Counsel argued that since there is no period of limitation prescribed for this power, the Collector would be justified in initiating an action. In our opinion the argument is firstly, premature. No such action have ever been proposed. Secondly, the Court has further observed that such action has to be within reasonable time though the words "at any time" are used in the provision. In the same para, the Court further observed: "9. ....... Use of the words "at any time" in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary mean sing of the words "at any time", the suo moto power under sub-Section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo moto power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But, that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation." 24. The observations are extremely fitting in the present case. Here also, after the Certificates have been issued, 25 long years have elapsed. The rights of the parties have already been crystallized. Not only this, but, it is the report of Shri Rao that the said lands have now been converted and sold for to as many as approximately 1100 persons, by way of residential plots. We do not think that there is any justification at this stage to use a suo moto power and to cancel the Certificates, so as to put the clock back. That would be, in our opinion, a completely unnecessary exercise, not warranted by any of the Sections. In that view, even this argument has to be rejected. Before parting, we must observe that the subsequent orders in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana, seem to have passed without even noticing the earlier orders passed and without even bothering to send notices to the interested parties. That would be the minimum expectation of law. By that, as it may, the | 0[ds]The observations are extremely fitting in the present case. Here also, after the Certificates have been issued, 25 long years have elapsed. The rights of the parties have already been crystallized. Not only this, but, it is the report of Shri Rao that the said lands have now been converted and sold for to as many as approximately 1100 persons, by way of residential plots. We do not think that there is any justification at this stage to use a suo moto power and to cancel the Certificates, so as to put the clock back. That would be, in our opinion, a completely unnecessary exercise, not warranted by any of the Sections. In that view, even this argument has to be rejected. Before parting, we must observe that the subsequent orders in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana, seem to have passed without even noticing the earlier orders passed and without even bothering to send notices to the interested parties. That would be the minimum expectation of law. | 0 | 9,876 | 204 | ### Instruction:
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moto action and put the clock back, insofar as, the orders passed by the Tribunal in case of respondents under the Ceiling Act, as also in respect of the Certificates issued under Section 38-B are concerned. We do not see as to how we would order a suo moto action. The cases are entirely different cases. In this case, there has been no fraud as in the reported decisions. Lastly, by way of almost a desperate argument, Shri Sundaravardan urged that under Section 50-B (4) of the Tenancy Act, the Collector has a suo moto power to call for and examine the record relating to any Certificates issued or proceedings taken by Tahsildar under the Section for the purpose of satisfying themselves as to the legality or propriety of such Certificate or as to the regularity of such proceedings, may pass such order in relation thereto as he may think fit. The Learned Senior Counsel argued that this Court had discussed about this issue in 2003 (7) SCC 667 Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others. He suggested that the Certificates issued in favour of the respondents can still be reopened via Section 50-B (4) of the Tenancy Act. We have no doubts that there existed such a power in Collector via the said provision 50-B(4). The question is whether there was any fraud played or any impropriety shown, more particularly, on the part of the respondents herein, in whose favour the said Certificates were granted. When we see the whole conspectus of the facts, it is apparent that at no point of time, have the respondents or even their late father ever played any fraud against any authority, nor did they ever suppress any relevant fact from any authority. They openly came out with a case regarding Agreement executed on 25.2.1956, thereafter, they openly propounded a theory of partition, which theory was accepted by the Tribunal in ceiling matter in their case, as well as, in the case of their father Late Shri T. Papi Reddy and ultimately, they obtained the Certificate under Section 38-B, way back in 1983. Today, 25 years have elapsed after those Certificates have been granted. We do not see any impropriety in the said proceedings, which would justify a suo moto action on the part of the Collector. 23. This Court has considered the nature of that power in the case of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham Vs. K. Suresh Reddy and Others (cited supra) and observed in para 9:- "9. ...... Use of the words "at any time" in sub-Section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo moto power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo moto power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of the provisions of other Acts (such as Land Ceiling Act)........................" From this, the Learned Senior Counsel argued that since there is no period of limitation prescribed for this power, the Collector would be justified in initiating an action. In our opinion the argument is firstly, premature. No such action have ever been proposed. Secondly, the Court has further observed that such action has to be within reasonable time though the words "at any time" are used in the provision. In the same para, the Court further observed: "9. ....... Use of the words "at any time" in sub-section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary mean sing of the words "at any time", the suo moto power under sub-Section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo moto power "at any time" only means that no specific period such as days, months or years are not prescribed reckoning from a particular date. But, that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation." 24. The observations are extremely fitting in the present case. Here also, after the Certificates have been issued, 25 long years have elapsed. The rights of the parties have already been crystallized. Not only this, but, it is the report of Shri Rao that the said lands have now been converted and sold for to as many as approximately 1100 persons, by way of residential plots. We do not think that there is any justification at this stage to use a suo moto power and to cancel the Certificates, so as to put the clock back. That would be, in our opinion, a completely unnecessary exercise, not warranted by any of the Sections. In that view, even this argument has to be rejected. Before parting, we must observe that the subsequent orders in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana, seem to have passed without even noticing the earlier orders passed and without even bothering to send notices to the interested parties. That would be the minimum expectation of law. By that, as it may, the
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The observations are extremely fitting in the present case. Here also, after the Certificates have been issued, 25 long years have elapsed. The rights of the parties have already been crystallized. Not only this, but, it is the report of Shri Rao that the said lands have now been converted and sold for to as many as approximately 1100 persons, by way of residential plots. We do not think that there is any justification at this stage to use a suo moto power and to cancel the Certificates, so as to put the clock back. That would be, in our opinion, a completely unnecessary exercise, not warranted by any of the Sections. In that view, even this argument has to be rejected. Before parting, we must observe that the subsequent orders in case of Late Shri Khaja Shakhir Hussain, Shri Khaja Nasir Hussain and Smt. Razia Sultana, seem to have passed without even noticing the earlier orders passed and without even bothering to send notices to the interested parties. That would be the minimum expectation of law.
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The Board of Trustee of The Port of Mumbai Vs. New India Assurance Company Limited | not to those tenants, who were not enjoying such protection. In paragraph Nos.14, 17 and 18 of the said Judgment, it was held as follows,14. Pertinently, the relevant provisions of the West Bengal Premises Tenancy Act, 1956, and West Bengal Premises Tenancy Act, 1997, exclude premises belonging to the Central Government from its coverage. It is, therefore, clear that the said two enactments would have no application to the said plots. The present case is, thus, significantly different from the one considered in Suhas H. Pophale (Supra).17. I have not been able to locate any law laid down in Suhas H. Pophale (Supra) to the extent that the 1971 Act would have no application in cases where the tenancy/lease in respect of public premises belonging to the Central Government came into existence prior to September 16, 1958. That was really not an issue there and it is axiomatic that the fact situation did not warrant such a finding being returned in that regard.18. Now, adverting attention to paragraph 64 of the decision in Suhas H. Pophale (Supra), it is noticed that the two categories of occupants, for whom exclusion of coverage of the 1971 Act has been adumbrated therein are the occupants of (sic premises of) these public corporations, and not the occupants of premises belonging to the Central Government. It is settled by a catena of judicial pronouncements that a line here or there in a Judgment of a superior court need not be read as a statute. In fact, in the said decision, the learned Judge referred to the oft-quoted saying that a decision is an authority for what it decides and not what can logically be deduced therefrom. The Supreme Court carved out exceptions applicable to public premises belonging to public corporations, which cannot be extended to public premises belonging to the Central Government. The decision in Suhas H. Pophale (Supra) is clearly distinguishable and dos not, therefore, aid the Petitioner.39. The contention advanced in the said case that, the eviction has to be resorted to by invoking the relevant provisions of the Transfer of Property Act, 1882, was also rejected holding that,If such contention was to be accepted, the Court would have to lay down the law that even though a tenancy or a lease was created by the landlord/lessor in respect of a public premises before September 16, 1958, the 1971 Act would not be applicable to such public premises on the specious ground that, the 1971 Act itself had not been enacted on the date the tenancy/lease was created. That could not have been the legislative intention and acceptance of the contention raised, would militate against the object of the 1971 Act.40. Thus, the legal position, which emerges from this decision of Calcutta High Court, makes it clear that, the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), cannot be made applicable as straight jacket formula to all the premises, where tenancy was created prior to Public Premises Act came into effect. It can be applicable only to those premises, to which the provisions of the Rent Control Act were applicable and not to those premises, like the present one, which were specifically excluded from its operation. The learned Appellate Court has, in this case, not taken into consideration this distinguishing factor, while allowing the Appeal, by applying the law laid down in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). Hence, it needs to be said aside.41. Though learned counsel for the Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Dr. Preeti Bhatt Vs. Central Bank of India, 2017 (6) Mh.L.J. 33, in my considered opinion, the same cannot be applicable, as, in that case, the property was purchased by the Central Bank of India on 22nd May 1972; whereas, the tenant was in possession of the said premises from the year 1950 and in view thereof, it was held that, as the tenant enjoyed the protection of the Bombay Rent Act, since prior to the Public Premises Act came into effect, therefore, in view of the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd., the eviction order cannot be sustained.42. As stated above, in the present case, since beginning, the subject premises are owned by the local authority and, therefore, excluded from the application of the Rent Control Act, that is the distinguishing factor in the present case from this Judgment of Dr. Preeti Bhatt Vs. Central Bank of India (Supra).43. Thus, the position, which emerges from the above discussion, is that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Issuance Co. Ltd. (Supra), was in the particular facts and circumstances of the case, namely, the Appellant being tenant of the private landlord and, therefore, enjoying protection under the Rent Control Act. The status of being a tenant of the Public Company was thrust upon him. Hence, it was held that, such protection, which the Appellant was enjoying under the Rent Control Act, cannot be taken by the Public Premises Eviction Act, after it came into effect.44. As against it, in the facts of the present case, the Respondent was, since beginning, the tenant of the public premises belonging to the local authority, like Port Trusts, which were excluded from the coverage of the Rent Control Act and hence, not enjoyed protection under the Rent Act. Therefore, Respondent cannot get benefit of the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). As this is the only issue involved and only on this point alone, the Appellate Court has reversed the eviction order passed by the Estate Officer, it has to be held that, the impugned order has to be quashed by allowing this Writ Petition. | 1[ds]8. In my considered opinion, as the entire controversy in this case revolves around the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd (Supra), it would be useful to consider the facts of that case and the legal position discussed therein, in detail, in order to ascertain whether the dictum of the law laid down by the Honble Apex Court in the said Judgment can be made applicable to the facts of the preset case.This question has arisen in the context of the eviction order dated 28th May 1993, passed by the Estate Officer of the first Respondent therein – the Oriental Insurance Company, invoking the provisions of the Public Premises Act with respect to the premises occupied by the Appellant since 20th December 1972. The eviction order passed by the Estate Officer therein has been upheld by this Court in its impugned Judgment dated 7th June 2010, rejecting Writ Petition No.2473 of 1996 filed by the Appellant.11. The facts leading to the said Appeal were that, one Mr.Eric Voller was the tenant of the Indian Mercantile Insurance Co. Ltd.e of the first Respondent – Oriental Insurance Company. Mr. Voller has executed a Leave and License Agreement in respect of the subject premises on 12th December 1972, in favour of the Appellant – Suhash H. Pophale, initially, for a period of two years and put him in the exclusive possession thereof. The erstwhile Insurance Company had not taken objection to the Appellant coming into the exclusive possession of the said premises. Conversely, his tenancy was accepted, initially, for residential purpose and, thereafter, even for the change of user, for practicing as Physician. The erstwhile Insurance Company subsequently merged on 1st January 1974 with the first RespondentOriental Insurance Company, which is a Government Company. A Suit for eviction and arrears of rent was filed against the Appellant by the said Company, which was pending. During that time, the Appellant therein had sent a letter dated 22nd November 1984 to the first Respondent, requesting them to regularize his tenancy as a statutory tenant. In response thereto, a show cause notice, under Sections 4 and 7 of the Public Premises Act, came to be issued to the Appellant by the first Respondent; thereafter, in the case preferred before the Estate Officer, an order of eviction came to be passed as such. The said order of eviction was subsequently confirmed by the City Civil Court, Mumbai, and thereafter by this Court also. It was theof the Second Appeal by Special Leave Petition before the Honble Apex Court.12. As can be seen from paragraph No.8 of the said Judgment, the principal contention raised by the Appellant in the said case, right from the stage of proceeding before the Estate Officer and even before this Court, was that, his occupation in the premises concerned was protected under the newly added Sectionof the Bombay Rent Act with effect from 1st February 1973, i.e. prior to the first Respondent acquiring title over the property from 1st January 1974. Therefore, he could not be evicted by invoking the provisions of the Public Premises Act and by treating him as an unauthorized occupant under that Act. The said contention was rejected by this Court holding that, the provisions of the Bombay Rent Act were not applicable to the premises concerned, as the premises were covered under the Public Premises Act. While arriving at this conclusion, this Court had relied upon the Judgment of the Constitution Bench of the Honble Apex Court in the case of Ashoka Mktg Ltd. Vs. Punjab National Bank, (1990) 4 SCC 406. In this judgment, the contention that the provisions of the Public Premises Act cannot be applied to the premises, which fall within the ambit of the State Rent Control Act, was rejected. It was, therefore, held by this Court that, the Public Premises Act became applicable to the premises concerned from 13th May 1971 itself i.e. after the date from when the management of the erstwhile Insurance Company was taken over by the Central Government and not from the date of merger i.e. from 1st Januaryquestion was raised because the premises in that case were previously owned by the Private Insurance Company and, therefore, thetherein was enjoying the protection of beneficial legislation, like Bombay Rent Act. However, those premises acquired the status of public premises, on account of the merger with Oriental Insurance Company. Hence, the tenants, like the Appellant therein, were loosing protection of the Rent Control Act, which they were enjoying earlier. Therefore, it was held that, the said protection enjoyed by the tenant under the Rent Control Act, cannot be taken away by the Public Premises Act.28. The necessary corollary of this Judgment is that, in order to exclude any tenant from the clutches or coverage of the Public Premises Act, it must be shown that earlier the said tenant was enjoying the protection of the Bombay Rent Act or its successor Maharashtra Rent Control Act. As a result, if such tenant was earlier also excluded from the coverage or protection of the Bombay Rent Act or its successor, then, the question of depriving such tenant from the benefit of protection of the Rent Act, on account of the Public Premises Act coming into effect, does not arise. The provisions of the Public Premises Act will, therefore, become applicable automatically to such tenants, excluded from protection of the Rent Control Act, the moment, the said Act came into effect, as earlier also, those tenants were neither the tenants of private landlords, so as to enjoy the protection of the Rent Control Act, nor the status of being tenant of the public premises was thrust upon them on enactment of the Public Premises Act. Therefore, such tenants, who were excluded from the operation of the Bombay Rent Act, are required to be considered differently from the tenants, who were earlier enjoying that protection, being tenants of the private landlords. The judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (supra) is, thus, applicable to those tenants, who were earlier enjoying the protection of the Bombay Rent Act, being tenants of the private landlords. Hence, the said Judgment cannot be made applicable to the tenants, who were not enjoying the protection under the Bombay Rent Act.In view of the Judgment of this Court, it follows that the subject premises in the present case also, which belongs, since beginning, to the Port Trust, which is a local authority, are clearly excluded and exempted from the application of the provisions of the Bombay Rent Act and it‘s successor Maharashtra Rent Control Act. Even the definition of public premises, as given in Section 2(e)(v) of the Public Premises Act, categorically includes the premises belonging to the Board of Trustees, constituted under the Major Port Trusts Act, 1963.37. Once, therefore, it is held that, the premises in question were, since beginning, excluded from the protection of the Rent Control Act, being the premises belonging to the local authority, it follows that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd (Supra) cannot be applicable to the facts of the present case. The said Judgment, at the cost of repetition, can be made applicable only to those tenants, who were enjoying protection under the Rent Control Act. As regards the premises belonging to the Government or the local authority, these premises never enjoyed such protection. As, since beginning, these are the public premises, exempted from the application of Rent Control Act, the order passed by the Appellate Court, setting aside the eviction order, only relying upon the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (supra), cannot be sustainable in law.38. In the view, which I am taking, for distinguishing the Judgment of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), in the facts of the present case, I am also supported from the Judgment of the Calcutta High Court in the case of M/s B.C. Shaw and Sons Vs. The Union of India and Ors., 2014 SCC OnLine Calcutta 17606. In the said case also, the premises were belonging to the Indian Railways and hence it was held that, the premises were continued to be governed by the provisions of the Transfer of Property Act, 1882; hence, they were excluded from the purview of the Rent Control Act. After careful analysis of the Judgment of the Honble Apex Court in the case of Suhash H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), it was held that, the law laid down therein applies only to those tenants, who were already enjoying the protection of the Rent Control Act and not to those tenants, who were not enjoying such protection.Thus, the legal position, which emerges from this decision of Calcutta High Court, makes it clear that, the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), cannot be made applicable as straight jacket formula to all the premises, where tenancy was created prior to Public Premises Act came into effect. It can be applicable only to those premises, to which the provisions of the Rent Control Act were applicable and not to those premises, like the present one, which were specifically excluded from its operation. The learned Appellate Court has, in this case, not taken into consideration this distinguishing factor, while allowing the Appeal, by applying the law laid down in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). Hence, it needs to be said aside.41. Though learned counsel for the Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Dr. Preeti Bhatt Vs. Central Bank of India, 2017 (6) Mh.L.J. 33, in my considered opinion, the same cannot be applicable, as, in that case, the property was purchased by the Central Bank of India on 22nd May 1972; whereas, the tenant was in possession of the said premises from the year 1950 and in view thereof, it was held that, as the tenant enjoyed the protection of the Bombay Rent Act, since prior to the Public Premises Act came into effect, therefore, in view of the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd., the eviction order cannot be sustained.42. As stated above, in the present case, since beginning, the subject premises are owned by the local authority and, therefore, excluded from the application of the Rent Control Act, that is the distinguishing factor in the present case from this Judgment of Dr. Preeti Bhatt Vs. Central Bank of India (Supra).43. Thus, the position, which emerges from the above discussion, is that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Issuance Co. Ltd. (Supra), was in the particular facts and circumstances of the case, namely, the Appellant being tenant of the private landlord and, therefore, enjoying protection under the Rent Control Act. The status of being a tenant of the Public Company was thrust upon him. Hence, it was held that, such protection, which the Appellant was enjoying under the Rent Control Act, cannot be taken by the Public Premises Eviction Act, after it came into effect.44. As against it, in the facts of the present case, the Respondent was, since beginning, the tenant of the public premises belonging to the local authority, like Port Trusts, which were excluded from the coverage of the Rent Control Act and hence, not enjoyed protection under the Rent Act. Therefore, Respondent cannot get benefit of the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). As this is the only issue involved and only on this point alone, the Appellate Court has reversed the eviction order passed by the Estate Officer, it has to be held that, the impugned order has to be quashed by allowing this Writ Petition. | 1 | 6,859 | 2,325 | ### Instruction:
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not to those tenants, who were not enjoying such protection. In paragraph Nos.14, 17 and 18 of the said Judgment, it was held as follows,14. Pertinently, the relevant provisions of the West Bengal Premises Tenancy Act, 1956, and West Bengal Premises Tenancy Act, 1997, exclude premises belonging to the Central Government from its coverage. It is, therefore, clear that the said two enactments would have no application to the said plots. The present case is, thus, significantly different from the one considered in Suhas H. Pophale (Supra).17. I have not been able to locate any law laid down in Suhas H. Pophale (Supra) to the extent that the 1971 Act would have no application in cases where the tenancy/lease in respect of public premises belonging to the Central Government came into existence prior to September 16, 1958. That was really not an issue there and it is axiomatic that the fact situation did not warrant such a finding being returned in that regard.18. Now, adverting attention to paragraph 64 of the decision in Suhas H. Pophale (Supra), it is noticed that the two categories of occupants, for whom exclusion of coverage of the 1971 Act has been adumbrated therein are the occupants of (sic premises of) these public corporations, and not the occupants of premises belonging to the Central Government. It is settled by a catena of judicial pronouncements that a line here or there in a Judgment of a superior court need not be read as a statute. In fact, in the said decision, the learned Judge referred to the oft-quoted saying that a decision is an authority for what it decides and not what can logically be deduced therefrom. The Supreme Court carved out exceptions applicable to public premises belonging to public corporations, which cannot be extended to public premises belonging to the Central Government. The decision in Suhas H. Pophale (Supra) is clearly distinguishable and dos not, therefore, aid the Petitioner.39. The contention advanced in the said case that, the eviction has to be resorted to by invoking the relevant provisions of the Transfer of Property Act, 1882, was also rejected holding that,If such contention was to be accepted, the Court would have to lay down the law that even though a tenancy or a lease was created by the landlord/lessor in respect of a public premises before September 16, 1958, the 1971 Act would not be applicable to such public premises on the specious ground that, the 1971 Act itself had not been enacted on the date the tenancy/lease was created. That could not have been the legislative intention and acceptance of the contention raised, would militate against the object of the 1971 Act.40. Thus, the legal position, which emerges from this decision of Calcutta High Court, makes it clear that, the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), cannot be made applicable as straight jacket formula to all the premises, where tenancy was created prior to Public Premises Act came into effect. It can be applicable only to those premises, to which the provisions of the Rent Control Act were applicable and not to those premises, like the present one, which were specifically excluded from its operation. The learned Appellate Court has, in this case, not taken into consideration this distinguishing factor, while allowing the Appeal, by applying the law laid down in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). Hence, it needs to be said aside.41. Though learned counsel for the Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Dr. Preeti Bhatt Vs. Central Bank of India, 2017 (6) Mh.L.J. 33, in my considered opinion, the same cannot be applicable, as, in that case, the property was purchased by the Central Bank of India on 22nd May 1972; whereas, the tenant was in possession of the said premises from the year 1950 and in view thereof, it was held that, as the tenant enjoyed the protection of the Bombay Rent Act, since prior to the Public Premises Act came into effect, therefore, in view of the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd., the eviction order cannot be sustained.42. As stated above, in the present case, since beginning, the subject premises are owned by the local authority and, therefore, excluded from the application of the Rent Control Act, that is the distinguishing factor in the present case from this Judgment of Dr. Preeti Bhatt Vs. Central Bank of India (Supra).43. Thus, the position, which emerges from the above discussion, is that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Issuance Co. Ltd. (Supra), was in the particular facts and circumstances of the case, namely, the Appellant being tenant of the private landlord and, therefore, enjoying protection under the Rent Control Act. The status of being a tenant of the Public Company was thrust upon him. Hence, it was held that, such protection, which the Appellant was enjoying under the Rent Control Act, cannot be taken by the Public Premises Eviction Act, after it came into effect.44. As against it, in the facts of the present case, the Respondent was, since beginning, the tenant of the public premises belonging to the local authority, like Port Trusts, which were excluded from the coverage of the Rent Control Act and hence, not enjoyed protection under the Rent Act. Therefore, Respondent cannot get benefit of the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). As this is the only issue involved and only on this point alone, the Appellate Court has reversed the eviction order passed by the Estate Officer, it has to be held that, the impugned order has to be quashed by allowing this Writ Petition.
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being tenants of the private landlords. Hence, the said Judgment cannot be made applicable to the tenants, who were not enjoying the protection under the Bombay Rent Act.In view of the Judgment of this Court, it follows that the subject premises in the present case also, which belongs, since beginning, to the Port Trust, which is a local authority, are clearly excluded and exempted from the application of the provisions of the Bombay Rent Act and it‘s successor Maharashtra Rent Control Act. Even the definition of public premises, as given in Section 2(e)(v) of the Public Premises Act, categorically includes the premises belonging to the Board of Trustees, constituted under the Major Port Trusts Act, 1963.37. Once, therefore, it is held that, the premises in question were, since beginning, excluded from the protection of the Rent Control Act, being the premises belonging to the local authority, it follows that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd (Supra) cannot be applicable to the facts of the present case. The said Judgment, at the cost of repetition, can be made applicable only to those tenants, who were enjoying protection under the Rent Control Act. As regards the premises belonging to the Government or the local authority, these premises never enjoyed such protection. As, since beginning, these are the public premises, exempted from the application of Rent Control Act, the order passed by the Appellate Court, setting aside the eviction order, only relying upon the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (supra), cannot be sustainable in law.38. In the view, which I am taking, for distinguishing the Judgment of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), in the facts of the present case, I am also supported from the Judgment of the Calcutta High Court in the case of M/s B.C. Shaw and Sons Vs. The Union of India and Ors., 2014 SCC OnLine Calcutta 17606. In the said case also, the premises were belonging to the Indian Railways and hence it was held that, the premises were continued to be governed by the provisions of the Transfer of Property Act, 1882; hence, they were excluded from the purview of the Rent Control Act. After careful analysis of the Judgment of the Honble Apex Court in the case of Suhash H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), it was held that, the law laid down therein applies only to those tenants, who were already enjoying the protection of the Rent Control Act and not to those tenants, who were not enjoying such protection.Thus, the legal position, which emerges from this decision of Calcutta High Court, makes it clear that, the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra), cannot be made applicable as straight jacket formula to all the premises, where tenancy was created prior to Public Premises Act came into effect. It can be applicable only to those premises, to which the provisions of the Rent Control Act were applicable and not to those premises, like the present one, which were specifically excluded from its operation. The learned Appellate Court has, in this case, not taken into consideration this distinguishing factor, while allowing the Appeal, by applying the law laid down in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). Hence, it needs to be said aside.41. Though learned counsel for the Respondent has relied upon the Judgment of the Division Bench of this Court in the case of Dr. Preeti Bhatt Vs. Central Bank of India, 2017 (6) Mh.L.J. 33, in my considered opinion, the same cannot be applicable, as, in that case, the property was purchased by the Central Bank of India on 22nd May 1972; whereas, the tenant was in possession of the said premises from the year 1950 and in view thereof, it was held that, as the tenant enjoyed the protection of the Bombay Rent Act, since prior to the Public Premises Act came into effect, therefore, in view of the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd., the eviction order cannot be sustained.42. As stated above, in the present case, since beginning, the subject premises are owned by the local authority and, therefore, excluded from the application of the Rent Control Act, that is the distinguishing factor in the present case from this Judgment of Dr. Preeti Bhatt Vs. Central Bank of India (Supra).43. Thus, the position, which emerges from the above discussion, is that, the law laid down by the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Issuance Co. Ltd. (Supra), was in the particular facts and circumstances of the case, namely, the Appellant being tenant of the private landlord and, therefore, enjoying protection under the Rent Control Act. The status of being a tenant of the Public Company was thrust upon him. Hence, it was held that, such protection, which the Appellant was enjoying under the Rent Control Act, cannot be taken by the Public Premises Eviction Act, after it came into effect.44. As against it, in the facts of the present case, the Respondent was, since beginning, the tenant of the public premises belonging to the local authority, like Port Trusts, which were excluded from the coverage of the Rent Control Act and hence, not enjoyed protection under the Rent Act. Therefore, Respondent cannot get benefit of the Judgment of the Honble Apex Court in the case of Suhas H. Pophale Vs. Oriental Insurance Co. Ltd. (Supra). As this is the only issue involved and only on this point alone, the Appellate Court has reversed the eviction order passed by the Estate Officer, it has to be held that, the impugned order has to be quashed by allowing this Writ Petition.
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Girdharilal Bansidhar Vs. Union Of India | some of the items in the Hand-book. It might very well be that this feature might be explained on the ground of the specification being by way of abundant caution, or possibly because in them the component parts might have an independent use other than as components of the articles specified. It appears to us that it does not stand to reason that a component part which has no use other than as a component of an article whose importation is prohibited is into included in a ban or restriction as regards the importation of that article. Expressed in other terms, we cannot accede to the position that it is the intention of the rule that importers are permitted to do indirectly what they are forbidden to do directly, and that it permits the importation separately of components which have no use other than as components of an article whose importation is prohibited, and that an importer is thereby enabled to assemble them here as a complete article though if they are assembled beyond the Customs Frontiers the importation of the assembled article into India is prohibited. Learned Counsel, however, relied upon an unreported judgment of the Bombay High Court delivered by Mr. Justice Mudholkar when a Judge of that Court in Appeal No. 4 of 1959 (Bom) D. P. an and v. M/s. T. M. Thakore and Co. in support of his submission that a ban on a completed article, having regard to the phraseology employed in the Hand-book cannot be read as a restriction or prohibition of the separate importation of the component parts which when assembled result in the article whose import is prohibited. We do not read the judgment in the manner suggested by learned counsel. The learned Judge in the judgment recorded an admission that the articles imported which were components of a motor-bicycle, would not when assembled form a complete cycle which was the article whose importation was restricted because of the lack of certain essential parts which were admittedly not available, in India and could not be imported. 9. The next submission of the learned Counsel was that the decision of the Customs Collector was vitiated by a patent error, in that he misconstrued the scope of Entry 22 of Part I of the Import Trade Control Hand-book.10. In support of this submission the learned Counsel invited our attention to the decision of this Court in A. V. Venkateswaran v. Ramchand Sobhraj Wadhwani (1962) 1 SCR 753 : (AIR 1961 SC 1506 ). We see no force in this argument. The decision of this Court referred to proceeded on the basis set out on page 757 of the Report (SCR): (at p. 1508 of AIR) where this Court said: The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the item in the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent under item 45(3) was correct. 11. Learned Counsel cannot therefore derive any support from this decision. Besides, what we have said earlier should suffice to show that the conclusion reached by the authority that the offence under S. 167(8) has been made out, is not incorrect. This apart, we must emphasise that a Court dealing with a petition under Art. 226 is not sitting in appeal over the decision of the Customs Authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the Hand-book or in the Indian Tariff Act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the High Court. There is here no complaint of any procedural irregularity of the kind which would invalidate the order, for the order of the Collector shows by its contents that there has been an elaborate investigation and personal hearing accorded before the order now impugned was passed. 12. Learned counsel next submitted that the Collector of Customs had taken into consideration the importation of the washers by the Nawanagar Industries Ltd., in arriving at the conclusion that the appellant had violated S. 167(8) of the Sea Customs Act and that as in the notice that was served upon him to show cause this was not adverted to the order adjudging confiscation was illegal and void for the reason that there had been a violation of the principles of natural justice and procedural irregularity in the hearing. We are not impressed by this argument. This submission proceeds upon a total misapprehension of the significance of the separate import of the washers by the sister-concern. That import was not and could not be the subject of any charge against the appellants, and the appellants were not punished for that importation. It was merely evidence to confirm the conclusion reached by the Collector that the nuts and bolts imported were in reality the actual components of the Jackson type fastener whose importation was prohibited. The charge which the appellant was called on to answer did specify the nature of the offence which he was alleged to contravene and if evidence which the appellant could have rebutted was brought on record and considered in his presence and that evidence conclusively proved the real nature of the articles imported, there could certainly be no justifiable complaint of violation of the principles of natural justice. The mis-description of the article imported in the Bill of Entry having practically been admitted and there being not much dispute that the goods imported were really components of the Jackson type single belt fasteners nothing more was needed to establish a contravention of S. 167(8). The reference therefore to the Nawanagar Industries Ltd: which imported the washers merely confirmed the finding. In these circumstances we do not consider that there is any substance in this objection. 13. | 0[ds]It is, no doubt, true that in some cases component parts are specifically included in some of the items in the Hand-book. It might very well be that this feature might be explained on the ground of the specification being by way of abundant caution, or possibly because in them the component parts might have an independent use other than as components of the articles specified. It appears to us that it does not stand to reason that a component part which has no use other than as a component of an article whose importation is prohibited is into included in a ban or restriction as regards the importation of that article. Expressed in other terms, we cannot accede to the position that it is the intention of the rule that importers are permitted to do indirectly what they are forbidden to do directly, and that it permits the importation separately of components which have no use other than as components of an article whose importation is prohibited, and that an importer is thereby enabled to assemble them here as a complete article though if they are assembled beyond the Customs Frontiers the importation of the assembled article into India is prohibited. Learned Counsel, however, relied upon an unreported judgment of the Bombay High Court delivered by Mr. Justice Mudholkar when a Judge of that Court in Appeal No. 4 of 1959 (Bom) D. P. an and v. M/s. T. M. Thakore and Co. in support of his submission that a ban on a completed article, having regard to the phraseology employed in the Hand-book cannot be read as a restriction or prohibition of the separate importation of the component parts which when assembled result in the article whose import is prohibited. We do not read the judgment in the manner suggested by learned counsel. The learned Judge in the judgment recorded an admission that the articles imported which were components of a motor-bicycle, would not when assembled form a complete cycle which was the article whose importation was restricted because of the lack of certain essential parts which were admittedly not available, in India and could not be importedWe see no force in this argument. The decision of this Court referred to proceeded on the basis set out on page 757 of the Report (SCR): (at p. 1508 of AIR) where this Court said:The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the item in the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent under item 45(3) was correctLearned Counsel cannot therefore derive any support from this decision. Besides, what we have said earlier should suffice to show that the conclusion reached by the authority that the offence under S. 167(8) has been made out, is not incorrect. This apart, we must emphasise that a Court dealing with a petition under Art. 226 is not sitting in appeal over the decision of the Customs Authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the Hand-book or in the Indian Tariff Act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the High Court. There is here no complaint of any procedural irregularity of the kind which would invalidate the order, for the order of the Collector shows by its contents that there has been an elaborate investigation and personal hearing accorded before the order now impugned was passedThis submission proceeds upon a total misapprehension of the significance of the separate import of the washers by the sister-concern. That import was not and could not be the subject of any charge against the appellants, and the appellants were not punished for that importation. It was merely evidence to confirm the conclusion reached by the Collector that the nuts and bolts imported were in reality the actual components of the Jackson type fastener whose importation was prohibited. The charge which the appellant was called on to answer did specify the nature of the offence which he was alleged to contravene and if evidence which the appellant could have rebutted was brought on record and considered in his presence and that evidence conclusively proved the real nature of the articles imported, there could certainly be no justifiable complaint of violation of the principles of natural justice. The mis-description of the article imported in the Bill of Entry having practically been admitted and there being not much dispute that the goods imported were really components of the Jackson type single belt fasteners nothing more was needed to establish a contravention of S. 167(8). The reference therefore to the Nawanagar Industries Ltd: which imported the washers merely confirmed the finding. In these circumstances we do not consider that there is any substance in this objection. | 0 | 2,754 | 902 | ### Instruction:
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some of the items in the Hand-book. It might very well be that this feature might be explained on the ground of the specification being by way of abundant caution, or possibly because in them the component parts might have an independent use other than as components of the articles specified. It appears to us that it does not stand to reason that a component part which has no use other than as a component of an article whose importation is prohibited is into included in a ban or restriction as regards the importation of that article. Expressed in other terms, we cannot accede to the position that it is the intention of the rule that importers are permitted to do indirectly what they are forbidden to do directly, and that it permits the importation separately of components which have no use other than as components of an article whose importation is prohibited, and that an importer is thereby enabled to assemble them here as a complete article though if they are assembled beyond the Customs Frontiers the importation of the assembled article into India is prohibited. Learned Counsel, however, relied upon an unreported judgment of the Bombay High Court delivered by Mr. Justice Mudholkar when a Judge of that Court in Appeal No. 4 of 1959 (Bom) D. P. an and v. M/s. T. M. Thakore and Co. in support of his submission that a ban on a completed article, having regard to the phraseology employed in the Hand-book cannot be read as a restriction or prohibition of the separate importation of the component parts which when assembled result in the article whose import is prohibited. We do not read the judgment in the manner suggested by learned counsel. The learned Judge in the judgment recorded an admission that the articles imported which were components of a motor-bicycle, would not when assembled form a complete cycle which was the article whose importation was restricted because of the lack of certain essential parts which were admittedly not available, in India and could not be imported. 9. The next submission of the learned Counsel was that the decision of the Customs Collector was vitiated by a patent error, in that he misconstrued the scope of Entry 22 of Part I of the Import Trade Control Hand-book.10. In support of this submission the learned Counsel invited our attention to the decision of this Court in A. V. Venkateswaran v. Ramchand Sobhraj Wadhwani (1962) 1 SCR 753 : (AIR 1961 SC 1506 ). We see no force in this argument. The decision of this Court referred to proceeded on the basis set out on page 757 of the Report (SCR): (at p. 1508 of AIR) where this Court said: The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the item in the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent under item 45(3) was correct. 11. Learned Counsel cannot therefore derive any support from this decision. Besides, what we have said earlier should suffice to show that the conclusion reached by the authority that the offence under S. 167(8) has been made out, is not incorrect. This apart, we must emphasise that a Court dealing with a petition under Art. 226 is not sitting in appeal over the decision of the Customs Authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the Hand-book or in the Indian Tariff Act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the High Court. There is here no complaint of any procedural irregularity of the kind which would invalidate the order, for the order of the Collector shows by its contents that there has been an elaborate investigation and personal hearing accorded before the order now impugned was passed. 12. Learned counsel next submitted that the Collector of Customs had taken into consideration the importation of the washers by the Nawanagar Industries Ltd., in arriving at the conclusion that the appellant had violated S. 167(8) of the Sea Customs Act and that as in the notice that was served upon him to show cause this was not adverted to the order adjudging confiscation was illegal and void for the reason that there had been a violation of the principles of natural justice and procedural irregularity in the hearing. We are not impressed by this argument. This submission proceeds upon a total misapprehension of the significance of the separate import of the washers by the sister-concern. That import was not and could not be the subject of any charge against the appellants, and the appellants were not punished for that importation. It was merely evidence to confirm the conclusion reached by the Collector that the nuts and bolts imported were in reality the actual components of the Jackson type fastener whose importation was prohibited. The charge which the appellant was called on to answer did specify the nature of the offence which he was alleged to contravene and if evidence which the appellant could have rebutted was brought on record and considered in his presence and that evidence conclusively proved the real nature of the articles imported, there could certainly be no justifiable complaint of violation of the principles of natural justice. The mis-description of the article imported in the Bill of Entry having practically been admitted and there being not much dispute that the goods imported were really components of the Jackson type single belt fasteners nothing more was needed to establish a contravention of S. 167(8). The reference therefore to the Nawanagar Industries Ltd: which imported the washers merely confirmed the finding. In these circumstances we do not consider that there is any substance in this objection. 13.
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It is, no doubt, true that in some cases component parts are specifically included in some of the items in the Hand-book. It might very well be that this feature might be explained on the ground of the specification being by way of abundant caution, or possibly because in them the component parts might have an independent use other than as components of the articles specified. It appears to us that it does not stand to reason that a component part which has no use other than as a component of an article whose importation is prohibited is into included in a ban or restriction as regards the importation of that article. Expressed in other terms, we cannot accede to the position that it is the intention of the rule that importers are permitted to do indirectly what they are forbidden to do directly, and that it permits the importation separately of components which have no use other than as components of an article whose importation is prohibited, and that an importer is thereby enabled to assemble them here as a complete article though if they are assembled beyond the Customs Frontiers the importation of the assembled article into India is prohibited. Learned Counsel, however, relied upon an unreported judgment of the Bombay High Court delivered by Mr. Justice Mudholkar when a Judge of that Court in Appeal No. 4 of 1959 (Bom) D. P. an and v. M/s. T. M. Thakore and Co. in support of his submission that a ban on a completed article, having regard to the phraseology employed in the Hand-book cannot be read as a restriction or prohibition of the separate importation of the component parts which when assembled result in the article whose import is prohibited. We do not read the judgment in the manner suggested by learned counsel. The learned Judge in the judgment recorded an admission that the articles imported which were components of a motor-bicycle, would not when assembled form a complete cycle which was the article whose importation was restricted because of the lack of certain essential parts which were admittedly not available, in India and could not be importedWe see no force in this argument. The decision of this Court referred to proceeded on the basis set out on page 757 of the Report (SCR): (at p. 1508 of AIR) where this Court said:The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the item in the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent under item 45(3) was correctLearned Counsel cannot therefore derive any support from this decision. Besides, what we have said earlier should suffice to show that the conclusion reached by the authority that the offence under S. 167(8) has been made out, is not incorrect. This apart, we must emphasise that a Court dealing with a petition under Art. 226 is not sitting in appeal over the decision of the Customs Authorities and therefore the correctness of the conclusion reached by those authorities on the appreciation of the several items in the Hand-book or in the Indian Tariff Act which is referred to in these items, is not a matter which falls within the writ jurisdiction of the High Court. There is here no complaint of any procedural irregularity of the kind which would invalidate the order, for the order of the Collector shows by its contents that there has been an elaborate investigation and personal hearing accorded before the order now impugned was passedThis submission proceeds upon a total misapprehension of the significance of the separate import of the washers by the sister-concern. That import was not and could not be the subject of any charge against the appellants, and the appellants were not punished for that importation. It was merely evidence to confirm the conclusion reached by the Collector that the nuts and bolts imported were in reality the actual components of the Jackson type fastener whose importation was prohibited. The charge which the appellant was called on to answer did specify the nature of the offence which he was alleged to contravene and if evidence which the appellant could have rebutted was brought on record and considered in his presence and that evidence conclusively proved the real nature of the articles imported, there could certainly be no justifiable complaint of violation of the principles of natural justice. The mis-description of the article imported in the Bill of Entry having practically been admitted and there being not much dispute that the goods imported were really components of the Jackson type single belt fasteners nothing more was needed to establish a contravention of S. 167(8). The reference therefore to the Nawanagar Industries Ltd: which imported the washers merely confirmed the finding. In these circumstances we do not consider that there is any substance in this objection.
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Railway Board and Others Vs. P.R. Subramaniyam and Others | managers of all Indian Railways and other authorities. The subject in this letter was "upgrading of posts". After reviewing their earlier decisions the Railway Board decided to make certain changes in the distribution of posts in the higher grades. As a provisional measure, since the final implementation of the orders was to take time, it was decided as mentioned in paragraph 13 of this circular to upgrade certain posts of clerks of the Accounts Department. Certain temporary posts were upgraded and thus clerks of Grade II could succeed in getting promotion to Grade I. A few days later another circular letter Ext. R. 3 dated the 13th March, 1957 was issued by the Railway Board to the General Managers mentioning therein that the orders contained in the earlier letter had the approval of the President and clarifying certain other matters in relation to the upgrading of the posts. We may now refer to the other circular letter dated 18th March, 1959, Ext. R. 5 in which it is stated that the senior clerks in Grade II who had qualified to be promoted to Grade I by passing Appendix II A examination later than 1st April, 1956, should be confirmed in Grade I after creating for them supernumerary posts from the said date. The meaning of supernumerary posts as mentioned in the judgments of the High Court is to create shadow posts for giving benefits of pay, etc., to the promoted clerks although as a matter of fact permanent posts were not available from the date of confirmation of such senior persons. 7. Then came the office order Ext. P3 dated the 4th May, 1959 which prima facie showed that the respondents were deemed to have been promoted to officiate as clerks, Grade I against the upgraded posts, permanent or temporary, as per the decision communicated in the circular dated the 7th March, 1957. Respondents 1 and 2 were included in the list of such promoted clerks. But a difficulty arose as to their confirmation in permanent posts as no such posts were available for them from 1st April, 1956. The decision of the Railway Board was communicated in their letter Ext. R6 dated the 25th November, 1959 according to which they were to be confirmed after creation of supernumerary posts in lieu of the then existing temporary posts which were to be set off against permanent vacancies arising subsequently. The fact that the respondents 1 and 2 were confirmed against such supernumerary posts is not in dispute. This is also clear from the office order dated the 5th May, 1960 Ext. R8. Then came the decision of the Railway Board contained in Ext. R9, their letter dated the 2nd March, 1962. This letter embodies rules of general application to a particular class of non-gazetted railway servants. It has been rightly contended on behalf of the appellants that they had the force of a rule made under Rule 157. After tracing the past history it was stated in this letter :"The aforesaid concessions given to senior staff who had qualified in later examination did not, however, mean that the relevant seniority, in the list of clerks Gr. II, would regulate the seniority as clerks Gr. I of all those confirmed as clerks Gr. I (including those confirmed against supernumerary posts) namely, those who qualified for promotion to that grade by passing the App. IIA Examination prior to 1-4-56 and who were available for such promotion on 1-4-56, and those who qualified subsequently by passing the examination between April, 56 and Dec., 57. Thus though some staff who were not eligible for promotion and confirmation were "deemed" to have been promoted as clerks Gr. I w.e.f. 1-4-56 and confirmed even by creating supernumerary posts, seniority as clerks Gr. I is to be fixed according to the principle that the persons who qualified prior to 1-4-55 and were available on 1-4-56 were to be considered first and other senior clerks qualifying upto 31-12-57 were to be considered as and when they qualified. This is in accordance with THE FUNDAMENTAL PRINCIPLE THAT A VACANCY, OFFICIATING OR PERMANENT CAN ONLY BE FILLED BY THE SENIORMOST PERSON ACTUALLY QUALIFIED AT THE TIME THE VACANCY OCCURS." 8. The competition is between Rule 20(b) referred to above and the contained in Ext. R. 9 which of the two will prevail ? Rule 20(b) reads as follows :"The seniority of accounts clerk, Grade I and stock verifiers is to be determined with reference to their substantive or basic seniority in Grade II irrespective of the date they qualify for promotion as clerks Grade I by passing the examination prescribed for the purpose". 9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench. | 1[ds]9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench. | 1 | 1,846 | 253 | ### 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:
managers of all Indian Railways and other authorities. The subject in this letter was "upgrading of posts". After reviewing their earlier decisions the Railway Board decided to make certain changes in the distribution of posts in the higher grades. As a provisional measure, since the final implementation of the orders was to take time, it was decided as mentioned in paragraph 13 of this circular to upgrade certain posts of clerks of the Accounts Department. Certain temporary posts were upgraded and thus clerks of Grade II could succeed in getting promotion to Grade I. A few days later another circular letter Ext. R. 3 dated the 13th March, 1957 was issued by the Railway Board to the General Managers mentioning therein that the orders contained in the earlier letter had the approval of the President and clarifying certain other matters in relation to the upgrading of the posts. We may now refer to the other circular letter dated 18th March, 1959, Ext. R. 5 in which it is stated that the senior clerks in Grade II who had qualified to be promoted to Grade I by passing Appendix II A examination later than 1st April, 1956, should be confirmed in Grade I after creating for them supernumerary posts from the said date. The meaning of supernumerary posts as mentioned in the judgments of the High Court is to create shadow posts for giving benefits of pay, etc., to the promoted clerks although as a matter of fact permanent posts were not available from the date of confirmation of such senior persons. 7. Then came the office order Ext. P3 dated the 4th May, 1959 which prima facie showed that the respondents were deemed to have been promoted to officiate as clerks, Grade I against the upgraded posts, permanent or temporary, as per the decision communicated in the circular dated the 7th March, 1957. Respondents 1 and 2 were included in the list of such promoted clerks. But a difficulty arose as to their confirmation in permanent posts as no such posts were available for them from 1st April, 1956. The decision of the Railway Board was communicated in their letter Ext. R6 dated the 25th November, 1959 according to which they were to be confirmed after creation of supernumerary posts in lieu of the then existing temporary posts which were to be set off against permanent vacancies arising subsequently. The fact that the respondents 1 and 2 were confirmed against such supernumerary posts is not in dispute. This is also clear from the office order dated the 5th May, 1960 Ext. R8. Then came the decision of the Railway Board contained in Ext. R9, their letter dated the 2nd March, 1962. This letter embodies rules of general application to a particular class of non-gazetted railway servants. It has been rightly contended on behalf of the appellants that they had the force of a rule made under Rule 157. After tracing the past history it was stated in this letter :"The aforesaid concessions given to senior staff who had qualified in later examination did not, however, mean that the relevant seniority, in the list of clerks Gr. II, would regulate the seniority as clerks Gr. I of all those confirmed as clerks Gr. I (including those confirmed against supernumerary posts) namely, those who qualified for promotion to that grade by passing the App. IIA Examination prior to 1-4-56 and who were available for such promotion on 1-4-56, and those who qualified subsequently by passing the examination between April, 56 and Dec., 57. Thus though some staff who were not eligible for promotion and confirmation were "deemed" to have been promoted as clerks Gr. I w.e.f. 1-4-56 and confirmed even by creating supernumerary posts, seniority as clerks Gr. I is to be fixed according to the principle that the persons who qualified prior to 1-4-55 and were available on 1-4-56 were to be considered first and other senior clerks qualifying upto 31-12-57 were to be considered as and when they qualified. This is in accordance with THE FUNDAMENTAL PRINCIPLE THAT A VACANCY, OFFICIATING OR PERMANENT CAN ONLY BE FILLED BY THE SENIORMOST PERSON ACTUALLY QUALIFIED AT THE TIME THE VACANCY OCCURS." 8. The competition is between Rule 20(b) referred to above and the contained in Ext. R. 9 which of the two will prevail ? Rule 20(b) reads as follows :"The seniority of accounts clerk, Grade I and stock verifiers is to be determined with reference to their substantive or basic seniority in Grade II irrespective of the date they qualify for promotion as clerks Grade I by passing the examination prescribed for the purpose". 9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench.
### Response:
1
### Explanation:
9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench.
|
M/S. Rollatainers Ltd Vs. Commnr. Of Central Excise, Delhi | factory. The ground plan of the paper board factory prior to May, 1998, showed shed no.3 as a godown for storage of its raw material, namely waste paper. Thereafter, the ground plan was amended in May, 1998, to show the specialty paper factory in shed no.3 for storing the finished goods manufactured at Dharuhera and clearing them on payment of duty. Accordingly, classification list was also filed for the purpose of clearing the stock manufactured at Dharuhera. Subsequent to erection of the plant and machinery of specialty paper factory shifted from Dharuhera to shed no.3, Narela Road, Kundli and manufacture of paper in such separate premises by separate staff and workers who were earlier employed at Dharuhera, were engaged and the appellant applied for Central Excise registration as provided under Rule 174(3) of the Central Excise Rules, 1944. No portion of the manufacturing process of paper board factory was ever carried on in shed no.3 wherein exclusively specialty paper factory operations were carried out. The registrations issued to the paper board factory and the specialty paper factory were premises specific as stipulated under Rule 174(3) which reads as under: " Every registration certificate granted shall be in the specified form and shall be valid only for the premises specified in such certificate." 3. The registration carried out certain conditions also like, that it is valid only for the premises and purposes specified in the schedule and for no other purposes and premises; it is not transferable and no correction will be admissible in the certificate unless attested by the Superintendent, Central Excise and the certificate shall remain valid till the holder carries on the activity for which the certificate has been issued or surrenders the same. Therefore, both the factories were granted separate registration. It was also pointed out that no manufacturing processes pertaining to the manufacture of paper board was carried on in the shed no.3 for which specialty paper factory was granted registration. Only manufacturing processes for manufacture of paper were carried on in shed no.3. It was also stated that both the factories had their separate entrances and are separated by a clear passage of 10 ft.4. The Central Excise Department issued a notification being Notification 6/2000- Central Excise dated March 1,2000 and as per serial No.77 of the aforesaid notification, paper and paperboard or articles made therefrom in a factory is chargeable to nil rate of duty subject to condition no.15 of the notification that paper and paperboard or articles made therefrom manufactured, starting from the stage of pulp, in a factory, and such pulp contains not less than 75% by weight of pulp made from materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags and it was specifically mentioned that the exemption shall apply only to the paper and paperboard cleared for home consumption from a factory. Therefore, the aforesaid exemption was availed of by the appellants factories.5. But the trouble started on March 19, 2001 when individual show cause notice was issued to the factories of the appellant objecting to the availing of the aforesaid concession by each of the factories. The basis of issuance of the show cause notice was on the ground that both the factories are in the common premises and common balance-sheet is maintained and owned by the same company. The issue was adjudicated by the Commissioner, Central Excise, Delhi- III and duty was claimed in sum of Rs.50,25,117.00 under Section 11A(1) of the Central Excise Act, 1944 and penalty of Rs.5 lacs. Aggrieved against this order, two appeals were preferred before the Tribunal and the Tribunal affirmed the order. Hence, the present appeals by way of special leave.6. The question that arises for consideration in both these appeals is whether both these factories are one or they are separate. The Tribunal by its order dated June 7, 2002, affirmed the order of the lower authority and came to the conclusion that they are one and accordingly, affirmed the duty as well as the penalty. 7. There is no two opinion that both the factories are near to each other and it is owned by the same owner and the common balance-sheet is maintained. But, by this can it be said that both the factories are one and the same ? The definition of the factory as defined in Section 2(e) of the Central Excise Act, 1944, reads as under : "(e) factory means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on;" 8. Simply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory. 9. Accordingly, we are of the opinion that the view taken by the Tribunal does not appear to be well-founded and likewise, the view taken by the Commissioner, Central Excise. | 1[ds]8. Simply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory.is no two opinion that both the factories are near to each other and it is owned by the same owner and the common balance-sheet is maintained. But, by this can it be said that both the factories are one and the same ? The definition of the factory as defined in Section 2(e) of the Central Excise Act, 1944, reads as underfactory means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carriedSimply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory.Accordingly, we are of the opinion that the view taken by the Tribunal does not appear to be well-founded and likewise, the view taken by the Commissioner, Central Excise. | 1 | 1,405 | 552 | ### 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:
factory. The ground plan of the paper board factory prior to May, 1998, showed shed no.3 as a godown for storage of its raw material, namely waste paper. Thereafter, the ground plan was amended in May, 1998, to show the specialty paper factory in shed no.3 for storing the finished goods manufactured at Dharuhera and clearing them on payment of duty. Accordingly, classification list was also filed for the purpose of clearing the stock manufactured at Dharuhera. Subsequent to erection of the plant and machinery of specialty paper factory shifted from Dharuhera to shed no.3, Narela Road, Kundli and manufacture of paper in such separate premises by separate staff and workers who were earlier employed at Dharuhera, were engaged and the appellant applied for Central Excise registration as provided under Rule 174(3) of the Central Excise Rules, 1944. No portion of the manufacturing process of paper board factory was ever carried on in shed no.3 wherein exclusively specialty paper factory operations were carried out. The registrations issued to the paper board factory and the specialty paper factory were premises specific as stipulated under Rule 174(3) which reads as under: " Every registration certificate granted shall be in the specified form and shall be valid only for the premises specified in such certificate." 3. The registration carried out certain conditions also like, that it is valid only for the premises and purposes specified in the schedule and for no other purposes and premises; it is not transferable and no correction will be admissible in the certificate unless attested by the Superintendent, Central Excise and the certificate shall remain valid till the holder carries on the activity for which the certificate has been issued or surrenders the same. Therefore, both the factories were granted separate registration. It was also pointed out that no manufacturing processes pertaining to the manufacture of paper board was carried on in the shed no.3 for which specialty paper factory was granted registration. Only manufacturing processes for manufacture of paper were carried on in shed no.3. It was also stated that both the factories had their separate entrances and are separated by a clear passage of 10 ft.4. The Central Excise Department issued a notification being Notification 6/2000- Central Excise dated March 1,2000 and as per serial No.77 of the aforesaid notification, paper and paperboard or articles made therefrom in a factory is chargeable to nil rate of duty subject to condition no.15 of the notification that paper and paperboard or articles made therefrom manufactured, starting from the stage of pulp, in a factory, and such pulp contains not less than 75% by weight of pulp made from materials other than bamboo, hard woods, soft woods, reeds (other than sarkanda) or rags and it was specifically mentioned that the exemption shall apply only to the paper and paperboard cleared for home consumption from a factory. Therefore, the aforesaid exemption was availed of by the appellants factories.5. But the trouble started on March 19, 2001 when individual show cause notice was issued to the factories of the appellant objecting to the availing of the aforesaid concession by each of the factories. The basis of issuance of the show cause notice was on the ground that both the factories are in the common premises and common balance-sheet is maintained and owned by the same company. The issue was adjudicated by the Commissioner, Central Excise, Delhi- III and duty was claimed in sum of Rs.50,25,117.00 under Section 11A(1) of the Central Excise Act, 1944 and penalty of Rs.5 lacs. Aggrieved against this order, two appeals were preferred before the Tribunal and the Tribunal affirmed the order. Hence, the present appeals by way of special leave.6. The question that arises for consideration in both these appeals is whether both these factories are one or they are separate. The Tribunal by its order dated June 7, 2002, affirmed the order of the lower authority and came to the conclusion that they are one and accordingly, affirmed the duty as well as the penalty. 7. There is no two opinion that both the factories are near to each other and it is owned by the same owner and the common balance-sheet is maintained. But, by this can it be said that both the factories are one and the same ? The definition of the factory as defined in Section 2(e) of the Central Excise Act, 1944, reads as under : "(e) factory means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on;" 8. Simply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory. 9. Accordingly, we are of the opinion that the view taken by the Tribunal does not appear to be well-founded and likewise, the view taken by the Commissioner, Central Excise.
### Response:
1
### Explanation:
8. Simply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory.is no two opinion that both the factories are near to each other and it is owned by the same owner and the common balance-sheet is maintained. But, by this can it be said that both the factories are one and the same ? The definition of the factory as defined in Section 2(e) of the Central Excise Act, 1944, reads as underfactory means any premises, including the precincts thereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carriedSimply because both the factories are in the same premises that does not lead to the inference that both the factories are one and the same. In the present case, from the facts it is apparent that there is no commonality of the purpose, both the factories have a separate entrance, there is a passage in between and they are not complimentary to each nor they are subsidiary to each other. The end product is also different, one manufactures duplex board and the other manufactures paper. They are separately registered with the Central Excise Department. The staff is separate, their management is separate. It is also not the case of revenue that end product of one factory is raw material for the other factory. From the above facts it is apparent that there is no commonality between the two factories, both are separate establishments run by separate managers though at the apex level it is maintained by the appellant company. There are separate staff, separate finished goods. Simply because both the factories may have common boundaries that will not make it one factory.Accordingly, we are of the opinion that the view taken by the Tribunal does not appear to be well-founded and likewise, the view taken by the Commissioner, Central Excise.
|
Collector of Central Excise, Pune Vs. Philips India Ltd | advertisement incurred by the dealers on behalf of the assessee" * 2. The learned counsel for the appellant drew attention to the judgment of a Division Bench of the High Court at Madras in Standard Electric Appliances v. Supdt. of Central Excise [ (Mad)]. The Court said that it was common knowledge that when a consumer purchased an article from a dealer, in the case of service facilities he looked to the dealer and not to the manufacturer. For replacement of defective parts also he looked to the dealer from whom he had purchased and, notwithstanding the fact that the wholesale dealer might ultimately have the parts replaced by it reimbursed from the manufacturer, the service facilities were provided by the wholesaler with a view to earn goodwill and attract customers. The advertising of a product by the wholesaler was one of the well-known methods by which the wholesaler attracted customers and if, as a result of increasing its business, the demand for the product of the manufacturer also increased, the advertising by the manufacturer could not be said to be for and on behalf of the manufacturer 3. In Union of India v. Mahindra and Mahindra Ltd. [(Cal)] the High Court at Bombay emphasised the relationship between the parties, being of buyer and seller on principal-to-principal basis. The Court observed that the manufacturer and its distributor had a mutual interest in maximising the sale of the products. The provisions in the contract between them relating to advertising and the like were in furtherance of this desire on the part of both the manufacturer and its distributor and in no way affected the real nature of the transaction which appeared to be of sale on principal-to-principal basis 4. It is not in dispute that the agreements between the appellant and their dealers are genuine agreements entered into at an arms length, that they are as between principal and principal and that the payments contemplated therein are made. The relevant clauses of the agreement are "(6) All Companys products to be supplied under this Agreement shall be paid for in cash upon delivery. All taxes (Central or State), levies, imposition, octroi and duties which may be assessed on the Company in respect of the sale of the Companys products or levied on the said sales shall be borne by the Dealer and the Dealer shall indemnify and keep indemnified the Company against any claim, demands, proceedings, costs, charges and expenses in respect of such imposition, taxes and duties" * (16) The Dealer will be informed from time to time of the Companys products which are available and of their current list prices together with the terms of supply and prices applicable to the Dealer. The Company shall be at liberty to intimate to the Dealer the maximum prices at which the Dealer shall sell the products. The Dealer shall, however, be free to charge prices lower than those (18) The Dealer undertakes strictly to comply with the terms of guarantee of free service for the Companys products laid down by the Company from time to time regardless of where the purchase has been made and further undertakes that it shall not charge the customer for any repairs to any Philips receivers during the prescribed guaranteed service period (19) The Dealer undertakes to maintain an efficient service station duly equipped in every respect to the satisfaction of the Company at all times and will assume full responsibility for the servicing or repairs in respect of the sets and the Companys products. The Dealer shall comply in this respect with whatever instructions may be given from time to time by the Company (24) The Company reserves the right to exercise control and supervision at any time over all repairs of Philips receivers and in case repairs are considered by the Company to be of an unsatisfactory nature, the Company will be free to correct such repairs at the cost and expense of the Dealer(26) The dealers shall carry out at their own expense advertisement campaign to promote sales of the Companys products (34) Nothing in this Agreement shall constitute or be deemed to constitute the Dealer as agent of the Company for any purpose whatsoever and the relationship between the parties hereto is that of vendor and purchaser 5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for6. As to the after-sales service that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as to after-sales service, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer 7. We think that in adjudicating matters such as this, the Excise authorities would do well to keep in mind legitimate business considerations 8. We cannot help but observe that the reduction of the trade discount by two percentage points would not have occurred to the adjudicating authorities, being an unlikely estimate, but for the fact that the 2% here realised Rs. 50 lakhs and odd | 1[ds]5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for6. As to theservice that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as toservice, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer | 1 | 1,546 | 237 | ### 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:
advertisement incurred by the dealers on behalf of the assessee" * 2. The learned counsel for the appellant drew attention to the judgment of a Division Bench of the High Court at Madras in Standard Electric Appliances v. Supdt. of Central Excise [ (Mad)]. The Court said that it was common knowledge that when a consumer purchased an article from a dealer, in the case of service facilities he looked to the dealer and not to the manufacturer. For replacement of defective parts also he looked to the dealer from whom he had purchased and, notwithstanding the fact that the wholesale dealer might ultimately have the parts replaced by it reimbursed from the manufacturer, the service facilities were provided by the wholesaler with a view to earn goodwill and attract customers. The advertising of a product by the wholesaler was one of the well-known methods by which the wholesaler attracted customers and if, as a result of increasing its business, the demand for the product of the manufacturer also increased, the advertising by the manufacturer could not be said to be for and on behalf of the manufacturer 3. In Union of India v. Mahindra and Mahindra Ltd. [(Cal)] the High Court at Bombay emphasised the relationship between the parties, being of buyer and seller on principal-to-principal basis. The Court observed that the manufacturer and its distributor had a mutual interest in maximising the sale of the products. The provisions in the contract between them relating to advertising and the like were in furtherance of this desire on the part of both the manufacturer and its distributor and in no way affected the real nature of the transaction which appeared to be of sale on principal-to-principal basis 4. It is not in dispute that the agreements between the appellant and their dealers are genuine agreements entered into at an arms length, that they are as between principal and principal and that the payments contemplated therein are made. The relevant clauses of the agreement are "(6) All Companys products to be supplied under this Agreement shall be paid for in cash upon delivery. All taxes (Central or State), levies, imposition, octroi and duties which may be assessed on the Company in respect of the sale of the Companys products or levied on the said sales shall be borne by the Dealer and the Dealer shall indemnify and keep indemnified the Company against any claim, demands, proceedings, costs, charges and expenses in respect of such imposition, taxes and duties" * (16) The Dealer will be informed from time to time of the Companys products which are available and of their current list prices together with the terms of supply and prices applicable to the Dealer. The Company shall be at liberty to intimate to the Dealer the maximum prices at which the Dealer shall sell the products. The Dealer shall, however, be free to charge prices lower than those (18) The Dealer undertakes strictly to comply with the terms of guarantee of free service for the Companys products laid down by the Company from time to time regardless of where the purchase has been made and further undertakes that it shall not charge the customer for any repairs to any Philips receivers during the prescribed guaranteed service period (19) The Dealer undertakes to maintain an efficient service station duly equipped in every respect to the satisfaction of the Company at all times and will assume full responsibility for the servicing or repairs in respect of the sets and the Companys products. The Dealer shall comply in this respect with whatever instructions may be given from time to time by the Company (24) The Company reserves the right to exercise control and supervision at any time over all repairs of Philips receivers and in case repairs are considered by the Company to be of an unsatisfactory nature, the Company will be free to correct such repairs at the cost and expense of the Dealer(26) The dealers shall carry out at their own expense advertisement campaign to promote sales of the Companys products (34) Nothing in this Agreement shall constitute or be deemed to constitute the Dealer as agent of the Company for any purpose whatsoever and the relationship between the parties hereto is that of vendor and purchaser 5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for6. As to the after-sales service that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as to after-sales service, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer 7. We think that in adjudicating matters such as this, the Excise authorities would do well to keep in mind legitimate business considerations 8. We cannot help but observe that the reduction of the trade discount by two percentage points would not have occurred to the adjudicating authorities, being an unlikely estimate, but for the fact that the 2% here realised Rs. 50 lakhs and odd
### Response:
1
### Explanation:
5. It seems to us clear that the advertisement which the dealer was required to make at its own cost benefited in equal degree the appellant and the dealer and that for this reason the cost of such advertisement was borne half and half by the appellant and the dealer. Making a deduction out of the trade discount on this account was, therefore, uncalled for6. As to theservice that the dealer was required under the agreement to provide, it did of course enhance in the eyes of intending purchasers the value of the appellants product, but such enhancement of value enured not only for the benefit of the appellant; it also enured for the benefit of the dealer for, by reason thereof, the dealer got to sell more and earn a larger profit. The guarantee attached to the appellants products specified that they could be repaired during the guarantee period by the appellants dealers anywhere in the country. Thus, though one dealer might have to repair goods sold by another dealer and incur costs in that regard, he also had the benefit of having the goods he sold reparable throughout the country. The provision as toservice, therefore, benefited not only the appellant; it was a provision of mutual benefit to the appellant and the dealer
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New India Assurance Co.Ltd Vs. Satpal Singh Muchal | Dr. Arijit Pasayat, J. 1. Leave granted.2. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as the ‘National Commission) dismissing the revision petition filed by the appellant. Order passed by the State Commission, Madhya Pradesh was under challenge before the National Commission. The State Consumer Disputes Redressal Commission (hereinafter referred to as the ‘State Commission) had dismissed the appeal filed by the insurer against the order passed by the District Consumer Redressal Forum, Indore (in short the ‘District Forum). 3. Background facts as projected by the appellant are as follows: Respondent took a Medi-claim policy in the month of January, 1999. The policy was renewed lastly on 22.1.2002 for a period of one year i.e. till 21.1.2003. Respondent was suffering from kidney trouble and intimated the same to the Divisional office of the appellant No.1-company. On receiving the intimation that the respondent was suffering from kidney trouble, insurer terminated the policy by letter dated 18.6.2003 with effect from 17.2.2002 by placing reliance on clause 5.9. of the policy. Respondent issued notice to the appellant calling upon them to treat the policy of insurance as subsisting and to bear the expenses of the treatment of the respondent. Another notice was issued on 2.7.2002 calling upon the appellant to pay the claim of the respondent. Appellant replied to the notice. Again respondent issued notice to the appellant stating that he was suffering from kidney trouble for about last two years. The appellant was of the view that there was concealment of the fact of the pre existing disease at the time of taking the policy of the insurance. It was clear that the insurance cover was taken by concealment of material facts and, therefore, the insurance policy was terminated and the respondent was intimated. The respondent was refunded pro rata premium of Rs.2782/- by cheque dated 6.8.2002. Respondent submitted an application for renewal of the policy. The respondent was intimated by letter dated 11.3.2003 that because of pre-existing disease and adverse claim ratio, the policy of insurance has been cancelled and therefore the request of renewal cannot be considered. Respondent filed a complaint before the District Forum. Stand of the appellant before the District Forum was that every policy whether it is a renewal or a fresh one is purely based on a contract. Since the respondent was suffering from kidney trouble even prior to the taking of the first policy, there was concealment of material particulars. In four years the respondent had been paid as claimed amount of Rs.95,925/- as against the premium of Rs.17,182/- and even in the year 2003-04 a sum of Rs.49,894/- was paid which indicated adverse claim experience and as such in terms of clause 5.9 of the policy, the same had been rightly cancelled. The District Forum directed revalidation of the policy and also directed consideration of the claim of the respondent.4. Against the said order an appeal was preferred before the State Commission which as noted above, dismissed the same. Revision was carried before the National Commission which dismissed the same. 5. In support of the appeal learned counsel for the appellant submitted that the National Commission did not consider the relevant aspects. The fact of concealment had not been considered as also the scope and the relevance of clause 5.9 has been totally overlooked. 6. Learned counsel for the respondent on the other hand supported the judgment. 7. Clause 5.9 reads as follows: "The policy may be renewed by mutual consent. The company shall not however be bound to give notice that it is due for renewal and the company may at any time cancel this policy by sending the insured 30 days notice by registered letter at the insureds last address and in such event the company shall refund to the insured a pro rate premium for un expired period of insurance." 8. The basic stand of the appellant was that there was concealment of the factum of ailment to the kidney when the first application for insurance cover was made. Additionally the effect of clause 5.9 has not been considered.9. Reference was made by learned counsel for the appellant to the letter of the respondent dated 24.6.2009 which inter alia contains the following paragraphs: "My client has been suffering from kidney trouble since last 2 years i.e. during the pendency of the Medi claim policy and claim was already submitted. Now in order to thwart Mediclaim, the insurance Co. cannot cancel the policy and the Insurance Co. is bound to pay the mediclaim of my client.My client has been suffering vehemently and is undergoing vehemental trouble and agony. Your said notice has told on the nerves of my client and he has become despondent from his life.The main intention of the said Ruces is not to defeat at the Medi claim of the insured. Since my client has been suffering from kidney trouble during the recurrence of the Insurance policy, in Insurance Company is bound to make payment, of the Medi claim submitted by my client." 10. It appears that the District Forum, the State Commission and the National Commission have not considered the effect of clause 5.9 and the admissions made by the respondent in his letter as quoted above. | 1[ds]8. The basic stand of the appellant was that there was concealment of the factum of ailment to the kidney when the first application for insurance cover was made. Additionally the effect of clause 5.9 has not been considered.9. Reference was made by learned counsel for the appellant to the letter of the respondent dated 24.6.2009 which inter alia contains the followingclient has been suffering from kidney trouble since last 2 years i.e. during the pendency of the Medi claim policy and claim was already submitted. Now in order to thwart Mediclaim, the insurance Co. cannot cancel the policy and the Insurance Co. is bound to pay the mediclaim of myclient has been suffering vehemently and is undergoing vehemental trouble and agony. Your said notice has told on the nerves of my client and he has become despondent from hismain intention of the said Ruces is not to defeat at the Medi claim of the insured. Since my client has been suffering from kidney trouble during the recurrence of the Insurance policy, in Insurance Company is bound to make payment, of the Medi claim submitted by my client.It appears that the District Forum, the State Commission and the National Commission have not considered the effect of clause 5.9 and the admissions made by the respondent in his letter as quoted above. | 1 | 959 | 238 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Dr. Arijit Pasayat, J. 1. Leave granted.2. Challenge in this appeal is to the order passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as the ‘National Commission) dismissing the revision petition filed by the appellant. Order passed by the State Commission, Madhya Pradesh was under challenge before the National Commission. The State Consumer Disputes Redressal Commission (hereinafter referred to as the ‘State Commission) had dismissed the appeal filed by the insurer against the order passed by the District Consumer Redressal Forum, Indore (in short the ‘District Forum). 3. Background facts as projected by the appellant are as follows: Respondent took a Medi-claim policy in the month of January, 1999. The policy was renewed lastly on 22.1.2002 for a period of one year i.e. till 21.1.2003. Respondent was suffering from kidney trouble and intimated the same to the Divisional office of the appellant No.1-company. On receiving the intimation that the respondent was suffering from kidney trouble, insurer terminated the policy by letter dated 18.6.2003 with effect from 17.2.2002 by placing reliance on clause 5.9. of the policy. Respondent issued notice to the appellant calling upon them to treat the policy of insurance as subsisting and to bear the expenses of the treatment of the respondent. Another notice was issued on 2.7.2002 calling upon the appellant to pay the claim of the respondent. Appellant replied to the notice. Again respondent issued notice to the appellant stating that he was suffering from kidney trouble for about last two years. The appellant was of the view that there was concealment of the fact of the pre existing disease at the time of taking the policy of the insurance. It was clear that the insurance cover was taken by concealment of material facts and, therefore, the insurance policy was terminated and the respondent was intimated. The respondent was refunded pro rata premium of Rs.2782/- by cheque dated 6.8.2002. Respondent submitted an application for renewal of the policy. The respondent was intimated by letter dated 11.3.2003 that because of pre-existing disease and adverse claim ratio, the policy of insurance has been cancelled and therefore the request of renewal cannot be considered. Respondent filed a complaint before the District Forum. Stand of the appellant before the District Forum was that every policy whether it is a renewal or a fresh one is purely based on a contract. Since the respondent was suffering from kidney trouble even prior to the taking of the first policy, there was concealment of material particulars. In four years the respondent had been paid as claimed amount of Rs.95,925/- as against the premium of Rs.17,182/- and even in the year 2003-04 a sum of Rs.49,894/- was paid which indicated adverse claim experience and as such in terms of clause 5.9 of the policy, the same had been rightly cancelled. The District Forum directed revalidation of the policy and also directed consideration of the claim of the respondent.4. Against the said order an appeal was preferred before the State Commission which as noted above, dismissed the same. Revision was carried before the National Commission which dismissed the same. 5. In support of the appeal learned counsel for the appellant submitted that the National Commission did not consider the relevant aspects. The fact of concealment had not been considered as also the scope and the relevance of clause 5.9 has been totally overlooked. 6. Learned counsel for the respondent on the other hand supported the judgment. 7. Clause 5.9 reads as follows: "The policy may be renewed by mutual consent. The company shall not however be bound to give notice that it is due for renewal and the company may at any time cancel this policy by sending the insured 30 days notice by registered letter at the insureds last address and in such event the company shall refund to the insured a pro rate premium for un expired period of insurance." 8. The basic stand of the appellant was that there was concealment of the factum of ailment to the kidney when the first application for insurance cover was made. Additionally the effect of clause 5.9 has not been considered.9. Reference was made by learned counsel for the appellant to the letter of the respondent dated 24.6.2009 which inter alia contains the following paragraphs: "My client has been suffering from kidney trouble since last 2 years i.e. during the pendency of the Medi claim policy and claim was already submitted. Now in order to thwart Mediclaim, the insurance Co. cannot cancel the policy and the Insurance Co. is bound to pay the mediclaim of my client.My client has been suffering vehemently and is undergoing vehemental trouble and agony. Your said notice has told on the nerves of my client and he has become despondent from his life.The main intention of the said Ruces is not to defeat at the Medi claim of the insured. Since my client has been suffering from kidney trouble during the recurrence of the Insurance policy, in Insurance Company is bound to make payment, of the Medi claim submitted by my client." 10. It appears that the District Forum, the State Commission and the National Commission have not considered the effect of clause 5.9 and the admissions made by the respondent in his letter as quoted above.
### Response:
1
### Explanation:
8. The basic stand of the appellant was that there was concealment of the factum of ailment to the kidney when the first application for insurance cover was made. Additionally the effect of clause 5.9 has not been considered.9. Reference was made by learned counsel for the appellant to the letter of the respondent dated 24.6.2009 which inter alia contains the followingclient has been suffering from kidney trouble since last 2 years i.e. during the pendency of the Medi claim policy and claim was already submitted. Now in order to thwart Mediclaim, the insurance Co. cannot cancel the policy and the Insurance Co. is bound to pay the mediclaim of myclient has been suffering vehemently and is undergoing vehemental trouble and agony. Your said notice has told on the nerves of my client and he has become despondent from hismain intention of the said Ruces is not to defeat at the Medi claim of the insured. Since my client has been suffering from kidney trouble during the recurrence of the Insurance policy, in Insurance Company is bound to make payment, of the Medi claim submitted by my client.It appears that the District Forum, the State Commission and the National Commission have not considered the effect of clause 5.9 and the admissions made by the respondent in his letter as quoted above.
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Madras Refineries Ltd Vs. Controlling Revenue Authority, Board Ofrevenue, Madras | The Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collateral agreement". The parties in fact clearly stated in Article I, section 1.01 of the Deed of Trust and Mortgage as follows, --"Collateral Agreements:The term "Collateral Agreements" shall mean the Guarantee Agreement and the Undertaking, hereinafter defined."It was therefore specifically agreed between the parties that the Deed of Trust and Mortgage was not a collateral agreement.8. In all these facts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or primary security. As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely because the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed .the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call for interference. Mr. Ram Reddy relied on some decisions to support his argument that the Guarantee Agreement was the security for the loan and was the principal or the primary document, but those cases were decided on different facts and have no real bearing on the controversy before us.9. The Guarantee Agreement was executed for and on behalf of the president by his Authorised Representative, and no stamp duty was chargeable for it by virtue of the proviso to section 3 of the Act. That in fact appears to be the reason why counsel for the appellant strenously argued that we should hold it to be the principal instrument, for he has next argued that the case falls within the purview of section 4 (1) of the Act and the "Principal instrument" only would be chargeable with the duty prescribed in Schedule I, and deed of any trust and mortgage would be chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in that Schedule. We find however that there is no merit in this argument also. Sub-section (1) of section 4 of the Act reads as follows, --"4. Several instruments used in single transaction of sale, mortgage or settlement.--(1) Where, in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of four rupees fifty naye paise instead of the duty (if any) prescribed for it in that Schedule."10. It is nobodys case that the Guarantee Agreement was an instrument of sale-, for it did not transfer the ownership of anything in exchange for a price paid or promised or part-paid and part-promised. It was also not an instrument of mortgage because it is nobodys case that there was any transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan or an existing or a furture debt or the performance of an engagement which could give rise to a pecuniary liability. The expression "settlement" has been defined in clause (24) of section 2 of the Act as follows:--"Settlement" means any non-testamentary disposition in writing, of movable or immovable property made---(a) in consideration of marriage,(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or(c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and where any such disposition bas not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition) ."The term "disposition" has been defined in Strouds Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law" and "includes transfer and charge of property".As the Guarantee Agreement did not have any such effect, it did not constitute a "settlement" also. That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub section (1) of section 4 of the Act.11. It was the Deed of Trust and Mortgage which was a "Mortgage deed" within the meaning of clause (17) of section 2 of the Act, and it was therefore clearly chargeable with stamp duty at the rate prescribed in article 40(b) of Schedule I to. the Act.12. We have examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1) of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that sub-section and was chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in the Schedule. This argument is also futile for we find that the secured Notes (Series A and B) were issued under and were secured by the Deed of T rust and Mortgage. As such, the Notes were issued in consequence and .on the security of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortgage.13. | 0[ds]It is true that it has been stated in the Guarantee Agreement that the President of India, as the guarantor, unconditionally guaranteed "has primary obligor and not as surety merely, the due and punctual payment from time to time" of the principal as well as the interest etc. stated in the agreement. And it was for that purpose that the guarantor agreed to "endorse upon each of the Notes at or before the issue and delivery thereof by the Company its guaranty of the prompt payment of the principal interest an d premium thereof and of the other indebtedness." It is also true that as stated in paragraph 10 of the Guarantee Agreement, the obligations of the guarantor were "absolute and unconditional under any and all circumstances, and shall not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof." We have also noticed the further stipulation that "Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute."Mr. Ram Reddy has relied heavily on these averments in the Guarantee Agreement, but they cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or primary security for the loan according to the terms and conditions of the agreement between the parties. It was that document which constituted the First Nat ional City Bank as the Trustee, and enabled it to enter into the Guarantee Agreement with the President, and the President guaranteed the due performance of the obligations undertaken by the CompanyDeed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking association incorporated and existing under the laws of United States of America , stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to. finance such construction and to issue its notes therefore and to "mortgage and charge its properties hereinafter described to secure the payment of such notes" it executed the Deed of Trust and Mortgage as security in accordance with the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder. The Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collateralall these facts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or primary security. As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely because the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed .the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call forhave examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1) of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that sub-section and was chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in the Schedule. This argument is also futile for we find that the secured Notes (Series A and B) were issued under and were secured by the Deed of T rust and Mortgage. As such, the Notes were issued in consequence and .on the security of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortgage. | 0 | 2,994 | 874 | ### 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 Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collateral agreement". The parties in fact clearly stated in Article I, section 1.01 of the Deed of Trust and Mortgage as follows, --"Collateral Agreements:The term "Collateral Agreements" shall mean the Guarantee Agreement and the Undertaking, hereinafter defined."It was therefore specifically agreed between the parties that the Deed of Trust and Mortgage was not a collateral agreement.8. In all these facts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or primary security. As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely because the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed .the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call for interference. Mr. Ram Reddy relied on some decisions to support his argument that the Guarantee Agreement was the security for the loan and was the principal or the primary document, but those cases were decided on different facts and have no real bearing on the controversy before us.9. The Guarantee Agreement was executed for and on behalf of the president by his Authorised Representative, and no stamp duty was chargeable for it by virtue of the proviso to section 3 of the Act. That in fact appears to be the reason why counsel for the appellant strenously argued that we should hold it to be the principal instrument, for he has next argued that the case falls within the purview of section 4 (1) of the Act and the "Principal instrument" only would be chargeable with the duty prescribed in Schedule I, and deed of any trust and mortgage would be chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in that Schedule. We find however that there is no merit in this argument also. Sub-section (1) of section 4 of the Act reads as follows, --"4. Several instruments used in single transaction of sale, mortgage or settlement.--(1) Where, in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule I, for the conveyance, mortgage or settlement, and each of the other instruments shall be chargeable with a duty of four rupees fifty naye paise instead of the duty (if any) prescribed for it in that Schedule."10. It is nobodys case that the Guarantee Agreement was an instrument of sale-, for it did not transfer the ownership of anything in exchange for a price paid or promised or part-paid and part-promised. It was also not an instrument of mortgage because it is nobodys case that there was any transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan or an existing or a furture debt or the performance of an engagement which could give rise to a pecuniary liability. The expression "settlement" has been defined in clause (24) of section 2 of the Act as follows:--"Settlement" means any non-testamentary disposition in writing, of movable or immovable property made---(a) in consideration of marriage,(b) for the purpose of distributing property of the settlor among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or(c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and where any such disposition bas not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition) ."The term "disposition" has been defined in Strouds Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law" and "includes transfer and charge of property".As the Guarantee Agreement did not have any such effect, it did not constitute a "settlement" also. That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub section (1) of section 4 of the Act.11. It was the Deed of Trust and Mortgage which was a "Mortgage deed" within the meaning of clause (17) of section 2 of the Act, and it was therefore clearly chargeable with stamp duty at the rate prescribed in article 40(b) of Schedule I to. the Act.12. We have examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1) of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that sub-section and was chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in the Schedule. This argument is also futile for we find that the secured Notes (Series A and B) were issued under and were secured by the Deed of T rust and Mortgage. As such, the Notes were issued in consequence and .on the security of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortgage.13.
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0
### Explanation:
It is true that it has been stated in the Guarantee Agreement that the President of India, as the guarantor, unconditionally guaranteed "has primary obligor and not as surety merely, the due and punctual payment from time to time" of the principal as well as the interest etc. stated in the agreement. And it was for that purpose that the guarantor agreed to "endorse upon each of the Notes at or before the issue and delivery thereof by the Company its guaranty of the prompt payment of the principal interest an d premium thereof and of the other indebtedness." It is also true that as stated in paragraph 10 of the Guarantee Agreement, the obligations of the guarantor were "absolute and unconditional under any and all circumstances, and shall not be to any extent or in any way discharged, impaired or otherwise affected, except by performance thereof in accordance with the terms thereof." We have also noticed the further stipulation that "Each and every remedy of the Trustee shall, to the extent permitted by law, be cumulative and shall be in addition to any other remedy given hereunder or under the Mortgage or any of the other collateral or now or hereafter existing at law or in equity or by statute."Mr. Ram Reddy has relied heavily on these averments in the Guarantee Agreement, but they cannot detract from the basic fact that the Deed of Trust and Mortgage was executed first in point of time and was the principal or primary security for the loan according to the terms and conditions of the agreement between the parties. It was that document which constituted the First Nat ional City Bank as the Trustee, and enabled it to enter into the Guarantee Agreement with the President, and the President guaranteed the due performance of the obligations undertaken by the CompanyDeed of Trust and Mortgage, which was executed between the Company and the First National City Bank as a national banking association incorporated and existing under the laws of United States of America , stated that as the Company was in the process of constructing a refinery for the refining of crude oil and deemed it necessary to borrow money from time to time to. finance such construction and to issue its notes therefore and to "mortgage and charge its properties hereinafter described to secure the payment of such notes" it executed the Deed of Trust and Mortgage as security in accordance with the terms and conditions of Article 2 of the Deed of Trust and Mortgage to secure the due payment of the principal of and the premium, if any, and the interest on the Notes and of all other moneys for the time being and from time to time owing on the security of that Indenture and on the Notes and the performance by the Company of all of its obligations thereunder. The Deed of Trust and Mortgage was therefore clearly the principal or the primary security and could not be said to be a "collateralall these facts and circumstances it is futile to contend that the Deed of Trust and Mortgage was not the principal or primary security. As was stated in Article 9 of that document, that security became enforceable in case of any or more "events of default", and it cannot be said that merely because the Guarantee Agreement contained the stipulation that the President, as the Guarantor, unconditionally guaranteed .the due and punctual payment of principal and interest etc. "as primary obligor and not as surety merely" that agreement become the principal or the primary security. It is the real and true meaning of the Deed of Trust and Mortgage and the Guarantee Agreement which has to be ascertained, and this leaves no room for doubt that the view taken by the High Court in this respect is correct and does not call forhave examined the other argument of Mr. Ram Reddy that even if the Guarantee Agreement was not the principal instrument, within the meaning of sub-section (1) of section 4 of the Act, we should hold that the debentures which were issued by the Company were the principal and primary security, and that the Deed of Trust and Mortgage was the "other instrument" within the meaning of that sub-section and was chargeable with a duty of Rs. 4.50 p. instead of the duty prescribed for it in the Schedule. This argument is also futile for we find that the secured Notes (Series A and B) were issued under and were secured by the Deed of T rust and Mortgage. As such, the Notes were issued in consequence and .on the security of the Deed of Trust and Mortgage and there is no justification for the contention that the debentures were the principal instruments, and not the Deed of Trust and Mortgage.
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Fatima Bi & Anr Vs. Deputy Custodian General Evacuee Property, New Delhi | J.1. This is an appeal by special leave against the judgment dated 21 November, 1969 of the Delhi High Court dismissing the writ petition of the appellants.2. The appellants made an application under Article 226 of the Constitution in the Delhi High Court. The appellants asked for quashing two orders dated 29 April, 1964 and 1 February, 1965. On 29 April, 1964 the Deputy Custodian General issued a notice to the appellant Fatima Bi to show cause why the order dated 11 January, 1956 should not be revised as the same was obtained by fraud and was illegal. The appellant Fatima Bi made an application for cancelling the notice requiring her to show cause. On 1 February, 1965 the Deputy Custodian General passed an order rejecting the objections of the appellant Fatima Bi. By the said order dated 1 February, 1965 the authorised Deputy Custodian was asked to expedite recording of evidence and submission of report.3. The appellant Fatima Bi is the wife of the appellant Mohd. Sayeed. The appellant Fatima Bis case is that she is the owner of certain property at Delhi. By an ex parte order dated 25 November, 1953 the Assistant Custodian declared her as evacuee and her property to be evacuee property. She filed an appeal against the ex parte order. The ex parte order was set aside. The Assistant Custodian was required to decide on merits the appellant Fatima Bis case. By an order dated 11 January, 1956 the Assistant Custodian held that the appellant Fatima Bi was a non" evacuee owner of the property. On 29 April, 1964 a notice under S. 27 of the Administration of Evacueee Property Act, 1950 (hereinafter referred to as the Act) was issued to show cause why the order dated 11 January 1956 should not be revised. The grounds for the notice were that the appellant Fatima Bi had left for Pakistan in 1947, and it was fraudulently averred that she was a non-evacuee and was residing at Calcutta with the appellant Mohd. Sayeed. The other ground alleged in the notice was that in order to establish the appellant Fatima Bis non-evacuee status as well as to secure the release of the property forged documents and perjured evidence was tendered before the Assistant Custodian.4. The appellants raised three contentions in the High Court. First, that the order dated 11 January, 1956 had become final and could not be re-opened, by virtue of Section 28 of the Act. Second, fresh proceedings were barred under S. 7-A of the Act. Third, the proceedings under S. 27 of the Act were barred by limitation.5. The High Court held that the order dated 11 January, 1956 was not final and it could be re-opened. Section 28 of the Act was held by the High Court not to be a bar to the powers of revision under Section 27 of the Act. Section 28 makes orders final save as otherwise expressly provided in Chapter V. Sections 27 and 28 both occur in Chapter V. Therefore, the High Court rightly held that the power of revision under Section 27 was not taken away by Section 28 of the Act.6. The High Court also held that Section 7-A of the Act did not constitute a bar to the issue of notice under Section 27. The bar in S. 7-A is that no property shall be declared to be evacuee property on or after 7 May, 1954. The proviso to S. 7-A is that nothing contained in the section shall apply to any property in respect of which proceedings are pending on 7 May, 1954. When the ex parte order dated 25 November, 1953 was set aside the High Court held that the proceedings in respect of the property were pending on 7 May, 1954 and that is how an order was passed on 11 January 1956 in favour of the appellant Fatima Bi.7.The High Court also held that the notice under Section 27 of e Act was issued several years after 11 January, 1956 order had been passed but the power under Section 27 of the Act was not curtailed by any limitation of time.8. Counsel on behalf of the appellants repeated the contentions which had been advanced in the High Court. The High Court rightly rejected the appellants contentions.9. An additional contention was advanced, viz., that the order dated 29 April, 1964 was not passed by the Custodian General. The Custodian General is defined in Section 2 (b) of the Act to mean the Custodian General of Evacuee Property in India appointed by the Central Government under Section 5 of the Act. Section 2 (c) defines Custodian to mean the Custodian for the State and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed in that State. Section 6 (2) of the Act states that subject to the provisions of the Act all Custodians of evacuee property shall discharge the duties imposed on them by or under this Act under the general superintendence and control of the Custodian General. The order dated 29 April, 1964 was validly made for Custodian General.10. The petition of the appellants was utterly misconceived. The relevant authorities have power to call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying as to the legality or propriety of such order. In the present case the order has been questioned by the authorities on the ground that the appellant Fatima Bi obtained the order fraudulently. Fraud is a question of fact. It is open to the appellant Fatima Bi to establish that she obtained the order properly. Certiorari will not lie for the obvious reason that the authorities have jurisdiction to issue the notice. There is neither excess of jurisdiction nor usurpation.11. It was said on behalf of the appellants that the order of 1956 was called in question in 1964. Several years have passed. The relevant authorities will take steps to expedite the hearing in the matter. | 0[ds]The Custodian General is defined in Section 2 (b) of the Act to mean the Custodian General of Evacuee Property in India appointed by the Central Government under Section 5 of the Act. Section 2 (c) defines Custodian to mean the Custodian for the State and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed in that State. Section 6 (2) of the Act states that subject to the provisions of the Act all Custodians of evacuee property shall discharge the duties imposed on them by or under this Act under the general superintendence and control of the Custodian General. The order dated 29 April, 1964 was validly made for Custodian General.10. The petition of the appellants was utterly misconceived. The relevant authorities have power to call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying as to the legality or propriety of such order. In the present case the order has been questioned by the authorities on the ground that the appellant Fatima Bi obtained the order fraudulently. Fraud is a question of fact. It is open to the appellant Fatima Bi to establish that she obtained the order properly. Certiorari will not lie for the obvious reason that the authorities have jurisdiction to issue the notice. There is neither excess of jurisdiction nor usurpation.11. It was said on behalf of the appellants that the order of 1956 was called in question in 1964. Several years have passed. The relevant authorities will take steps to expedite the hearing in the matter. | 0 | 1,088 | 290 | ### 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:
J.1. This is an appeal by special leave against the judgment dated 21 November, 1969 of the Delhi High Court dismissing the writ petition of the appellants.2. The appellants made an application under Article 226 of the Constitution in the Delhi High Court. The appellants asked for quashing two orders dated 29 April, 1964 and 1 February, 1965. On 29 April, 1964 the Deputy Custodian General issued a notice to the appellant Fatima Bi to show cause why the order dated 11 January, 1956 should not be revised as the same was obtained by fraud and was illegal. The appellant Fatima Bi made an application for cancelling the notice requiring her to show cause. On 1 February, 1965 the Deputy Custodian General passed an order rejecting the objections of the appellant Fatima Bi. By the said order dated 1 February, 1965 the authorised Deputy Custodian was asked to expedite recording of evidence and submission of report.3. The appellant Fatima Bi is the wife of the appellant Mohd. Sayeed. The appellant Fatima Bis case is that she is the owner of certain property at Delhi. By an ex parte order dated 25 November, 1953 the Assistant Custodian declared her as evacuee and her property to be evacuee property. She filed an appeal against the ex parte order. The ex parte order was set aside. The Assistant Custodian was required to decide on merits the appellant Fatima Bis case. By an order dated 11 January, 1956 the Assistant Custodian held that the appellant Fatima Bi was a non" evacuee owner of the property. On 29 April, 1964 a notice under S. 27 of the Administration of Evacueee Property Act, 1950 (hereinafter referred to as the Act) was issued to show cause why the order dated 11 January 1956 should not be revised. The grounds for the notice were that the appellant Fatima Bi had left for Pakistan in 1947, and it was fraudulently averred that she was a non-evacuee and was residing at Calcutta with the appellant Mohd. Sayeed. The other ground alleged in the notice was that in order to establish the appellant Fatima Bis non-evacuee status as well as to secure the release of the property forged documents and perjured evidence was tendered before the Assistant Custodian.4. The appellants raised three contentions in the High Court. First, that the order dated 11 January, 1956 had become final and could not be re-opened, by virtue of Section 28 of the Act. Second, fresh proceedings were barred under S. 7-A of the Act. Third, the proceedings under S. 27 of the Act were barred by limitation.5. The High Court held that the order dated 11 January, 1956 was not final and it could be re-opened. Section 28 of the Act was held by the High Court not to be a bar to the powers of revision under Section 27 of the Act. Section 28 makes orders final save as otherwise expressly provided in Chapter V. Sections 27 and 28 both occur in Chapter V. Therefore, the High Court rightly held that the power of revision under Section 27 was not taken away by Section 28 of the Act.6. The High Court also held that Section 7-A of the Act did not constitute a bar to the issue of notice under Section 27. The bar in S. 7-A is that no property shall be declared to be evacuee property on or after 7 May, 1954. The proviso to S. 7-A is that nothing contained in the section shall apply to any property in respect of which proceedings are pending on 7 May, 1954. When the ex parte order dated 25 November, 1953 was set aside the High Court held that the proceedings in respect of the property were pending on 7 May, 1954 and that is how an order was passed on 11 January 1956 in favour of the appellant Fatima Bi.7.The High Court also held that the notice under Section 27 of e Act was issued several years after 11 January, 1956 order had been passed but the power under Section 27 of the Act was not curtailed by any limitation of time.8. Counsel on behalf of the appellants repeated the contentions which had been advanced in the High Court. The High Court rightly rejected the appellants contentions.9. An additional contention was advanced, viz., that the order dated 29 April, 1964 was not passed by the Custodian General. The Custodian General is defined in Section 2 (b) of the Act to mean the Custodian General of Evacuee Property in India appointed by the Central Government under Section 5 of the Act. Section 2 (c) defines Custodian to mean the Custodian for the State and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed in that State. Section 6 (2) of the Act states that subject to the provisions of the Act all Custodians of evacuee property shall discharge the duties imposed on them by or under this Act under the general superintendence and control of the Custodian General. The order dated 29 April, 1964 was validly made for Custodian General.10. The petition of the appellants was utterly misconceived. The relevant authorities have power to call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying as to the legality or propriety of such order. In the present case the order has been questioned by the authorities on the ground that the appellant Fatima Bi obtained the order fraudulently. Fraud is a question of fact. It is open to the appellant Fatima Bi to establish that she obtained the order properly. Certiorari will not lie for the obvious reason that the authorities have jurisdiction to issue the notice. There is neither excess of jurisdiction nor usurpation.11. It was said on behalf of the appellants that the order of 1956 was called in question in 1964. Several years have passed. The relevant authorities will take steps to expedite the hearing in the matter.
### Response:
0
### Explanation:
The Custodian General is defined in Section 2 (b) of the Act to mean the Custodian General of Evacuee Property in India appointed by the Central Government under Section 5 of the Act. Section 2 (c) defines Custodian to mean the Custodian for the State and includes any Additional, Deputy or Assistant Custodian of evacuee property appointed in that State. Section 6 (2) of the Act states that subject to the provisions of the Act all Custodians of evacuee property shall discharge the duties imposed on them by or under this Act under the general superintendence and control of the Custodian General. The order dated 29 April, 1964 was validly made for Custodian General.10. The petition of the appellants was utterly misconceived. The relevant authorities have power to call for the record of any proceeding in which any Custodian has passed an order for the purpose of satisfying as to the legality or propriety of such order. In the present case the order has been questioned by the authorities on the ground that the appellant Fatima Bi obtained the order fraudulently. Fraud is a question of fact. It is open to the appellant Fatima Bi to establish that she obtained the order properly. Certiorari will not lie for the obvious reason that the authorities have jurisdiction to issue the notice. There is neither excess of jurisdiction nor usurpation.11. It was said on behalf of the appellants that the order of 1956 was called in question in 1964. Several years have passed. The relevant authorities will take steps to expedite the hearing in the matter.
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Air India Employees Self Contributory Superannuation Pension Scheme Vs. Kuriakose V. Cherian and Ors | the monies deposited in the superannuation and to secure the annuitant annuity amount. Undoubtedly, Rule 89 requires the Trustee to purchase an annuity from the LIC to the exclusion of any one else but this provision must be judged in the context of the fact that the contracts of life insurance which are entered into by the LIC are backed by a government guarantee which is provided by Section 37 of the Life Insurance Act, 1956. The Court observed right of an employee to receive the annuity and the quantum gets determined at the time when the annuity is purchased. Any subsequent improvement in a given pension fund will benefit only those whose moneys form part of the pension fund. As soon as an employee retires, an annuity is purchased for his benefit under Rule 89, there remains no scope for any fresh contribution on his account so as to entitle him to an increased pension prospectively on the basis of the improvements made subsequently in the pension scheme of a fund since the existing pensioners form a distinct class. The decision was sought to be distinguished on the ground that in the said case, this Court was concerned with the scheme financed by the employer unlike the present scheme where employers contribution was almost nil and that it was self-contributing scheme. We are, however, unable to accept this contention. The ratio decidendi of the case is that the moment annuity is purchased, the fund leaves the corpus and the relations between the two are snapped. The corpus to the extent required for purchase of annuity leaves the trust fund and all connections between trust fund and retirees are severed. Thus, once the annuity is purchased, there remained no connection with the quantum of the fund. Therefore, annuitants are in no way concerned with the financial position of the fund for which annuity was purchased. They cannot be asked to further contribute. 19. That is the basic question in the present case. It matters little that the present case is of reverse position inasmuch as in the case of Sasadhar Chakravarty this Court was considering the case of a retired employee who was seeking right in the improvement whereas in the present case the question is about reducing the benefits or rights of the retired employees. The question is about applicability of the principle. Applying the principle in Sasadhar Chakravartys case to the present case, we have no doubt that after retirement retirees are not liable for any deficit in the fund which is sought to be made good by recovery from them which is the effect of retrospective amendment. Further, as already noted it was a benefit and rolling scheme as opposed to a contributory scheme.20. Neither clauses 32 and 33 or the Trust Deed nor Rule 14 has any applicability on question of retrospective operation of amendment to the retired employees. It has been admitted that the form of insurance annuity policy with LIC was adopted as a result of mandate of the statute. Having done that, the appellants are bound by the consequences flowing from purchase of annuity. In view of what we have said above there is neither any substance in the contention that contract was between LIC and the trustees nor is it of any consequence in view of our conclusion that the amount, on retirement of employees, leaves the fund for purchase of annuity and the rights of the retirees are crystallized on their retirement by purchase of annuity and thus no amount can be claimed from them by making applicable amendment dated 3rd April, 2002 with retrospective effect. Therefore, we find no substance in the second contention. The contention that there is no privity of contract between LIC and the retired employees as contract for purchase of annuities is between trust and LIC, has also no substance. In Chandulal Harjivandas v. Commissioner of Income-tax, Gujarat [AIR 1967 SC 816 ] insurance policy was purchased by the father of the assessee and the life assured was that of the assessee. The claim of assessee for rebate of insurance premium under Section 15(1) of the Income Tax Act, 1922 was rejected. 21. On reference, the High Court upheld this view of the Revenue holding that contract of insurance with LIC was entered into by the father of the assessee and that the contracting parties were the father of the assessee and the LIC. This court reversing decision of the High Court held that the contract of insurance must be read as a whole; in substance it is a contract of life insurance with regard to the life of the assessee and that the main intention of the contract was the insurance on the life of the assessee and other clauses are merely ancillary or subordinate to the main purpose, under Section 2 (11) of the Insurance Act, the purchase of annuity amounts to purchase of an insurance policy. It would make no difference, in the present case, as to who made the payment. The LIC having accepted the annuity and having effected monthly payments can neither reduce the annuity amount nor refund it to the trust to the detriment of the retirees since the annuity has already crystallized and no change can be made in such annuity as stipulated by the impugned amendments. LIC has obligation to fulfill the promise given by it to the retirees, who are assured under the annuity scheme. In Commissioner of Wealth Tax, Punjab, J & K, Chandigarh, Patiala v. Yuvraj Amrinder Singh & Ors. [(1985) 4 SCC 608] , it was held that annuities dependent on human life constitute a species of contract of life insurance. In Life Insurance Corporation of India & Ors. v. Asha Goel (Smt.) & Anr. [(2001) 2 SCC 160] , interpreting scope of Section 45 of the Insurance Act, 1938, this Court laid down the parameters within which powers under Section 45 could be exercised to repudiate the claim under a contract of insurance. | 0[ds]We need not, however, examine, in the present case, the aforesaid question and the correctness of the view of the High Court on the aspect of maintainability of the writ petition since learned counsel challenging the correctness of the impugned judgment, have adopted a pragmatic and fair approach that this Court having heard the matter in detail, it would not serve either the interest of the retired employees or the employees in service or the Scheme, if the parties are relegated to litigation before other forums on this court reversing view of the High court on the question of maintainability of the writ petition. Under these circumstances, we leave open the question of maintainability of the writ to be decided in an appropriate case.6. Provided that no such alteration or variation shall be inconsistent with the main objects of the trusts herebymay also be noted that the appellants own case is that there was basic fallacy in the Scheme from its inception. The Scheme, as originally conceived was flawed, is the stand of the appellants in CA No.4267 of 2003. It is further their own stand that concept of granting annuities on a defined benefit basis in a self-contributory fund is inherently fallacious as in the self-contributory scheme the only consideration is the contributions made by the members and hence the benefit has to necessarily flow from their contributions and the interest accruedIt is the own case of the appellants that in addition to this inherent fallacy in the formation of the Scheme, the situation was aggravated by various factors noticed above. We would assume that there were several contributory factors as a result of which the fund position became quite bad. The factors included the non-receipt of huge funds in time from Air India, lack of proper investment by the trust resulting in loss of interest in addition to the fallacy in the scheme being gap between the contribution and the amount required for purchase of annuity to ensure return of specified amount to the retirees. It may be that the last of the aforesaid factor contributed most in the depleted financial position of the fund requiring the trustees to make the amendments in the scheme on 3rd April, 2002, but it has to be borne in mind that the original scheme was a Benefit Defined Scheme as opposed to a Contribution Defined Scheme. It has now been conceded on behalf of the appellants that there was no fraud in formulation or implementation of the scheme. Besides aforesaid factor, there were other factors, such as, considerable delay in Air India remitting arrears of pension contribution amounting to Rs.23 crores to the trust, non-payment of interest by Air India on late payments etc. The retirees received what was receivable by them according to the existing scheme on the date of retirement.That is the basic question in the present case. It matters little that the present case is of reverse position inasmuch as in the case of Sasadhar Chakravarty this Court was considering the case of a retired employee who was seeking right in the improvement whereas in the present case the question is about reducing the benefits or rights of the retired employees. The question is about applicability of the principle. Applying the principle in Sasadhar Chakravartys case to the present case, we have no doubt that after retirement retirees are not liable for any deficit in the fund which is sought to be made good by recovery from them which is the effect of retrospective amendment. Further, as already noted it was a benefit and rolling scheme as opposed to a contributory scheme.20. Neither clauses 32 and 33 or the Trust Deed nor Rule 14 has any applicability on question of retrospective operation of amendment to the retired employees. It has been admitted that the form of insurance annuity policy with LIC was adopted as a result of mandate of the statute. Having done that, the appellants are bound by the consequences flowing from purchase of annuity. In view of what we have said above there is neither any substance in the contention that contract was between LIC and the trustees nor is it of any consequence in view of our conclusion that the amount, on retirement of employees, leaves the fund for purchase of annuity and the rights of the retirees are crystallized on their retirement by purchase of annuity and thus no amount can be claimed from them by making applicable amendment dated 3rd April, 2002 with retrospective effect. Therefore, we find no substance in the second contention. The contention that there is no privity of contract between LIC and the retired employees as contract for purchase of annuities is between trust and LIC, has also no substance.On reference, the High Court upheld this view of the Revenue holding that contract of insurance with LIC was entered into by the father of the assessee and that the contracting parties were the father of the assessee and the LIC. This court reversing decision of the High Court held that the contract of insurance must be read as a whole; in substance it is a contract of life insurance with regard to the life of the assessee and that the main intention of the contract was the insurance on the life of the assessee and other clauses are merely ancillary or subordinate to the main purpose, under Section 2 (11) of the Insurance Act, the purchase of annuity amounts to purchase of an insurance policy. It would make no difference, in the present case, as to who made the payment. The LIC having accepted the annuity and having effected monthly payments can neither reduce the annuity amount nor refund it to the trust to the detriment of the retirees since the annuity has already crystallized and no change can be made in such annuity as stipulated by the impugned amendments. LIC has obligation to fulfill the promise given by it to the retirees, who are assured under the annuity scheme. In Commissioner of Wealth Tax, Punjab, J & K, Chandigarh, Patiala v. Yuvraj Amrinder Singh & Ors. [(1985) 4 SCC 608] , it was held that annuities dependent on human life constitute a species of contract of life insurance. In Life Insurance Corporation of India & Ors. v. Asha Goel (Smt.) & Anr. [(2001) 2 SCC 160] , interpreting scope of Section 45 of the Insurance Act, 1938, this Court laid down the parameters within which powers under Section 45 could be exercised to repudiate the claim under a contract of insurance. | 0 | 8,774 | 1,179 | ### 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 monies deposited in the superannuation and to secure the annuitant annuity amount. Undoubtedly, Rule 89 requires the Trustee to purchase an annuity from the LIC to the exclusion of any one else but this provision must be judged in the context of the fact that the contracts of life insurance which are entered into by the LIC are backed by a government guarantee which is provided by Section 37 of the Life Insurance Act, 1956. The Court observed right of an employee to receive the annuity and the quantum gets determined at the time when the annuity is purchased. Any subsequent improvement in a given pension fund will benefit only those whose moneys form part of the pension fund. As soon as an employee retires, an annuity is purchased for his benefit under Rule 89, there remains no scope for any fresh contribution on his account so as to entitle him to an increased pension prospectively on the basis of the improvements made subsequently in the pension scheme of a fund since the existing pensioners form a distinct class. The decision was sought to be distinguished on the ground that in the said case, this Court was concerned with the scheme financed by the employer unlike the present scheme where employers contribution was almost nil and that it was self-contributing scheme. We are, however, unable to accept this contention. The ratio decidendi of the case is that the moment annuity is purchased, the fund leaves the corpus and the relations between the two are snapped. The corpus to the extent required for purchase of annuity leaves the trust fund and all connections between trust fund and retirees are severed. Thus, once the annuity is purchased, there remained no connection with the quantum of the fund. Therefore, annuitants are in no way concerned with the financial position of the fund for which annuity was purchased. They cannot be asked to further contribute. 19. That is the basic question in the present case. It matters little that the present case is of reverse position inasmuch as in the case of Sasadhar Chakravarty this Court was considering the case of a retired employee who was seeking right in the improvement whereas in the present case the question is about reducing the benefits or rights of the retired employees. The question is about applicability of the principle. Applying the principle in Sasadhar Chakravartys case to the present case, we have no doubt that after retirement retirees are not liable for any deficit in the fund which is sought to be made good by recovery from them which is the effect of retrospective amendment. Further, as already noted it was a benefit and rolling scheme as opposed to a contributory scheme.20. Neither clauses 32 and 33 or the Trust Deed nor Rule 14 has any applicability on question of retrospective operation of amendment to the retired employees. It has been admitted that the form of insurance annuity policy with LIC was adopted as a result of mandate of the statute. Having done that, the appellants are bound by the consequences flowing from purchase of annuity. In view of what we have said above there is neither any substance in the contention that contract was between LIC and the trustees nor is it of any consequence in view of our conclusion that the amount, on retirement of employees, leaves the fund for purchase of annuity and the rights of the retirees are crystallized on their retirement by purchase of annuity and thus no amount can be claimed from them by making applicable amendment dated 3rd April, 2002 with retrospective effect. Therefore, we find no substance in the second contention. The contention that there is no privity of contract between LIC and the retired employees as contract for purchase of annuities is between trust and LIC, has also no substance. In Chandulal Harjivandas v. Commissioner of Income-tax, Gujarat [AIR 1967 SC 816 ] insurance policy was purchased by the father of the assessee and the life assured was that of the assessee. The claim of assessee for rebate of insurance premium under Section 15(1) of the Income Tax Act, 1922 was rejected. 21. On reference, the High Court upheld this view of the Revenue holding that contract of insurance with LIC was entered into by the father of the assessee and that the contracting parties were the father of the assessee and the LIC. This court reversing decision of the High Court held that the contract of insurance must be read as a whole; in substance it is a contract of life insurance with regard to the life of the assessee and that the main intention of the contract was the insurance on the life of the assessee and other clauses are merely ancillary or subordinate to the main purpose, under Section 2 (11) of the Insurance Act, the purchase of annuity amounts to purchase of an insurance policy. It would make no difference, in the present case, as to who made the payment. The LIC having accepted the annuity and having effected monthly payments can neither reduce the annuity amount nor refund it to the trust to the detriment of the retirees since the annuity has already crystallized and no change can be made in such annuity as stipulated by the impugned amendments. LIC has obligation to fulfill the promise given by it to the retirees, who are assured under the annuity scheme. In Commissioner of Wealth Tax, Punjab, J & K, Chandigarh, Patiala v. Yuvraj Amrinder Singh & Ors. [(1985) 4 SCC 608] , it was held that annuities dependent on human life constitute a species of contract of life insurance. In Life Insurance Corporation of India & Ors. v. Asha Goel (Smt.) & Anr. [(2001) 2 SCC 160] , interpreting scope of Section 45 of the Insurance Act, 1938, this Court laid down the parameters within which powers under Section 45 could be exercised to repudiate the claim under a contract of insurance.
### Response:
0
### Explanation:
High court on the question of maintainability of the writ petition. Under these circumstances, we leave open the question of maintainability of the writ to be decided in an appropriate case.6. Provided that no such alteration or variation shall be inconsistent with the main objects of the trusts herebymay also be noted that the appellants own case is that there was basic fallacy in the Scheme from its inception. The Scheme, as originally conceived was flawed, is the stand of the appellants in CA No.4267 of 2003. It is further their own stand that concept of granting annuities on a defined benefit basis in a self-contributory fund is inherently fallacious as in the self-contributory scheme the only consideration is the contributions made by the members and hence the benefit has to necessarily flow from their contributions and the interest accruedIt is the own case of the appellants that in addition to this inherent fallacy in the formation of the Scheme, the situation was aggravated by various factors noticed above. We would assume that there were several contributory factors as a result of which the fund position became quite bad. The factors included the non-receipt of huge funds in time from Air India, lack of proper investment by the trust resulting in loss of interest in addition to the fallacy in the scheme being gap between the contribution and the amount required for purchase of annuity to ensure return of specified amount to the retirees. It may be that the last of the aforesaid factor contributed most in the depleted financial position of the fund requiring the trustees to make the amendments in the scheme on 3rd April, 2002, but it has to be borne in mind that the original scheme was a Benefit Defined Scheme as opposed to a Contribution Defined Scheme. It has now been conceded on behalf of the appellants that there was no fraud in formulation or implementation of the scheme. Besides aforesaid factor, there were other factors, such as, considerable delay in Air India remitting arrears of pension contribution amounting to Rs.23 crores to the trust, non-payment of interest by Air India on late payments etc. The retirees received what was receivable by them according to the existing scheme on the date of retirement.That is the basic question in the present case. It matters little that the present case is of reverse position inasmuch as in the case of Sasadhar Chakravarty this Court was considering the case of a retired employee who was seeking right in the improvement whereas in the present case the question is about reducing the benefits or rights of the retired employees. The question is about applicability of the principle. Applying the principle in Sasadhar Chakravartys case to the present case, we have no doubt that after retirement retirees are not liable for any deficit in the fund which is sought to be made good by recovery from them which is the effect of retrospective amendment. Further, as already noted it was a benefit and rolling scheme as opposed to a contributory scheme.20. Neither clauses 32 and 33 or the Trust Deed nor Rule 14 has any applicability on question of retrospective operation of amendment to the retired employees. It has been admitted that the form of insurance annuity policy with LIC was adopted as a result of mandate of the statute. Having done that, the appellants are bound by the consequences flowing from purchase of annuity. In view of what we have said above there is neither any substance in the contention that contract was between LIC and the trustees nor is it of any consequence in view of our conclusion that the amount, on retirement of employees, leaves the fund for purchase of annuity and the rights of the retirees are crystallized on their retirement by purchase of annuity and thus no amount can be claimed from them by making applicable amendment dated 3rd April, 2002 with retrospective effect. Therefore, we find no substance in the second contention. The contention that there is no privity of contract between LIC and the retired employees as contract for purchase of annuities is between trust and LIC, has also no substance.On reference, the High Court upheld this view of the Revenue holding that contract of insurance with LIC was entered into by the father of the assessee and that the contracting parties were the father of the assessee and the LIC. This court reversing decision of the High Court held that the contract of insurance must be read as a whole; in substance it is a contract of life insurance with regard to the life of the assessee and that the main intention of the contract was the insurance on the life of the assessee and other clauses are merely ancillary or subordinate to the main purpose, under Section 2 (11) of the Insurance Act, the purchase of annuity amounts to purchase of an insurance policy. It would make no difference, in the present case, as to who made the payment. The LIC having accepted the annuity and having effected monthly payments can neither reduce the annuity amount nor refund it to the trust to the detriment of the retirees since the annuity has already crystallized and no change can be made in such annuity as stipulated by the impugned amendments. LIC has obligation to fulfill the promise given by it to the retirees, who are assured under the annuity scheme. In Commissioner of Wealth Tax, Punjab, J & K, Chandigarh, Patiala v. Yuvraj Amrinder Singh & Ors. [(1985) 4 SCC 608] , it was held that annuities dependent on human life constitute a species of contract of life insurance. In Life Insurance Corporation of India & Ors. v. Asha Goel (Smt.) & Anr. [(2001) 2 SCC 160] , interpreting scope of Section 45 of the Insurance Act, 1938, this Court laid down the parameters within which powers under Section 45 could be exercised to repudiate the claim under a contract of insurance.
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Amarendu Jyoti & Others Vs. State of Chhatisgarh & Others | relied on the fact that the respondent no. 2 was made to abandon her husbands company because of cruel treatment and compelled to stay at Ambikapur; further, that the respondent no. 2 was subjected to cruelty by telephone calls over which she was threatened and demand of dowry was made. The letters written by respondent nos. 2 and 3 showing the sufferings of the wife at Ambikapur were relied on and the High Court noted that despite the respondents plight the appellant made no effort to take her back to the matrimonial home. Accordingly, the High Court held that the offence of cruelty was a continuing offence and the court at Ambikapur had jurisdiction to try.4. Aggrieved by the rejection of the application under Section 482 of the Code, the appellants have approached this Court by way of special leave to appeal. The main contention on behalf of the appellants was that the F.I.R. did not disclose a continuing offence. The offence, if any, was alleged to have been committed only at Delhi and there was no question of any offence having been committed after the respondent no. 2 went to stay at Ambikapur. The learned counsel for the appellants relied on the decision of this Court in Manish Ratan v. State of M.P., (2007) 1 SCC 262. 5. In Manish Ratans case (supra), in the complaint, the incident was said to have taken place in Jabalpur. The wife had left her matrimonial house and started residing at Datia. The Criminal Revision filed by the accused, questioning the jurisdiction of the Court at Datia, was dismissed opining that the offence was a continuing one, and therefore, the Datia Court had jurisdiction to take cognizance. The High Court held that the Court at Datia also has jurisdiction to try the case since the harassment to the wife continued at the place where she was residing with her father "since she was forced to live at her fathers place on account of the torture of the in-laws and as such it can safely be said that there was also a mental cruelty." This conclusion of the High Court was dubbed as curious by this Court since the High Court found earlier that "there is nothing in the complaint to show that any maltreatment was given to the appellant at Datia. The allegations, which I may repeat here, are that the maltreatment was given within a specific period at Jabalpur." After looking at the decided case on the point i.e. Sujata Mukherjee v. Prashant Kumar Mukherjee, (1997) 5 SCC 30 ; State of Bihar v. Deokaran Nenshi, (1972) 2 SCC 890 ; Y Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100 ; and Ramesh v. State of T.N., (2005) 3 SCC 507 , this Court held that the order of the High Court was unsustainable, and therefore, set it aside. It is not only that in the interest of justice, while setting aside the order of the High Court, this Court directed the transfer of the criminal case pending in the Court of Chief Judicial Magistrate, Datia, where the wife was staying with her father to the Court of Judicial Magistrate, Jabalpur (vide para 18). 6. Relying on the Judgment of this Court in Manish Ratans case (supra), the learned counsel for the appellants contended that the offence in the present case cannot be considered to be a continuing offence, if any, and must be taken to have been complete at Delhi and no cause of action can be said to have arisen at Ambikapur. As must necessarily be, the application of law and the consequences must vary from case to case. 7. The core question thus is whether the allegations made in the F.I.R. constitute a continuing offence. We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent/wife by her husband, elder brother-in-law and elder sister-in-law for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent no. 2 and abusing her in filthy language also is said to have taken place at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are as follows: "No purposeful information has been received from the in-laws of Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and the in-laws have not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home.To get rid of the ill-treatment and harassment of the in-laws of Kiran, the complainant is praying for registration of an FIR and request for immediate legal action so that Kiran may get appropriate justice." 8. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 "continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. | 1[ds]We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent/wife by her husband, elderlaw for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent no. 2 and abusing her in filthy language also is said to have taken place at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are aspurposeful information has been received from theof Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and thehave not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home.To get rid of theand harassment of theof Kiran, the complainant is praying for registration of an FIR and request for immediate legal action so that Kiran may get appropriate justice.We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 "continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said | 1 | 1,662 | 381 | ### Instruction:
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relied on the fact that the respondent no. 2 was made to abandon her husbands company because of cruel treatment and compelled to stay at Ambikapur; further, that the respondent no. 2 was subjected to cruelty by telephone calls over which she was threatened and demand of dowry was made. The letters written by respondent nos. 2 and 3 showing the sufferings of the wife at Ambikapur were relied on and the High Court noted that despite the respondents plight the appellant made no effort to take her back to the matrimonial home. Accordingly, the High Court held that the offence of cruelty was a continuing offence and the court at Ambikapur had jurisdiction to try.4. Aggrieved by the rejection of the application under Section 482 of the Code, the appellants have approached this Court by way of special leave to appeal. The main contention on behalf of the appellants was that the F.I.R. did not disclose a continuing offence. The offence, if any, was alleged to have been committed only at Delhi and there was no question of any offence having been committed after the respondent no. 2 went to stay at Ambikapur. The learned counsel for the appellants relied on the decision of this Court in Manish Ratan v. State of M.P., (2007) 1 SCC 262. 5. In Manish Ratans case (supra), in the complaint, the incident was said to have taken place in Jabalpur. The wife had left her matrimonial house and started residing at Datia. The Criminal Revision filed by the accused, questioning the jurisdiction of the Court at Datia, was dismissed opining that the offence was a continuing one, and therefore, the Datia Court had jurisdiction to take cognizance. The High Court held that the Court at Datia also has jurisdiction to try the case since the harassment to the wife continued at the place where she was residing with her father "since she was forced to live at her fathers place on account of the torture of the in-laws and as such it can safely be said that there was also a mental cruelty." This conclusion of the High Court was dubbed as curious by this Court since the High Court found earlier that "there is nothing in the complaint to show that any maltreatment was given to the appellant at Datia. The allegations, which I may repeat here, are that the maltreatment was given within a specific period at Jabalpur." After looking at the decided case on the point i.e. Sujata Mukherjee v. Prashant Kumar Mukherjee, (1997) 5 SCC 30 ; State of Bihar v. Deokaran Nenshi, (1972) 2 SCC 890 ; Y Abraham Ajith v. Inspector of Police, (2004) 8 SCC 100 ; and Ramesh v. State of T.N., (2005) 3 SCC 507 , this Court held that the order of the High Court was unsustainable, and therefore, set it aside. It is not only that in the interest of justice, while setting aside the order of the High Court, this Court directed the transfer of the criminal case pending in the Court of Chief Judicial Magistrate, Datia, where the wife was staying with her father to the Court of Judicial Magistrate, Jabalpur (vide para 18). 6. Relying on the Judgment of this Court in Manish Ratans case (supra), the learned counsel for the appellants contended that the offence in the present case cannot be considered to be a continuing offence, if any, and must be taken to have been complete at Delhi and no cause of action can be said to have arisen at Ambikapur. As must necessarily be, the application of law and the consequences must vary from case to case. 7. The core question thus is whether the allegations made in the F.I.R. constitute a continuing offence. We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent/wife by her husband, elder brother-in-law and elder sister-in-law for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent no. 2 and abusing her in filthy language also is said to have taken place at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are as follows: "No purposeful information has been received from the in-laws of Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and the in-laws have not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home.To get rid of the ill-treatment and harassment of the in-laws of Kiran, the complainant is praying for registration of an FIR and request for immediate legal action so that Kiran may get appropriate justice." 8. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 "continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence.
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### Explanation:
We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent/wife by her husband, elderlaw for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent no. 2 and abusing her in filthy language also is said to have taken place at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are aspurposeful information has been received from theof Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and thehave not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home.To get rid of theand harassment of theof Kiran, the complainant is praying for registration of an FIR and request for immediate legal action so that Kiran may get appropriate justice.We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 "continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said
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Janardan Dattuappa Bondre Versus Govind Prasad Shivprasad Choudhary And Others,. (Civil Appeal No. 1936 Of 1978) And Keshavrao Jaiwantrao Bahekar Versus Returning Officer And Others (Civil Appeal No. 2387 Of 1978) Vs. | that they were votes for the appellant. Their validity was never doubted. Plainly what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of the appellant. It is quite probable that as equal number of ballot papers of the two candidates were exchanged, the error occurred after the ballot papers of each candidate had been separately tied in bundles of 50, as is required by the "Handbook for Returning Officers". After withdrawing the 250 votes of Bahekar from the appellants packet and the appellants 250 votes from Bahekars packet, the Special Officer could not stop there. The 250 votes of each candidate had then to be counted in his total. They were not invalid votes. 9. The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him. The accident that they were not placed in his packet but in Bahekars packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellants total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. Now, as we observed in Jabar Singh v. Genda Lal ((1964) 6 SCR 54 , 60 : AIR 1964 SC 1200 : 25 ELR 323), where both reliefs are claimed in an election petition the Court must first decide the question whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. A notice of recrimination under Section 7 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected. When the re-count was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining the question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in Bahekars packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under Section 97 was necessary. In the circumstances, the High court erred in declining to court the appellants 250 votes in his total on the ground that no notice of recrimination under Section 97 of the Act had been given. 10. In P. Malaichami v. M. Ambalam (supra) on which the High Court relied, the facts were different. In that case, the re-count ordered did not involve the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, "with all its implications". The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a re-count against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate; what was called for was a mere mechanical process of counting. That every order of re-count does not bring Section 97 into play was laid down by this Court in Anirudh Prasad v. Rajeshwari Saroj Das (1976 Supp SCR 91 : (1977) 1 SCC 105 ). 11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected. 12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing a re-count of the ballot papers. 13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that irregularity. 14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and complete re-count of the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal. | 1[ds]11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that irregularity14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and completerecountof the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that | 1 | 2,227 | 411 | ### Instruction:
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that they were votes for the appellant. Their validity was never doubted. Plainly what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of the appellant. It is quite probable that as equal number of ballot papers of the two candidates were exchanged, the error occurred after the ballot papers of each candidate had been separately tied in bundles of 50, as is required by the "Handbook for Returning Officers". After withdrawing the 250 votes of Bahekar from the appellants packet and the appellants 250 votes from Bahekars packet, the Special Officer could not stop there. The 250 votes of each candidate had then to be counted in his total. They were not invalid votes. 9. The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him. The accident that they were not placed in his packet but in Bahekars packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellants total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. Now, as we observed in Jabar Singh v. Genda Lal ((1964) 6 SCR 54 , 60 : AIR 1964 SC 1200 : 25 ELR 323), where both reliefs are claimed in an election petition the Court must first decide the question whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. A notice of recrimination under Section 7 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected. When the re-count was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining the question, and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in Bahekars packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under Section 97 was necessary. In the circumstances, the High court erred in declining to court the appellants 250 votes in his total on the ground that no notice of recrimination under Section 97 of the Act had been given. 10. In P. Malaichami v. M. Ambalam (supra) on which the High Court relied, the facts were different. In that case, the re-count ordered did not involve the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, "with all its implications". The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a re-count against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour or any other candidate; what was called for was a mere mechanical process of counting. That every order of re-count does not bring Section 97 into play was laid down by this Court in Anirudh Prasad v. Rajeshwari Saroj Das (1976 Supp SCR 91 : (1977) 1 SCC 105 ). 11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected. 12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing a re-count of the ballot papers. 13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that irregularity. 14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and complete re-count of the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal.
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1
### Explanation:
11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that irregularity14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and completerecountof the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. In the circumstances, it is not necessary to consider the other contention of learned Counsel for the appellant that the High Court was in error in directing arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu and therefore, Rule 22 of the Conduct of Election Rules, 1961 was contravened. The point was raised before the High Court and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of the election has been materially affected by that
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Rahul Subodh Windoors Ltd Vs. A.K.Menon | no allotment of shares at all inasmuch as there can be no allotment of shares in blank and in the copies of the share certificate produced before the Special Court no names have been entered. No application had been filed by the second respondent in terms of Section 41(2) of the Companies Act agreeing to become a member of the company and his name be entered in the Register of Members. On examination of the Register of Member, the Special Court found that there were certain suspicious circumstances which clearly indicated the fact that the second respondent had never made an application in writing for allotment of shares. The Special Court further examined the matter with reference to the distinctive numbers of the shares which revealed a lot of suspicion to the effect that their names in the Register of Members were made sometime after the letter was sent by the Custodian only to over-come the difficulty of an application being made by him and long after the second respondent was notified. Therefore the allotment is purportedly to be made in his name without any application in writing and only with a view not to return the money belonging to the notified party. Further, there is no intimation to the Registrar of Companies either for filing a return of the statement starting the number, the nominal amount of the shares, the names, addresses, occupation of the allotees and the amounts, if any, paid or due and payable on each share. 3. Thus on the basis of these circumstances and certain other attendant circumstances, the Special Court came to the conclusion that there was no allotment of shares and it is not now open to the appellant to make such an allotment of shares and, therefore, it directed the repayment of the sum of Rs. 20 lakhs with interest. Alternatively, the Special Court held that the sale/purchase of the share was on a `buy-back basis and it was only an arrangement for financing and even on that basis the price must be the original price plus come amount for interest at a reasonable rate and that must be repaid. In conclusion, the Special Court directed the appellant to pay the Custodian for and on behalf of the second respondent a sum of Rs. 20 lakhs together with interest thereon @18% per annum from November 13, 1991 till payment.4. Challenging this order several grounds have been raised in the appeal but at the time of hearing only two contention are put forth before us by the learned counsel for the appellant. In the first place, he contended that the Special Court had no jurisdiction to entertain the application of respondent No. 1, the Custodian, since the matter did not relate to any offence contemplated under Section 3 of the Act. The learned counsel drew our attention the scheme of the Act to impress upon us that the Special Court does not have any jurisdiction to entertain an application for declaration to the effect that a sum of Rs. 20 lakhs in question belong to the second respondent. Section 7 of the provides for the jurisdiction of the Special Court in respect of transaction for any offence referred to in Section 3(2) of the Act and bars the jurisdiction of any other court. If the matter stood thus, the contention put forth on behalf of the appellant perhaps need further examination. Now after the insertion of Section 9A with effect from 25 January, 1994 the Special Court exercises the jurisdiction of a civil court in relation to any matter or claim "(a) relating to any property standing attached under Section 3(3) of the Act, and (b) arising out of transaction in securities entered into after the Ist day of April, 1991 and on or before the 6th day of June, 1992, in which a person is notified under Section 3(2) is involved as a party, broker, intermediary or in other manner." Sub-section (3) of Section 9A bars the jurisdiction of other courts in respect of these matter. Therefore, the Special Court is the only court which can inquire into the deal with the matters of this nature where the transaction covered by Section 9A or property standing attached under Section 3(3) is involved and, therefore, we think the first contention urged on behalf of the appellant is plainly misconceived and stands rejected.5. The second contention put forth on behalf of the appellant is that the shares are granted and, therefore, on the allotment of shares the money does not belong to respondent No. 2 but to the appellant. In the narration of facts made earlier while referring to the proceedings in the Special Court out of which this appeal arises we have stated the various circumstances taken note of by the Special Court in not accepting that there had been any allotment of shares. A few of these circumstances are firstly, there can be no allotment of shares to unknown person; secondly, allotment can be made to a person who becomes a member of the company when an application is made to that effect, and thirdly, no application was made to the company by the second respondent in that regard was forthcoming. Cloud of doubts was cast upon the entries in the Register of Members and the distinctive numbers of the shares and, therefore, the finding of fact recorded by the Special Court that there had been no allotment was notified under the Act to avoid payment of money of a sum of Rs. 20 lakhs cannot be seriously disputed. We find no good reason to interfere with the said finding and the second contention urged also stands rejected.6. The Special Court was also justified in noticing that the transaction between the parties was really a financial arrangement with the `buy-back agreement and even on that basis a sum of Rs. 20 lakhs with interest can be ordered to the paid to the Custodian. We cannot take any exception to this view either. | 0[ds]In the narration of facts made earlier while referring to the proceedings in the Special Court out of which this appeal arises we have stated the various circumstances taken note of by the Special Court in not accepting that there had been any allotment of shares. A few of these circumstances are firstly, there can be no allotment of shares to unknown person; secondly, allotment can be made to a person who becomes a member of the company when an application is made to that effect, and thirdly, no application was made to the company by the second respondent in that regard was forthcoming. Cloud of doubts was cast upon the entries in the Register of Members and the distinctive numbers of the shares and, therefore, the finding of fact recorded by the Special Court that there had been no allotment was notified under the Act to avoid payment of money of a sum of Rs. 20 lakhs cannot be seriously disputed. We find no good reason to interfere with the said finding and the second contention urged also stands rejected.6. The Special Court was also justified in noticing that the transaction between the parties was really a financial arrangement with the `buy-back agreement and even on that basis a sum of Rs. 20 lakhs with interest can be ordered to the paid to the Custodian. We cannot take any exception to this view either. | 0 | 1,637 | 257 | ### 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:
no allotment of shares at all inasmuch as there can be no allotment of shares in blank and in the copies of the share certificate produced before the Special Court no names have been entered. No application had been filed by the second respondent in terms of Section 41(2) of the Companies Act agreeing to become a member of the company and his name be entered in the Register of Members. On examination of the Register of Member, the Special Court found that there were certain suspicious circumstances which clearly indicated the fact that the second respondent had never made an application in writing for allotment of shares. The Special Court further examined the matter with reference to the distinctive numbers of the shares which revealed a lot of suspicion to the effect that their names in the Register of Members were made sometime after the letter was sent by the Custodian only to over-come the difficulty of an application being made by him and long after the second respondent was notified. Therefore the allotment is purportedly to be made in his name without any application in writing and only with a view not to return the money belonging to the notified party. Further, there is no intimation to the Registrar of Companies either for filing a return of the statement starting the number, the nominal amount of the shares, the names, addresses, occupation of the allotees and the amounts, if any, paid or due and payable on each share. 3. Thus on the basis of these circumstances and certain other attendant circumstances, the Special Court came to the conclusion that there was no allotment of shares and it is not now open to the appellant to make such an allotment of shares and, therefore, it directed the repayment of the sum of Rs. 20 lakhs with interest. Alternatively, the Special Court held that the sale/purchase of the share was on a `buy-back basis and it was only an arrangement for financing and even on that basis the price must be the original price plus come amount for interest at a reasonable rate and that must be repaid. In conclusion, the Special Court directed the appellant to pay the Custodian for and on behalf of the second respondent a sum of Rs. 20 lakhs together with interest thereon @18% per annum from November 13, 1991 till payment.4. Challenging this order several grounds have been raised in the appeal but at the time of hearing only two contention are put forth before us by the learned counsel for the appellant. In the first place, he contended that the Special Court had no jurisdiction to entertain the application of respondent No. 1, the Custodian, since the matter did not relate to any offence contemplated under Section 3 of the Act. The learned counsel drew our attention the scheme of the Act to impress upon us that the Special Court does not have any jurisdiction to entertain an application for declaration to the effect that a sum of Rs. 20 lakhs in question belong to the second respondent. Section 7 of the provides for the jurisdiction of the Special Court in respect of transaction for any offence referred to in Section 3(2) of the Act and bars the jurisdiction of any other court. If the matter stood thus, the contention put forth on behalf of the appellant perhaps need further examination. Now after the insertion of Section 9A with effect from 25 January, 1994 the Special Court exercises the jurisdiction of a civil court in relation to any matter or claim "(a) relating to any property standing attached under Section 3(3) of the Act, and (b) arising out of transaction in securities entered into after the Ist day of April, 1991 and on or before the 6th day of June, 1992, in which a person is notified under Section 3(2) is involved as a party, broker, intermediary or in other manner." Sub-section (3) of Section 9A bars the jurisdiction of other courts in respect of these matter. Therefore, the Special Court is the only court which can inquire into the deal with the matters of this nature where the transaction covered by Section 9A or property standing attached under Section 3(3) is involved and, therefore, we think the first contention urged on behalf of the appellant is plainly misconceived and stands rejected.5. The second contention put forth on behalf of the appellant is that the shares are granted and, therefore, on the allotment of shares the money does not belong to respondent No. 2 but to the appellant. In the narration of facts made earlier while referring to the proceedings in the Special Court out of which this appeal arises we have stated the various circumstances taken note of by the Special Court in not accepting that there had been any allotment of shares. A few of these circumstances are firstly, there can be no allotment of shares to unknown person; secondly, allotment can be made to a person who becomes a member of the company when an application is made to that effect, and thirdly, no application was made to the company by the second respondent in that regard was forthcoming. Cloud of doubts was cast upon the entries in the Register of Members and the distinctive numbers of the shares and, therefore, the finding of fact recorded by the Special Court that there had been no allotment was notified under the Act to avoid payment of money of a sum of Rs. 20 lakhs cannot be seriously disputed. We find no good reason to interfere with the said finding and the second contention urged also stands rejected.6. The Special Court was also justified in noticing that the transaction between the parties was really a financial arrangement with the `buy-back agreement and even on that basis a sum of Rs. 20 lakhs with interest can be ordered to the paid to the Custodian. We cannot take any exception to this view either.
### Response:
0
### Explanation:
In the narration of facts made earlier while referring to the proceedings in the Special Court out of which this appeal arises we have stated the various circumstances taken note of by the Special Court in not accepting that there had been any allotment of shares. A few of these circumstances are firstly, there can be no allotment of shares to unknown person; secondly, allotment can be made to a person who becomes a member of the company when an application is made to that effect, and thirdly, no application was made to the company by the second respondent in that regard was forthcoming. Cloud of doubts was cast upon the entries in the Register of Members and the distinctive numbers of the shares and, therefore, the finding of fact recorded by the Special Court that there had been no allotment was notified under the Act to avoid payment of money of a sum of Rs. 20 lakhs cannot be seriously disputed. We find no good reason to interfere with the said finding and the second contention urged also stands rejected.6. The Special Court was also justified in noticing that the transaction between the parties was really a financial arrangement with the `buy-back agreement and even on that basis a sum of Rs. 20 lakhs with interest can be ordered to the paid to the Custodian. We cannot take any exception to this view either.
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Prashanti Medical Services and Research Foundation Vs. Union of India (UOI) and Ors | by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court. 20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project. 22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-2018. 23. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned Counsel for the Appellant that the Appellant has received 3.84 crores during the year 2017-2018 from various Assessees. It was also stated that if sub-section (7) had been held not applicable to the Appellants project then the Appellant would have received much more amount than Rs. 3.84 crores during the financial year 2017-2018, which is clear from the amount received by the Appellant in earlier two years prior to insertion of Sub-section (7), i.e., Rs. 10.97 crores during the financial year 2015-2016 and Rs. 20.55 crores during the financial year 2016-2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned Counsel for the Appellant then urged that having regard to the fact that the Appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017-2018, this Court may consider appropriate to invoke powers Under Article 142 of the Constitution and allow the Appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest there. 32. Learned Counsel for the Appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT v. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0[ds]17. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-201823. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-201724. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.201725. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest thereIn our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0 | 3,936 | 920 | ### 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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by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court. 20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project. 22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-2018. 23. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned Counsel for the Appellant that the Appellant has received 3.84 crores during the year 2017-2018 from various Assessees. It was also stated that if sub-section (7) had been held not applicable to the Appellants project then the Appellant would have received much more amount than Rs. 3.84 crores during the financial year 2017-2018, which is clear from the amount received by the Appellant in earlier two years prior to insertion of Sub-section (7), i.e., Rs. 10.97 crores during the financial year 2015-2016 and Rs. 20.55 crores during the financial year 2016-2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned Counsel for the Appellant then urged that having regard to the fact that the Appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017-2018, this Court may consider appropriate to invoke powers Under Article 142 of the Constitution and allow the Appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest there. 32. Learned Counsel for the Appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT v. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
### Response:
0
### Explanation:
17. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of Sub-section (7) except the Appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the Appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned Counsel for the Respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of Sub-section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the Appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017-201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the Assessees to claim deduction of the amount paid by them to the Appellant for their project22. As mentioned above, none of the Assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the Appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of Sub-section (7) of Section 35AC of the Act during the financial year 2017-201823. It is not in dispute that the benefit of the deduction available Under Section 35AC of the Act was duly availed of by all the Assessees for two financial years, namely, 2015-2016 and 2016-201724. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the Assessees were not allowed to claim deduction of the amount paid by them to the Appellant on account of insertion of sub-section (7) in Section 35AC of the Act with effect from 01.04.201725. We are of the view that Sub-section (7) is prospective in its operation and, therefore, all the Assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015-2016 and 2016-2017. If Sub-section (7) had been retrospective in its operation then the deduction for 2015-2016 and 2016-2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned Counsel for the Respondent (Revenue), a plea of promissory estoppel is not available to an Assessee against the exercise of legislative power and nor any vested right accrues to an Assessee in the matter of grant of any tax concession to him. In other words, neither the Appellant nor the Assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting Sub-section (7) in Section 35AC of the Act (see- M/s. Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned Counsel for the Respondent-Revenue). It is more so when we find that this Sub-section was made applicable uniformly to all alike the Appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017-2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the Appellant received any amount from any Assessee for their project, no deduction could be allowed to such Assessee either for the period 2017-2018 or for any subsequent period29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers Under Article 142 of the Constitution does not arise; and third, the Appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the Appellant Under Section 35AC during the two financial years 2015-2016 and 2016-2017. It is for all these reasons, the matter must rest thereIn our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
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Wazir Financial Services Pvt. Ltd Vs. Birla Cotsyn (India) Ltd | G.S. Patel, J. 1. Heard Mr. Sawant for the Appellant. 2. The appellant, Wazir Financial Services Pvt. Ltd. (Wazir Financial) was the original Petitioner before the learned Single Judge in Company Petition No. 104 of 2013. It sought the winding up of the Respondent, Birla Cotsyn (India) Ltd. (Birla Cotsyn) on the basis that there was, firstly, an ascertained and liquidated debt demonstrably due, owing and payable by the Respondent to the Appellant; secondly, that Birla Cotsyn had failed and neglected to pay the amount; and thirdly, that on account of its failure to reply to the statutory notice issued by Wazir Financial, Birla Cotsyn must be deemed to be unable to pay its debts. Having heard both sides, the learned Single Judge passed the order under challenge on 22nd October 2018, a copy of which is annexed from page 17 of the Appeal paper-book. 3. We have perused the Petition and the record of the Appeal, Appeal memo and the impugned order. 4. Shortly stated, the facts were that Wazir Financial placed periodic Inter Corporate Deposits or ICDs with various companies, including Birla Cotsyn. It alleged that the amounts under four ICDs that it placed with Birla Cotsyn were not repaid. The Petition was restricted to two ICDs of Rs. 3 crores and Rs. 2 crores placed on 6th March 2012 and 7th May 2012 respectively. Birla Cotsyn issued three cheques towards interest due on the ICDs. These were dishonoured for insufficiency of funds. Wazir Financial took proceedings under Section 138 of the Negotiable Instruments Act. 5. On behalf of the Wazir Financial, it was argued that its claim was secured inter alia by promissory note of Rs. 3 crores, a postdated cheque in that amount, three post-dated cheques for interest and by security created over shares held by Birla Cotsyn in corporate companies with an undertaking that these would be under a lien in favour of Wazir Financial. Birla Cotsyn was, Wazir Financial alleged, obliged to maintain a security value of 150%, or in other words, there was a top-up clause. It is undisputed that Wazir Financial obtained a summary decree against Birla Cotsyn. Wazir Financial also invoked its pledge of the shares deposited as security. Birla Cotsyn argued that the summary decree was fully satisfied. According to it, the entire amount under the two ICDs was paid. In fact, the argument was that Wazir Financial had recovered amounts in excess. 6. This was the controversy before the learned Single Judge. It is noted in paragraphs 5 to 7 of the impugned order. The learned Single Judge also noted that in its Affidavit in Rejoinder, Wazir Financial stated that while it had invoked the pledge, it had not actually sold the shares. 7. Before us, Mr. Sawant argues that there is an error apparent in the sense that the learned Single Judge allegedly mistook the number of shares for the amounts of shares or vice versa. This will make no difference. The question is not of that kind of detail but whether it can fairly be said there is an undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor. 8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was that it would not be possible on this basis to ascertain how much Wazir Financial had actually recovered. Consequently it was not possible to hold there was a deemed debt or liquidated sum shown to be due. 9. We are in complete agreement with the observations of the learned Single Judge in paragraph 8. The proposition that he sets out is indeed well-settled and does not require reiteration. The company court is a court of discretion and of equity. The test, as the Supreme Court tells us in IBA Health (India) Pvt. Ltd. vs. Info-Drive Systems, (2010) 10 SCC 553 is whether the company shows substantial grounds of defence that is not dishonest, illusory, speculative, spurious or specious. 10. In our considered view, what is argued before the learned Single Judge and what Mr. Sawant in substance attempts to argue before us, though with no success, is that in winding up Petition it matters not that there are disputed questions of facts or that the Court will have to engage in a complex enquiry requiring evidence. This, in our view, is not even a statable principle in this branch of law. As the learned Single Judge correctly observed, summary suit and winding up petition share a broadly similar approach. In both, the Respondent or Defendant must be shown to have no tenable or plausible defence. Unless that defence is moonshine, an order could not be passed. A conditional order may be possible, but it is not inevitable. 11. In our view, in the present case no conditional order was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disputed questions of fact arising from a bona fide defence. Balancing the rival contentions, we cannot conclude that the Petitioner has shown unequivocally or unambiguously that there is an ascertained liquidated debt due to it from the Respondent. | 0[ds]This will make no difference. The question is not of that kind of detail but whether it can fairly be said there is an undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor.8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was that it would not be possible on this basis to ascertain how much Wazir Financial had actually recovered. Consequently it was not possible to hold there was a deemed debt or liquidated sum shown to be due.9. We are in complete agreement with the observations of the learned Single Judge in paragraph 8. The proposition that he sets out is indeed well-settled and does not require reiteration. The company court is a court of discretion and of equity. The test, as the Supreme Court tells us in IBA Health (India) Pvt. Ltd. vs. Info-Drive Systems, (2010) 10 SCC 553 is whether the company shows substantial grounds of defence that is not dishonest, illusory, speculative, spurious or specious.10. In our considered view, what is argued before the learned Single Judge and what Mr. Sawant in substance attempts to argue before us, though with no success, is that in winding up Petition it matters not that there are disputed questions of facts or that the Court will have to engage in a complex enquiry requiring evidence. This, in our view, is not even a statable principle in this branch of law. As the learned Single Judge correctly observed, summary suit and winding up petition share a broadly similar approach. In both, the Respondent or Defendant must be shown to have no tenable or plausible defence. Unless that defence is moonshine, an order could not be passed. A conditional order may be possible, but it is not inevitable.11. In our view, in the present case no conditional order was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disputed questions of fact arising from a bona fide defence. Balancing the rival contentions, we cannot conclude that the Petitioner has shown unequivocally or unambiguously that there is an ascertained liquidated debt due to it from the Respondent. | 0 | 1,049 | 486 | ### 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:
G.S. Patel, J. 1. Heard Mr. Sawant for the Appellant. 2. The appellant, Wazir Financial Services Pvt. Ltd. (Wazir Financial) was the original Petitioner before the learned Single Judge in Company Petition No. 104 of 2013. It sought the winding up of the Respondent, Birla Cotsyn (India) Ltd. (Birla Cotsyn) on the basis that there was, firstly, an ascertained and liquidated debt demonstrably due, owing and payable by the Respondent to the Appellant; secondly, that Birla Cotsyn had failed and neglected to pay the amount; and thirdly, that on account of its failure to reply to the statutory notice issued by Wazir Financial, Birla Cotsyn must be deemed to be unable to pay its debts. Having heard both sides, the learned Single Judge passed the order under challenge on 22nd October 2018, a copy of which is annexed from page 17 of the Appeal paper-book. 3. We have perused the Petition and the record of the Appeal, Appeal memo and the impugned order. 4. Shortly stated, the facts were that Wazir Financial placed periodic Inter Corporate Deposits or ICDs with various companies, including Birla Cotsyn. It alleged that the amounts under four ICDs that it placed with Birla Cotsyn were not repaid. The Petition was restricted to two ICDs of Rs. 3 crores and Rs. 2 crores placed on 6th March 2012 and 7th May 2012 respectively. Birla Cotsyn issued three cheques towards interest due on the ICDs. These were dishonoured for insufficiency of funds. Wazir Financial took proceedings under Section 138 of the Negotiable Instruments Act. 5. On behalf of the Wazir Financial, it was argued that its claim was secured inter alia by promissory note of Rs. 3 crores, a postdated cheque in that amount, three post-dated cheques for interest and by security created over shares held by Birla Cotsyn in corporate companies with an undertaking that these would be under a lien in favour of Wazir Financial. Birla Cotsyn was, Wazir Financial alleged, obliged to maintain a security value of 150%, or in other words, there was a top-up clause. It is undisputed that Wazir Financial obtained a summary decree against Birla Cotsyn. Wazir Financial also invoked its pledge of the shares deposited as security. Birla Cotsyn argued that the summary decree was fully satisfied. According to it, the entire amount under the two ICDs was paid. In fact, the argument was that Wazir Financial had recovered amounts in excess. 6. This was the controversy before the learned Single Judge. It is noted in paragraphs 5 to 7 of the impugned order. The learned Single Judge also noted that in its Affidavit in Rejoinder, Wazir Financial stated that while it had invoked the pledge, it had not actually sold the shares. 7. Before us, Mr. Sawant argues that there is an error apparent in the sense that the learned Single Judge allegedly mistook the number of shares for the amounts of shares or vice versa. This will make no difference. The question is not of that kind of detail but whether it can fairly be said there is an undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor. 8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was that it would not be possible on this basis to ascertain how much Wazir Financial had actually recovered. Consequently it was not possible to hold there was a deemed debt or liquidated sum shown to be due. 9. We are in complete agreement with the observations of the learned Single Judge in paragraph 8. The proposition that he sets out is indeed well-settled and does not require reiteration. The company court is a court of discretion and of equity. The test, as the Supreme Court tells us in IBA Health (India) Pvt. Ltd. vs. Info-Drive Systems, (2010) 10 SCC 553 is whether the company shows substantial grounds of defence that is not dishonest, illusory, speculative, spurious or specious. 10. In our considered view, what is argued before the learned Single Judge and what Mr. Sawant in substance attempts to argue before us, though with no success, is that in winding up Petition it matters not that there are disputed questions of facts or that the Court will have to engage in a complex enquiry requiring evidence. This, in our view, is not even a statable principle in this branch of law. As the learned Single Judge correctly observed, summary suit and winding up petition share a broadly similar approach. In both, the Respondent or Defendant must be shown to have no tenable or plausible defence. Unless that defence is moonshine, an order could not be passed. A conditional order may be possible, but it is not inevitable. 11. In our view, in the present case no conditional order was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disputed questions of fact arising from a bona fide defence. Balancing the rival contentions, we cannot conclude that the Petitioner has shown unequivocally or unambiguously that there is an ascertained liquidated debt due to it from the Respondent.
### Response:
0
### Explanation:
This will make no difference. The question is not of that kind of detail but whether it can fairly be said there is an undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor.8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was that it would not be possible on this basis to ascertain how much Wazir Financial had actually recovered. Consequently it was not possible to hold there was a deemed debt or liquidated sum shown to be due.9. We are in complete agreement with the observations of the learned Single Judge in paragraph 8. The proposition that he sets out is indeed well-settled and does not require reiteration. The company court is a court of discretion and of equity. The test, as the Supreme Court tells us in IBA Health (India) Pvt. Ltd. vs. Info-Drive Systems, (2010) 10 SCC 553 is whether the company shows substantial grounds of defence that is not dishonest, illusory, speculative, spurious or specious.10. In our considered view, what is argued before the learned Single Judge and what Mr. Sawant in substance attempts to argue before us, though with no success, is that in winding up Petition it matters not that there are disputed questions of facts or that the Court will have to engage in a complex enquiry requiring evidence. This, in our view, is not even a statable principle in this branch of law. As the learned Single Judge correctly observed, summary suit and winding up petition share a broadly similar approach. In both, the Respondent or Defendant must be shown to have no tenable or plausible defence. Unless that defence is moonshine, an order could not be passed. A conditional order may be possible, but it is not inevitable.11. In our view, in the present case no conditional order was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disputed questions of fact arising from a bona fide defence. Balancing the rival contentions, we cannot conclude that the Petitioner has shown unequivocally or unambiguously that there is an ascertained liquidated debt due to it from the Respondent.
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Sitaram Kashiram Konda Vs. Pigment Cakes & Chemicals Mfg. Co | 1. The plaintiff-appellant filed a suit in the trial Court in the year 1963 alleging certain unjustifiable and illegal actions on the part of his employer, the respondent in this appeal. The reliefs claimed in the suit were the following :"(a) That it may be declared that the defendant has removed the plaintiff from service illegally and without any reason.(b) That it may be declared that the defendant failed and neglected to re-employ the plaintiff although the defendant restarted the factory.(c) That the defendant be ordered to reinstate the plaintiff to his former job with the due benefits and advantages.(d) In the alternative the defendant may be ordered to pay to the plaintiff such compensation as, the Honble Court may deem fit.(e) For costs of the suit.(f) For such further and other reliefs as this Honble Court may deem fit."2. On contest by the respondent, the trial Court held that the dispute raised by the appellant was in the nature of an industrial dispute and hence the civil Court had no jurisdiction to try it. The appellant took the matter in appeal before the First Appellate Court. It allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a civil Court. The respondent filed the second appeal in the High Court and the High Court has agreed with the view of the trial Court. It has said that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service. The facts pleaded by him all converged to show that the dispute was an industrial dispute cognizable only by an Industrial Court and not by a civil Court. The appellant has presented his appeal in this Court by a certificate granted by the High Court.3. The Court is obliged to Mr. K. Jayaram for assisting it as amicus curiae in the case. After having appreciated the entire facts and the circumstances of the case, we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted. There are a number of decisions of this Court to that effect; to writ - (1) Dr. S. B. Dutt v. University of Delhi, A.I.R. 1958 S.C. 1950; (1959) S.C.R. 1236, (2) S. R. Tiwari v. District Board, Agra, [1964-I L.L.J. 1]; A.I.R. 1964 S.C. 1680; (1964) 3 S.C.R. 55 and (3) Indian Airlines Corporation v. Sukhdeo Rai, [1971-I L.L.J. 496]; (1971) 41 F.J.R. 261; (1971) Suppl. S.C.R. 510. Reference may also be made in this connection to the decision of this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, [1975-II L.L.J. 445]; (1975) 48 F.J.R. 252; (1976) I S.C.R. 487.4. But then in the alternative the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, this is a different question, that he was wrongfully dismissed from service. This relief could be grated by the civil Court if it found that the plaintiffs case was true. The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint at a whole, such case can be spelt out. That being so, to this limited extent, the matter could be examined by the civil Court. | 1[ds]we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted.But then in the alternative the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, this is a different question, that he was wrongfully dismissed from service. This relief could be grated by the civil Court if it found that the plaintiffs case was true. The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint at a whole, such case can be spelt out. That being so, to this limited extent, the matter could be examined by the civil Court. | 1 | 742 | 219 | ### 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:
1. The plaintiff-appellant filed a suit in the trial Court in the year 1963 alleging certain unjustifiable and illegal actions on the part of his employer, the respondent in this appeal. The reliefs claimed in the suit were the following :"(a) That it may be declared that the defendant has removed the plaintiff from service illegally and without any reason.(b) That it may be declared that the defendant failed and neglected to re-employ the plaintiff although the defendant restarted the factory.(c) That the defendant be ordered to reinstate the plaintiff to his former job with the due benefits and advantages.(d) In the alternative the defendant may be ordered to pay to the plaintiff such compensation as, the Honble Court may deem fit.(e) For costs of the suit.(f) For such further and other reliefs as this Honble Court may deem fit."2. On contest by the respondent, the trial Court held that the dispute raised by the appellant was in the nature of an industrial dispute and hence the civil Court had no jurisdiction to try it. The appellant took the matter in appeal before the First Appellate Court. It allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a civil Court. The respondent filed the second appeal in the High Court and the High Court has agreed with the view of the trial Court. It has said that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service. The facts pleaded by him all converged to show that the dispute was an industrial dispute cognizable only by an Industrial Court and not by a civil Court. The appellant has presented his appeal in this Court by a certificate granted by the High Court.3. The Court is obliged to Mr. K. Jayaram for assisting it as amicus curiae in the case. After having appreciated the entire facts and the circumstances of the case, we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted. There are a number of decisions of this Court to that effect; to writ - (1) Dr. S. B. Dutt v. University of Delhi, A.I.R. 1958 S.C. 1950; (1959) S.C.R. 1236, (2) S. R. Tiwari v. District Board, Agra, [1964-I L.L.J. 1]; A.I.R. 1964 S.C. 1680; (1964) 3 S.C.R. 55 and (3) Indian Airlines Corporation v. Sukhdeo Rai, [1971-I L.L.J. 496]; (1971) 41 F.J.R. 261; (1971) Suppl. S.C.R. 510. Reference may also be made in this connection to the decision of this Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, [1975-II L.L.J. 445]; (1975) 48 F.J.R. 252; (1976) I S.C.R. 487.4. But then in the alternative the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, this is a different question, that he was wrongfully dismissed from service. This relief could be grated by the civil Court if it found that the plaintiffs case was true. The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint at a whole, such case can be spelt out. That being so, to this limited extent, the matter could be examined by the civil Court.
### Response:
1
### Explanation:
we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a civil Court. The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted.But then in the alternative the appellant had also prayed for awarding compensation to him. And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, this is a different question, that he was wrongfully dismissed from service. This relief could be grated by the civil Court if it found that the plaintiffs case was true. The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint. In our opinion, as we have earlier said, reading the plaint at a whole, such case can be spelt out. That being so, to this limited extent, the matter could be examined by the civil Court.
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SANJAY BANSAL Vs. M/S VIPUL LTD. (FORMERLY KNOWN AS VIPUL INFRASTRUCTURE DEVELOPERS LTD.) | certain conditions. The complainant had no intention to use the four flats as a residential / dwelling unit for himself or his family…… 4. The appellant contested the above objections and stated that the flats were not intended for commercial resale but for the members of his family. The appellant has made the following averments in response: 1. It is admitted the complainant applied for the allotment of four flats in the Orchid Petals housing project, but it is denied that the complainant applied for the flats for commercial resale and to earn commercial gains there-from. The complainant wanted to live near his family members and therefore, he applied for the flats. It is surprising he applied for the flats. It is surprising that how and in what manner the defendant no. 2 suo motto came to the conclusion of the intention of the complainant of not using the flats as residential house for himself or his family mem- bers and also about his financial capacity to pay the installments of the flats. The complainant belongs to prestigious alumini of India Institute of Management and is a successful entrepreneur having an Income of Rs. 2.18 Crore as per the ITR of As- sessment Year 2005-2006, Rs. 1.52 Crore as per the ITR of Assessment Year 2004-2005, therefore the op- posite Parties allegation that the complainant has no capacity to pay is incorrect. 5. The NCDRC rejected the consumer complaint and upheld the objection. The grounds which weighed with the NCDRC emerge from the following extract from its decision: 7. ... The fact that the complainant had booked four flats makes it clear that the aforesaid book- ing obviously was not for the purpose of residence and the hidden purpose behind aforesaid four book- ings was to make profits on re-sale of the proper- ties. Our aforesaid conclusion is strengthened from the fact that the complainant admittedly booked four flats knowing fully well that the oppo- site parties did not have necessary sanctions and approvals for the project at the relevant time. The plea of the complainant that he had booked those flats for himself and his family members is not ac- ceptable for the reason that in the complaint the complainant has not clarified who were the family members for whose residence he had booked those flats. The complainant has placed on record the terms and conditions for registration and allotment of flats in the aforesaid project. On perusal of the terms and conditions signed by the complainant for respective flats it is clear that all these terms and conditions vis a vis the booked flats are signed by the complainant at Gurgaon on 4 th August 2004 as sole/1st applicant. Though there is a column for signature of second applicant, it has not been signed by anyone. Had the plea of the com- plainant that he had booked those flats for the residence of his family members been correct, he would have obtained the signatures of the respec- tive family members as second applicant for whom the respective flats were booked. Thus, we have no hesitation in concluding that the flats in question have been booked by the complainant with the inten- tion to make commercial gains by re-selling the flats on completion at higher rate. 6. Learned counsel appearing on behalf of the appellant submits that the fact that the appellant had booked four flats cannot be a reason enough to hold that he is not a consumer within the meaning of Section 2(1)(d). Learned counsel urged that the decision of the NCDRC to hold that the appellant is not a consumer is based on surmise without any evidence. 7. On the other hand, learned counsel appearing on behalf of the second respondent submitted that the appellant did not disclose before the NCDRC the names of the members of his family for whose benefit the flats were being purchased, and it was only during the pendency of the present proceedings that in the form of an additional affidavit, the lacuna in the pleading is sought to be covered up. Learned counsel supported the reasoning of the NCDRC that a purchaser of four flats cannot be recorded as a consumer. 8. We find that the NCDRC has proceeded to decide the objections to the maintainability of the complaint on an ipse dixit. The fact that an individual has booked four flats may not by itself be a circumstance on the basis of which a conclusive presumption can be drawn that he or she is not a consumer in the absence of evidence regarding the purpose of the purchase. Ultimately, it is a matter to be decided on the basis of evidence whether, as the appellant pleads, the flats were booked not for the purposes of resale, but for the members of his family. The appellant has seriously contested the claim of the developer that the flats were booked by way of an investment, for commercial resale. 9. At this stage before the NCDRC, there was no material on the basis of which a conclusion could have been drawn one way or the other. The NCDRC has sought to buttress its finding by recording that the appellant had booked the flats at a stage when sanction and approval for the project had not been obtained. This again may not strictly be a relevant consideration since a prospective buyer may invest in a building project bonafide, placing trust in the reputation of the builder to deliver possession. The fact that the appellant did not specifically mention the names of the members of his family may be one factor which may be placed in the balance in the ultimate decision. However, a finding, whether the appellant is nor is not a consumer should have been arrived at after the pleadings were complete and the parties had an opportunity to adduce evidence in support of their respective cases. Absent such an exercise, the decision of the NCDRC rests purely on assumption or surmise. | 1[ds]8. We find that the NCDRC has proceeded to decide the objections to the maintainability of the complaint on an ipse dixit. The fact that an individual has booked four flats may not by itself be a circumstance on the basis of which a conclusive presumption can be drawn that he or she is not a consumer in the absence of evidence regarding the purpose of the purchase. Ultimately, it is a matter to be decided on the basis of evidence whether, as the appellant pleads, the flats were booked not for the purposes of resale, but for the members of his family. The appellant has seriously contested the claim of the developer that the flats were booked by way of an investment, for commercial resale9. At this stage before the NCDRC, there was no material on the basis of which a conclusion could have been drawn one way or the other. The NCDRC has sought to buttress its finding by recording that the appellant had booked the flats at a stage when sanction and approval for the project had not been obtained. This again may not strictly be a relevant consideration since a prospective buyer may invest in a building project bonafide, placing trust in the reputation of the builder to deliver possession. The fact that the appellant did not specifically mention the names of the members of his family may be one factor which may be placed in the balance in the ultimate decision. However, a finding, whether the appellant is nor is not a consumer should have been arrived at after the pleadings were complete and the parties had an opportunity to adduce evidence in support of their respective cases. Absent such an exercise, the decision of the NCDRC rests purely on assumption or surmise. | 1 | 1,428 | 323 | ### 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:
certain conditions. The complainant had no intention to use the four flats as a residential / dwelling unit for himself or his family…… 4. The appellant contested the above objections and stated that the flats were not intended for commercial resale but for the members of his family. The appellant has made the following averments in response: 1. It is admitted the complainant applied for the allotment of four flats in the Orchid Petals housing project, but it is denied that the complainant applied for the flats for commercial resale and to earn commercial gains there-from. The complainant wanted to live near his family members and therefore, he applied for the flats. It is surprising he applied for the flats. It is surprising that how and in what manner the defendant no. 2 suo motto came to the conclusion of the intention of the complainant of not using the flats as residential house for himself or his family mem- bers and also about his financial capacity to pay the installments of the flats. The complainant belongs to prestigious alumini of India Institute of Management and is a successful entrepreneur having an Income of Rs. 2.18 Crore as per the ITR of As- sessment Year 2005-2006, Rs. 1.52 Crore as per the ITR of Assessment Year 2004-2005, therefore the op- posite Parties allegation that the complainant has no capacity to pay is incorrect. 5. The NCDRC rejected the consumer complaint and upheld the objection. The grounds which weighed with the NCDRC emerge from the following extract from its decision: 7. ... The fact that the complainant had booked four flats makes it clear that the aforesaid book- ing obviously was not for the purpose of residence and the hidden purpose behind aforesaid four book- ings was to make profits on re-sale of the proper- ties. Our aforesaid conclusion is strengthened from the fact that the complainant admittedly booked four flats knowing fully well that the oppo- site parties did not have necessary sanctions and approvals for the project at the relevant time. The plea of the complainant that he had booked those flats for himself and his family members is not ac- ceptable for the reason that in the complaint the complainant has not clarified who were the family members for whose residence he had booked those flats. The complainant has placed on record the terms and conditions for registration and allotment of flats in the aforesaid project. On perusal of the terms and conditions signed by the complainant for respective flats it is clear that all these terms and conditions vis a vis the booked flats are signed by the complainant at Gurgaon on 4 th August 2004 as sole/1st applicant. Though there is a column for signature of second applicant, it has not been signed by anyone. Had the plea of the com- plainant that he had booked those flats for the residence of his family members been correct, he would have obtained the signatures of the respec- tive family members as second applicant for whom the respective flats were booked. Thus, we have no hesitation in concluding that the flats in question have been booked by the complainant with the inten- tion to make commercial gains by re-selling the flats on completion at higher rate. 6. Learned counsel appearing on behalf of the appellant submits that the fact that the appellant had booked four flats cannot be a reason enough to hold that he is not a consumer within the meaning of Section 2(1)(d). Learned counsel urged that the decision of the NCDRC to hold that the appellant is not a consumer is based on surmise without any evidence. 7. On the other hand, learned counsel appearing on behalf of the second respondent submitted that the appellant did not disclose before the NCDRC the names of the members of his family for whose benefit the flats were being purchased, and it was only during the pendency of the present proceedings that in the form of an additional affidavit, the lacuna in the pleading is sought to be covered up. Learned counsel supported the reasoning of the NCDRC that a purchaser of four flats cannot be recorded as a consumer. 8. We find that the NCDRC has proceeded to decide the objections to the maintainability of the complaint on an ipse dixit. The fact that an individual has booked four flats may not by itself be a circumstance on the basis of which a conclusive presumption can be drawn that he or she is not a consumer in the absence of evidence regarding the purpose of the purchase. Ultimately, it is a matter to be decided on the basis of evidence whether, as the appellant pleads, the flats were booked not for the purposes of resale, but for the members of his family. The appellant has seriously contested the claim of the developer that the flats were booked by way of an investment, for commercial resale. 9. At this stage before the NCDRC, there was no material on the basis of which a conclusion could have been drawn one way or the other. The NCDRC has sought to buttress its finding by recording that the appellant had booked the flats at a stage when sanction and approval for the project had not been obtained. This again may not strictly be a relevant consideration since a prospective buyer may invest in a building project bonafide, placing trust in the reputation of the builder to deliver possession. The fact that the appellant did not specifically mention the names of the members of his family may be one factor which may be placed in the balance in the ultimate decision. However, a finding, whether the appellant is nor is not a consumer should have been arrived at after the pleadings were complete and the parties had an opportunity to adduce evidence in support of their respective cases. Absent such an exercise, the decision of the NCDRC rests purely on assumption or surmise.
### Response:
1
### Explanation:
8. We find that the NCDRC has proceeded to decide the objections to the maintainability of the complaint on an ipse dixit. The fact that an individual has booked four flats may not by itself be a circumstance on the basis of which a conclusive presumption can be drawn that he or she is not a consumer in the absence of evidence regarding the purpose of the purchase. Ultimately, it is a matter to be decided on the basis of evidence whether, as the appellant pleads, the flats were booked not for the purposes of resale, but for the members of his family. The appellant has seriously contested the claim of the developer that the flats were booked by way of an investment, for commercial resale9. At this stage before the NCDRC, there was no material on the basis of which a conclusion could have been drawn one way or the other. The NCDRC has sought to buttress its finding by recording that the appellant had booked the flats at a stage when sanction and approval for the project had not been obtained. This again may not strictly be a relevant consideration since a prospective buyer may invest in a building project bonafide, placing trust in the reputation of the builder to deliver possession. The fact that the appellant did not specifically mention the names of the members of his family may be one factor which may be placed in the balance in the ultimate decision. However, a finding, whether the appellant is nor is not a consumer should have been arrived at after the pleadings were complete and the parties had an opportunity to adduce evidence in support of their respective cases. Absent such an exercise, the decision of the NCDRC rests purely on assumption or surmise.
|
M/s. Padia Timber Company(P) Ltd Vs. The Board of Trustees of Visakhapatnam Port Trust Through its Secretary | seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals... 54. With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant. 55. The Trial Court relied on Section 4 of the Contract Act, but completely overlooked Section 7. Section 7 of the Indian Contract Act, 1872 is set out hereinbelow for convenience:- 7. Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must— —In order to convert a proposal into a promise the acceptance must— (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance. 56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made. 57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place. 58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted. 59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded. 60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice. | 1[ds]47. In the judgment and order under appeal, the High Court has not discussed any of the judgments referred to above. The High Court simply recorded the contention of the Appellant that there was no previous approval of the Board of Trustees as contemplated under Section 34(1) of the Major Port Trusts Act, 1963, and therefore, no enforceable contract.48. In Visakhapatnam Port Trust, Visakhapatnam and Anr. v. Bihar Alloy Steels Ltd. and Ors. (supra) a Division Bench of the High Court held:17. In the instant case the provisions of S. 34 prescribe the manner in which a contract is to be made on behalf of the Board of Trustees and further sub-section (3) contains a prohibition that a contract not made in accordance with the earlier portions of Section shall not be binding on the Board. It has been held by the Supreme Court in its decision reported in H.S. Rokhy v. New Delhi Municipality AIR 1962 SC 554 that the effect of such a prohibition as is contained in sub-sec. (3) of S. 34 renders the contract itself void and unenforceable. In that case the controversy was about estoppel against New Delhi Municipal Corporation which was governed by the Punjab Municipal Act, 1911, which contains a similar provision viz., S. 47.. In Visakhapatnam Port Trust, Visakhapatnam and Anr. v. Bihar Alloy Steels Ltd. and Ors. (supra) this Court held that the promise as contained in the letter of Traffic Manager to lease an area of port trust was void and unenforceable against the Board of Trustees, there being no contract made in accordance with Section 34 of the Major Port Trusts Act.51. The judgment of this Court in Mahesh Transport Co. v. Transport and Dock Workers Union (supra), which relates to the validity and propriety of the reference of an industrial dispute under Section 10(1) of the Industrial Disputes Act, 1947, apparently has no relevance to the issues involved in this case. In M.V. Shankar Bhat and Anr. v. Claude Pinto since (D) by Lrs. and Ors. (supra), this Court held that an agreement which was subject to ratification by heirs under a will who were not parties to the agreement did not create a conclusive contract. The relevance of the judgment is unexplained.52. In U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. And Ors. (supra) this Court held that a contract by a Government Notification is not binding unless it is executed in accordance with its Articles of Association.53. The High Court found that there was no dispute that tenders had been called for and that it was the case of the Respondent Port Trust that the offer of the Appellant had in fact been accepted and purchase order issued on 31st October, 1990 under registered Post that had been acknowledged but refused by the Appellant. The High Court also recorded the contention of the Appellant that in the absence of previous approval from the Board of Trustees of the Respondent-Port Trust, under the proviso to Section 34(1) of the Major Port Trust Act 1963, there could be no enforceable contract. Even though the High Court referred to the submission of the Appellant that the letter of intent was subject to ratification by the Board and and the only witness of the Respondent-Port Trust had admitted that no contract had been concluded, the High Court did not deal with the same. The High Court observed:….The main reliance placed by the Visakhapatnam Port Trust under Clause 16 of the tender conditions in Ex.A.1, was that in the event of non-supply of the material, the Port Trust has right to cancel the contract itself whereas the case of the Company was that there was no contract at all. Therefore, one has to see whether there was really any concluded or enforceable contract before one could blame the other. There has been a quite re-assertion through the evidence on behalf of the Port Trust by P.W.1. There is a reference to a mention in Ex.A.8 as to the ratification by the Board, which according to the M/s Padia Timber Company Pvt. Ltd., nothing is forthcoming. Further, P.W.1 during his cross-examination, stated that it is true that the contract was not concluded. However, that itself cannot be a reflection on the nature of intent, which could follow the facts and circumstances in the documents, which are staring at. It is to be seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals.... With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant.56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted.59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded.60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice. | 1 | 6,641 | 1,755 | ### 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:
seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals... 54. With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant. 55. The Trial Court relied on Section 4 of the Contract Act, but completely overlooked Section 7. Section 7 of the Indian Contract Act, 1872 is set out hereinbelow for convenience:- 7. Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must— —In order to convert a proposal into a promise the acceptance must— (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance. 56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made. 57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place. 58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted. 59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded. 60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice.
### Response:
1
### Explanation:
the tender conditions in Ex.A.1, was that in the event of non-supply of the material, the Port Trust has right to cancel the contract itself whereas the case of the Company was that there was no contract at all. Therefore, one has to see whether there was really any concluded or enforceable contract before one could blame the other. There has been a quite re-assertion through the evidence on behalf of the Port Trust by P.W.1. There is a reference to a mention in Ex.A.8 as to the ratification by the Board, which according to the M/s Padia Timber Company Pvt. Ltd., nothing is forthcoming. Further, P.W.1 during his cross-examination, stated that it is true that the contract was not concluded. However, that itself cannot be a reflection on the nature of intent, which could follow the facts and circumstances in the documents, which are staring at. It is to be seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals.... With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant.56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted.59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded.60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice.
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Major Gopal Singh And Others Vs. Custodian, Evacuee Property, Punjab | The question whether it could be rectified by any of the authorities constituted by the Displaced Persons (Compensation and Rehabilitation) Act or not was not canvassed before us and, therefore, there is no occasion for us to say anything about it.13. Mr. Achhru Ram contended that R. 74 of the Displaced Persons (compensation and Rehabilitation) Rules, 1955, stood in the way of the Custodian allotting the Raikot property to the respondents during the pendency of the proceedings before the Custodian-General. That rule reads as follows :"Allotments which are the subject-matter of dispute. - No property in a rural area in respect of which any case is pending in a Civil Court or before a Deputy Custodian, Custodian or custodian-General, shall be transferred to the allottee".The aforesaid rule is in Chapter X headed "Payment of compensation under S. 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi-permanent basis. Moreover, this rule applies to a proceeding before an authority created by the Displaced Persons (Compensation and Rehabilitation) Act and not to an authority created by the Administration of Evacuee Property Act. There is, therefore, no sub- stance in this argument.14. Finally Mr. Achhru Ram referred to S. 17 of the 1954 Act and to R. 102 of the Rules framed thereunder and said that the powers of the managing officers appointed under the Act are confined only to properties which are entrusted to them for management and not with respect to any other property. Section 17 deals with the functions and duties of managing officers and managing corporation. Sub-section (1) provides that managing officers and managing corporations will performs such functions as may be assigned to them under the Act. Sub-section (2) provides that subject to the provisions of the Act and the rules made thereunder, a managing officer or a managing corporation may, among other things, take such measures as he or it considers it necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it... etc. The argument is that unless there is such "entrustment" the managing officer or managing corporation has no function to perform with respect to evacuee property. His contention appears to be that there is nothing to show that this property was "entrusted" to a managing officer. In the first place the section confers the particular powers on managing officers or managing corporations only and no one else. Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment. Further, there is no ground in the special leave petition or in the statement of the case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation. He cannot, therefore, be permitted to make out a new case at this stage of argument. That apart, this argument assumes that the property, despite the publication of the notification under S. 12(1) of the Act continues to be evacuee property. Again this provision is a general provision and the particular provision regarding cancellation of allotment is S. 19(1) of the Act which does not refer to entrustment at all and it is this provision. He then contends that the provisions of S. 19(1) of the Act being subject to rules made under the Act must be read along with R. 102 which deals with cancellation of allotments of leases. That rule reads thus :"Cancellation of allotments and leases - A managing officer or a managing corporation may sell any property in the compensation pool entrusted to him or it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be-(a) has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or(b) has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or(c) has committed any act which is destructive of or permanently injurious to the property, or(d) for any other sufficient reason to be recorded in writing :Provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard."He points out that in the place, the rule speaks of land entrusted to the manager and, therefore, would operate only if entrustment is established. What we have said in regard to S. 17 would apply here also. He then says that this rule restricts the powers of a managing officer or a managing corporation in the matter of cancellation of allotment in the sense that it permits cancellation only on certain specified grounds and, therefore, it cannot be said that S. 19(1) of the Act is completely in conflict with S. 10 of the Administration of Evacuee Property Act in so far as the question of cancellation of allotment is concerned. We cannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, cl. (d) of R. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing." The only effect of R. 102 is to permit cancellation of an allotment for reasons stated. That is all. In our opinion therefore, this rule does not help the appellants.15. Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of Ss. 12 and 19 of the Act it is not necessary to consider them. | 0[ds]8. There is no specific provision in this Act to the effect that after its commen-cement the jurisdiction of the various authorities created by the Administration of Evacuee Property Act, 1950, to deal with the allotment or cancellation of allotment of evacuee property shalldoubt, under S. 10 of the Administration of Evacuee Property Act the Custodian in empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person. Apart from the fact that subsequent to the issue of the notification under S. 12 (1) of the Displaced Persons (Compensation and Rehabilitation ) Act, the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by S. 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act. In other words, to that extent the provisions of S. 10 of the 1950 Act and S. 19 of the 1954 Act cannot stand together. As already stated the powers conferred by sub-sec (1) of S. 19 of the 1954 Act are to prevail notwithstanding anything contained in any other law for the time being in force. Therefore, they must prevail over the provisions of S. 10 of the Administration of Evacuee Property Act. It is true that there is nothing on record to show that a managing officer was appointed with respect to the Raikot properties acquired under the notification dated March 24. 1955.But it is not necessary to ascertain that fact. The point is who after the coming into force of the 1954 Act, could cancel an allotment. Section 10 says that only a managing officer or a managing corporation can do so even though some other law may have authorised another person or authority to cancel anis no doubt true that the Raikot lands were allotted to the appellants under the notification referred to in cl. (a) of this section and, therefore, they would be entitled to the benefits conferred by this section provided they satisfied all the other requirements of this section, express or implied. It is implicit in this section that the displaced person to whom land was allotted "held" the land and was in possession of such property at the date of the notification. It is not disputed that the appellants ceased to hold and had lost possession of the Raikot lands before the publication of this notification. Even assuming that the order of the Custodian cancelling the allotment in their favour was erroneous there will be no difference in the result because what is essential is the facts of holding and possession of the land on the date of thewould repeat that the appellants had lost their possession before the publication of the notification and are thus not entitled to the protection of the section. Moreover, the Custodian, by reason of the divesting of the property, as from March 24, 1955, had become functus officio with respect to it and could not rectify any error made by him in the past in the matter of cancellation of allotment. It is true that had the appellants been in possession at the critical time they would have had the right to obtain a permanent transfer in their favour of the Raikot lands and by virtue of what happened and without any fault on their part they have been deprived of that right. That is indeed unfortunate but none of the authorities created by the Administration of Evacuee Property Act could rectify the wrong that has been done by them to the appellant. The question whether it could be rectified by any of the authorities constituted by the Displaced Persons (Compensation and Rehabilitation) Act or not was not canvassed before us and, therefore, there is no occasion for us to say anything aboutaforesaid rule is in Chapter X headed "Payment of compensation under S. 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi-permanent basis. Moreover, this rule applies to a proceeding before an authority created by the Displaced Persons (Compensation and Rehabilitation) Act and not to an authority created by the Administration of Evacuee Property Act. There is, therefore, no sub- stance in thiscontention appears to be that there is nothing to show that this property was "entrusted" to a managing officer. In the first place the section confers the particular powers on managing officers or managing corporations only and no one else. Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment. Further, there is no ground in the special leave petition or in the statement of the case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation. He cannot, therefore, be permitted to make out a new case at this stage of argument. That apart, this argument assumes that the property, despite the publication of the notification under S. 12(1) of the Act continues to be evacuee property. Again this provision is a general provision and the particular provision regarding cancellation of allotment is S. 19(1) of the Act which does not refer to entrustment at all and it is thiswe have said in regard to S. 17 would apply herecannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, cl. (d) of R. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing." The only effect of R. 102 is to permit cancellation of an allotment for reasons stated. That is all. In our opinion therefore, this rule does not help the appellants.15. Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of Ss. 12 and 19 of the Act it is not necessary to consider them. | 0 | 3,773 | 1,133 | ### Instruction:
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The question whether it could be rectified by any of the authorities constituted by the Displaced Persons (Compensation and Rehabilitation) Act or not was not canvassed before us and, therefore, there is no occasion for us to say anything about it.13. Mr. Achhru Ram contended that R. 74 of the Displaced Persons (compensation and Rehabilitation) Rules, 1955, stood in the way of the Custodian allotting the Raikot property to the respondents during the pendency of the proceedings before the Custodian-General. That rule reads as follows :"Allotments which are the subject-matter of dispute. - No property in a rural area in respect of which any case is pending in a Civil Court or before a Deputy Custodian, Custodian or custodian-General, shall be transferred to the allottee".The aforesaid rule is in Chapter X headed "Payment of compensation under S. 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi-permanent basis. Moreover, this rule applies to a proceeding before an authority created by the Displaced Persons (Compensation and Rehabilitation) Act and not to an authority created by the Administration of Evacuee Property Act. There is, therefore, no sub- stance in this argument.14. Finally Mr. Achhru Ram referred to S. 17 of the 1954 Act and to R. 102 of the Rules framed thereunder and said that the powers of the managing officers appointed under the Act are confined only to properties which are entrusted to them for management and not with respect to any other property. Section 17 deals with the functions and duties of managing officers and managing corporation. Sub-section (1) provides that managing officers and managing corporations will performs such functions as may be assigned to them under the Act. Sub-section (2) provides that subject to the provisions of the Act and the rules made thereunder, a managing officer or a managing corporation may, among other things, take such measures as he or it considers it necessary or expedient for the purpose of securing, administering, preserving, managing or disposing of any property in the compensation pool entrusted to him or it... etc. The argument is that unless there is such "entrustment" the managing officer or managing corporation has no function to perform with respect to evacuee property. His contention appears to be that there is nothing to show that this property was "entrusted" to a managing officer. In the first place the section confers the particular powers on managing officers or managing corporations only and no one else. Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment. Further, there is no ground in the special leave petition or in the statement of the case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation. He cannot, therefore, be permitted to make out a new case at this stage of argument. That apart, this argument assumes that the property, despite the publication of the notification under S. 12(1) of the Act continues to be evacuee property. Again this provision is a general provision and the particular provision regarding cancellation of allotment is S. 19(1) of the Act which does not refer to entrustment at all and it is this provision. He then contends that the provisions of S. 19(1) of the Act being subject to rules made under the Act must be read along with R. 102 which deals with cancellation of allotments of leases. That rule reads thus :"Cancellation of allotments and leases - A managing officer or a managing corporation may sell any property in the compensation pool entrusted to him or it, cancel an allotment or terminate a lease, or vary the terms of any such lease or allotment if the allottee or lessee, as the case may be-(a) has sublet or parted with the possession of the whole or any part of the property allotted or leased to him without the permission of a competent authority, or(b) has used or is using such property for a purpose other than that for which it was allotted or leased to him without the permission of a competent authority, or(c) has committed any act which is destructive of or permanently injurious to the property, or(d) for any other sufficient reason to be recorded in writing :Provided that no action shall be taken under this rule unless the allottee or the lessee, as the case may be, has been given a reasonable opportunity of being heard."He points out that in the place, the rule speaks of land entrusted to the manager and, therefore, would operate only if entrustment is established. What we have said in regard to S. 17 would apply here also. He then says that this rule restricts the powers of a managing officer or a managing corporation in the matter of cancellation of allotment in the sense that it permits cancellation only on certain specified grounds and, therefore, it cannot be said that S. 19(1) of the Act is completely in conflict with S. 10 of the Administration of Evacuee Property Act in so far as the question of cancellation of allotment is concerned. We cannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, cl. (d) of R. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing." The only effect of R. 102 is to permit cancellation of an allotment for reasons stated. That is all. In our opinion therefore, this rule does not help the appellants.15. Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of Ss. 12 and 19 of the Act it is not necessary to consider them.
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of allotment of evacuee property shalldoubt, under S. 10 of the Administration of Evacuee Property Act the Custodian in empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person. Apart from the fact that subsequent to the issue of the notification under S. 12 (1) of the Displaced Persons (Compensation and Rehabilitation ) Act, the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by S. 19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act. In other words, to that extent the provisions of S. 10 of the 1950 Act and S. 19 of the 1954 Act cannot stand together. As already stated the powers conferred by sub-sec (1) of S. 19 of the 1954 Act are to prevail notwithstanding anything contained in any other law for the time being in force. Therefore, they must prevail over the provisions of S. 10 of the Administration of Evacuee Property Act. It is true that there is nothing on record to show that a managing officer was appointed with respect to the Raikot properties acquired under the notification dated March 24. 1955.But it is not necessary to ascertain that fact. The point is who after the coming into force of the 1954 Act, could cancel an allotment. Section 10 says that only a managing officer or a managing corporation can do so even though some other law may have authorised another person or authority to cancel anis no doubt true that the Raikot lands were allotted to the appellants under the notification referred to in cl. (a) of this section and, therefore, they would be entitled to the benefits conferred by this section provided they satisfied all the other requirements of this section, express or implied. It is implicit in this section that the displaced person to whom land was allotted "held" the land and was in possession of such property at the date of the notification. It is not disputed that the appellants ceased to hold and had lost possession of the Raikot lands before the publication of this notification. Even assuming that the order of the Custodian cancelling the allotment in their favour was erroneous there will be no difference in the result because what is essential is the facts of holding and possession of the land on the date of thewould repeat that the appellants had lost their possession before the publication of the notification and are thus not entitled to the protection of the section. Moreover, the Custodian, by reason of the divesting of the property, as from March 24, 1955, had become functus officio with respect to it and could not rectify any error made by him in the past in the matter of cancellation of allotment. It is true that had the appellants been in possession at the critical time they would have had the right to obtain a permanent transfer in their favour of the Raikot lands and by virtue of what happened and without any fault on their part they have been deprived of that right. That is indeed unfortunate but none of the authorities created by the Administration of Evacuee Property Act could rectify the wrong that has been done by them to the appellant. The question whether it could be rectified by any of the authorities constituted by the Displaced Persons (Compensation and Rehabilitation) Act or not was not canvassed before us and, therefore, there is no occasion for us to say anything aboutaforesaid rule is in Chapter X headed "Payment of compensation under S. 10 of the Act" and deals with a transfer of property to an allottee by way of final settlement of his claim to compensation and does not deal with the question of allotment on a quasi-permanent basis. Moreover, this rule applies to a proceeding before an authority created by the Displaced Persons (Compensation and Rehabilitation) Act and not to an authority created by the Administration of Evacuee Property Act. There is, therefore, no sub- stance in thiscontention appears to be that there is nothing to show that this property was "entrusted" to a managing officer. In the first place the section confers the particular powers on managing officers or managing corporations only and no one else. Therefore, even if no managing officer or managing corporation was appointed with respect to that property no one else could exercise the power of cancellation of allotment. Further, there is no ground in the special leave petition or in the statement of the case that there is no entrustment in fact of this property or this class of properties to a managing officer or managing corporation. He cannot, therefore, be permitted to make out a new case at this stage of argument. That apart, this argument assumes that the property, despite the publication of the notification under S. 12(1) of the Act continues to be evacuee property. Again this provision is a general provision and the particular provision regarding cancellation of allotment is S. 19(1) of the Act which does not refer to entrustment at all and it is thiswe have said in regard to S. 17 would apply herecannot accept the argument because, apart from the fact that the acquired properties have ceased to be evacuee properties, cl. (d) of R. 102 permits the managing officer or managing corporation to cancel allotment "for any other sufficient reason to be recorded in writing." The only effect of R. 102 is to permit cancellation of an allotment for reasons stated. That is all. In our opinion therefore, this rule does not help the appellants.15. Mr. Khanna had raised three other points but upon the view which we have taken as to the effect of Ss. 12 and 19 of the Act it is not necessary to consider them.
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State Of U.P Vs. M/S Lakshmi Sugar & Oil Mills Ltd | the land in question was never held or occupied by the respondent-Company for cultivation purposes. The exemption claimed by the respondent-company was on that basis declined and the land held to have vested in the Corporation as part of the undertaking. The following passage from the order passed by the Settlement Officer (Consolidation) Hardoi is relevant: "Copies of U.P. Sugar Undertaking (Acquisition) Act 1971 (as amended) and CH Form 21 (A) relating to the disputed land has been filed wherein in Column 6 the name of Laxmi Sugar Mill is registered. In Column 8 the disputed land is shown outside consolidation and in column 24 the same is shown as parti zadid on site, parti usar, rugged terrain and uneven hillocks. In this manner there is no evidence/ entry regarding any cultivation on this land or the disputed land to be an agriculture land. Accordingly, the disputed land is found not to be an agricultural land. The disputed land has been acquired in favour of U.P. Sugar Corporation Limited Unit Hardoi under aforesaid gazette. If the appellant had any objection in that regard then, as per law, he was to lodge proceedings against notification before the Honble High Court, but in this regard there is no evidence available on records. Therefore the allegation that the disputed land is an agriculture land and therefore the same is to be registered in the name of Laxmi Sugar and Oil Mills Limited, Hardoi instead of U.P. Sugar Corporation Limited, is baseless and devoid of merits. The disputed land has been acquired in favour of U.P. State Sugar Corporation Limited. It is for this reason the learned consolidation officer has rightly registered the same in the name of U.P. Sugar Corporation Limited Unit Hardoi and the portion of the aforesaid land registered in Account No. 82, 49 of Village Dheear Maholia and Account No. 245 of Village Nagheta has already been registered in the name of U.P. Sugar Corporation Limited Unit Hardoi after deletion of the name of Laxmi Sugar & Oil Mills by the S.D.O. Hardoi vide his order dated 14.02.1987. Accordingly, the order of Learned Consolidation Officer is lawful and proper and does not warrant any interference. The appeal does not have any force and is devoid of merit." (emphasis supplied) 18. The order passed by the District Consolidation Director/Collector, Hardoi also concurred with the view taken by the Officers below and held that there was no evidence on record to show that the subject land was ever held or occupied for agricultural purposes or that any agricultural activity was ever carried out on the same. These concurrent findings of fact, in our opinion, could not have been reversed by the High Court in its writ jurisdiction. The High Court obviously failed to appreciate that it was not sitting in appeal over the findings recorded by the authorities below. It could not reappraise the material and hold that the land was held or occupied for cultivation and substitute its own finding for that of the authorities. In as much as the High Court did so, it committed an error. It is noteworthy that the revenue record clearly belied the assertion of the respondent company and described the land as "Parti Kadim Tilla" which meant that the land has not been cultivated for a long time and is in the form of a hillock. 19. It was next argued by learned counsel for the appellant that the claim for exemption from acquisition was even otherwise unfounded keeping in view the fact that the land in question had been treated as exempted under Section 6(1)(a) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 on the ground that the same was held for industrial purposes being a part of the sugar factory. If the land in question was indeed held for cultivation purposes as alleged by the company, it could not remain immune to the rigors of the Ceiling Act. It was excluded from the application of the said Act only because it was treated as industrially attached to the sugar factory. The respondent-company has not been able to effectively refute that contention of the appellant-Corporation. If the land had indeed been treated as industrial for purposes of the Ceiling Act we find it difficult to see how the same could be treated to be held or occupied for cultivation, for the purposes of U.P. Sugar Undertakings (Acquisition) Act, 1971. 20. As noticed earlier it is not the case of the respondent-company that although the land was non-agricultural and although the same was held and occupied for industrial purposes, the industrial purpose for which it was held by the company was un-related to the sugar factory. No such plea having been raised or urged at any stage, the subject land has been rightly taken as vested in the Corporation. The land in question is situate in the immediate vicinity of the sugar factory. The fact situation is thus completely different from that of Burwal Sugar Mills case (supra) where the registered office of the company sought to be taken over was in Kanpur while the sugar factory was itself at Baragaon. Distance between the factory and the asset held by the company may not be a true test for determining whether the same is a part of the undertaking but in the absence of any evidence, showing cultivation, the close proximity of the land to the factory is a strong circumstance that cannot be ignored.21. In the circumstance, therefore, we find it difficult to uphold the order passed by the High Court not only because the High Court acted as if it was sitting in appeal over the findings of fact recorded by the authorities below but also because the High Court failed to notice that the land was exempted from the Ceiling Act on the ground of being used for industrial purpose which in the context of the present case meant that it was used for the purpose of sugar factory. | 1[ds]16. It is evident not only from a plain reading of Section 2(h) (supra) but also the interpretation placed upon the same by this Court that grovelands and lands held for cultivation are excluded from the definition of undertaking. But all other lands and buildings if held or occupied for the purpose of the sugar factory would comprise the undertaking and would upon acquisition vest in thenoticed earlier it is not the case of the respondent-company that although the land was non-agricultural and although the same was held and occupied for industrial purposes, the industrial purpose for which it was held by the company was un-related to the sugar factory. No such plea having been raised or urged at any stage, the subject land has been rightly taken as vested in the Corporation. The land in question is situate in the immediate vicinity of the sugar factory. The fact situation is thus completely different from that of Burwal Sugar Mills case (supra) where the registered office of the company sought to be taken over was in Kanpur while the sugar factory was itself at Baragaon. Distance between the factory and the asset held by the company may not be a true test for determining whether the same is a part of the undertaking but in the absence of any evidence, showing cultivation, the close proximity of the land to the factory is a strong circumstance that cannot be ignored.21. In the circumstance, therefore, we find it difficult to uphold the order passed by the High Court not only because the High Court acted as if it was sitting in appeal over the findings of fact recorded by the authorities below but also because the High Court failed to notice that the land was exempted from the Ceiling Act on the ground of being used for industrial purpose which in the context of the present case meant that it was used for the purpose of sugar factory. | 1 | 3,743 | 352 | ### Instruction:
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the land in question was never held or occupied by the respondent-Company for cultivation purposes. The exemption claimed by the respondent-company was on that basis declined and the land held to have vested in the Corporation as part of the undertaking. The following passage from the order passed by the Settlement Officer (Consolidation) Hardoi is relevant: "Copies of U.P. Sugar Undertaking (Acquisition) Act 1971 (as amended) and CH Form 21 (A) relating to the disputed land has been filed wherein in Column 6 the name of Laxmi Sugar Mill is registered. In Column 8 the disputed land is shown outside consolidation and in column 24 the same is shown as parti zadid on site, parti usar, rugged terrain and uneven hillocks. In this manner there is no evidence/ entry regarding any cultivation on this land or the disputed land to be an agriculture land. Accordingly, the disputed land is found not to be an agricultural land. The disputed land has been acquired in favour of U.P. Sugar Corporation Limited Unit Hardoi under aforesaid gazette. If the appellant had any objection in that regard then, as per law, he was to lodge proceedings against notification before the Honble High Court, but in this regard there is no evidence available on records. Therefore the allegation that the disputed land is an agriculture land and therefore the same is to be registered in the name of Laxmi Sugar and Oil Mills Limited, Hardoi instead of U.P. Sugar Corporation Limited, is baseless and devoid of merits. The disputed land has been acquired in favour of U.P. State Sugar Corporation Limited. It is for this reason the learned consolidation officer has rightly registered the same in the name of U.P. Sugar Corporation Limited Unit Hardoi and the portion of the aforesaid land registered in Account No. 82, 49 of Village Dheear Maholia and Account No. 245 of Village Nagheta has already been registered in the name of U.P. Sugar Corporation Limited Unit Hardoi after deletion of the name of Laxmi Sugar & Oil Mills by the S.D.O. Hardoi vide his order dated 14.02.1987. Accordingly, the order of Learned Consolidation Officer is lawful and proper and does not warrant any interference. The appeal does not have any force and is devoid of merit." (emphasis supplied) 18. The order passed by the District Consolidation Director/Collector, Hardoi also concurred with the view taken by the Officers below and held that there was no evidence on record to show that the subject land was ever held or occupied for agricultural purposes or that any agricultural activity was ever carried out on the same. These concurrent findings of fact, in our opinion, could not have been reversed by the High Court in its writ jurisdiction. The High Court obviously failed to appreciate that it was not sitting in appeal over the findings recorded by the authorities below. It could not reappraise the material and hold that the land was held or occupied for cultivation and substitute its own finding for that of the authorities. In as much as the High Court did so, it committed an error. It is noteworthy that the revenue record clearly belied the assertion of the respondent company and described the land as "Parti Kadim Tilla" which meant that the land has not been cultivated for a long time and is in the form of a hillock. 19. It was next argued by learned counsel for the appellant that the claim for exemption from acquisition was even otherwise unfounded keeping in view the fact that the land in question had been treated as exempted under Section 6(1)(a) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 on the ground that the same was held for industrial purposes being a part of the sugar factory. If the land in question was indeed held for cultivation purposes as alleged by the company, it could not remain immune to the rigors of the Ceiling Act. It was excluded from the application of the said Act only because it was treated as industrially attached to the sugar factory. The respondent-company has not been able to effectively refute that contention of the appellant-Corporation. If the land had indeed been treated as industrial for purposes of the Ceiling Act we find it difficult to see how the same could be treated to be held or occupied for cultivation, for the purposes of U.P. Sugar Undertakings (Acquisition) Act, 1971. 20. As noticed earlier it is not the case of the respondent-company that although the land was non-agricultural and although the same was held and occupied for industrial purposes, the industrial purpose for which it was held by the company was un-related to the sugar factory. No such plea having been raised or urged at any stage, the subject land has been rightly taken as vested in the Corporation. The land in question is situate in the immediate vicinity of the sugar factory. The fact situation is thus completely different from that of Burwal Sugar Mills case (supra) where the registered office of the company sought to be taken over was in Kanpur while the sugar factory was itself at Baragaon. Distance between the factory and the asset held by the company may not be a true test for determining whether the same is a part of the undertaking but in the absence of any evidence, showing cultivation, the close proximity of the land to the factory is a strong circumstance that cannot be ignored.21. In the circumstance, therefore, we find it difficult to uphold the order passed by the High Court not only because the High Court acted as if it was sitting in appeal over the findings of fact recorded by the authorities below but also because the High Court failed to notice that the land was exempted from the Ceiling Act on the ground of being used for industrial purpose which in the context of the present case meant that it was used for the purpose of sugar factory.
### Response:
1
### Explanation:
16. It is evident not only from a plain reading of Section 2(h) (supra) but also the interpretation placed upon the same by this Court that grovelands and lands held for cultivation are excluded from the definition of undertaking. But all other lands and buildings if held or occupied for the purpose of the sugar factory would comprise the undertaking and would upon acquisition vest in thenoticed earlier it is not the case of the respondent-company that although the land was non-agricultural and although the same was held and occupied for industrial purposes, the industrial purpose for which it was held by the company was un-related to the sugar factory. No such plea having been raised or urged at any stage, the subject land has been rightly taken as vested in the Corporation. The land in question is situate in the immediate vicinity of the sugar factory. The fact situation is thus completely different from that of Burwal Sugar Mills case (supra) where the registered office of the company sought to be taken over was in Kanpur while the sugar factory was itself at Baragaon. Distance between the factory and the asset held by the company may not be a true test for determining whether the same is a part of the undertaking but in the absence of any evidence, showing cultivation, the close proximity of the land to the factory is a strong circumstance that cannot be ignored.21. In the circumstance, therefore, we find it difficult to uphold the order passed by the High Court not only because the High Court acted as if it was sitting in appeal over the findings of fact recorded by the authorities below but also because the High Court failed to notice that the land was exempted from the Ceiling Act on the ground of being used for industrial purpose which in the context of the present case meant that it was used for the purpose of sugar factory.
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State of Uttar Pradesh, Etc Vs. Synthetics and Chemicals Limited and Others Etc | nor fee but only a levy for the conferment of the exclusive privilege. It is true that the stand taken by the Government in the earlier proceedings was different but that would not make any difference so long as the Government had a right to impose the levy. It has been found that after the addition of S. 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for conferring the privilege which the State owned exclusively. The learned counsel submitted that so far as his clients M/s. Rallis Chemicals, Kanpur and M/s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are concerned they are only holders of licences for possession and are not licencees under F.L. 16. In the same class fall the appellants in Civil Appeal No. 2248 of 1 978, M/s. Synthetic and Chemicals who are only purchasers of denatured spirit. It was submitted that for this class of persons if the vend fee is for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers. Rule 17(1) relates to vend of denatured spirit. It empowers the Collector (1) to grant to a distiller a licence for manufacture of denatured spirit (2) to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit. Scale of fee is given in the rule which prescribes that for sales not exceeding 10, 000 litres per annum a fee w ill be of Rs. 100/- and for sales exceeding 10, 000 litres, the fee shall be increased by Rs. 500/- for every 5000 litres or fraction thereof. Subrule (2) provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued. The fee charged is very different from the one in Rule 17(1) which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16. The distiller and the approved dealer is to pay a licence fee for t he sales at the rate prescribed. But rule (2) speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued. It is admitted that the petitioners and the appellants who claim as purchasers do not have a licence under F.L. 16. Therefore, sub-s. (1) has no application. The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit. The permission granted in their favour and the allo tment orders of the specially denatured spirit prescribes the terms and conditions under which the allotment is made. The licences are granted to them under form F.L. 39 and they have to abide by those conditions. The notification of the Excise Commissioner of U.P. dated 3-5-1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds. We are concerned with the licences for the possession for use in industries in which alcohol is destroyed or converted chemically in the process into other products and the product does not contain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc. The licence granted for th is purpose is in form F.L. 39. Rule 3(a) provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obt ained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery. The conditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4. Special conditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5. The appellants/petitioners having applied for and obtained licences in form F.L. 39 are bound to comply with the conditions.Lastly, it was contended that the provisions of Uttar Pradesh Excise (Amendment) (Re-enactment and Validation) Act, 1976 is invalid and confiscatory as its retrospective operation imposes an unbearable burden on the appellants/petitioners. It was stated that the licence under F.L. 39 was issued only in the year 1979 and no levy could be made regarding denatured spirit that was supplied before that date. T he answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries. The parties after having paid the fee had taken possession of t he denatured spirit from the distillery. Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court b y giving retrospective effect, the State has only restored the status quo enabling the collection of the levy validly made by Act 30 of 1972. 29. Reliance was placed on the decision of this Court in A. B. Abdul Kadir &ors etc. v. State of Kerala for the contention that retrospective operation of an Act when it harshly operates is liable to be held as invalid. At page 706 this Court observed that the power to make a valid law would enable providing for prospective and retrospective operation of the provisions. It was observed that in judging the reasonableness of the retrospective operation of law, the test of length of time covered by the retrospective operation could not by itself be treated as decisive. On the facts of the case there could be no complaint because what is sought to be collected is levy which was legally made. 30. | 0[ds]In the context it is clear that the decisions proceeded on the basis that the word intoxicating liquor is not confined to potable liquor alone but would include all liquor which contain alcoholWe are unable to accept this contention for in Balsaras case after explicitly approving of the definition of word liquor in various Abkari Act s in the Provinces of India, the Court held that liquor would not only cover alcoholic liquor which is generally used for beverage purposes and produce intoxication but would also include liquids containing alcoholThough most of the cases deal t with the right of the State Government as regard auction of country liquor, in Balsaras case, Nashirwars case and Har Shankars case, the Court was concerned with the right of the State Government over foreign liquorReading various Ethyl Alcohol (Price Control) orders passed by the Government from time to time, it is clear that the order permitted the adding of the expenses incurred for transportation, payment of octroi duty etc. to the price fixed. We are unable to read the Ethyl Alcohol (Price Control) orders as explicitly or impliedly taking away the power of the State to regulate the distribution of intoxicating liquor by collecting a levy for parting with its exclusive rightsThe decision does not help the appellants for on the facts it is clear that the entire field relating to mines and minerals had been occupied and taken away from the Legislature and as such it was beyond the competence of the State to legislate on mines and minerals. In the case before us the position is different because the power of the State Legislature to legislate in respect of the intoxicating liquor and its exclusive right regarding intoxicating liquor cannot be questionedIn view of the stand taken by the State, it is unnecessary for us to go into the question as to whether the levy is a tax or a fee. We are unable to give the words foreign liquor such a restricted meaning for the word consumption cannot be confined to consumption of beverage alone. When liquor is put to any use such as manufacture of other articles, the liquor is all the same consumed. Further, S. 4(2) provides that the State may declare what shall be deemed to be country liquor or foreign liquor. The State had under rule 12 issued notification dated 30th December, 1960 defining foreign liquor as meaning all rectified, perfumed, medicated and denatured spirit, wherever made. The plea that the Excise Commissioner had no right to accept payment in consideration for the grant of the licence for the exclusive privilege for selling wholesale or retail foreign liquor which includes denatured spirit, cannot, therefore be accepted. Rule 17(2) no doubt purports to have been issued under the rule making powers conferred on the Government under S. 40(2)(d) which enables the Government to make rules for regulating the import, export, trans port for possession of any intoxicants. It may be noted that when the amended rule 17(2) was introduced on 3-11-1972, S. 24A had been amended by U.P. Act, 30/1972 and the power of the Excise Commissioner to accept payment for grant of licence for exclusive privilege cannot be deniedBy a notification the Excise Commissioner of U.P. on 3-5-1976 framed U.P. Licences for the possession of denatured spirit and specially denatured spirit Rules, 1976. In the preamble to the r ules, it is stated that the Excise Commissioner with the previous sanction of the State Government was making the rules relating to licence for possession of denatured spirit including specially denatured spirit for industrial purposes. Rule 1 (i ii) provides that specially denatured spirit means rendered unfit for human consumption in such manner as may be prescribed by the Excise Commissioner by notification in this behalf and does not include ordinary denatured spirit for general u se. Rule 2 provides that licences for the possession of the denatured spirit including specially denatured spirit for industrial purpose shall be of three kindsWe are unable to accept the contention of the learned counsel that specially denatured spirit for industrial purpose is different from the ordinary denatured spirit. The definition of alcohol under rule 12 includes both ordinary as well as specially denatured spirit.It was next contended that if the levy of Re. 1.10p per bulk gallon of denatured spirit as vend fee, is upheld it would result in violating the appellants/petitioners fundamental right to carry on their trade and business under Art. 19(1)(g) of the Constitution. According to the learned counsel, the price fixed per gallon of ethyl alcohol under the Ethyl Alcohol (Price Control) order is 59 paise, per gallon. If the levy is not considered as a tax and could not be passed on to the consumer as price fixed under the Ethyl Alcohol Amendment order, is only 59 p., it would be confiscatory in nature. It is seen that the right of the S tate Government to accept payment of a sum for the grant of its exclusive privilege cannot be questioned. The price fixed for ethyl alcohol is ex-distillery price and we see no impediment for the addition of Re. 1.10 as vend fee by the State GovernmentIt is true that the stand taken by the Government in the earlier proceedings was different but that would not make any difference so long as the Government had a right to impose the levy. It has been found that after the addition of S. 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for conferring the privilege which the State owned exclusively. The learned counsel submitted that so far as his clients M/s. Rallis Chemicals, Kanpur and M/s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are concerned they are only holders of licences for possession and are not licencees under F.L. 16. In the same class fall the appellants in Civil Appeal No. 2248 of 1 978, M/s. Synthetic and Chemicals who are only purchasers of denatured spirit. It was submitted that for this class of persons if the vend fee is for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers. Rule 17(1) relates to vend of denatured spirit. It empowers the Collector (1) to grant to a distiller a licence for manufacture of denatured spirit (2) to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit. Scale of fee is given in the rule which prescribes that for sales not exceeding 10, 000 litres per annum a fee w ill be of Rs. 100/- and for sales exceeding 10, 000 litres, the fee shall be increased by Rs. 500/- for every 5000 litres or fraction thereof. Subrule (2) provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued. The fee charged is very different from the one in Rule 17(1) which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16. The distiller and the approved dealer is to pay a licence fee for t he sales at the rate prescribed. But rule (2) speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued. It is admitted that the petitioners and the appellants who claim as purchasers do not have a licence under F.L. 16. Therefore, sub-s. (1) has no application. The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit. The permission granted in their favour and the allo tment orders of the specially denatured spirit prescribes the terms and conditions under which the allotment is made. The licences are granted to them under form F.L. 39 and they have to abide by those conditions. The notification of the Excise Commissioner of U.P. dated 3-5-1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds. We are concerned with the licences for the possession for use in industries in which alcohol is destroyed or converted chemically in the process into other products and the product does not contain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc. The licence granted for th is purpose is in form F.L. 39. Rule 3(a) provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obt ained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery. The conditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4. Special conditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5. The appellants/petitioners having applied for and obtained licences in form F.L. 39 are bound to comply with the conditions.Lastly, it was contended that the provisions of Uttar Pradesh Excise (Amendment) (Re-enactment and Validation) Act, 1976 is invalid and confiscatory as its retrospective operation imposes an unbearable burden on the appellants/petitioners. It was stated that the licence under F.L. 39 was issued only in the year 1979 and no levy could be made regarding denatured spirit that was supplied before that date. T he answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries. The parties after having paid the fee had taken possession of t he denatured spirit from the distillery. Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court b y giving retrospective effect, the State has only restored the status quo enabling the collection of the levy validly made by Act 30 of 1972On the facts of the case there could be no complaint because what is sought to be collected is levy which was legally made. | 0 | 9,801 | 1,925 | ### 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:
nor fee but only a levy for the conferment of the exclusive privilege. It is true that the stand taken by the Government in the earlier proceedings was different but that would not make any difference so long as the Government had a right to impose the levy. It has been found that after the addition of S. 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for conferring the privilege which the State owned exclusively. The learned counsel submitted that so far as his clients M/s. Rallis Chemicals, Kanpur and M/s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are concerned they are only holders of licences for possession and are not licencees under F.L. 16. In the same class fall the appellants in Civil Appeal No. 2248 of 1 978, M/s. Synthetic and Chemicals who are only purchasers of denatured spirit. It was submitted that for this class of persons if the vend fee is for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers. Rule 17(1) relates to vend of denatured spirit. It empowers the Collector (1) to grant to a distiller a licence for manufacture of denatured spirit (2) to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit. Scale of fee is given in the rule which prescribes that for sales not exceeding 10, 000 litres per annum a fee w ill be of Rs. 100/- and for sales exceeding 10, 000 litres, the fee shall be increased by Rs. 500/- for every 5000 litres or fraction thereof. Subrule (2) provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued. The fee charged is very different from the one in Rule 17(1) which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16. The distiller and the approved dealer is to pay a licence fee for t he sales at the rate prescribed. But rule (2) speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued. It is admitted that the petitioners and the appellants who claim as purchasers do not have a licence under F.L. 16. Therefore, sub-s. (1) has no application. The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit. The permission granted in their favour and the allo tment orders of the specially denatured spirit prescribes the terms and conditions under which the allotment is made. The licences are granted to them under form F.L. 39 and they have to abide by those conditions. The notification of the Excise Commissioner of U.P. dated 3-5-1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds. We are concerned with the licences for the possession for use in industries in which alcohol is destroyed or converted chemically in the process into other products and the product does not contain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc. The licence granted for th is purpose is in form F.L. 39. Rule 3(a) provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obt ained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery. The conditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4. Special conditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5. The appellants/petitioners having applied for and obtained licences in form F.L. 39 are bound to comply with the conditions.Lastly, it was contended that the provisions of Uttar Pradesh Excise (Amendment) (Re-enactment and Validation) Act, 1976 is invalid and confiscatory as its retrospective operation imposes an unbearable burden on the appellants/petitioners. It was stated that the licence under F.L. 39 was issued only in the year 1979 and no levy could be made regarding denatured spirit that was supplied before that date. T he answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries. The parties after having paid the fee had taken possession of t he denatured spirit from the distillery. Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court b y giving retrospective effect, the State has only restored the status quo enabling the collection of the levy validly made by Act 30 of 1972. 29. Reliance was placed on the decision of this Court in A. B. Abdul Kadir &ors etc. v. State of Kerala for the contention that retrospective operation of an Act when it harshly operates is liable to be held as invalid. At page 706 this Court observed that the power to make a valid law would enable providing for prospective and retrospective operation of the provisions. It was observed that in judging the reasonableness of the retrospective operation of law, the test of length of time covered by the retrospective operation could not by itself be treated as decisive. On the facts of the case there could be no complaint because what is sought to be collected is levy which was legally made. 30.
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0
### Explanation:
to the learned counsel, the price fixed per gallon of ethyl alcohol under the Ethyl Alcohol (Price Control) order is 59 paise, per gallon. If the levy is not considered as a tax and could not be passed on to the consumer as price fixed under the Ethyl Alcohol Amendment order, is only 59 p., it would be confiscatory in nature. It is seen that the right of the S tate Government to accept payment of a sum for the grant of its exclusive privilege cannot be questioned. The price fixed for ethyl alcohol is ex-distillery price and we see no impediment for the addition of Re. 1.10 as vend fee by the State GovernmentIt is true that the stand taken by the Government in the earlier proceedings was different but that would not make any difference so long as the Government had a right to impose the levy. It has been found that after the addition of S. 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for conferring the privilege which the State owned exclusively. The learned counsel submitted that so far as his clients M/s. Rallis Chemicals, Kanpur and M/s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are concerned they are only holders of licences for possession and are not licencees under F.L. 16. In the same class fall the appellants in Civil Appeal No. 2248 of 1 978, M/s. Synthetic and Chemicals who are only purchasers of denatured spirit. It was submitted that for this class of persons if the vend fee is for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers. Rule 17(1) relates to vend of denatured spirit. It empowers the Collector (1) to grant to a distiller a licence for manufacture of denatured spirit (2) to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit. Scale of fee is given in the rule which prescribes that for sales not exceeding 10, 000 litres per annum a fee w ill be of Rs. 100/- and for sales exceeding 10, 000 litres, the fee shall be increased by Rs. 500/- for every 5000 litres or fraction thereof. Subrule (2) provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued. The fee charged is very different from the one in Rule 17(1) which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16. The distiller and the approved dealer is to pay a licence fee for t he sales at the rate prescribed. But rule (2) speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued. It is admitted that the petitioners and the appellants who claim as purchasers do not have a licence under F.L. 16. Therefore, sub-s. (1) has no application. The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit. The permission granted in their favour and the allo tment orders of the specially denatured spirit prescribes the terms and conditions under which the allotment is made. The licences are granted to them under form F.L. 39 and they have to abide by those conditions. The notification of the Excise Commissioner of U.P. dated 3-5-1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds. We are concerned with the licences for the possession for use in industries in which alcohol is destroyed or converted chemically in the process into other products and the product does not contain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc. The licence granted for th is purpose is in form F.L. 39. Rule 3(a) provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obt ained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery. The conditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4. Special conditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5. The appellants/petitioners having applied for and obtained licences in form F.L. 39 are bound to comply with the conditions.Lastly, it was contended that the provisions of Uttar Pradesh Excise (Amendment) (Re-enactment and Validation) Act, 1976 is invalid and confiscatory as its retrospective operation imposes an unbearable burden on the appellants/petitioners. It was stated that the licence under F.L. 39 was issued only in the year 1979 and no levy could be made regarding denatured spirit that was supplied before that date. T he answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries. The parties after having paid the fee had taken possession of t he denatured spirit from the distillery. Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court b y giving retrospective effect, the State has only restored the status quo enabling the collection of the levy validly made by Act 30 of 1972On the facts of the case there could be no complaint because what is sought to be collected is levy which was legally made.
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Kochukunju Nair Vs. Koshy Alexander | on that point ad different times. In Vasudevan v. Sreemathi Amma, 1966 Kerala Law Times 594 a single judge took the view that the person who has joint ownership of the necessary extent of land is disentitled to the rights of Kudikidappukaran. Buta contrary view was adopted by a Division Bench in Pennamma v. St. Pauls Convent, 1972 Kerala Law Times 12. Another Division Bench has held in Vasistha Vadhyar v. Mohini Bai, 1975 Kerala Law Times 365 thus : "A member of a joint family has no ownership or possession exclusively on any portion of the property belonging to the joint family. Therefore, the fact that a person owns land with others as joint tenant cannot disentitle him from the protection extended under s. 2(25) of the Act. On the words of the section, this is the only conclusion that can be arrived at." Nonetheless, the Division Bench doubted whether the above principle can be extended to a tenant-in-common since possession of such a person is different from the possession of a co-parcener or member of a tarward. However, a single judge in Damodaran v. Vasukutty, 1978 Kerala Law Times 1 took the view that there is no distinction between a member of joint family and a tenant-in-common or a co-owner and that he too can claim to be a Kudikidappukarn. 8. We are not now considering the question whether a person who has right in a joint family property can be treated as one in possession of that land. But we do consider now whether a person who is a co-owner along with others can be treated as owner and whether he is in possession thereof. 9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essential are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. (vide Mitras Co-ownership and Partition, Seventh Edn.). 10. A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath and ors., AIR 1976 SC 2335 that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships : "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place." 11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents. | 0[ds]11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.15. So looking from any angle, appellant has no right to claim that he is a Kudikidappukaran in respect of the building which is the subject matter of the suit. | 0 | 1,918 | 578 | ### Instruction:
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on that point ad different times. In Vasudevan v. Sreemathi Amma, 1966 Kerala Law Times 594 a single judge took the view that the person who has joint ownership of the necessary extent of land is disentitled to the rights of Kudikidappukaran. Buta contrary view was adopted by a Division Bench in Pennamma v. St. Pauls Convent, 1972 Kerala Law Times 12. Another Division Bench has held in Vasistha Vadhyar v. Mohini Bai, 1975 Kerala Law Times 365 thus : "A member of a joint family has no ownership or possession exclusively on any portion of the property belonging to the joint family. Therefore, the fact that a person owns land with others as joint tenant cannot disentitle him from the protection extended under s. 2(25) of the Act. On the words of the section, this is the only conclusion that can be arrived at." Nonetheless, the Division Bench doubted whether the above principle can be extended to a tenant-in-common since possession of such a person is different from the possession of a co-parcener or member of a tarward. However, a single judge in Damodaran v. Vasukutty, 1978 Kerala Law Times 1 took the view that there is no distinction between a member of joint family and a tenant-in-common or a co-owner and that he too can claim to be a Kudikidappukarn. 8. We are not now considering the question whether a person who has right in a joint family property can be treated as one in possession of that land. But we do consider now whether a person who is a co-owner along with others can be treated as owner and whether he is in possession thereof. 9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essential are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. (vide Mitras Co-ownership and Partition, Seventh Edn.). 10. A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath and ors., AIR 1976 SC 2335 that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships : "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place." 11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.
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11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.15. So looking from any angle, appellant has no right to claim that he is a Kudikidappukaran in respect of the building which is the subject matter of the suit.
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Sahu Madho Das And Others Vs. Pandit Mukand Ram And Another(And Connected Appeal) | back on it to the detriment of other persons; all the more so when he himself receives a benefit : see Raja Modhu Sudan Singh v. Rooke ([1897] 24 I.A. 164, 169); Bijoy Gopal v. Krishna ([1906] 34 I.A. 87), and Ramgouda Annagouda v. Bhausaheb ([1927] 54 I.A. 396). Lord Sinha, delivering the judgment of the Privy Council in the last of these three cases, said at page 402 :-"It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioner, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding."40. This was followed in Dhiyan Singh v. Jugal Kishore (1952 S.C.R. 478, 488) though the ground of that decision was estoppel. We are now founding on another principle which is not grounded on estoppel and which, indeed, is not peculiar to Hindu law.Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintiff is not shut out from asserting anything. We are assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement. The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it.41. So far as the Hindu law is concerned, Lord Dunedin explained in Rangaswami Gounden v. Nachiappa Gounden ([1918] 46 I.A. 72, 86, 87), a case in which a widow gifted properties to her nephew, that though the reversioner is not called upon to exercise his right to avoid until the reversion falls in and so no assent can be inferred from mere inaction prior to the death or deaths of the limited owner or owners, he is not bound to wait and"of course something might be done even before that time which amounted to an actual election to hold the deed good."42. Ramgouda case ([1927] 54 I.A. 396, 402) is an illustration of what that something can be, for there the assent was given by the ultimate reversioner before he became in titulo to alienations by a widow, one of which was a gift. The present case is another illustration. For the reasons we have given and which we shall now further examine, we hold that the plaintiff, who is in titulo now that the succession has opened out, unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit under it, therefore, he is now precluded from avoiding it, and any attempts he made to go behind that assent when it suited his purpose cannot render the assent one given nugatory and even though the assent was to a series of gifts.The real question is whether the plaintiff assented to the family arrangement, and as plaintiff was not a party to the arrangement his assent to the arrangement itself, and not to something else, must be clearly established, and also his knowledge of the facts. But we think they have been. In the first place, there was the express assent in 1890 to the gifts made to the other grandsons on the basis that each grandson got an absolute estate. Next, there was the long course of dealings by Kanhaiya Lal and Mukand Ram in which they asserted absolute titles. Mukand Ram tells us in the witness box as P.W. 11 (C.A. 91) that Kanhaiya Lal was the karta of the joint family to which Mukand Ram belonged, therefore Kanhaiya Lals dealings with the properties which he and his brother held under a joint and undivided title are also relevant as they will bind Mukand Ram. And lastly, there is Mukand Rams representation to Shyam Lal (D.W. 1 in C.A. 94) which leaves us in no doubt about his knowledge. The cumulative effect of this course of conduct leads to a reasonable inference that Kanhaiya Lal and Mukand Ram were holding, not on the basis of a separate and individual gift made by a life owner with the assent of the next set of life owners, but on the basis of the family arrangement which was one composite whole in which the several dispositions formed parts of the same transaction under which Mukand Ram himself acquired a part of the estate : see Ramgouda v. Bhausaheb ([1927] 54 I.A. 396, 402). We are therefore satisfied that the plaintiffs assent was to this very arrangement; and that concludes both cases.43. In C.A. 94/50 there is, in addition, a direct personal estoppel against the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made by two of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees but to the first defendant who obtained title to the properties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the representation to the first defendants purchases. It was made by Kanhaiya Lal and Mukand Ram as well as by other members of the family. We have already referred to the first defendants evidence. This case would therefore be governed by Dhiyan Singh v. Jugal Kishore (1952 S.C.R. 478) in any event. But we need not elaborate this further because of the other principle which, in our opinion, is sufficient to dispose of both the present cases. | 1[ds]Now it is true that the so-called will of 1864 does not make provision for the grandsons, nor does it expressly confer an absolute estate on the legatees, but the witness is illiterate and had to depend on what he was told about the contends and meaning of the document, and what we have to test is the truth of his assertion that the plaintiff Mukand Ram and Kanhaiya Lal, and other members of the family, told him that Mst. Pato had given the property to her daughters and grandsons. If they told him this, as he says they did, then it operates as an admission against Mukand Ram and shifts the burden of proof to him because he was one of the persons who made the statement. The statements made by the others are not relevant except in so far as they prove the conduct of the family.The plaintiff (P.W. 11 in C.A. 91/50) admits that Mst. Pato divided the estate but says that it was only for convenience of management and that neither she nor her daughters had, or pretended to have, anything more than a life estate. He denies that there was any gift or family arrangement. But he had to admit that the grandsons also got properties at the same time. His explanation is that it was for the purposes of "shradh" and pilgrimage to Gaya and he says that though they were given possession they were not thealso admits that there was a division and separate possession from 1876. He says that it was for convenience of management and says that it was after Patos death, but in view of the mass of evidence that we have just analysed, we think it far more likely that he told Shyam Lal just what Shyam Lal says he did. After all, he was borrowing money from Shyam Lal on each of these occasions; so there is every reason to believe that he would have told Shyam Lal what he had so repeatedly asserted to his other transferees. We accordingly believe Shyamaccordingly hold that, whether the property belonged to Pato or to Nanak Chand, Pato claimed an absolute right which the daughters acknowledged, and in return they and their sons were given separate and absolute estates in separate portions of the propertyis well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour or family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration isfar as they are concerned, what they received were gifts pure and simple and the only assent that could be inferred from mere acceptance of the gift and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others; and for thisC.A. 94/50 there is, in addition, a direct personal estoppel against the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made by two of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees but to the first defendant who obtained title to the properties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the representation to the first defendants purchases. It was made by Kanhaiya Lal and Mukand Ram as well as by other members of the family. We have already referred to the first defendantswe need not elaborate this further because of the other principle which, in our opinion, is sufficient to dispose of both the present cases. | 1 | 8,893 | 947 | ### Instruction:
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back on it to the detriment of other persons; all the more so when he himself receives a benefit : see Raja Modhu Sudan Singh v. Rooke ([1897] 24 I.A. 164, 169); Bijoy Gopal v. Krishna ([1906] 34 I.A. 87), and Ramgouda Annagouda v. Bhausaheb ([1927] 54 I.A. 396). Lord Sinha, delivering the judgment of the Privy Council in the last of these three cases, said at page 402 :-"It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioner, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding."40. This was followed in Dhiyan Singh v. Jugal Kishore (1952 S.C.R. 478, 488) though the ground of that decision was estoppel. We are now founding on another principle which is not grounded on estoppel and which, indeed, is not peculiar to Hindu law.Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintiff is not shut out from asserting anything. We are assuming in his favour that Pato had only a life estate and we are examining at length his assertion that he did not assent to the family arrangement. The principle we are applying is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it.41. So far as the Hindu law is concerned, Lord Dunedin explained in Rangaswami Gounden v. Nachiappa Gounden ([1918] 46 I.A. 72, 86, 87), a case in which a widow gifted properties to her nephew, that though the reversioner is not called upon to exercise his right to avoid until the reversion falls in and so no assent can be inferred from mere inaction prior to the death or deaths of the limited owner or owners, he is not bound to wait and"of course something might be done even before that time which amounted to an actual election to hold the deed good."42. Ramgouda case ([1927] 54 I.A. 396, 402) is an illustration of what that something can be, for there the assent was given by the ultimate reversioner before he became in titulo to alienations by a widow, one of which was a gift. The present case is another illustration. For the reasons we have given and which we shall now further examine, we hold that the plaintiff, who is in titulo now that the succession has opened out, unequivocally assented to the arrangement with full knowledge of the facts and accepted benefit under it, therefore, he is now precluded from avoiding it, and any attempts he made to go behind that assent when it suited his purpose cannot render the assent one given nugatory and even though the assent was to a series of gifts.The real question is whether the plaintiff assented to the family arrangement, and as plaintiff was not a party to the arrangement his assent to the arrangement itself, and not to something else, must be clearly established, and also his knowledge of the facts. But we think they have been. In the first place, there was the express assent in 1890 to the gifts made to the other grandsons on the basis that each grandson got an absolute estate. Next, there was the long course of dealings by Kanhaiya Lal and Mukand Ram in which they asserted absolute titles. Mukand Ram tells us in the witness box as P.W. 11 (C.A. 91) that Kanhaiya Lal was the karta of the joint family to which Mukand Ram belonged, therefore Kanhaiya Lals dealings with the properties which he and his brother held under a joint and undivided title are also relevant as they will bind Mukand Ram. And lastly, there is Mukand Rams representation to Shyam Lal (D.W. 1 in C.A. 94) which leaves us in no doubt about his knowledge. The cumulative effect of this course of conduct leads to a reasonable inference that Kanhaiya Lal and Mukand Ram were holding, not on the basis of a separate and individual gift made by a life owner with the assent of the next set of life owners, but on the basis of the family arrangement which was one composite whole in which the several dispositions formed parts of the same transaction under which Mukand Ram himself acquired a part of the estate : see Ramgouda v. Bhausaheb ([1927] 54 I.A. 396, 402). We are therefore satisfied that the plaintiffs assent was to this very arrangement; and that concludes both cases.43. In C.A. 94/50 there is, in addition, a direct personal estoppel against the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made by two of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees but to the first defendant who obtained title to the properties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the representation to the first defendants purchases. It was made by Kanhaiya Lal and Mukand Ram as well as by other members of the family. We have already referred to the first defendants evidence. This case would therefore be governed by Dhiyan Singh v. Jugal Kishore (1952 S.C.R. 478) in any event. But we need not elaborate this further because of the other principle which, in our opinion, is sufficient to dispose of both the present cases.
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### Explanation:
Now it is true that the so-called will of 1864 does not make provision for the grandsons, nor does it expressly confer an absolute estate on the legatees, but the witness is illiterate and had to depend on what he was told about the contends and meaning of the document, and what we have to test is the truth of his assertion that the plaintiff Mukand Ram and Kanhaiya Lal, and other members of the family, told him that Mst. Pato had given the property to her daughters and grandsons. If they told him this, as he says they did, then it operates as an admission against Mukand Ram and shifts the burden of proof to him because he was one of the persons who made the statement. The statements made by the others are not relevant except in so far as they prove the conduct of the family.The plaintiff (P.W. 11 in C.A. 91/50) admits that Mst. Pato divided the estate but says that it was only for convenience of management and that neither she nor her daughters had, or pretended to have, anything more than a life estate. He denies that there was any gift or family arrangement. But he had to admit that the grandsons also got properties at the same time. His explanation is that it was for the purposes of "shradh" and pilgrimage to Gaya and he says that though they were given possession they were not thealso admits that there was a division and separate possession from 1876. He says that it was for convenience of management and says that it was after Patos death, but in view of the mass of evidence that we have just analysed, we think it far more likely that he told Shyam Lal just what Shyam Lal says he did. After all, he was borrowing money from Shyam Lal on each of these occasions; so there is every reason to believe that he would have told Shyam Lal what he had so repeatedly asserted to his other transferees. We accordingly believe Shyamaccordingly hold that, whether the property belonged to Pato or to Nanak Chand, Pato claimed an absolute right which the daughters acknowledged, and in return they and their sons were given separate and absolute estates in separate portions of the propertyis well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour or family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration isfar as they are concerned, what they received were gifts pure and simple and the only assent that could be inferred from mere acceptance of the gift and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others; and for thisC.A. 94/50 there is, in addition, a direct personal estoppel against the plaintiff. The transfers that are challenged there are sales of 23-9-18 and 25-11-19 made by two of the grandsons, one personally and the other by the guardian, but the relevant dates for the purposes of the estoppel are later because the representation in this case was not made to the immediate transferees but to the first defendant who obtained title to the properties at a later date, in one case by a sale from the immediate transferee, in the other by pre-emption. But the exact dates do not matter because the representation to the first defendants purchases. It was made by Kanhaiya Lal and Mukand Ram as well as by other members of the family. We have already referred to the first defendantswe need not elaborate this further because of the other principle which, in our opinion, is sufficient to dispose of both the present cases.
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Divisional Controller Maharashtra State Road Transport Corporation Vs. Kalawati Pandurang Fulzele | with item (1) of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 before the Labour Court, Chandrapur against the appellant – MSRTC. In the complaint basically she challenged her termination. It was her case in the complaint that she worked without any break and while terminating her services she was neither paid any retrenchment compensation nor notice of one month or wages in lieu thereof were given to her. No seniority list was either prepared or published and there was violation of Section 25-G and Rule 81 of the Industrial Disputes Act (Bombay) Rules, 1957. 2.1 The Labour Court vide judgment and award dated 20.06.2002 directed the appellant to reinstate her with back wages on the ground that termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. The Labour Court also held that the provision of Section 2(oo)(bb) of the Industrial Disputes Act shall be applicable. 2.2 Feeling aggrieved and dissatisfied with the order passed by the Labour Court of reinstatement and back wages, the MSRTC preferred revision petition before the Industrial Court and by judgment and order dated 01.07.2003, the Industrial Court allowed the said Revision Application No.339 of 2002 and set aside the judgment and award passed by the Labour Court dated 20.06.2002 in Complaint (ULPA) No. 135 of 1994. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Industrial Court, the respondent-workman preferred writ petition before the High Court being Writ Petition No. 3819 of 2003. By judgment and order dated 04.06.2007, the learned Single Judge of the High Court allowed the said writ petition and set aside the judgment and order passed by the Industrial Court and restored the award passed by the Labour Court of reinstatement and back wages. 2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge restoring the award passed by the Labour Court of reinstatement and back wages and holding the termination of the respondent in breach of Sections 25-F and 25-G of the Industrial Disputes Act, the MSRTC preferred the Letters Patent Appeal before the Division Bench of the High Court and by the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal, hence the MSRTC has preferred the present appeal. 3. Ms. Mayuri Raghuvanshi, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in ordering reinstatement of the respondent with back wages. It is submitted that the High Court has materially erred in observing and/or confirming the order passed by the Labour Court holding that there was a breach of Sections 25-F and 25-G of the Industrial Disputes Act. It is submitted that the appointment of the respondent was on purely contractual basis and for a particular period and on completion of the contractual period, her services were put to end. It is therefore submitted that when she was serving as a part-timer on contractual basis, Section 2(oo)(bb) of the Industrial Disputes Act shall not be applicable and therefore there is no question of breach of Sections 25-F and 25-G of the Industrial Disputes Act as held by the Labour Court and confirmed by the High Court. 3.1 Making above submissions, it is prayed to allow the present appeal. 4. Present appeal is vehemently opposed by Shri Subhasish Bhowmick, learned counsel appearing on behalf of the respondent – workman. 4.1 It is submitted that as such there are concurrent findings recorded by the three courts below that the termination of the respondent was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. It is submitted that once it is found that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act, the Labour Court rightly ordered reinstatement with back wages. 4.2 It is further submitted by Shri Subhasish Bhowmick, learned counsel appearing on behalf of the respondent- workman that as such the complaint was made by the respondent alleging unfair labour practices. It is submitted that the respondent was appointed in place of her husband, who was serving as a coolie in the MSRTC, however, unfortunately, he became blind and, in his place, the respondent was appointed. It is submitted that as she continuously worked till her services were terminated and there was no break in service, the termination is rightly held to be in violation of Sections 25-F and 25-G of the Industrial Disputes Act. 4.3 Making above submissions, it is prayed to dismiss the present appeal. 5. We have heard the learned counsel appearing for the respective parties at length. 6. It is true that as such all the three courts below (except the Industrial Court) held the termination of the respondent – workman in breach of Sections 25-F and 25-G of the Industrial Disputes Act and, therefore, the Labour Court ordered reinstatement with back wages. However, it is required to be noted that even as per the appointment order produced by the respondent herself, her appointment was on contractual basis at a fixed salary/honorarium of Rs. 500/- per month. Though, it is a case on behalf of the appellant that her appointment was a fixed term appointment, however, considering the appointment order, the appointment was till further orders. Be that it may, the fact remains that her appointment was on contractual basis and on a fixed salary/honorarium of Rs.500/- per month. It also cannot be disputed that she worked approximately for four years as a sweeper. As such there were no specific averments/allegations in the complaint on any unfair labour practice. Even there was no specific finding recorded by the Labour Court that there was any unfair labour practice adopted by the MSRTC. The only finding recorded by the Labour Court was that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. | 1[ds]6. It is true that as such all the three courts below (except the Industrial Court) held the termination of the respondent – workman in breach of Sections 25-F and 25-G of the Industrial Disputes Act and, therefore, the Labour Court ordered reinstatement with back wages. However, it is required to be noted that even as per the appointment order produced by the respondent herself, her appointment was on contractual basis at a fixed salary/honorarium of Rs. 500/- per month. Though, it is a case on behalf of the appellant that her appointment was a fixed term appointment, however, considering the appointment order, the appointment was till further orders. Be that it may, the fact remains that her appointment was on contractual basis and on a fixed salary/honorarium of Rs.500/- per month. It also cannot be disputed that she worked approximately for four years as a sweeper. As such there were no specific averments/allegations in the complaint on any unfair labour practice. Even there was no specific finding recorded by the Labour Court that there was any unfair labour practice adopted by the MSRTC. The only finding recorded by the Labour Court was that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. | 1 | 1,326 | 235 | ### 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:
with item (1) of Schedule IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 before the Labour Court, Chandrapur against the appellant – MSRTC. In the complaint basically she challenged her termination. It was her case in the complaint that she worked without any break and while terminating her services she was neither paid any retrenchment compensation nor notice of one month or wages in lieu thereof were given to her. No seniority list was either prepared or published and there was violation of Section 25-G and Rule 81 of the Industrial Disputes Act (Bombay) Rules, 1957. 2.1 The Labour Court vide judgment and award dated 20.06.2002 directed the appellant to reinstate her with back wages on the ground that termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. The Labour Court also held that the provision of Section 2(oo)(bb) of the Industrial Disputes Act shall be applicable. 2.2 Feeling aggrieved and dissatisfied with the order passed by the Labour Court of reinstatement and back wages, the MSRTC preferred revision petition before the Industrial Court and by judgment and order dated 01.07.2003, the Industrial Court allowed the said Revision Application No.339 of 2002 and set aside the judgment and award passed by the Labour Court dated 20.06.2002 in Complaint (ULPA) No. 135 of 1994. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Industrial Court, the respondent-workman preferred writ petition before the High Court being Writ Petition No. 3819 of 2003. By judgment and order dated 04.06.2007, the learned Single Judge of the High Court allowed the said writ petition and set aside the judgment and order passed by the Industrial Court and restored the award passed by the Labour Court of reinstatement and back wages. 2.4 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge restoring the award passed by the Labour Court of reinstatement and back wages and holding the termination of the respondent in breach of Sections 25-F and 25-G of the Industrial Disputes Act, the MSRTC preferred the Letters Patent Appeal before the Division Bench of the High Court and by the impugned judgment and order, the Division Bench of the High Court has dismissed the said appeal, hence the MSRTC has preferred the present appeal. 3. Ms. Mayuri Raghuvanshi, learned counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a grave error in ordering reinstatement of the respondent with back wages. It is submitted that the High Court has materially erred in observing and/or confirming the order passed by the Labour Court holding that there was a breach of Sections 25-F and 25-G of the Industrial Disputes Act. It is submitted that the appointment of the respondent was on purely contractual basis and for a particular period and on completion of the contractual period, her services were put to end. It is therefore submitted that when she was serving as a part-timer on contractual basis, Section 2(oo)(bb) of the Industrial Disputes Act shall not be applicable and therefore there is no question of breach of Sections 25-F and 25-G of the Industrial Disputes Act as held by the Labour Court and confirmed by the High Court. 3.1 Making above submissions, it is prayed to allow the present appeal. 4. Present appeal is vehemently opposed by Shri Subhasish Bhowmick, learned counsel appearing on behalf of the respondent – workman. 4.1 It is submitted that as such there are concurrent findings recorded by the three courts below that the termination of the respondent was in breach of Sections 25-F and 25-G of the Industrial Disputes Act. It is submitted that once it is found that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act, the Labour Court rightly ordered reinstatement with back wages. 4.2 It is further submitted by Shri Subhasish Bhowmick, learned counsel appearing on behalf of the respondent- workman that as such the complaint was made by the respondent alleging unfair labour practices. It is submitted that the respondent was appointed in place of her husband, who was serving as a coolie in the MSRTC, however, unfortunately, he became blind and, in his place, the respondent was appointed. It is submitted that as she continuously worked till her services were terminated and there was no break in service, the termination is rightly held to be in violation of Sections 25-F and 25-G of the Industrial Disputes Act. 4.3 Making above submissions, it is prayed to dismiss the present appeal. 5. We have heard the learned counsel appearing for the respective parties at length. 6. It is true that as such all the three courts below (except the Industrial Court) held the termination of the respondent – workman in breach of Sections 25-F and 25-G of the Industrial Disputes Act and, therefore, the Labour Court ordered reinstatement with back wages. However, it is required to be noted that even as per the appointment order produced by the respondent herself, her appointment was on contractual basis at a fixed salary/honorarium of Rs. 500/- per month. Though, it is a case on behalf of the appellant that her appointment was a fixed term appointment, however, considering the appointment order, the appointment was till further orders. Be that it may, the fact remains that her appointment was on contractual basis and on a fixed salary/honorarium of Rs.500/- per month. It also cannot be disputed that she worked approximately for four years as a sweeper. As such there were no specific averments/allegations in the complaint on any unfair labour practice. Even there was no specific finding recorded by the Labour Court that there was any unfair labour practice adopted by the MSRTC. The only finding recorded by the Labour Court was that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act.
### Response:
1
### Explanation:
6. It is true that as such all the three courts below (except the Industrial Court) held the termination of the respondent – workman in breach of Sections 25-F and 25-G of the Industrial Disputes Act and, therefore, the Labour Court ordered reinstatement with back wages. However, it is required to be noted that even as per the appointment order produced by the respondent herself, her appointment was on contractual basis at a fixed salary/honorarium of Rs. 500/- per month. Though, it is a case on behalf of the appellant that her appointment was a fixed term appointment, however, considering the appointment order, the appointment was till further orders. Be that it may, the fact remains that her appointment was on contractual basis and on a fixed salary/honorarium of Rs.500/- per month. It also cannot be disputed that she worked approximately for four years as a sweeper. As such there were no specific averments/allegations in the complaint on any unfair labour practice. Even there was no specific finding recorded by the Labour Court that there was any unfair labour practice adopted by the MSRTC. The only finding recorded by the Labour Court was that the termination was in breach of Sections 25-F and 25-G of the Industrial Disputes Act.
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Bhopal Sugar Industries Limited Vs. State of Madhya Pradesh & Others | that an order of assessment cannot be presumed when it has not really been made. It has therefore been argued that as an order of assessment was not made in the present case, it could not be presumed or deemed to have been made simply because a demand was raised for the purpose of affecting the recovery of the cess from the appellant.10. The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub-section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the collector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector, -"63. The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier o f the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the period specified."The responsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice.11. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess.12. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the per son from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub-section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector.13. As has been pointed out by the High Court, the Appellants letter (Ext. R-I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5, 44, 835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (Ex. R-2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib-Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5, 44, 835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary. | 0[ds]There are two provisos to the sub-section, but they are not relevant for the purpose of the controversy before us. It would appear from sub-section that it permits the State Government to impose the cess on the entry of sugarcane into any area that may be specified in its notification, and there is nothing in it to confine the imposition to a "local area". As has been held by this Court in Diamond Sugar Mills Ltd and Another v. State of Uttar Pradesh and Another when a similar point arose for consideration with the U.P. Sugarcane Cess Act, 1956, the proper meaning to be attached to the words "local area" in Entry 52 List II of the Seventh Schedule of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a panchayat or the like". It has been clearly laid down that the premises of a factory are therefore not a "local area". This court accordingly struck down section 3 of the U.P. Act empowering the Governor to impose a cess on the entry of sugarcane into the premises of the factory on the ground that it did not fall within Entry 52 of the State List and there was no other Entry in the State List or the Concurrent List in which the Act could fall. It is therefore futile for the appellant to contend that section 23 of the State Act was not ultra-vires the Constitution or that it can be upheld on such a construction of the words "an area" in section 23 as to restrict it to mean a "local area".6. The decision in Diamond Sugar Mills case came up for consideration in this Court in Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh and others with a specific reference to the provisions of the State Act, and it was once again held, following that decision, that the imposition of the cess was outside the legislative competence of the State. While examining that aspect of the controversy, this Court made it clear that what Parliament had done by enacting section 3 of the Validation Act was not to validate the invalid State Statutes, but to make a law concerning the cess covered by the said Statutes and to provide that the said law s hall come into operation retrospectively. This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because the relevant sections, notification, orders, and rules had been adopted by the Parliamentary Statute itself.7. It will thus appear that the argument of Mr. Desai to the contrary is of no consequence.The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub-section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the collector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector,The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier o f the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the periodresponsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice.11. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess.12. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the per son from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub-section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector.13. As has been pointed out by the High Court, the Appellants letter (Ext. R-I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5, 44, 835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (Ex. R-2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib-Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5, 44, 835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary. | 0 | 2,858 | 1,542 | ### 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:
that an order of assessment cannot be presumed when it has not really been made. It has therefore been argued that as an order of assessment was not made in the present case, it could not be presumed or deemed to have been made simply because a demand was raised for the purpose of affecting the recovery of the cess from the appellant.10. The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub-section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the collector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector, -"63. The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier o f the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the period specified."The responsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice.11. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess.12. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the per son from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub-section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector.13. As has been pointed out by the High Court, the Appellants letter (Ext. R-I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5, 44, 835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (Ex. R-2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib-Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5, 44, 835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary.
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operation retrospectively. This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because the relevant sections, notification, orders, and rules had been adopted by the Parliamentary Statute itself.7. It will thus appear that the argument of Mr. Desai to the contrary is of no consequence.The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act. Sub-section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected. The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act. Rules 60 of the Rules provides that the collector shall be the authority empowered to "assess and collect" the cess. Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23. Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month. It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector. Then comes rule 63, which places the following responsibility on the Collector,The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury. If the Collector finds that the full amount of cess due from the occupier o f the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the periodresponsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory. The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury. If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice.11. The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess.12. It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned. "Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax. In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the per son from whom the tax has to be recovered. In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub-section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it. It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector.13. As has been pointed out by the High Court, the Appellants letter (Ext. R-I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5, 44, 835.69 That was therefore the admitted amount of the cess which had to be recovered. The Collector recorded an order (Ex. R-2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith. He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him. This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant. It seems that the Naib-Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5, 44, 835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons. There is thus no force in the argument of Mr. Desai to the contrary.
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Fida Hussain Vs. State Of Uttar Pradesh | Sarkar, J.1. The appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November 15, 1953. He did not, however, return to Pakistan within that date upon which he was convicted under S. 14 of the Foreigners Act, 1946, by a Sub-Divisional Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one year. His appeal to a Sessions Judge was dismissed and the High Court at Allahabad, on being moved in revision, refused to interfere with the order of the Sessions Judge. This appeal is against the judgment of the High Court.2. The appellant had been convicted for breach of paragraph 7 of the Foreigners Order of 1948, issued under S. 3 of the Foreigners Act. That paragraph requires that every foreigner entering India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As earlier stated the visa on the appellants passport showed that he had permission to stay in India till November 15, 1953, but he stayed on after that date. Hence the prosecution.3. It is contended on behalf of the appellant that he could not be convicted of a breach of paragraph 7 of the foreigners Order for that paragraph applies to a "foreigner" entering India on the authority of a visa issued in pursuance of the Indian Passport Act and overstaying the period for which he is permitted to stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a foreigner on the date of his entry into India. The appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph do not apply to him. This contention of the appellant is plainly correct. The paragraph contemplates a foreigner entering India, and therefore, a person who at the date of the entry was a foreigner.4. Now, the word "foreigner" in paragraph 7 has the same meaning as that word has in the Foreigners Act. The word "foreigner" is defined in that Act in S. 2(a). That definition has changed from time to time, but we are concerned with the definition as it stood in 1953 when the appellant entered India, which was in these terms:"foreigner" means a person who........(1) is not a natural-born British subject as defined in sub-secs. (1) and (2) of S. 1 of the British Nationality and Status of Aliens Act, 1914, or(2) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in British India, or(3) is not a citizen of India.The appellants contention is that he was not a foreigner because he came within Cl. (1) of the definition as he was a natural-born British subject within S. 1(1)(a) of the British Nationality and Status of Aliens Act, 1914. Now that provision is in these terms:Section 1. (1) The following persons shall be deemed to be natural-born British subjects, namely,-(a) any person born within His Majestys Dominion and allegiance.That the appellant was born at Allahabad at a time when it was within his Britannic Majestys Dominion is not in dispute. That being so, we think that it must be held that at the date of his entry into India the appellant was a natural-born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order. | 1[ds]That the appellant was born at Allahabad at a time when it was within his Britannic Majestys Dominion is not in dispute. That being so, we think that it must be held that at the date of his entry into India the appellant was a natural-born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order.Before leaving this case we think it right to make a few more observations. The definition of a foreigner in the Foreigners Act was amended with effect from January 19, 1957, by Act 11 of 1957. The definition since that date is as follows: " foreigner means a person who is not a citizen of India". Under S. 3(2) (c) of the Foreigners Act, the Central Government has power to provide by order made by it that a foreigner shall not remain in India. We wish to make it clear that we have said nothing as to the effect of the amended definition of "foreigner" on the status of the appellant. No question as to the effect of the amended definition on the appellants status fell for our decision in this case for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under S. 3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant. | 1 | 741 | 288 | ### 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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Sarkar, J.1. The appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended up to November 15, 1953. He did not, however, return to Pakistan within that date upon which he was convicted under S. 14 of the Foreigners Act, 1946, by a Sub-Divisional Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one year. His appeal to a Sessions Judge was dismissed and the High Court at Allahabad, on being moved in revision, refused to interfere with the order of the Sessions Judge. This appeal is against the judgment of the High Court.2. The appellant had been convicted for breach of paragraph 7 of the Foreigners Order of 1948, issued under S. 3 of the Foreigners Act. That paragraph requires that every foreigner entering India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As earlier stated the visa on the appellants passport showed that he had permission to stay in India till November 15, 1953, but he stayed on after that date. Hence the prosecution.3. It is contended on behalf of the appellant that he could not be convicted of a breach of paragraph 7 of the foreigners Order for that paragraph applies to a "foreigner" entering India on the authority of a visa issued in pursuance of the Indian Passport Act and overstaying the period for which he is permitted to stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a foreigner on the date of his entry into India. The appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph do not apply to him. This contention of the appellant is plainly correct. The paragraph contemplates a foreigner entering India, and therefore, a person who at the date of the entry was a foreigner.4. Now, the word "foreigner" in paragraph 7 has the same meaning as that word has in the Foreigners Act. The word "foreigner" is defined in that Act in S. 2(a). That definition has changed from time to time, but we are concerned with the definition as it stood in 1953 when the appellant entered India, which was in these terms:"foreigner" means a person who........(1) is not a natural-born British subject as defined in sub-secs. (1) and (2) of S. 1 of the British Nationality and Status of Aliens Act, 1914, or(2) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in British India, or(3) is not a citizen of India.The appellants contention is that he was not a foreigner because he came within Cl. (1) of the definition as he was a natural-born British subject within S. 1(1)(a) of the British Nationality and Status of Aliens Act, 1914. Now that provision is in these terms:Section 1. (1) The following persons shall be deemed to be natural-born British subjects, namely,-(a) any person born within His Majestys Dominion and allegiance.That the appellant was born at Allahabad at a time when it was within his Britannic Majestys Dominion is not in dispute. That being so, we think that it must be held that at the date of his entry into India the appellant was a natural-born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order.
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That the appellant was born at Allahabad at a time when it was within his Britannic Majestys Dominion is not in dispute. That being so, we think that it must be held that at the date of his entry into India the appellant was a natural-born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order.Before leaving this case we think it right to make a few more observations. The definition of a foreigner in the Foreigners Act was amended with effect from January 19, 1957, by Act 11 of 1957. The definition since that date is as follows: " foreigner means a person who is not a citizen of India". Under S. 3(2) (c) of the Foreigners Act, the Central Government has power to provide by order made by it that a foreigner shall not remain in India. We wish to make it clear that we have said nothing as to the effect of the amended definition of "foreigner" on the status of the appellant. No question as to the effect of the amended definition on the appellants status fell for our decision in this case for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under S. 3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant.
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PANKJESHWAR SHARMA AND OTHERS Vs. STATE OF JAMMU & KASHMIR AND OTHERS | appointed by this Court in exercise of its power under Article 142 of the Constitution for doing complete justice, is not reflected from the order of this Court dated 10 th May, 2007. We find substance in what being urged and hold that the order of this Court dated 10th May, 2007 was not under Article 142 of the Constitution and it was clearly reflected from the order itself that it was passed on the basis of the concession made by the learned Advocate General of the State and recorded by this Court in its order dated 10th May, 2007. 33. Further submission made by the learned Senior counsel for the appellants that they are higher in the order of merit qua these 22 candidates who were appointed by the 2 nd respondent taking shelter of the order of this Court dated 10 th May, 2007 is not legally sustainable and violative of Article 14 of the Constitution. The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants. 34. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake. 35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others (Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 ) observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. 36. In Arup Das and Others vs. State of Assam and Others (Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 ), this Court observed that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake. 37. It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals. 38. In Gujarat State Dy. Executive Engineers Assn. vs. State of Gujarat(Gujarat State Dy. Executive Engineers Assn. vs. State of Gujarat (1994) Supp 2 SCC 591), this Court recorded a finding that appointments given under the wait list were not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five years and more). 39. In Buddhi Nath Chaudhary vs. Abahi Kumar (Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 ), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candidates who have worked on the post for a long period. 40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India. | 0[ds]21. Unfortunately, the advertisement to the post of Sub- Inspector which was published by the 2 nd respondent way back on 25th February, 1999 with the condition that one has not crossed the age of 28 years as on 01 st January, 1999, after 21 years down the line, is still has not been finalised and we are pondering over the inter se dispute of the candidates who had participated in the selection process must have crossed the age of 43-47 years under the belief that they may still be considered for appointment.22. In the first round of litigation, when the controversy initially arose as to whether the merit list Province-wise in Jammu & Kashmir could have been prepared by the respondent and how far it can held to be in conformity with the scheme of rules, while examining the controversy, the learned Single Judge categorically observed that all those candidates who have secured less than 50 marks have no right to contend that they have been arbitrarily ignored on the basis of Province-wise selection and the claim of those candidates who have obtained 50 or more than 50 marks was left open to be considered by the learned Single Judge in the proceedings initially in the year 2000. The further dispute which was revisited/reviewed/re-examined by the Court at the later stage in the second round of litigation primarily confined to the candidates who obtained 50 or more than 50 marks under the zone of consideration for being considered for appointment on the post of Sub-Inspector pursuant to an advertisement dated 25th February, 1999.23. The indistputed facts which manifest from the record as noticed above is that the advertisement came to be notified by the 2nd respondent dated 25th February, 1999 holding selections for the post of Sub-Inspector and the present batch of appeals are preferred by the appellants/participants being higher in the order of merit qua those 22 candidates who were appointed by the 2 nd respondent vide orders 23rd February, 2008 and 11th March, 2008 on the basis of the concession made by the learned Advocate General of the State recorded under order dated 10 th May, 2007 of this Court, with the claim that they have been deprived from fair consideration in seeking appointment.24. It is a settled principle of service jurisprudence and has been consistently followed by this Court that the rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates to be made as per the scheme of recruitment rules and appointments shall be made accordingly. At the same time, all the efforts shall be made for strict adherence to the procedure prescribed under the recruitment rules. On the contrary, if any appointments are made bypassing the recruitment procedure known to law, will resulted in violation of Article 14 and 16 of the Constitution. This Court in State of U.P. and Others vs. Rajkumar Sharma and Others (State of U.P. and Others vs. Rajkumar Sharma and Others (2006) 3 SCC 330 ) and later in Arup Das and Others vs. State of Assam and Others(Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 ) considered the question of filling up of vacancies over and above the number of vacancies advertised and held that the filling up of vacancies over and above the number of vacancies advertised would be violative of fundamental rights guaranteed under Article 14 and 16 of the Constitution and the selectees could not claim appointments as a matter of right. This Court further held that even if in some cases appointments had been made erroneously or by mistake, that did not confer any right of appointment to another person as Article 14 of the Constitution does not envisage negative equality and if the State or its authority had committed a mistake at any given stage, it cannot be forced to perpetuate the said mistake under the writ jurisdiction of the High Court under Article 226 of the Constitution. In a situation where the posts in excess of those advertised had been filled up in extraordinary circumstances, instead of invalidating the excess appointments, the relief could be moulded in such a manner so as to strike a just balance keeping the interest of the State and the interest of the person seeking public employment depends upon the facts of each case for which no set standard can be laid down.25. Initially when the selections were challenged in the year 2000, it was in reference to the policy decision taken by the State Government in preparing two separate merit lists of Jammu & Kashmir Provinces arising from a common advertisement dated 25th February, 1999 and it was indeed in clear contravention to the scheme of rules and the learned Single Judge of the High Court categorically observed that as the key of marks for Jammu & Kashmir Provinces are different and 50 marks being the lower among the two Provinces secured by the last candidate, the limited controversy examined by the learned Single Judge of the High Court was in the four corners confining it to the persons/candidates who obtained 50 or more marks in the selection process and still deprived from consideration for appointment.27. At the outset, those who secured less than 50 marks, their claim of consideration for appointment was eliminated by the learned Single Judge even in the first instance when the controversy initially raised by the candidates affected at a very threshold after the select list was notified by the 2 nd respondent in the year 2000 and if any person was aggrieved on account of his non-selection, secured 50 or more than 50 marks being deprived from fair consideration in seeking appointment, cause of action was accrued to him at such given point of time in the first place, when examined and decided by the learned Single Judge of the High Court by its judgment dated 16 th October, 2000 and directed the State authorities to consider all such candidates for appointment who have secured 50 or more than 50 marks if left out from being considered for appointment as their right of fair consideration is being seriously jeopardized which was although modified by the Division Bench at the later stage by its judgmentdated 19th August, 2002 as a consequence, 47 candidates were going to be affected in the first round of litigation. The later controversy remained confined to examine the fate of those 47 ousted candidates who could be over and above the candidates who are to be appointed in the redrawn merit list of the State of Jammu & Kashmir, to be adjusted despite being appointed and working for sufficient time deserve indulgence of the Court.28. That further litigation was raised at the behest of 47 ousted candidates, it has come on record that they were allowed to continue in the first instance under the interim order as they were already working for quite some time and finally their controversy reached to this Court in the second round of litigation and since much water has flown in the Ganges by that time and the alleged 47 ousted candidates were working right from the year 2000 and the department had incurred huge expenses on their training courses and they had taken part in anti-insurgency operations in the State and the State was concerned about them as there were apprehension of threat to their life, under these circumstances, the State has shown its intention to retain them in service.29. It reveals from the record that the Government intended to give quietus to the on-going litigation and in the second round of litigation in this Court as there were 22 interlocutory applications filed by the applicants in the pending proceedings, who were claiming their appointment, under the bonafide belief that certain vacancies are available with the State and if such 22 candidates who have filed their applications for impleadment in the pending proceedings in this Court if taken care of, atleast there will be a quietus to the on-going litigation and that appears to be the reason to which the learned Advocate General of the State made a statement before this Court that not only 47 ousted candidates who have been appointed and served for the last 7 years, such 22 candidates may also be accommodated on the post of Sub- Inspector and after recording the statement made by the learned Advocate General of the State, there left no legal issue to be examined in the pending civil appeal and on the basis of the alleged concession made by the learned Advocate General, this Court by order dated 10th May, 2007 disposed of the appeal.30. It is true that ordinarily in the open selection, appointments are to be made strictly in the order of merit in terms of the procedure prescribed under the relevant statutory recruitment rules or in absence under the guidelines if prescribed, still if appointments are made for exceptional reasons deviating from the merit list which ordinarily is not permissible but in unforeseen exigencies, if the State with a bonafide intention to give quietus to the on-going litigation pending for the last eight years extended its concession to adjust such 22 candidates who are under litigation for long time with no malafides or bias being imputed to the State action could have been possible only if those who are litigating and agitating their grievance reached upto this Court cannot be held to be faulted.We find substance in what being urged and hold that the order of this Court dated 10th May, 2007 was not under Article 142 of the Constitution and it was clearly reflected from the order itself that it was passed on the basis of the concession made by the learned Advocate General of the State and recorded by this Court in its order dated 10th May, 2007.The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants.34. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake.35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others (Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 ) observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court.37. It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals.39. In Buddhi Nath Chaudhary vs. Abahi Kumar (Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 ), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candidates who have worked on the post for a long period.40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India. | 0 | 6,102 | 2,474 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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appointed by this Court in exercise of its power under Article 142 of the Constitution for doing complete justice, is not reflected from the order of this Court dated 10 th May, 2007. We find substance in what being urged and hold that the order of this Court dated 10th May, 2007 was not under Article 142 of the Constitution and it was clearly reflected from the order itself that it was passed on the basis of the concession made by the learned Advocate General of the State and recorded by this Court in its order dated 10th May, 2007. 33. Further submission made by the learned Senior counsel for the appellants that they are higher in the order of merit qua these 22 candidates who were appointed by the 2 nd respondent taking shelter of the order of this Court dated 10 th May, 2007 is not legally sustainable and violative of Article 14 of the Constitution. The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants. 34. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake. 35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others (Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 ) observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. 36. In Arup Das and Others vs. State of Assam and Others (Arup Das and Others vs. State of Assam and Others (2012) 5 SCC 559 ), this Court observed that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake. 37. It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals. 38. In Gujarat State Dy. Executive Engineers Assn. vs. State of Gujarat(Gujarat State Dy. Executive Engineers Assn. vs. State of Gujarat (1994) Supp 2 SCC 591), this Court recorded a finding that appointments given under the wait list were not in accordance with law. It, however, refused to set aside such appointments in view of length of service (five years and more). 39. In Buddhi Nath Chaudhary vs. Abahi Kumar (Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 ), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candidates who have worked on the post for a long period. 40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India.
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on-going litigation and that appears to be the reason to which the learned Advocate General of the State made a statement before this Court that not only 47 ousted candidates who have been appointed and served for the last 7 years, such 22 candidates may also be accommodated on the post of Sub- Inspector and after recording the statement made by the learned Advocate General of the State, there left no legal issue to be examined in the pending civil appeal and on the basis of the alleged concession made by the learned Advocate General, this Court by order dated 10th May, 2007 disposed of the appeal.30. It is true that ordinarily in the open selection, appointments are to be made strictly in the order of merit in terms of the procedure prescribed under the relevant statutory recruitment rules or in absence under the guidelines if prescribed, still if appointments are made for exceptional reasons deviating from the merit list which ordinarily is not permissible but in unforeseen exigencies, if the State with a bonafide intention to give quietus to the on-going litigation pending for the last eight years extended its concession to adjust such 22 candidates who are under litigation for long time with no malafides or bias being imputed to the State action could have been possible only if those who are litigating and agitating their grievance reached upto this Court cannot be held to be faulted.We find substance in what being urged and hold that the order of this Court dated 10th May, 2007 was not under Article 142 of the Constitution and it was clearly reflected from the order itself that it was passed on the basis of the concession made by the learned Advocate General of the State and recorded by this Court in its order dated 10th May, 2007.The submission in the first blush appears to be attractive but it lacks foundation for the reason that the appointments in the ordinary course are to be made strictly in the order of merit in terms of the select list prepared by the competent authority as contemplated under the relevant statutory recruitment rules and any appointment in contravention indeed is in violation of Article 14 of the Constitution with a proviso that if any appointments are made deviating from the merit list drawn by the competent authority in exceptional cases as being reflected in the instant case where there was on-going litigation and subsequent selection was also held to give quietus to the on-going litigation, still on principle cannot be approved by this Court, are irregular appointments and cannot be held to be illegal as claimed by the appellants.34. It is also not the case of the appellants that they are amongst 22 candidates in the order of merit published by the 2nd respondent awaiting appointment in reference to an advertisement dated 25th February, 1999 and if their submission is accepted at the face value as prayed for, atleast the present appellants may not get a march over 22 candidates waiting in the order of merit who in the ordinary course could claim appointment to the post of Sub-Inspector and the action of the State in extending its concession which has been recorded under the order of this Court dated 10th May, 2007 is indeed the mistake being committed, still it cannot be forced by the person as alleged to be aggrieved to perpetuate the said mistake.35. This Court in Union of India and Another vs. Kartick Chandra Mondal and Others (Union of India and Another vs. Kartick Chandra Mondal and Others (2010) 2 SCC 422 ) observed that if something is being done or acted upon erroneously that cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be made the basis of further appointment and erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court.37. It is indisputed that by the time we are called upon to decide the matter, the so-called 22 candidates against whom there is a lis raised by the present appellants, had completed almost more than 12 years of service and thus having rich experience in the field and the subsequent selection has also been held of the post of Sub-Inspector pursuant to an advertisement issued in February, 2001 and the concession which was recorded of the learned Advocate General of the State by this Court in its order dated 10th May, 2007 at a given point of time also appears to be bonafide, to give quietus to the on-going litigation pending in Courts for sufficient long time and no other litigation at that given point of time was pending in the court of law, in the given situation, this Court is not inclined to disturb the appointment of those 22 candidates which has been questioned by the appellants/candidates in the present batch of appeals.39. In Buddhi Nath Chaudhary vs. Abahi Kumar (Buddhi Nath Chaudhary vs. Abahi Kumar (2001) 3 SCC 328 ), this Court has observed that appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained good experience. We have extended equitable considerations to such selected candidates who have worked on the post for a long period.40. We are also of the view that the appointments of 22 candidates made by the 2nd respondent vide orders dated 23rd February, 2008 and 11th March, 2008 which has given rise to a further litigation are irregular appointments and not in conformity to the recruitment rules, still what being prayed by the appellants if accepted by this Court that will perpetuate the illegality which has been committed by the State-respondent and negative equality cannot be claimed to perpetuate further illegality under Article 226 of the Constitution of India.
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Rajendra Ramchandra Kavalekar Vs. State of Maharashtra & Another | disclosed commission of a large number of offences. The fact that major part of the offence took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the petitioner Company was committed within the jurisdiction of the said court, the High Court of Allahabad should not have interfered in the matter. 14) This court has further observed: 30) The High Court has placed strong reliance upon a decision of this Court in Navinchandra N. Majithia v. State of Maharashtra, (2007) 7 SCC 640, wherein this Court held, while considering a contention that the High Court of Bombay was not correct in not entertaining the application for quashing of a complaint petition filed by the complainant in Shillong, went into the merit of the matter and instead of remitting the matter back to the High Court directed: (SCC p. 651, para 29) 29. Considering the peculiar fact situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by Mumbai Police. 31) This Court arrived at the finding that the High Court should have issued a writ of mandamus directing the State of Meghalaya to transfer the investigation to Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was mala fide. 32) No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P. had been made. The question of the State of West Bengals having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter. 33) Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever. 15) In the instant case, the CBI has initiated the suo-moto investigation against the appellant. In the First Information Report filed before the Special Judge (CBI), Ranchi, it is stated that during the course of investigation of R.C. Case No. 1(A)/2000, which was registered pursuant to the orders of High Court of Jharkhand at Ranchi, a reliable source of information had been received to the effect that Shri Rajendra Ramchandra Kavalekar (appellant) had entered into a criminal conspiracy with the other unknown persons including the officials of Ranchi University during the academic year 1993-94 by obtaining the false and forged mark sheets of Ranchi University, and, further, on the strength of those false and fabricated documents pertaining to his graduation degree, fraudulently and dishonestly obtained employment in India Tourism Development Corporation as Cashier-cum-Sales Assistant. In the First Information Report, it is also stated that the appellant in collusion with the officials of India Tourism Development Corporation Ltd., Mumbai, the University, had managed to suppress letter dated 26.2.2000 written by the Controller of Examination, Ranchi pursuant to the queries made by the Manager (Vigilance) of ITDC, for ascertaining whether the provisional certificate and the degree certificate issued to the appellant for the academic year 1993-94 is forged and fake, and the appellant with a collusion and connivance of the officials of the University had got prepared a letter dated 26.2.2000, wherein it is stated that the marks sheets, provisional certificate and the degree certificate produced by the appellant at the time of securing the job in ITDC is correct and genuine and thereby has committed a criminal offence under the provisions of Indian Penal Code. 16) The case of the appellant before the High Court of Mumbai, was that he was nowhere responsible for the issuance of fake/forged degree certificates while securing job as Cashier-cum-Sales Assistant in ITDC. According to appellant, it is the handiwork of Shri Kanhayalal Sharma, who was managing the institution known as `Marudhar Mahavidyalaya having its centres at Pune and Mumbai. Except this bald assertion, he has not produced any material in support of that assertion. However, in the complaint filed by CBI, Ranchi, it is specifically alleged that the appellant had entered into criminal conspiracy with the officials of the Ranchi University and had obtained fake degree certificates. A court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of conspiracy irrespective of the fact that any or all the other offences were not committed within the territorial jurisdiction (See Banwarilal Jhunjhunwala vs. Union of India, AIR 1963 SC 1620 ). 17) A bare perusal of the complaint filed would clearly go to show that the cause of action arose within the jurisdiction of Special Judge (CBI), Ranchi, the investigation is completed in Ranchi, all the records and the documents pertaining to complaint and the charge sheet are before the Special Judge (CBI), Ranchi, and therefore, in our considered view, the High Court of Judicature at Bombay was perfectly justified in declining to entertain the Writ Petition filed by the petitioner. | 0[ds]15) In the instant case, the CBI has initiated the suo-moto investigation against the appellant. In the First Information Report filed before the Special Judge (CBI), Ranchi, it is stated that during the course of investigation of R.C. Case No. 1(A)/2000, which was registered pursuant to the orders of High Court of Jharkhand at Ranchi, a reliable source of information had been received to the effect that Shri Rajendra Ramchandra Kavalekar (appellant) had entered into a criminal conspiracy with the other unknown persons including the officials of Ranchi University during the academic year 1993-94 by obtaining the false and forged mark sheets of Ranchi University, and, further, on the strength of those false and fabricated documents pertaining to his graduation degree, fraudulently and dishonestly obtained employment in India Tourism Development Corporation as Cashier-cum-Sales Assistant. In the First Information Report, it is also stated that the appellant in collusion with the officials of India Tourism Development Corporation Ltd., Mumbai, the University, had managed to suppress letter dated 26.2.2000 written by the Controller of Examination, Ranchi pursuant to the queries made by the Manager (Vigilance) of ITDC, for ascertaining whether the provisional certificate and the degree certificate issued to the appellant for the academic year 1993-94 is forged and fake, and the appellant with a collusion and connivance of the officials of the University had got prepared a letter dated 26.2.2000, wherein it is stated that the marks sheets, provisional certificate and the degree certificate produced by the appellant at the time of securing the job in ITDC is correct and genuine and thereby has committed a criminal offence under the provisions of Indian Penal Code16) The case of the appellant before the High Court of Mumbai, was that he was nowhere responsible for the issuance of fake/forged degree certificates while securing job as Cashier-cum-Sales Assistant in ITDC. According to appellant, it is the handiwork of Shri Kanhayalal Sharma, who was managing the institution known as `Marudhar Mahavidyalaya having its centres at Pune and Mumbai. Except this bald assertion, he has not produced any material in support of that assertion. However, in the complaint filed by CBI, Ranchi, it is specifically alleged that the appellant had entered into criminal conspiracy with the officials of the Ranchi University and had obtained fake degree certificates. A court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of conspiracy irrespective of the fact that any or all the other offences were not committed within the territorial jurisdiction (See Banwarilal Jhunjhunwala vs. Union of India, AIR 1963 SC 1620 )17) A bare perusal of the complaint filed would clearly go to show that the cause of action arose within the jurisdiction of Special Judge (CBI), Ranchi, the investigation is completed in Ranchi, all the records and the documents pertaining to complaint and the charge sheet are before the Special Judge (CBI), Ranchi, and therefore, in our considered view, the High Court of Judicature at Bombay was perfectly justified in declining to entertain the Writ Petition filed by the petitioner. | 0 | 3,395 | 579 | ### Instruction:
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disclosed commission of a large number of offences. The fact that major part of the offence took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the petitioner Company was committed within the jurisdiction of the said court, the High Court of Allahabad should not have interfered in the matter. 14) This court has further observed: 30) The High Court has placed strong reliance upon a decision of this Court in Navinchandra N. Majithia v. State of Maharashtra, (2007) 7 SCC 640, wherein this Court held, while considering a contention that the High Court of Bombay was not correct in not entertaining the application for quashing of a complaint petition filed by the complainant in Shillong, went into the merit of the matter and instead of remitting the matter back to the High Court directed: (SCC p. 651, para 29) 29. Considering the peculiar fact situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by Mumbai Police. 31) This Court arrived at the finding that the High Court should have issued a writ of mandamus directing the State of Meghalaya to transfer the investigation to Mumbai Police taking note of the averments made in the writ petition that the complaint petition filed at Shillong was mala fide. 32) No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P. had been made. The question of the State of West Bengals having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter. 33) Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever. 15) In the instant case, the CBI has initiated the suo-moto investigation against the appellant. In the First Information Report filed before the Special Judge (CBI), Ranchi, it is stated that during the course of investigation of R.C. Case No. 1(A)/2000, which was registered pursuant to the orders of High Court of Jharkhand at Ranchi, a reliable source of information had been received to the effect that Shri Rajendra Ramchandra Kavalekar (appellant) had entered into a criminal conspiracy with the other unknown persons including the officials of Ranchi University during the academic year 1993-94 by obtaining the false and forged mark sheets of Ranchi University, and, further, on the strength of those false and fabricated documents pertaining to his graduation degree, fraudulently and dishonestly obtained employment in India Tourism Development Corporation as Cashier-cum-Sales Assistant. In the First Information Report, it is also stated that the appellant in collusion with the officials of India Tourism Development Corporation Ltd., Mumbai, the University, had managed to suppress letter dated 26.2.2000 written by the Controller of Examination, Ranchi pursuant to the queries made by the Manager (Vigilance) of ITDC, for ascertaining whether the provisional certificate and the degree certificate issued to the appellant for the academic year 1993-94 is forged and fake, and the appellant with a collusion and connivance of the officials of the University had got prepared a letter dated 26.2.2000, wherein it is stated that the marks sheets, provisional certificate and the degree certificate produced by the appellant at the time of securing the job in ITDC is correct and genuine and thereby has committed a criminal offence under the provisions of Indian Penal Code. 16) The case of the appellant before the High Court of Mumbai, was that he was nowhere responsible for the issuance of fake/forged degree certificates while securing job as Cashier-cum-Sales Assistant in ITDC. According to appellant, it is the handiwork of Shri Kanhayalal Sharma, who was managing the institution known as `Marudhar Mahavidyalaya having its centres at Pune and Mumbai. Except this bald assertion, he has not produced any material in support of that assertion. However, in the complaint filed by CBI, Ranchi, it is specifically alleged that the appellant had entered into criminal conspiracy with the officials of the Ranchi University and had obtained fake degree certificates. A court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of conspiracy irrespective of the fact that any or all the other offences were not committed within the territorial jurisdiction (See Banwarilal Jhunjhunwala vs. Union of India, AIR 1963 SC 1620 ). 17) A bare perusal of the complaint filed would clearly go to show that the cause of action arose within the jurisdiction of Special Judge (CBI), Ranchi, the investigation is completed in Ranchi, all the records and the documents pertaining to complaint and the charge sheet are before the Special Judge (CBI), Ranchi, and therefore, in our considered view, the High Court of Judicature at Bombay was perfectly justified in declining to entertain the Writ Petition filed by the petitioner.
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15) In the instant case, the CBI has initiated the suo-moto investigation against the appellant. In the First Information Report filed before the Special Judge (CBI), Ranchi, it is stated that during the course of investigation of R.C. Case No. 1(A)/2000, which was registered pursuant to the orders of High Court of Jharkhand at Ranchi, a reliable source of information had been received to the effect that Shri Rajendra Ramchandra Kavalekar (appellant) had entered into a criminal conspiracy with the other unknown persons including the officials of Ranchi University during the academic year 1993-94 by obtaining the false and forged mark sheets of Ranchi University, and, further, on the strength of those false and fabricated documents pertaining to his graduation degree, fraudulently and dishonestly obtained employment in India Tourism Development Corporation as Cashier-cum-Sales Assistant. In the First Information Report, it is also stated that the appellant in collusion with the officials of India Tourism Development Corporation Ltd., Mumbai, the University, had managed to suppress letter dated 26.2.2000 written by the Controller of Examination, Ranchi pursuant to the queries made by the Manager (Vigilance) of ITDC, for ascertaining whether the provisional certificate and the degree certificate issued to the appellant for the academic year 1993-94 is forged and fake, and the appellant with a collusion and connivance of the officials of the University had got prepared a letter dated 26.2.2000, wherein it is stated that the marks sheets, provisional certificate and the degree certificate produced by the appellant at the time of securing the job in ITDC is correct and genuine and thereby has committed a criminal offence under the provisions of Indian Penal Code16) The case of the appellant before the High Court of Mumbai, was that he was nowhere responsible for the issuance of fake/forged degree certificates while securing job as Cashier-cum-Sales Assistant in ITDC. According to appellant, it is the handiwork of Shri Kanhayalal Sharma, who was managing the institution known as `Marudhar Mahavidyalaya having its centres at Pune and Mumbai. Except this bald assertion, he has not produced any material in support of that assertion. However, in the complaint filed by CBI, Ranchi, it is specifically alleged that the appellant had entered into criminal conspiracy with the officials of the Ranchi University and had obtained fake degree certificates. A court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of conspiracy irrespective of the fact that any or all the other offences were not committed within the territorial jurisdiction (See Banwarilal Jhunjhunwala vs. Union of India, AIR 1963 SC 1620 )17) A bare perusal of the complaint filed would clearly go to show that the cause of action arose within the jurisdiction of Special Judge (CBI), Ranchi, the investigation is completed in Ranchi, all the records and the documents pertaining to complaint and the charge sheet are before the Special Judge (CBI), Ranchi, and therefore, in our considered view, the High Court of Judicature at Bombay was perfectly justified in declining to entertain the Writ Petition filed by the petitioner.
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Maturi Pullaiah & Another Vs. Maturi Narasimham & Others | for the proper management of the large family properties and the business and also because a large extent of the properties stood in the name of Narasimha, with the advice of Mr. Chakradhara Rao, a leading lawyer of Eluru, entered into an arrangement with the 1st defendant which was embodied in Ex. B-1, which we have already extracted at the beginning. Ex. B-1 records the directions given by the father, the request made by Venkatramaiah to Narasimha asking him to continue the management, the intention of Narasimha to separate himself from the joint family in 1931, the request made by Venkatramaiah to Narasimha to continue to manage the family properties for at least 6 more years and his promise to Narasimha to give him at the end of 6 years three-fifths share in the properties. It then proceeded to state that out of the family properties which belonged to them at that time and which might be acquired thereafter Venkatramaiah should take 2 shares and Narasimha should take 3 shares. Mr. Chakradhara Rao speaks to this document and the representations made to him by the two brothers on the basis of which the recitals were made in the document. 19. It is, therefore, clear that Narasimha contributed to the prosperity of the family. Their father, who acquired the properties before his death, gave a direction that Narasimha should be given a larger share in the property. Narasimha, though a junior member of the family, on the promise given by the elder brother managed the properties sincerely and improved them. He was demanding partition and was asking his brother to give him a larger extent of property as directed by their father. There was also a possibility of Narasimha claiming the properties standing in his name as his own. The elder brother, Venkatramaiah, in the interests of harmony among the members of the family and for its benefit accepted the directions given by their father and on the advice of the mother agreed to give Narasimha three shares in the properties and to take 2 shares for himself therein. All the ingredients of a family arrangement as found in decided cases are satisfied in the present case. We, therefore, hold, agreeing with the lower Courts, that this was a family arrangement binding on the members of the family. 20. The next question turns upon the validity of Ex. B-1. Both the Courts held that Ex. B-1 did not require registration. Learned counsel for the appellant contended that though in law Narasimha was entitled only to 1/2 share, the document enlarged his shares to 2/5 and, therefore, it clearly affected immovable property and hence it created a larger interest in the immovable property in favour of Narasimha within the meaning of S. 17 (1) (b) of the Registration Act. 21. The operative part of Ex. B-1 reads thus:"Therefore out of our family property, i.e., property which belongs to us at present and the property which we may acquire in future, the 1st party of us and his representatives shall take two shares while the 2nd party of us and his representatives shall take three shares. We both parties, having agreed that whenever any one of us or any one of our representatives desires at any time that the family properties should be partitioned according to the above mentioned shares and that till such time our family shall continue to be joint subject to the terms stipulated herein entered into this agreement." It is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interests of the parties in immovable properties in praesenti. What in effect it said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effected a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939.Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S. 17 of the Indian Registration Act. 22. The principle underlying S. 17 of the Registration Act is well settled. The decisions cited at the Bar are only application of the said principle to the facts of each case. The decision of the Judicial Committee in (1911) 38 Ind App 104 (PC), relates to an instrument of 1884 which was intended to effect partition immediately and, therefore, it was held that it was void as regards immovable property. The decision in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134; (AIR 1922 PC 266), turned upon the terms of Ex. AY whereunder two brothers severed themselves in status and agreed to have a document executed for effectuating the partition. Dealing with the document, the Judicial Committee held that the document did not by itself create, assign, limit or extinguish any right or interest in immovable property but only created a right to obtain another document. The decision in Hari Sankar Paul v. Kedar Nath Saha, 66 Ind App 184: (AIR 1939 PC 167 ), was relied upon by analogy. There an agreement in writing which contained all the essentials of the transaction of a mortgage was held to be a document hit by S. 17 (1) (b) of the Registration Act. It was held to be a document containing the bargain made between the parties and constituting a transfer of the property by way of mortgage and, therefore, it required registration. Further citation is unnecessary. 23. For the forgoing reasons, we hold that the document, Ex. B-1, does not require registration. | 0[ds]These observations do not appear to contain the full statement of the law on the subject15. Relying upon this judgment it is contended that a competing title is a necessary condition for the validity of a familyarrangement.But it will be noticed that the widows, who had only a womans interest in the property, divided the property between themselves: they could not enlarge their interest in the estate. A widow could enter into a bona fide arrangement in regard to the estate only to preserve it against a conflicting claim against the estateThese observations show how strongly Courts lean in favour of a family arrangement that brings about harmony in the family. The decisions cited at the Bar are only illustrations of the passage quoted from Halsburys Laws of England in its application to the peculiar circumstances of our country17. Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a familyarrangement.If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it19. It is, therefore, clear that Narasimha contributed to the prosperity of the family. Their father, who acquired the properties before his death, gave a direction that Narasimha should be given a larger share in the property. Narasimha, though a junior member of the family, on the promise given by the elder brother managed the properties sincerely and improved them. He was demanding partition and was asking his brother to give him a larger extent of property as directed by their father. There was also a possibility of Narasimha claiming the properties standing in his name as his own. The elder brother, Venkatramaiah, in the interests of harmony among the members of the family and for its benefit accepted the directions given by their father and on the advice of the mother agreed to give Narasimha three shares in the properties and to take 2 shares for himself therein. All the ingredients of a family arrangement as found in decided cases are satisfied in the present case. We, therefore, hold, agreeing with the lower Courts, that this was a family arrangement binding on the members of the familyIt is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interests of the parties in immovable properties in praesenti. What in effect it said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effected a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939.Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S. 17 of the Indian Registration Act22. The principle underlying S. 17 of the Registration Act is well settled. The decisions cited at the Bar are only application of the said principle to the facts of each case. The decision of the Judicial Committee in (1911) 38 Ind App 104 (PC), relates to an instrument of 1884 which was intended to effect partition immediately and, therefore, it was held that it was void as regards immovable property. The decision in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134; (AIR 1922 PC 266), turned upon the terms of Ex. AY whereunder two brothers severed themselves in status and agreed to have a document executed for effectuating the partition. Dealing with the document, the Judicial Committee held that the document did not by itself create, assign, limit or extinguish any right or interest in immovable property but only created a right to obtain another document. The decision in Hari Sankar Paul v. Kedar Nath Saha, 66 Ind App 184: (AIR 1939 PC 167 ), was relied upon by analogy. There an agreement in writing which contained all the essentials of the transaction of a mortgage was held to be a document hit by S. 17 (1) (b) of the Registration Act. It was held to be a document containing the bargain made between the parties and constituting a transfer of the property by way of mortgage and, therefore, it required registration. Further citation is unnecessary23. For the forgoing reasons, we hold that the document, Ex., does not require registration. | 0 | 4,800 | 930 | ### 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:
for the proper management of the large family properties and the business and also because a large extent of the properties stood in the name of Narasimha, with the advice of Mr. Chakradhara Rao, a leading lawyer of Eluru, entered into an arrangement with the 1st defendant which was embodied in Ex. B-1, which we have already extracted at the beginning. Ex. B-1 records the directions given by the father, the request made by Venkatramaiah to Narasimha asking him to continue the management, the intention of Narasimha to separate himself from the joint family in 1931, the request made by Venkatramaiah to Narasimha to continue to manage the family properties for at least 6 more years and his promise to Narasimha to give him at the end of 6 years three-fifths share in the properties. It then proceeded to state that out of the family properties which belonged to them at that time and which might be acquired thereafter Venkatramaiah should take 2 shares and Narasimha should take 3 shares. Mr. Chakradhara Rao speaks to this document and the representations made to him by the two brothers on the basis of which the recitals were made in the document. 19. It is, therefore, clear that Narasimha contributed to the prosperity of the family. Their father, who acquired the properties before his death, gave a direction that Narasimha should be given a larger share in the property. Narasimha, though a junior member of the family, on the promise given by the elder brother managed the properties sincerely and improved them. He was demanding partition and was asking his brother to give him a larger extent of property as directed by their father. There was also a possibility of Narasimha claiming the properties standing in his name as his own. The elder brother, Venkatramaiah, in the interests of harmony among the members of the family and for its benefit accepted the directions given by their father and on the advice of the mother agreed to give Narasimha three shares in the properties and to take 2 shares for himself therein. All the ingredients of a family arrangement as found in decided cases are satisfied in the present case. We, therefore, hold, agreeing with the lower Courts, that this was a family arrangement binding on the members of the family. 20. The next question turns upon the validity of Ex. B-1. Both the Courts held that Ex. B-1 did not require registration. Learned counsel for the appellant contended that though in law Narasimha was entitled only to 1/2 share, the document enlarged his shares to 2/5 and, therefore, it clearly affected immovable property and hence it created a larger interest in the immovable property in favour of Narasimha within the meaning of S. 17 (1) (b) of the Registration Act. 21. The operative part of Ex. B-1 reads thus:"Therefore out of our family property, i.e., property which belongs to us at present and the property which we may acquire in future, the 1st party of us and his representatives shall take two shares while the 2nd party of us and his representatives shall take three shares. We both parties, having agreed that whenever any one of us or any one of our representatives desires at any time that the family properties should be partitioned according to the above mentioned shares and that till such time our family shall continue to be joint subject to the terms stipulated herein entered into this agreement." It is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interests of the parties in immovable properties in praesenti. What in effect it said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effected a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939.Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S. 17 of the Indian Registration Act. 22. The principle underlying S. 17 of the Registration Act is well settled. The decisions cited at the Bar are only application of the said principle to the facts of each case. The decision of the Judicial Committee in (1911) 38 Ind App 104 (PC), relates to an instrument of 1884 which was intended to effect partition immediately and, therefore, it was held that it was void as regards immovable property. The decision in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134; (AIR 1922 PC 266), turned upon the terms of Ex. AY whereunder two brothers severed themselves in status and agreed to have a document executed for effectuating the partition. Dealing with the document, the Judicial Committee held that the document did not by itself create, assign, limit or extinguish any right or interest in immovable property but only created a right to obtain another document. The decision in Hari Sankar Paul v. Kedar Nath Saha, 66 Ind App 184: (AIR 1939 PC 167 ), was relied upon by analogy. There an agreement in writing which contained all the essentials of the transaction of a mortgage was held to be a document hit by S. 17 (1) (b) of the Registration Act. It was held to be a document containing the bargain made between the parties and constituting a transfer of the property by way of mortgage and, therefore, it required registration. Further citation is unnecessary. 23. For the forgoing reasons, we hold that the document, Ex. B-1, does not require registration.
### Response:
0
### Explanation:
These observations do not appear to contain the full statement of the law on the subject15. Relying upon this judgment it is contended that a competing title is a necessary condition for the validity of a familyarrangement.But it will be noticed that the widows, who had only a womans interest in the property, divided the property between themselves: they could not enlarge their interest in the estate. A widow could enter into a bona fide arrangement in regard to the estate only to preserve it against a conflicting claim against the estateThese observations show how strongly Courts lean in favour of a family arrangement that brings about harmony in the family. The decisions cited at the Bar are only illustrations of the passage quoted from Halsburys Laws of England in its application to the peculiar circumstances of our country17. Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a familyarrangement.If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it19. It is, therefore, clear that Narasimha contributed to the prosperity of the family. Their father, who acquired the properties before his death, gave a direction that Narasimha should be given a larger share in the property. Narasimha, though a junior member of the family, on the promise given by the elder brother managed the properties sincerely and improved them. He was demanding partition and was asking his brother to give him a larger extent of property as directed by their father. There was also a possibility of Narasimha claiming the properties standing in his name as his own. The elder brother, Venkatramaiah, in the interests of harmony among the members of the family and for its benefit accepted the directions given by their father and on the advice of the mother agreed to give Narasimha three shares in the properties and to take 2 shares for himself therein. All the ingredients of a family arrangement as found in decided cases are satisfied in the present case. We, therefore, hold, agreeing with the lower Courts, that this was a family arrangement binding on the members of the familyIt is common case that this document did not bring about a division by metes and bounds between the parties. It did not also affect the interests of the parties in immovable properties in praesenti. What in effect it said was that the parties would continue to be members of the joint Hindu family and that Narasimha would manage the family properties as before, and that when they effected a partition in future Venkatramaiah would get 2 shares and Narasimha would get 3 shares in the properties then in existence or acquired thereafter. There was neither a division in status nor a division by metes and bounds in 1939.Its terms relating to shares would come into effect only in the future if and when division took place. If so understood, the document did not create any interest in immovable properties in praesenti in favour of the parties mentioned therein. If so, it follows that the document was not hit by S. 17 of the Indian Registration Act22. The principle underlying S. 17 of the Registration Act is well settled. The decisions cited at the Bar are only application of the said principle to the facts of each case. The decision of the Judicial Committee in (1911) 38 Ind App 104 (PC), relates to an instrument of 1884 which was intended to effect partition immediately and, therefore, it was held that it was void as regards immovable property. The decision in Rajangam Ayyar v. Rajangam Ayyar, 50 Ind App 134; (AIR 1922 PC 266), turned upon the terms of Ex. AY whereunder two brothers severed themselves in status and agreed to have a document executed for effectuating the partition. Dealing with the document, the Judicial Committee held that the document did not by itself create, assign, limit or extinguish any right or interest in immovable property but only created a right to obtain another document. The decision in Hari Sankar Paul v. Kedar Nath Saha, 66 Ind App 184: (AIR 1939 PC 167 ), was relied upon by analogy. There an agreement in writing which contained all the essentials of the transaction of a mortgage was held to be a document hit by S. 17 (1) (b) of the Registration Act. It was held to be a document containing the bargain made between the parties and constituting a transfer of the property by way of mortgage and, therefore, it required registration. Further citation is unnecessary23. For the forgoing reasons, we hold that the document, Ex., does not require registration.
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KAMLESH GUPTA Vs. MANGAT RAI | first defendant in the suit (the first respondent herein), for a sum of Rs. 7 lakhs vide a mortgage deed dated 22.09.2009. The plaintiff later filed C.S. No. 950/2013 for possession of the suit shop by way of redemption on the payment of the aforesaid mortgage amount. The first defendant in the said suit admitted the claim of the plaintiff, but averred that he had permitted Rakesh Kumar, the second defendant (the second respondent herein), to use the suit shop to run a business. As per the first defendant, the second defendant had agreed to vacate the suit shop when the mortgage was redeemed, but had failed to vacate it at the time of redemption, which gave rise to the suit. 4. On the other hand, the second defendant denied the validity and execution of the mortgage deed, and denied being in possession of the suit shop. As per the second defendant, the father of the plaintiff, who was the original owner of the suit shop, had inducted one Pawan Kumar as a tenant. 5. After the issues had been framed and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff taken on record, but before the cross-examination of the plaintiff herself was done, she filed an application on 25.01.2016 under Order I Rule 10 and Order VI Rule 17, read with Section 151 of the Code of Civil Procedure, 1908 (in short ?the CPC?) to implead the aforesaid Pawan Kumar as the third defendant, as well as to add a paragraph in the plaint to the effect that the said Pawan Kumar, who was was the father of the second defendant, had colluded with the defendants to obtain possession of the suit shop. 6. The Trial Court dismissed this application on the ground that the facts stated in the application were already within its knowledge. 7. The Single Judge of the High Court, while deciding the revision petition arising from the dismissal of the application, also came to the conclusion that since the facts that were sought to be added by way of amending the plaint were within the knowledge of the plaintiff, her application was hit by the proviso to Order VI Rule 17 of the CPC, which prevents a party from amending the plaint post the commencement of the trial, unless the Court concludes that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Notably, the Single Judge did not provide any reason for rejecting the prayer for impleadment, and proceeded to dismiss the entire application only by referring to the proviso to Order VI Rule 17 of the CPC. 8. It is evident that the High Court failed to examine the application on merits as far as the question of the impleadment of the aforesaid Pawan Kumar is concerned. In this regard, it is relevant to note that even as per the written statement filed by the second defendant, the said Pawan Kumar is in possession of the suit shop, where he is carrying on a business in the name and style of ‘Pawan Cloth House? as its sole proprietor. Additionally, though the second defendant never mentioned in his written statement that Pawan Kumar was his father, it has now come on record that Pawan Kumar is none other than the father of the second defendant. Furthermore, going by the written statement of the first defendant, the second defendant is his nephew, being his sister?s son. Prima facie, the two defendants and Pawan Kumar appear to be close relatives. Such fact is suppressed by the second defendant in his written statement. 9. So far as the possession of the suit shop is concerned, as per the first defendant?s own admission, possession was handed over to the second defendant by the first defendant. We fail to understand how the first defendant, as the mortgagee of the suit shop, handed over its possession to a third party without even informing the mortgagor, i.e. the plaintiff. Furthermore, it is unclear in what capacity the second defendant obtained possession of the suit shop, as no lease deed or any such document has been produced before us. In any case, the fact that Pawan Kumar is now in possession, though unauthorised, has not been disputed by any of the parties. In the present scenario, therefore, even if a decree is granted in favour of the plaintiff, Pawan Kumar may object to the execution of the said decree on the ground that he was not made a party to the suit despite being in possession of the suit shop. 10. We are of the opinion that by virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. Even otherwise, he is a proper party for the reasons elucidated above. 11. We are aware that, ordinarily, such an application needs to be filed before the commencement of the trial. Undoubtedly, in the present case, the trial has commenced, and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff have been filed. However, having regard to the fact that the two defendants and Pawan Kumar are close relatives, it seems possible that the plaintiff may have been kept in the dark regarding the possession of the suit shop. We do not wish to comment on whether the defendants and Pawan Kumar colluded to actively withhold this information from the plaintiff. But the fact remains that the plaintiff did not know about the internal arrangement between the defendants and Pawan Kumar. Therefore, even though the application for impleadment and amendment of the plaint was filed by the plaintiff belatedly, the interest of justice demands that the application be allowed, to ensure that in the eventuality of the suit being decreed in his favour, the plaintiff does not become vulnerable to another round of litigation at the stage of execution. We deem it fit, however, to impose costs of Rs.10,000 on the plaintiff. | 0[ds]8. It is evident that the High Court failed to examine the application on merits as far as the question of the impleadment of the aforesaid Pawan Kumar is concerned. In this regard, it is relevant to note that even as per the written statement filed by the second defendant, the said Pawan Kumar is in possession of the suit shop, where he is carrying on a business in the name and style of ‘Pawan Cloth House? as its sole proprietor. Additionally, though the second defendant never mentioned in his written statement that Pawan Kumar was his father, it has now come on record that Pawan Kumar is none other than the father of the second defendant. Furthermore, going by the written statement of the first defendant, the second defendant is his nephew, being his sister?s son. Prima facie, the two defendants and Pawan Kumar appear to be close relatives. Such fact is suppressed by the second defendant in his written statement9. So far as the possession of the suit shop is concerned, as per the first defendant?s own admission, possession was handed over to the second defendant by the first defendant. We fail to understand how the first defendant, as the mortgagee of the suit shop, handed over its possession to a third party without even informing the mortgagor, i.e. the plaintiff. Furthermore, it is unclear in what capacity the second defendant obtained possession of the suit shop, as no lease deed or any such document has been produced before us. In any case, the fact that Pawan Kumar is now in possession, though unauthorised, has not been disputed by any of the parties. In the present scenario, therefore, even if a decree is granted in favour of the plaintiff, Pawan Kumar may object to the execution of the said decree on the ground that he was not made a party to the suit despite being in possession of the suit shop10. We are of the opinion that by virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. Even otherwise, he is a proper party for the reasons elucidated above11. We are aware that, ordinarily, such an application needs to be filed before the commencement of the trial. Undoubtedly, in the present case, the trial has commenced, and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff have been filed. However, having regard to the fact that the two defendants and Pawan Kumar are close relatives, it seems possible that the plaintiff may have been kept in the dark regarding the possession of the suit shop. We do not wish to comment on whether the defendants and Pawan Kumar colluded to actively withhold this information from the plaintiff. But the fact remains that the plaintiff did not know about the internal arrangement between the defendants and Pawan Kumar. Therefore, even though the application for impleadment and amendment of the plaint was filed by the plaintiff belatedly, the interest of justice demands that the application be allowed, to ensure that in the eventuality of the suit being decreed in his favour, the plaintiff does not become vulnerable to another round of litigation at the stage of execution. We deem it fit, however, to impose costs of Rs.10,000 on the plaintiff. | 0 | 1,266 | 621 | ### 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:
first defendant in the suit (the first respondent herein), for a sum of Rs. 7 lakhs vide a mortgage deed dated 22.09.2009. The plaintiff later filed C.S. No. 950/2013 for possession of the suit shop by way of redemption on the payment of the aforesaid mortgage amount. The first defendant in the said suit admitted the claim of the plaintiff, but averred that he had permitted Rakesh Kumar, the second defendant (the second respondent herein), to use the suit shop to run a business. As per the first defendant, the second defendant had agreed to vacate the suit shop when the mortgage was redeemed, but had failed to vacate it at the time of redemption, which gave rise to the suit. 4. On the other hand, the second defendant denied the validity and execution of the mortgage deed, and denied being in possession of the suit shop. As per the second defendant, the father of the plaintiff, who was the original owner of the suit shop, had inducted one Pawan Kumar as a tenant. 5. After the issues had been framed and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff taken on record, but before the cross-examination of the plaintiff herself was done, she filed an application on 25.01.2016 under Order I Rule 10 and Order VI Rule 17, read with Section 151 of the Code of Civil Procedure, 1908 (in short ?the CPC?) to implead the aforesaid Pawan Kumar as the third defendant, as well as to add a paragraph in the plaint to the effect that the said Pawan Kumar, who was was the father of the second defendant, had colluded with the defendants to obtain possession of the suit shop. 6. The Trial Court dismissed this application on the ground that the facts stated in the application were already within its knowledge. 7. The Single Judge of the High Court, while deciding the revision petition arising from the dismissal of the application, also came to the conclusion that since the facts that were sought to be added by way of amending the plaint were within the knowledge of the plaintiff, her application was hit by the proviso to Order VI Rule 17 of the CPC, which prevents a party from amending the plaint post the commencement of the trial, unless the Court concludes that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Notably, the Single Judge did not provide any reason for rejecting the prayer for impleadment, and proceeded to dismiss the entire application only by referring to the proviso to Order VI Rule 17 of the CPC. 8. It is evident that the High Court failed to examine the application on merits as far as the question of the impleadment of the aforesaid Pawan Kumar is concerned. In this regard, it is relevant to note that even as per the written statement filed by the second defendant, the said Pawan Kumar is in possession of the suit shop, where he is carrying on a business in the name and style of ‘Pawan Cloth House? as its sole proprietor. Additionally, though the second defendant never mentioned in his written statement that Pawan Kumar was his father, it has now come on record that Pawan Kumar is none other than the father of the second defendant. Furthermore, going by the written statement of the first defendant, the second defendant is his nephew, being his sister?s son. Prima facie, the two defendants and Pawan Kumar appear to be close relatives. Such fact is suppressed by the second defendant in his written statement. 9. So far as the possession of the suit shop is concerned, as per the first defendant?s own admission, possession was handed over to the second defendant by the first defendant. We fail to understand how the first defendant, as the mortgagee of the suit shop, handed over its possession to a third party without even informing the mortgagor, i.e. the plaintiff. Furthermore, it is unclear in what capacity the second defendant obtained possession of the suit shop, as no lease deed or any such document has been produced before us. In any case, the fact that Pawan Kumar is now in possession, though unauthorised, has not been disputed by any of the parties. In the present scenario, therefore, even if a decree is granted in favour of the plaintiff, Pawan Kumar may object to the execution of the said decree on the ground that he was not made a party to the suit despite being in possession of the suit shop. 10. We are of the opinion that by virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. Even otherwise, he is a proper party for the reasons elucidated above. 11. We are aware that, ordinarily, such an application needs to be filed before the commencement of the trial. Undoubtedly, in the present case, the trial has commenced, and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff have been filed. However, having regard to the fact that the two defendants and Pawan Kumar are close relatives, it seems possible that the plaintiff may have been kept in the dark regarding the possession of the suit shop. We do not wish to comment on whether the defendants and Pawan Kumar colluded to actively withhold this information from the plaintiff. But the fact remains that the plaintiff did not know about the internal arrangement between the defendants and Pawan Kumar. Therefore, even though the application for impleadment and amendment of the plaint was filed by the plaintiff belatedly, the interest of justice demands that the application be allowed, to ensure that in the eventuality of the suit being decreed in his favour, the plaintiff does not become vulnerable to another round of litigation at the stage of execution. We deem it fit, however, to impose costs of Rs.10,000 on the plaintiff.
### Response:
0
### Explanation:
8. It is evident that the High Court failed to examine the application on merits as far as the question of the impleadment of the aforesaid Pawan Kumar is concerned. In this regard, it is relevant to note that even as per the written statement filed by the second defendant, the said Pawan Kumar is in possession of the suit shop, where he is carrying on a business in the name and style of ‘Pawan Cloth House? as its sole proprietor. Additionally, though the second defendant never mentioned in his written statement that Pawan Kumar was his father, it has now come on record that Pawan Kumar is none other than the father of the second defendant. Furthermore, going by the written statement of the first defendant, the second defendant is his nephew, being his sister?s son. Prima facie, the two defendants and Pawan Kumar appear to be close relatives. Such fact is suppressed by the second defendant in his written statement9. So far as the possession of the suit shop is concerned, as per the first defendant?s own admission, possession was handed over to the second defendant by the first defendant. We fail to understand how the first defendant, as the mortgagee of the suit shop, handed over its possession to a third party without even informing the mortgagor, i.e. the plaintiff. Furthermore, it is unclear in what capacity the second defendant obtained possession of the suit shop, as no lease deed or any such document has been produced before us. In any case, the fact that Pawan Kumar is now in possession, though unauthorised, has not been disputed by any of the parties. In the present scenario, therefore, even if a decree is granted in favour of the plaintiff, Pawan Kumar may object to the execution of the said decree on the ground that he was not made a party to the suit despite being in possession of the suit shop10. We are of the opinion that by virtue of actual possession being enjoyed by Pawan Kumar, he is a necessary party to the present suit. Even otherwise, he is a proper party for the reasons elucidated above11. We are aware that, ordinarily, such an application needs to be filed before the commencement of the trial. Undoubtedly, in the present case, the trial has commenced, and the affidavits in lieu of examination-in-chief of four witnesses for the plaintiff have been filed. However, having regard to the fact that the two defendants and Pawan Kumar are close relatives, it seems possible that the plaintiff may have been kept in the dark regarding the possession of the suit shop. We do not wish to comment on whether the defendants and Pawan Kumar colluded to actively withhold this information from the plaintiff. But the fact remains that the plaintiff did not know about the internal arrangement between the defendants and Pawan Kumar. Therefore, even though the application for impleadment and amendment of the plaint was filed by the plaintiff belatedly, the interest of justice demands that the application be allowed, to ensure that in the eventuality of the suit being decreed in his favour, the plaintiff does not become vulnerable to another round of litigation at the stage of execution. We deem it fit, however, to impose costs of Rs.10,000 on the plaintiff.
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M/S. Tci Finance Ltd Vs. Calcutta Medical Centre Ltd. | four weeks from the date of order the receiver would not take any further steps in respect of the properties. Stand of the appellant is that pursuant to the said orders symbolic possession was taken by the receiver on 26.3.2003. G.A. No. 3156 of 2003 was filed by respondent No. 1 stating therein that it is a public limited company incorporated in 1995 with an authorised share capital of rupees two crores. The company has taken over the business of Calcutta Medical Centre which was the proprietary concern of Dr. Gupta. The company is a tenant under Mrs. Prema Gupta, mother of Dr. Gupta. Since the receiver was appointed without notice to the company, the substantial rights and interest over the properties as tenants were being affected. The appellant filed affidavits in opposition to the intervention application highlighting several aspects. It was clearly stated that there was no tenancy as claimed and in any event Smt. Prema Gupta had at no point of time come to Court claiming that she was the landlady in respect of the properties which were claimed to be rented out to the company. Learned Single Judge by order dated 5.8.2003 held that the order appointing the receiver is one of the modes of the execution of decree under Order 21 Rule 58, CPC. The respondent No. 1 was not the owner of the flats and the owner of the flats had not come forward with any claim or objection to attachment of the property. The respondent No. 1, therefore, cannot have any independent right in respect of the properties. The High Court, therefore, dismissed the application being G.A. No. 1674/2003. It accepted the request of the appellant herein for police assistance to the receiver for obtaining vacant possession.5. Against the said order, two appeals were filed before the Calcutta High Court and as noted above, the High Court set aside the order of learned Single Judge. It was of the view that on the basis of affidavits it was not possible to say that transfer if any made by Dr. Gupta to the company is a fraudulent transfer and the matter has assumed the proportion of a full blown suit. Accordingly, it inter alia gave the following directions: “In these circumstances, it is not possible only on affidavits to say that the transfer, if any, made by Ashok to the company is of a fraudulent transfer which is voidable under Section 53 of the Transfer of Property Act and thereafter, the flats can be sold here and now even if these seem to be in the ostensible occupation, possession or tenancy of the incorporated company.Our order and observations are made without prejudice. The matter has assumed the proportions of a full blown suit although a suit there shall not be put a trial on evidence in the Execution Court itself on the basis of the 1976 amendments of the Code.” 6. In support of the appeals, learned Counsel for the appellant submitted that a new dimension has been given by the Division Bench. Admittedly, respondent No. 1 does not claim any right of ownership over the attached properties. No claims of the nature set forth by the respondent No. 1 can be examined in terms of Section 47 or Order 21 Rule 58, CPC. By the impugned judgment, the High Court has enlarged the scope of the execution proceedings and has treated it as a full blown suit without even recording any reason as to how the respondent No. 1 has any adjudicable interest in the proceedings. The question of tenancy cannot be decided by the Execution Court.7. In response, learned Counsel for respondent No. 1 submitted that what they were interested is not determination of any ownership rights. The company only claimed to be a tenant. Even if it is held that they were trespassers, they cannot be evicted except with due process of law. 8. The High Court’s order is clearly unsustainable on more grounds than one. Respondent No. 1 claimed its tenancy from Mrs. Prema Gupta. Her application to be impleaded as a party in the present proceedings was rejected. At no point of time she had pressed a claim of being the owner of the property. It is to be noted that the appellant has not accepted that the respondent No. 1 was a tenant in respect of the attached properties. In any event, the question of tenancy cannot be decided by the Execution Court.9. The Executing Court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of CPC; except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is “All questions arising between the parties to the suit” “or their representatives”. Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of respondent No. 1 is not covered by Section 47 or Order 21 Rule 54 or Rule 58. The High Court misconceived the nature of claim set up by respondent No. 1. Learned Single Judge rightly noted that respondent No. 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment debtor. The agreement, if any, in that regard was not produced before the Court and, therefore, learned Single Judge drew adverse inference. Before the Division Bench, the stand of respondent No. 1 was that it was a tenant. Without indicating any reason as to how reasoning of learned Single Judge was wrong the Division Bench enlarged the scope of the controversy and directed the Execution Court to decide question of tenancy which is legally impermissible.10. The Division Bench unnecessarily enlarged the scope of the controversy observing that the matter has assumed the proportion of a full blown suit. It permitted the Execution Court to deal with the matters which are clearly beyond the scope of its adjudication. | 1[ds]8. The Highorder is clearly unsustainable on more grounds than one. Respondent No. 1 claimed its tenancy from Mrs. Prema Gupta. Her application to be impleaded as a party in the present proceedings was rejected. At no point of time she had pressed a claim of being the owner of the property. It is to be noted that the appellant has not accepted that the respondent No. 1 was a tenant in respect of the attached properties. In any event, the question of tenancy cannot be decided by the Execution Court.9. The Executing Court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of CPC; except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 isquestions arising between the parties to theOrder 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of respondent No. 1 is not covered by Section 47 or Order 21 Rule 54 or RuleThe High Courtmisconceived the nature of claim set up by respondent No. 1. Learned Single Judge rightly noted that respondent No. 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment debtor. The agreement, if any, in that regard was not produced before the Court and, therefore, learned Single Judge drew adverse inference. Before the Division Bench, the stand of respondent No. 1 was that it was a tenant. Without indicating any reason as to how reasoning of learned Single Judge was wrong the Division Bench enlarged the scope of the controversy and directed the Execution Court to decide question of tenancy which is legally impermissible.10. The Division Bench unnecessarily enlarged the scope of the controversy observing that the matter has assumed the proportion of a full blown suit. It permitted the Execution Court to deal with the matters which are clearly beyond the scope of its adjudication. | 1 | 1,826 | 376 | ### 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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four weeks from the date of order the receiver would not take any further steps in respect of the properties. Stand of the appellant is that pursuant to the said orders symbolic possession was taken by the receiver on 26.3.2003. G.A. No. 3156 of 2003 was filed by respondent No. 1 stating therein that it is a public limited company incorporated in 1995 with an authorised share capital of rupees two crores. The company has taken over the business of Calcutta Medical Centre which was the proprietary concern of Dr. Gupta. The company is a tenant under Mrs. Prema Gupta, mother of Dr. Gupta. Since the receiver was appointed without notice to the company, the substantial rights and interest over the properties as tenants were being affected. The appellant filed affidavits in opposition to the intervention application highlighting several aspects. It was clearly stated that there was no tenancy as claimed and in any event Smt. Prema Gupta had at no point of time come to Court claiming that she was the landlady in respect of the properties which were claimed to be rented out to the company. Learned Single Judge by order dated 5.8.2003 held that the order appointing the receiver is one of the modes of the execution of decree under Order 21 Rule 58, CPC. The respondent No. 1 was not the owner of the flats and the owner of the flats had not come forward with any claim or objection to attachment of the property. The respondent No. 1, therefore, cannot have any independent right in respect of the properties. The High Court, therefore, dismissed the application being G.A. No. 1674/2003. It accepted the request of the appellant herein for police assistance to the receiver for obtaining vacant possession.5. Against the said order, two appeals were filed before the Calcutta High Court and as noted above, the High Court set aside the order of learned Single Judge. It was of the view that on the basis of affidavits it was not possible to say that transfer if any made by Dr. Gupta to the company is a fraudulent transfer and the matter has assumed the proportion of a full blown suit. Accordingly, it inter alia gave the following directions: “In these circumstances, it is not possible only on affidavits to say that the transfer, if any, made by Ashok to the company is of a fraudulent transfer which is voidable under Section 53 of the Transfer of Property Act and thereafter, the flats can be sold here and now even if these seem to be in the ostensible occupation, possession or tenancy of the incorporated company.Our order and observations are made without prejudice. The matter has assumed the proportions of a full blown suit although a suit there shall not be put a trial on evidence in the Execution Court itself on the basis of the 1976 amendments of the Code.” 6. In support of the appeals, learned Counsel for the appellant submitted that a new dimension has been given by the Division Bench. Admittedly, respondent No. 1 does not claim any right of ownership over the attached properties. No claims of the nature set forth by the respondent No. 1 can be examined in terms of Section 47 or Order 21 Rule 58, CPC. By the impugned judgment, the High Court has enlarged the scope of the execution proceedings and has treated it as a full blown suit without even recording any reason as to how the respondent No. 1 has any adjudicable interest in the proceedings. The question of tenancy cannot be decided by the Execution Court.7. In response, learned Counsel for respondent No. 1 submitted that what they were interested is not determination of any ownership rights. The company only claimed to be a tenant. Even if it is held that they were trespassers, they cannot be evicted except with due process of law. 8. The High Court’s order is clearly unsustainable on more grounds than one. Respondent No. 1 claimed its tenancy from Mrs. Prema Gupta. Her application to be impleaded as a party in the present proceedings was rejected. At no point of time she had pressed a claim of being the owner of the property. It is to be noted that the appellant has not accepted that the respondent No. 1 was a tenant in respect of the attached properties. In any event, the question of tenancy cannot be decided by the Execution Court.9. The Executing Court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of CPC; except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is “All questions arising between the parties to the suit” “or their representatives”. Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of respondent No. 1 is not covered by Section 47 or Order 21 Rule 54 or Rule 58. The High Court misconceived the nature of claim set up by respondent No. 1. Learned Single Judge rightly noted that respondent No. 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment debtor. The agreement, if any, in that regard was not produced before the Court and, therefore, learned Single Judge drew adverse inference. Before the Division Bench, the stand of respondent No. 1 was that it was a tenant. Without indicating any reason as to how reasoning of learned Single Judge was wrong the Division Bench enlarged the scope of the controversy and directed the Execution Court to decide question of tenancy which is legally impermissible.10. The Division Bench unnecessarily enlarged the scope of the controversy observing that the matter has assumed the proportion of a full blown suit. It permitted the Execution Court to deal with the matters which are clearly beyond the scope of its adjudication.
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8. The Highorder is clearly unsustainable on more grounds than one. Respondent No. 1 claimed its tenancy from Mrs. Prema Gupta. Her application to be impleaded as a party in the present proceedings was rejected. At no point of time she had pressed a claim of being the owner of the property. It is to be noted that the appellant has not accepted that the respondent No. 1 was a tenant in respect of the attached properties. In any event, the question of tenancy cannot be decided by the Execution Court.9. The Executing Court cannot go beyond the decree. It is the settled position in law which flows from Section 38 of CPC; except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 isquestions arising between the parties to theOrder 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of respondent No. 1 is not covered by Section 47 or Order 21 Rule 54 or RuleThe High Courtmisconceived the nature of claim set up by respondent No. 1. Learned Single Judge rightly noted that respondent No. 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment debtor. The agreement, if any, in that regard was not produced before the Court and, therefore, learned Single Judge drew adverse inference. Before the Division Bench, the stand of respondent No. 1 was that it was a tenant. Without indicating any reason as to how reasoning of learned Single Judge was wrong the Division Bench enlarged the scope of the controversy and directed the Execution Court to decide question of tenancy which is legally impermissible.10. The Division Bench unnecessarily enlarged the scope of the controversy observing that the matter has assumed the proportion of a full blown suit. It permitted the Execution Court to deal with the matters which are clearly beyond the scope of its adjudication.
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Board of Control For Cricket in India Vs. Kochi Cricket Pvt. Ltd. & Others | effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons, "...have resulted in delay of disposal of arbitration proceedings and increase in interference of courts in arbitration matters, which tend to defeat the object of the Act", and will now not be applicable to Section 34 petitions filed after 23rd October, 2015, but will be applicable to Section 34 petitions filed in cases where arbitration proceedings have themselves commenced only after 23rd October, 2015. This would mean that in all matters which are in the pipeline, despite the fact that Section 34 proceedings have been initiated only after 23rd October, 2015, yet, the old law would continue to apply resulting in delay of disposal of arbitration proceedings by increased interference of Courts, which ultimately defeats the object of the 1996 Act. It would be important to remember that the 246th Law Commission Report has itself bifurcated proceedings into two parts, so that the Amendment Act can apply to Court proceedings commenced on or after 23rd October, 2015. It is this basic scheme which is adhered to by Section 26 of the Amendment Act, which ought not to be displaced as the very object of the enactment of the Amendment Act would otherwise be defeated.58. At the fag end of the arguments, Shri Viswanathan, in rejoinder, raised another point which arises only in Civil Appeals arising out of SLP(C) No. 8374-8375 of 2017 and 8376-8378 of 2017. According to him, the impugned judgment, when it dealt with the majority award in favour of respondent Enercon GmbH, went behind the award in ordering execution of a portion of the award in favour of Enercon, when the majority award, in paragraph 331(3)(b), specifically ordered the 2nd and 3rd defendants to pay to WWIL, which is a joint venture company, a sum of L 6,77,24,56,570/-. The majority award of the tribunal had specifically stated, in paragraph 298, as follows:"Enercons claim is first pleaded as damages payable by the Mehra directors directly to Enercon. It also pleads an alternative claim for such further or other relief as the Tribunal considers appropriate (paragraph 18 of the application of 13 December 2015 and paragraph 323.4 of its closing written submission dated 13 May 2016, as also its Statement of Claim of 30 September 2014, at paragraph 102(M).) In the Tribunals view, given that WWIL is only part owned by Enercon (hence Enercons pecuniary disadvantage resulting from the Mehra directors wrongdoing is not the same as that of WWIL) and further that WWIL remains the person most immediately affected by such wrongdoing, the liability of the Mehra directors is best discharged by requiring them to deciding upon such relief in favour of WWIL (as distinct from direct relief in favour of Enercon), the Tribunal sees no material disadvantage to Enercon, and, as for the Mehra directors, no possible prejudice or other unfairness, whether as a matter of pleading, the form of relief or otherwise."It is only thereafter that the Tribunal awarded the aforesaid amount in paragraph 331(3)(b) as follows:"(b) Jointly and severally-(i) to pay to WWIL the sum of INR 6,772,456,570, being the profit made by Vish Wind on the sale of allotment rights to WWIL in the years ending 31 March 2011 and 2012 together with interest thereon at the rate of 3% over European Central Bank rate from those dates until the date of this Award.(ii) To pay to the Claimants their legal and other costs in the sum of €3,794,970."59. It is thus Shri Viswanathans contention that it is the decree holder alone who can execute such decree in its favour, and that in the present case it is WWIL who is the decree holder, insofar as paragraph 331(3)(b) is concerned and, that, therefore, Enercons Chamber Summons, to execute this portion of the award, is contrary to the Code of Civil Procedure as well as a number of judgments construing the Code.60. On the other hand, the submission of the other side is that the Mehra brothers, who are the 2nd and 3rd defendants in the arbitration proceedings, are in control and management of WWIL, and have wrongfully excluded Enercon from such control and management. WWIL, therefore, will never put this decree into execution. This being so, the interest of justice requires that we should not interfere with the High Court judgment as there is no person that would be in a position to enforce the award apart from Enercon.61. We are of the opinion that even though the High Court may not be strictly correct in its appreciation of the law, yet it has attempted to do justice on the facts of the case as follows:"These last words are important. If what Mr. Mehta says is correct and the decree was in favour of WWIL and not Enercon, that necessarily posits a rejection of Enercons claim for damages and, therefore, a material disadvantage to Enercon. But this is not what the Arbitral Tribunal did at all. It accepted Enercons plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The nomenclature is immaterial. Given the nature of disputes, indeed, WWIL could never put this decree into execution. It never sought this relief. It could not have. This is not in fact, as paragraph 298, says a relief in favour of WWIL at all although WWIL may benefit from it. It is a relief and a decree in favour of and only of Enercon."In this view of the matter, we do not think it appropriate, in the interest of justice, to interfere with the impugned judgment on this count. | 0[ds]23. All learned counsel have agreed, and this Court has found, on a reading of Section 26, that the provision is indeed in two parts. The first part refers to the Amendment Act not applying to certain proceedings, whereas the second part affirmatively applies the Amendment Act to certain proceedings. The question is what exactly is contained in both parts. The two parts are separated by the word `but, which also shows that the two parts are separate and distinct.Shri Sundarams submission is also not in consonance with the law laid down in some of our judgments.Equally, the suggested interpretation of Shri Viswanathan would not only do violence to the plain language of Section 26, but would also ignore the words "in relation to" in the second part of Section 26, as well as ignore the fact that Section 21 of the 1996 Act, though mentioned in the first part, is conspicuous by its absence in the second part. According to Shri Viswanathan, the expression "arbitral proceedings commenced" is the same in both parts and, therefore, the commencement of arbitral proceedings under Section 21 is the only thing to be looked at in both parts. Thus, according to the learned senior counsel, if arbitral proceedings have commenced prior to coming into force of the Amendment Act, the said proceedings, together with all proceedings in Court in relation thereto, would attract only the provisions of the unamended 1996 Act. Similarly, when arbitral proceedings have commenced under Section 21 after the coming into force of the Amendment Act, those proceedings, including all courts proceedings in relation thereto, would be governed by the Amendment Act. This is not the scheme of Section 26 at all, as has been pointed out above.Shri Neeraj Kishan Kaul, learned senior counsel appearing on behalf of Respondents in SLP(C)of 2016, has argued that the first part of Section 26 does not apply to Court proceedings at all, thereby indicating that the Amendment Act must be given retrospective effect insofar as Court proceedings in relation to arbitral proceedings are concerned.For this purpose, he relied on Minister of Public Works of the Government of the State of Kuwait (supra).31. In that case, the question that arose was as to the correct construction of Section 7(1) of the U.K. Arbitration Act, 1975. The said section was given retrospective effect in applying the New York Convention to arbitration agreements that were entered into before the convention was made applicable, for the reason that nobody had an accrued right/defence which was taken away. All defences available in a common law action on the award would be available and continued to be available. Hence, it was held that the award could always have been enforced by one form of procedure and that it subsequently became enforceable by an alternative form. This judgment can have no application to the present case, inasmuch as the Amendment Act, as applicable to Court proceedings that arose in relation to arbitral proceedings, cannot be said to apply to mere forms of procedure, but also includes substantive law applicable to such Court proceedings post the Amendment Act. Also, it is wholly fallacious to say that since the first part of Section 26 does not refer to Court proceedings in relation to arbitral proceedings, the Amendment Act is retrospective insofar as such proceedings are concerned. The second part of Section 26 would then have to be completely ignored, which, as has been seen hereinabove, applies to Court proceedings in relation to arbitral proceedings only prospectively, i.e. if such Court proceedings are commenced after the Amendment Act comes into force. For these reasons, such an interpretation of Section 26 is unacceptable.32. Shri Chidambaram, appearing on behalf of some of the Respondents, has argued that the interpretation accepted by this Court supra is the correct interpretation. He has also argued that, alternatively, the expression "in relation to arbitral proceedings" in the second part of Section 26 would also include within it arbitral proceedings before the arbitral tribunal, as otherwise Section 26 would not apply the Amendment Act to such arbitral proceedings. We are afraid that this alternative interpretation does not appeal to us, for the simple reason that when the first part of Section 26 makes it clear that arbitral proceedings commenced before the Amendment Act would not be governed by the Amendment Act, it is clear that arbitral proceedings that have commenced after the Amendment Act comes into force would be so governed by it, as has been held by us above. The negative form of the language of the first part only becomes necessary to indicate that parties may otherwise agree to apply the Amendment Act to arbitral proceedings commenced even before the Amendment Act comes into force. The absence of any reference to Section 21 of the 1996 Act in the second part of Section 26 of the Amendment Act is also a good reason as to why arbitral proceedings before an arbitral tribunal are not contemplated in the second part.33. Shri Sibal has argued that Section 26 is not a savings clause at all and cannot be construed as such. According to the learned senior counsel, Section 26 manifests a clear intention to destroy all rights, vested or otherwise, which have accrued under the unamended 1996 Act. We are unable to accept these submissions as it is clear that the intendment of Section 26 is to apply the Amendment Act prospectively to arbitral proceedings and to court proceedings in relation thereto. This approach again does not commend itself to us.34. Dr. Singhvi has, however, argued that the approach indicated by us above could be termed as an "intermediate approach", i.e. it is an approach which does not go to either of the extreme approaches of Shri Sundaram, Shri Viswanathan and Shri Datar or that of Shri Sibal. Further, according to the learned senior counsel, this approach has the merit of both clarity, as well as no anomalies arising as a result, as it is clear that the Amendment Act is to be applied only prospectively with effect from the date of its commencement, and only to arbitral proceedings and to court proceedings in relation thereto, which have commenced on or after the commencement of the Amendment Act. We think this is the correct approach as has already been indicated by us above.The judgment in Thyssen (supra) dealt with a differently worded provision, and emphasized the difference in language between the expression "to" and the expression "in relation to". In reference to the Acts which were repealed under Section 85, proceedings which commenced before the 1996 Act were to be governed by the repealed Acts. These proceedings would be the entire gamut of proceedings, i.e. from the stage of commencement of arbitral proceedings until the challenge proceedings against the arbitral award had been exhausted. Similar was the position with respect to the applicability of the 1996 Act, which would again apply to the entire gamut of arbitral proceedings, beginning with commencement and ending with enforcement of the arbitral award. It is clear, therefore, that Section 85(2)(a) has two major differences in language with Section 26: one, that the expression "in relation to" does not appear in the first part of Section 26 and only the expression "to" appears; and, second, that "commencement" in the first part of Section 26 is as is understood by Section 21 of the 1996 Act. The second part of Section 85(2)(a) is couched in language similar to the second part of Section 26 with this difference, that Section 21 contained in the first part of Section 26 is conspicuous by its absence in the second part.From a reading of Section 26 as interpreted by us, it thus becomes clear that in all cases where the Section 34 petition is filed after the commencement of the Amendment Act, and an application for stay having been made under Section 36 therein, will be governed by Section 34 as amended and Section 36 as substituted.The matter can also be looked at from a slightly different angle. Section 36, prior to the Amendment Act, is only a clog on the right of the decree holder, who cannot execute the award in his favour, unless the conditions of this section are met. This does not mean that there is a corresponding right in the judgment debtor to stay the execution of such an award. Learned counsel on behalf of the Appellants have, however, argued that a substantive change has been made in the award, which became an executable decree only after the Section 34 proceedings were over, but which is now made executable as if it was a decree with immediate effect, and that this change would, therefore, take away a vested right or accrued privilege in favour of the Respondents. It has been argued, relying upon a number of judgments, that since Section 36 is a part of the enforcement process of awards, there is a vested right or at least a privilege accrued in favour of the Appellants in the unamended 1996 Act applying insofar as arbitral proceedings and court proceedings in relation thereto have commenced, prior to the commencement of the Amendment Act. The very judgment strongly relied upon by senior counsel for the appellants, namely Garikapati Veeraya (supra), itself states in proposition (v) at page 515, that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides specifically or by necessary intendment and not otherwise. We have already held that Section 26 does specifically provide that the court proceedings in relation to arbitral proceedings, being independent from arbitral proceedings, would not be viewed as a continuation of arbitral proceedings, but would be viewedStructures (P) Ltd. v. MaharashtraIndustries Development Corpn. Ltd., (2010) 3 SCC 34 atwhich was cited for the purpose of stating that a Section 34 proceeding could be regard as an "appeal" within the meaning of Section 7 of the Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act, 1993, is obviously distinguishable on the ground that it pertains to the said expression appearing in a beneficial enactment, whose object would be defeated if the word "appeal" did not include a Section 34 application.Being a procedural provision, it is obvious that the context of Section 36 is that the expression "has been" would refer to Section 34 petitions filed before the commencement of the Amendment Act and would be one pointer to the fact that the said section would indeed apply, in its substituted form, even to such petitions.In 2004, this Courts Judgment in National Aluminium Company (supra) had recommended that Section 36 be substituted, as it defeats the very objective of the alternative dispute resolution system, and that the Section should be amended at the earliest to bring about the required change in law. It would be clear that looking at the practical aspect and the nature of rights presently involved, and the sheer unfairness of the unamended provision, which granted an automatic stay to execution of an award before the enforcement process of Section 34 was over (and which stay could last for a number of years) without having to look at the facts of each case, it is clear that Section 36 as amended should apply to Section 34 applications filed before the commencement of the Amendment Act also for the aforesaid reasons.However, Shri Viswanathan strongly relied upon the observations made in paragraph 32 in Thyssen (supra) and the judgment in Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573. It is no doubt true that paragraph 32 in Thyssen (supra) does, at first blush, support Shri Viswanathans stand. However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression "in relation to arbitral proceedings", which took in the entire gamut, starting from the arbitral proceedings before the arbitral tribunal and ending up with enforcement of the award. It was also in the context of the structure of the 1940 Act being completely different from the structure of the 1996 Act, which repealed the 1940 Act. In the present case, it is clear that "enforcement" in Section 36 is to treat the award as if it were a decree and enforce it as such under the Code of Civil Procedure, which would only mean that such decree has to be executed in the manner indicated. Also, a stray sentence in a judgment in a particular context cannot be torn out of such context and applied in a situation where it has been argued that enforcement and execution are one and the same, at least for the purpose of the 1996 Act.For the same reason, it is clear that the judgment in Hameed Joharan (supra), which stated that execution and enforcement were different concepts in law, was in the context of Article 136 of the Limitation Act, 1963, read with Section 35 of the Indian Stamp Act, 1899, which is wholly different.Shri Viswanathan then referred us to this Courts judgment in Akkayanaicker v. A.A.A. Kotchadainaidu and Anr. (2004) 12 SCC 469 , which, according to him, has followed the judgment in Hameed Joharan (supra). This judgment again would have no application for the simple reason that the narrow point that was decided in that case was whether the time period for execution of a decree under Section 136 of the Limitation Act would start when the decree was originally made or whether a fresh period of limitation would begin after the decree was amended having been substantially scaled down by a Debt Relief Act. This Court held that as the original decree could not be enforced and only the amended decree could be enforced, 12 years has to be counted from the date of the amended decree. It is clear that this judgment also does not carry the matter further.Learned counsel for the Appellants have painted a lurid picture of anomalies that would arise in case the Amendment Act were generally to be made retrospective in application. Since we have already held that the Amendment Act is only prospective in application, no such anomalies can possibly arise. It may also be noted that the choosing of Section 21 as being the date on which the Amendment Act would apply to arbitral proceedings that have been commenced could equally be stated to give rise to various anomalies. One such anomaly could be that the arbitration agreement itself may have been entered into years earlier, and disputes between the parties could have arisen many years after the said arbitration agreement. The argument on behalf of the Appellants is that parties are entitled to proceed on the basis of the law as it exists on the date on which they entered into an agreement to refer disputes to arbitration. If this were to be the case, the starting point of the application of the Amendment Act being only when a notice to arbitrate has been received by the respondent, which as has been stated above, could be many years after the arbitration agreement has been entered into, would itself give rise to the anomaly that the amended law would apply even to arbitration proceedings years afterwards as and when a dispute arises and a notice to arbitrate has been issued under Section 21. In such a case, the parties, having entered into an arbitration agreement years earlier, could well turn around and say that they never bargained for the change in law that has taken place many years after, and which change will apply to them, since the notice, referred to in Section 21, has been issued after the Amendment Act has come into force. Cut off dates, by their very nature, are bound to lead to certain anomalies, but that does not mean that the process of interpretation must be so twisted as to negate both the plain language as well as the object of the amending statute. On this ground also, we do not see how an emotive argument can be converted into a legal one, so as to interpret Section 26 in a manner that would be contrary to both its plain language and object.We are of the opinion that even though the High Court may not be strictly correct in its appreciation of the law, yet it has attempted to do justice on the facts of the case aslast words are important. If what Mr. Mehta says is correct and the decree was in favour of WWIL and not Enercon, that necessarily posits a rejection of Enercons claim for damages and, therefore, a material disadvantage to Enercon. But this is not what the Arbitral Tribunal did at all. It accepted Enercons plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The nomenclature is immaterial. Given the nature of disputes, indeed, WWIL could never put this decree into execution. It never sought this relief. It could not have. This is not in fact, as paragraph 298, says a relief in favour of WWIL at all although WWIL may benefit from it. It is a relief and a decree in favour of and only ofthis view of the matter, we do not think it appropriate, in the interest of justice, to interfere with the impugned judgment on this count. | 0 | 22,588 | 3,261 | ### Instruction:
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effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons, "...have resulted in delay of disposal of arbitration proceedings and increase in interference of courts in arbitration matters, which tend to defeat the object of the Act", and will now not be applicable to Section 34 petitions filed after 23rd October, 2015, but will be applicable to Section 34 petitions filed in cases where arbitration proceedings have themselves commenced only after 23rd October, 2015. This would mean that in all matters which are in the pipeline, despite the fact that Section 34 proceedings have been initiated only after 23rd October, 2015, yet, the old law would continue to apply resulting in delay of disposal of arbitration proceedings by increased interference of Courts, which ultimately defeats the object of the 1996 Act. It would be important to remember that the 246th Law Commission Report has itself bifurcated proceedings into two parts, so that the Amendment Act can apply to Court proceedings commenced on or after 23rd October, 2015. It is this basic scheme which is adhered to by Section 26 of the Amendment Act, which ought not to be displaced as the very object of the enactment of the Amendment Act would otherwise be defeated.58. At the fag end of the arguments, Shri Viswanathan, in rejoinder, raised another point which arises only in Civil Appeals arising out of SLP(C) No. 8374-8375 of 2017 and 8376-8378 of 2017. According to him, the impugned judgment, when it dealt with the majority award in favour of respondent Enercon GmbH, went behind the award in ordering execution of a portion of the award in favour of Enercon, when the majority award, in paragraph 331(3)(b), specifically ordered the 2nd and 3rd defendants to pay to WWIL, which is a joint venture company, a sum of L 6,77,24,56,570/-. The majority award of the tribunal had specifically stated, in paragraph 298, as follows:"Enercons claim is first pleaded as damages payable by the Mehra directors directly to Enercon. It also pleads an alternative claim for such further or other relief as the Tribunal considers appropriate (paragraph 18 of the application of 13 December 2015 and paragraph 323.4 of its closing written submission dated 13 May 2016, as also its Statement of Claim of 30 September 2014, at paragraph 102(M).) In the Tribunals view, given that WWIL is only part owned by Enercon (hence Enercons pecuniary disadvantage resulting from the Mehra directors wrongdoing is not the same as that of WWIL) and further that WWIL remains the person most immediately affected by such wrongdoing, the liability of the Mehra directors is best discharged by requiring them to deciding upon such relief in favour of WWIL (as distinct from direct relief in favour of Enercon), the Tribunal sees no material disadvantage to Enercon, and, as for the Mehra directors, no possible prejudice or other unfairness, whether as a matter of pleading, the form of relief or otherwise."It is only thereafter that the Tribunal awarded the aforesaid amount in paragraph 331(3)(b) as follows:"(b) Jointly and severally-(i) to pay to WWIL the sum of INR 6,772,456,570, being the profit made by Vish Wind on the sale of allotment rights to WWIL in the years ending 31 March 2011 and 2012 together with interest thereon at the rate of 3% over European Central Bank rate from those dates until the date of this Award.(ii) To pay to the Claimants their legal and other costs in the sum of €3,794,970."59. It is thus Shri Viswanathans contention that it is the decree holder alone who can execute such decree in its favour, and that in the present case it is WWIL who is the decree holder, insofar as paragraph 331(3)(b) is concerned and, that, therefore, Enercons Chamber Summons, to execute this portion of the award, is contrary to the Code of Civil Procedure as well as a number of judgments construing the Code.60. On the other hand, the submission of the other side is that the Mehra brothers, who are the 2nd and 3rd defendants in the arbitration proceedings, are in control and management of WWIL, and have wrongfully excluded Enercon from such control and management. WWIL, therefore, will never put this decree into execution. This being so, the interest of justice requires that we should not interfere with the High Court judgment as there is no person that would be in a position to enforce the award apart from Enercon.61. We are of the opinion that even though the High Court may not be strictly correct in its appreciation of the law, yet it has attempted to do justice on the facts of the case as follows:"These last words are important. If what Mr. Mehta says is correct and the decree was in favour of WWIL and not Enercon, that necessarily posits a rejection of Enercons claim for damages and, therefore, a material disadvantage to Enercon. But this is not what the Arbitral Tribunal did at all. It accepted Enercons plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The nomenclature is immaterial. Given the nature of disputes, indeed, WWIL could never put this decree into execution. It never sought this relief. It could not have. This is not in fact, as paragraph 298, says a relief in favour of WWIL at all although WWIL may benefit from it. It is a relief and a decree in favour of and only of Enercon."In this view of the matter, we do not think it appropriate, in the interest of justice, to interfere with the impugned judgment on this count.
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first blush, support Shri Viswanathans stand. However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression "in relation to arbitral proceedings", which took in the entire gamut, starting from the arbitral proceedings before the arbitral tribunal and ending up with enforcement of the award. It was also in the context of the structure of the 1940 Act being completely different from the structure of the 1996 Act, which repealed the 1940 Act. In the present case, it is clear that "enforcement" in Section 36 is to treat the award as if it were a decree and enforce it as such under the Code of Civil Procedure, which would only mean that such decree has to be executed in the manner indicated. Also, a stray sentence in a judgment in a particular context cannot be torn out of such context and applied in a situation where it has been argued that enforcement and execution are one and the same, at least for the purpose of the 1996 Act.For the same reason, it is clear that the judgment in Hameed Joharan (supra), which stated that execution and enforcement were different concepts in law, was in the context of Article 136 of the Limitation Act, 1963, read with Section 35 of the Indian Stamp Act, 1899, which is wholly different.Shri Viswanathan then referred us to this Courts judgment in Akkayanaicker v. A.A.A. Kotchadainaidu and Anr. (2004) 12 SCC 469 , which, according to him, has followed the judgment in Hameed Joharan (supra). This judgment again would have no application for the simple reason that the narrow point that was decided in that case was whether the time period for execution of a decree under Section 136 of the Limitation Act would start when the decree was originally made or whether a fresh period of limitation would begin after the decree was amended having been substantially scaled down by a Debt Relief Act. This Court held that as the original decree could not be enforced and only the amended decree could be enforced, 12 years has to be counted from the date of the amended decree. It is clear that this judgment also does not carry the matter further.Learned counsel for the Appellants have painted a lurid picture of anomalies that would arise in case the Amendment Act were generally to be made retrospective in application. Since we have already held that the Amendment Act is only prospective in application, no such anomalies can possibly arise. It may also be noted that the choosing of Section 21 as being the date on which the Amendment Act would apply to arbitral proceedings that have been commenced could equally be stated to give rise to various anomalies. One such anomaly could be that the arbitration agreement itself may have been entered into years earlier, and disputes between the parties could have arisen many years after the said arbitration agreement. The argument on behalf of the Appellants is that parties are entitled to proceed on the basis of the law as it exists on the date on which they entered into an agreement to refer disputes to arbitration. If this were to be the case, the starting point of the application of the Amendment Act being only when a notice to arbitrate has been received by the respondent, which as has been stated above, could be many years after the arbitration agreement has been entered into, would itself give rise to the anomaly that the amended law would apply even to arbitration proceedings years afterwards as and when a dispute arises and a notice to arbitrate has been issued under Section 21. In such a case, the parties, having entered into an arbitration agreement years earlier, could well turn around and say that they never bargained for the change in law that has taken place many years after, and which change will apply to them, since the notice, referred to in Section 21, has been issued after the Amendment Act has come into force. Cut off dates, by their very nature, are bound to lead to certain anomalies, but that does not mean that the process of interpretation must be so twisted as to negate both the plain language as well as the object of the amending statute. On this ground also, we do not see how an emotive argument can be converted into a legal one, so as to interpret Section 26 in a manner that would be contrary to both its plain language and object.We are of the opinion that even though the High Court may not be strictly correct in its appreciation of the law, yet it has attempted to do justice on the facts of the case aslast words are important. If what Mr. Mehta says is correct and the decree was in favour of WWIL and not Enercon, that necessarily posits a rejection of Enercons claim for damages and, therefore, a material disadvantage to Enercon. But this is not what the Arbitral Tribunal did at all. It accepted Enercons plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The nomenclature is immaterial. Given the nature of disputes, indeed, WWIL could never put this decree into execution. It never sought this relief. It could not have. This is not in fact, as paragraph 298, says a relief in favour of WWIL at all although WWIL may benefit from it. It is a relief and a decree in favour of and only ofthis view of the matter, we do not think it appropriate, in the interest of justice, to interfere with the impugned judgment on this count.
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Debesh Chandra Das Vs. Union Of India And Ors | the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives. The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma. If any doubt remained it is cleared by the affidavit which is now filed. Paragraphs 7 and 10 of the affidavit read as follows:"7. With reference to the allegations made in paragraphs 13 to 23 of the said application, I make no admission in respect thereof except what appears from relevant records. I further say that the performance of the petitioner did not come to the standard expected of a Secretary to the Government of India.""10. The allegations made in paragraph 26 of the said application are correct. I further say that the said representation was rejected by the Prime Minister in view of the standard of performance of the petitioner."13.Now it has been ruled again and again in this Court that reduction in rank accompanied by a stigma must follow the procedure of Article 311 (2) of the Constitution. It is manifest that if this was a reduction in rank, it was accompanied by a stigma.We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.14. It remains to see whether there was a reduction in rank. There is no definition of reduction in rank in the Constitution. But we get some assistance from Rule 3 of the All India Services (Discipline and Appeal) Rules, which provides :"3. Penalties - The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a member of the Service, namely :-* * * * * ** * * * * *(iii) reduction in rank including reduction to a lower post or time-scale, or to a lower stage in a time-scale;* * * * * *"We have shown above that he was holding a tenure post. Nothing, turns upon the words of the notification until further orders because all appointments to tenure posts have the same kind of order.By an amendment of F.R. 9 (30) in 1967, a form was prescribed and that form was used in his case. These notifications also do not indicate that this was a deputation which could be terminated at any time. The notifications involving deputation always clearly so state the fact. Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown. Das thus held a tenure post which was to last till July 29, 1969.A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration. The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty. His retention in Government of India on a lower post thus was a reduction in rank.15. Finally we have to consider whether his reversion to Assam means a reduction in rank. It has been noticed above that no State Service (the highest being Chief Secretarys) carries the emoluments which Das was drawing as a Secretary for years. His reversion would have meant a big drop in his emoluments. Das was prepared to go to Assam provided be got his salary of Rs. 4,000 per month but it was stated before us that was not possible. Das was prepared to serve at the Centre in any capacity which brought him the same salary. This too was said to be not possible. This case was adjourned several times to enable Government to consider the proposal but ultimately it was turned down. All that was said was that he could only be kept in a lower post. If this is not reduction in rank we do not see what else it is. To give him a Hobsons choice of choosing between reversion to a post carrying a lower salary or staying here on a lower salaried post, is to indirectly reduce him in rank.16. Therefore, we are satisfied that Das was being reduced in rank with a stigma upon his work without following the procedure laid down in Article 311(2). We say nothing about a genuine case of accident of service in which a person drafted from a State has to go back for any reason not connected with his work or conduct. Cases must obviously arise when a person taken from the State may have to go back for reasons unconnected with his work or conduct. Those cases are different and we are not expressing any opinion about them. But this case is clearly one of reduction in rank with a distinct stigma upon the man.This requires action in accordance with Article 311 (2) of the Constitution and since none was taken, the order of reversion cannot be sustained. We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution.17. Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy. Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post. This coincided with his present tenure. But vast as the Delhi Secretariat is, no job was found for him. This confirms us in our view of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct. | 1[ds]10. The position that emerges is that the cadres for the Indian Administrative Services are to be found in the States only. There is no cadre in the Government of India. A few of these persons are, however, intended to serve at the Centre. When they do so they enjoyed better emoluments and status. They rank higher in the service and even in the Warrant of Precedence of the President. In the States they cannot get the same salary in any post as Secretaries are entitled to in the Centre. The appointments to the Centre are not in any sense a deputation. They mean promotion to a higher post. The only safeguard is that many of the posts at the Centre are tenure posts. Those of Secretaries and equivalent posts are for five years and for lower posts the duration of tenure is four years.11. Now Das held one of the tenure posts. His tenure ordinarily was five years in the post. He got his secretaryship on July 30, 1964 and was expected to continue in that post for five years, that is, till 29th July, 1969.Reversion to a lower post does not per se amount to a stigma.But we have here evidence that the reversion is accompanied by a stigma. In the first letter issued to him on June 20, 1969 by Mr. Dharma Vira (Cabinet Secretary) it was said that Government was considering whether the persons at top level administrative posts were capable of meeting the new challenges or must make room for younger men. The letter goes on to say that he may choose one of three alternatives; accept a lower post at the Centre, go back to a post carrying lower salary in Assam or take leave preparatory to retirement. The offer of a lower post in Delhi is a clear pointer to the fact of his demotion.It clearly tells him that his reversion is not due to any exigency of service but because he is found wanting. The three alternative speak volumes. This was not a case of reverting him to Assam at the end of a deputation or tenure. He can be retained in the Central Services provided he accepts a lower post, and the final alternative that he may retire clearly shows that the Government is bent upon removing him from his present post. In the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives. The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma. If any doubt remained it is cleared by the affidavit which is nowit has been ruled again and again in this Court that reduction in rank accompanied by a stigma must follow the procedure of Article 311 (2) of the Constitution. It is manifest that if this was a reduction in rank, it was accompanied by a stigma.We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.14. It remains to see whether there was a reduction inhave shown above that he was holding a tenure post. Nothing, turns upon the words of the notification until further orders because all appointments to tenure posts have the same kind of order.By an amendment of F.R. 9 (30) in 1967, a form was prescribed and that form was used in his case. These notifications also do not indicate that this was a deputation which could be terminated at any time. The notifications involving deputation always clearly so state the fact. Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown. Das thus held a tenure post which was to last till July 29, 1969.A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration. The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty. His retention in Government of India on a lower post thus was a reduction in rank.15.Finally we have to consider whether his reversion to Assam means a reduction in rank.y we have to consider whether his reversion to Assam means a reduction in rank.Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy. Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post. This coincided with his present tenure. But vast as the Delhi Secretariat is, no job was found for him. This confirms us in our view of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct. | 1 | 4,434 | 934 | ### Instruction:
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the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives. The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma. If any doubt remained it is cleared by the affidavit which is now filed. Paragraphs 7 and 10 of the affidavit read as follows:"7. With reference to the allegations made in paragraphs 13 to 23 of the said application, I make no admission in respect thereof except what appears from relevant records. I further say that the performance of the petitioner did not come to the standard expected of a Secretary to the Government of India.""10. The allegations made in paragraph 26 of the said application are correct. I further say that the said representation was rejected by the Prime Minister in view of the standard of performance of the petitioner."13.Now it has been ruled again and again in this Court that reduction in rank accompanied by a stigma must follow the procedure of Article 311 (2) of the Constitution. It is manifest that if this was a reduction in rank, it was accompanied by a stigma.We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.14. It remains to see whether there was a reduction in rank. There is no definition of reduction in rank in the Constitution. But we get some assistance from Rule 3 of the All India Services (Discipline and Appeal) Rules, which provides :"3. Penalties - The following penalties may, for good and sufficient reasons, and as hereinafter provided, be imposed on a member of the Service, namely :-* * * * * ** * * * * *(iii) reduction in rank including reduction to a lower post or time-scale, or to a lower stage in a time-scale;* * * * * *"We have shown above that he was holding a tenure post. Nothing, turns upon the words of the notification until further orders because all appointments to tenure posts have the same kind of order.By an amendment of F.R. 9 (30) in 1967, a form was prescribed and that form was used in his case. These notifications also do not indicate that this was a deputation which could be terminated at any time. The notifications involving deputation always clearly so state the fact. Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown. Das thus held a tenure post which was to last till July 29, 1969.A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration. The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty. His retention in Government of India on a lower post thus was a reduction in rank.15. Finally we have to consider whether his reversion to Assam means a reduction in rank. It has been noticed above that no State Service (the highest being Chief Secretarys) carries the emoluments which Das was drawing as a Secretary for years. His reversion would have meant a big drop in his emoluments. Das was prepared to go to Assam provided be got his salary of Rs. 4,000 per month but it was stated before us that was not possible. Das was prepared to serve at the Centre in any capacity which brought him the same salary. This too was said to be not possible. This case was adjourned several times to enable Government to consider the proposal but ultimately it was turned down. All that was said was that he could only be kept in a lower post. If this is not reduction in rank we do not see what else it is. To give him a Hobsons choice of choosing between reversion to a post carrying a lower salary or staying here on a lower salaried post, is to indirectly reduce him in rank.16. Therefore, we are satisfied that Das was being reduced in rank with a stigma upon his work without following the procedure laid down in Article 311(2). We say nothing about a genuine case of accident of service in which a person drafted from a State has to go back for any reason not connected with his work or conduct. Cases must obviously arise when a person taken from the State may have to go back for reasons unconnected with his work or conduct. Those cases are different and we are not expressing any opinion about them. But this case is clearly one of reduction in rank with a distinct stigma upon the man.This requires action in accordance with Article 311 (2) of the Constitution and since none was taken, the order of reversion cannot be sustained. We quash it and order the retention of Das in a post comparable to the post of a Secretary in emoluments till such time as his present tenure lasts or there is an inquiry against him as contemplated by the Constitution.17. Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy. Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post. This coincided with his present tenure. But vast as the Delhi Secretariat is, no job was found for him. This confirms us in our view of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct.
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1
### Explanation:
10. The position that emerges is that the cadres for the Indian Administrative Services are to be found in the States only. There is no cadre in the Government of India. A few of these persons are, however, intended to serve at the Centre. When they do so they enjoyed better emoluments and status. They rank higher in the service and even in the Warrant of Precedence of the President. In the States they cannot get the same salary in any post as Secretaries are entitled to in the Centre. The appointments to the Centre are not in any sense a deputation. They mean promotion to a higher post. The only safeguard is that many of the posts at the Centre are tenure posts. Those of Secretaries and equivalent posts are for five years and for lower posts the duration of tenure is four years.11. Now Das held one of the tenure posts. His tenure ordinarily was five years in the post. He got his secretaryship on July 30, 1964 and was expected to continue in that post for five years, that is, till 29th July, 1969.Reversion to a lower post does not per se amount to a stigma.But we have here evidence that the reversion is accompanied by a stigma. In the first letter issued to him on June 20, 1969 by Mr. Dharma Vira (Cabinet Secretary) it was said that Government was considering whether the persons at top level administrative posts were capable of meeting the new challenges or must make room for younger men. The letter goes on to say that he may choose one of three alternatives; accept a lower post at the Centre, go back to a post carrying lower salary in Assam or take leave preparatory to retirement. The offer of a lower post in Delhi is a clear pointer to the fact of his demotion.It clearly tells him that his reversion is not due to any exigency of service but because he is found wanting. The three alternative speak volumes. This was not a case of reverting him to Assam at the end of a deputation or tenure. He can be retained in the Central Services provided he accepts a lower post, and the final alternative that he may retire clearly shows that the Government is bent upon removing him from his present post. In the next letter this fact is recognised because on September 7, 1966 he is offered only two alternatives. The alternative of a lower post is advisedly dropped because it discloses too clearly a stigma. If any doubt remained it is cleared by the affidavit which is nowit has been ruled again and again in this Court that reduction in rank accompanied by a stigma must follow the procedure of Article 311 (2) of the Constitution. It is manifest that if this was a reduction in rank, it was accompanied by a stigma.We are satisfied that there was a stigma attaching to the reversion and that it was not a pure accident of service.14. It remains to see whether there was a reduction inhave shown above that he was holding a tenure post. Nothing, turns upon the words of the notification until further orders because all appointments to tenure posts have the same kind of order.By an amendment of F.R. 9 (30) in 1967, a form was prescribed and that form was used in his case. These notifications also do not indicate that this was a deputation which could be terminated at any time. The notifications involving deputation always clearly so state the fact. Many notifications were brought to our notice during the argument which bear out this fact and none to the contrary was shown. Das thus held a tenure post which was to last till July 29, 1969.A few months alone remained and he was not so desperately required in Assam that he could not continue here for the full duration. The fact that it was found necessary to break into his tenure period close to its end must be read in conjunction with the three alternatives and they clearly demonstrate that the intention was to reduce him in rank by sheer pressure of denying him a secretaryship. No Secretary, we were told, has so far been sent back in this manner and this emphasises the element of penalty. His retention in Government of India on a lower post thus was a reduction in rank.15.Finally we have to consider whether his reversion to Assam means a reduction in rank.y we have to consider whether his reversion to Assam means a reduction in rank.Before we leave this case we are constrained to say that the attitude in respect of this case was not very happy. Das offered to take leave preparatory to retirement on the 29th July, 1969 if he was retained in Delhi on this or other post. This coincided with his present tenure. But vast as the Delhi Secretariat is, no job was found for him. This confirms us in our view of the matter that he was being sent away not because of exigency of service but definitely because he was not required for reasons connected with his work and conduct.
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Anthony D'Souza & Others Vs. State of Karnataka | Cr.P.C.(13) The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation accused nos. 1 to 3 made disclosure statements leading to the discovery of incriminating materials. A-3 gave a voluntary disclosure statement exhibit P-14 which led to the discovery of wrist watch M-19 of deceased Vittal Shetty from PW 30 the taxi driver. As already noticed exhibit M-19 wrist watch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate of PW-13. This recovery has been made on the basis of the voluntary statement vide exhibit P-39 made by A-1. Pursuant to the disclosure statement PW-34 recovered 193 bags of Mangala urea which were found stored in the godown of PW-13. The said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur. PW-13 was declared hostile and did not support the prosecution story. PW-13, however admitted that A-3 Seril DSouza was working as a servant in his estate. He has also admitted that around 23rd or 24th February, 1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchanama exhibit P-15. Although PW-13 did not support the prosecution story, but two facts were established by the prosecution that A-3 was his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by A-3. 193 bags which were part of 200 bags of Mangala urea which were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Balehonnur has been proved by PW-8 as being purchased by the Pennabur factory.(14) The fourth circumstantial evidence appearing against the accused is the recovery of MOs. 20, 21 and 22 at the instance of A-3. M-20 is the wooden "katte" alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance on MO-21 the side mirror of the lorry and MO-22 sunmica piece fixed at the lorry. However both the courts relied upon M-20 the assaulting weapon. Further M-20 was stained with blood and it was sent to forensic science lab and it is confirmed to have been stained with human blood.(15) The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their own cob-web. As already noticed A-2 lodged the complaint exhibit P-45. In the complaint A-2 has stated that they were the occupants of the lorry which met with an accident on 18.2.1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin DSouza suffered severe injuries and they are being treated in government hospital. On the basis of the complaint, a case was registered under section 279/ 337 IPC. In the complaint A-2 gave his. name as Sunil Fernandis which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that accused have been treated at various hospitals which is borne out from the evidence of Dr.Prakash Inamdar P-28 and Dr. Vasanth Kumar PW-26 and PW-29 Dr. Chandra Kumar Ballal, as noticed earher. This would go to show that the act cused had admitted the boarding of this lorry and the lorry met with an accident and they sustained injuries on their bodies out of the lorry accident. In their exit amination under section 313 Cr.P.C. the accused denied the prosecution story in toto. They denied that lorry accident had taken place. They also denied to have received any injuries. In short, in their 313 statement they completely denied the established facts and offered false answers. By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing the chain. (16) In Swapan Patra v. State of West Bengal, this Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra v. Suresh, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and Ors. v. State of Rajasthan (17) In our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.(18) However, one error has been committed by the High Court by converting the conviction from section 302 read with section 149 I.P.C. to one under section 302 in aid of section 34 I.P.C. It is in the evidence of PW-16 Kiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul. As already noticed the trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under section 302 IPC read with section 149 IPC | 0[ds](7) As already noticed, there is a concurrent finding of facts by both the courts and this Court would be slow to interfere with the concurrent finding of facts unless there is some perversity in the finding. It is also established principle of law that in a case resting on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must unerringly lead to one conclusion consistent only with the hypothesis of the guilt of the accused. Keeping in view this principle we now proceed to find out whether the finding arrived at by the two courts suffers from anyThe first circumstantial evidence connecting with the accused is again the evidence ofthe taxi driver. It is noticed in the evidence of(medical officer) who had advised the accused to take the seriously injured to a major hospital at Mangalore. According to the prosecution case the accused again came back to the taxi stand and metand asked him to take the injured to Mangalore in his taxi.agreed to the request on the condition that they would pay his taxi charges of Rs.The charges were stated to be settled at Rs.500/and then they left towards Mangalore. It is in the evidence ofthat while they were proceeding near Uppinangadi some mechanical defect developed in the taxi and he asked the accused to make alternative arrangement. It is further stated that on being demand of taxi charges the accused expressed their inability to pay the whole amount and paid Rs.200/and on being insisted byfor full payment a sum of Rs.200/aiong with "Seiko" wrist watch had been given stating that they would come back and take the wrist watch back after three or four days after paying the balance amount. As already statedmet with all the accused persons on two occasions. He was well acquainted with the accused and clearly recognised them in the court. There is no malice or30 towards the accused. He was subjected to lengthy cross examination but nothing could be elicited to discredit his testimony. The statement ofhas also been corroborated by the seizure ofThis again further strengthened the prosecution story connecting the accused with the crime. PW 5, the employer of the deceased Vittal Shetty andRaghunath Shetty the younger brother of the deceased had specifically and positively identified thata wrist watch, belongs to the deceased Vittal Shetty.being the younger brother of the deceased Vittal Shetty it is quite natural that he had sufficient time and occasion to see the wrist watch (Seiko company) being worn by the deceased Vittal Shetty.the employer of Vittal Shetty also clearly stated that he had seen the deceased wearingwhenever he comes for duty.(11) From the evidence disclosed above it is apparently clear that the fact that accused received injures on their bodies in a lorry accident at Belagodu and went from Belagodu to Sakleshpur has been well established by the prosecution.(12) The second circumstantial evidence against the accused is that they were being treated by the doctors of the injuries sustained by them in an accident in volving the lorry in question. Dr. Vasanth Kumar,has stated that he examined one injured named George DSouzabrought by one Sunil (established as Anil) from Sakleshpur and noticed injuries on his body and recorded the wound certificate exhibitAccording to him, it was a case of injury of lorry accident. He has stated that the person accompanying the injured had given his name as Sunil. This doctor in hisand stated that while attending to the injury he has noted identifiable marks on the body of both the injured George and Sunil. He has found a black mole in front of the neck of George DSouza and in the court with the help of birth mark, he has identified the accused no.4 as the person who was brought by Sunil in the injured condition. In regard to Sunil, he again noted the injuries on him and issued the wound certificate vide exhibitHe has stated before the Court that he noted the identification mark on said Sunil as having brown mole of 2" below the right nipple in front of chest. This witness identified accused no.2 (established as Anil) as the person who broughtto the hospital and gave his name as Sunil and the identification is done after seeing the birth mark in exhibitIdentification marks of accused nos. 2 and 4 byin the court with physical identifiable mark noted in exhibit P30 and 31 tallying with the actual birth marks in the courts clearly establish beyond any reasonable doubt that it was accused nos. 2 and 4 who went to the Wenlock hospital in injured condition on 18.2.1992 with the history of road accident. This apart, as already noticed,also lodged a complaint of the accident vide exhibit5 B.Vasudeva PSI of Mangalore south police station recorded the statement ofwherein he stated his name as Sunil. In exhibit2 stated that on 18.2.1992 he along with his4 travelled in a lorry towards Mangalore and when the lorry came near Belagodu due to rash and negligent driving of the driver at about 10.30 am the lorry capsized and the inmates received the injuries and the driver and the cleaner ran away from the place. It is seen, thus,had admitted that A2 andtravelled in the truck and met with an accident at Belagodu and both of them received injuries and they were brought to Sakleshpur by car for treatment and from there to Wenlock hospital, Mangalore.however, disowned his statement and even denied of receiving any injures or there was any lorry accident, in his statement under section 313 Cr.P.C.(13) The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation accused nos. 1 to 3 made disclosure statements leading to the discovery of incriminating materials.gave a voluntary disclosure statement exhibitwhich led to the discovery of wrist watchof deceased Vittal Shetty from PW 30 the taxi driver. As already noticed exhibitwrist watch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate ofThis recovery has been made on the basis of the voluntary statement vide exhibitPursuant to the disclosure statementrecovered 193 bags of Mangala urea which were found stored in the godown ofThe said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur.was declared hostile and did not support the prosecution story.however admitted thatSeril DSouza was working as a servant in his estate. He has also admitted that around 23rd or 24th February, 1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchanama exhibit13 did not support the prosecution story, but two facts were established by the prosecution thatwas his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by193 bags which were part of 200 bags of Mangala urea which were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Balehonnur has been proved byas being purchased by the Pennabur factory.(14) The fourth circumstantial evidence appearing against the accused is the recovery of MOs. 20, 21 and 22 at the instance of0 is the wooden "katte" alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance onthe side mirror of the lorry andsunmica piece fixed at the lorry. However both the courts relied uponthe assaulting weapon. Furtherwas stained with blood and it was sent to forensic science lab and it is confirmed to have been stained with human blood.(15) The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their ownAs already noticedlodged the complaint exhibitIn the complainthas stated that they were the occupants of the lorry which met with an accident on 18.2.1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin DSouza suffered severe injuries and they are being treated in government hospital. On the basis of the complaint, a case was registered under section 279/ 337 IPC.In the complaintgave his. name as Sunil Fernandis which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that accused have been treated at various hospitals which is borne out from the evidence of Dr.Prakash Inamdarand Dr. Vasanth Kumar29 Dr. Chandra Kumar Ballal, as noticed earher. This would go to show that the act cused had admitted the boarding of this lorry and the lorry met with an accident and they sustained injuries on their bodies out of the lorry accident. In their exit amination under section 313 Cr.P.C. the accused denied the prosecution story in toto. They denied that lorry accident had taken place. They also denied to have received any injuries. In short, in their 313 statement they completely denied the established facts and offered false answers. By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing theIn our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.(18) However, one error has been committed by the High Court by converting the conviction from section 302 read with section 149 I.P.C. to one under section 302 in aid of section 34 I.P.C. It is in the evidence ofKiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul.As already noticedthe trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under section 302 IPC read with section 149 IPC | 0 | 4,967 | 1,845 | ### 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:
Cr.P.C.(13) The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation accused nos. 1 to 3 made disclosure statements leading to the discovery of incriminating materials. A-3 gave a voluntary disclosure statement exhibit P-14 which led to the discovery of wrist watch M-19 of deceased Vittal Shetty from PW 30 the taxi driver. As already noticed exhibit M-19 wrist watch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate of PW-13. This recovery has been made on the basis of the voluntary statement vide exhibit P-39 made by A-1. Pursuant to the disclosure statement PW-34 recovered 193 bags of Mangala urea which were found stored in the godown of PW-13. The said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur. PW-13 was declared hostile and did not support the prosecution story. PW-13, however admitted that A-3 Seril DSouza was working as a servant in his estate. He has also admitted that around 23rd or 24th February, 1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchanama exhibit P-15. Although PW-13 did not support the prosecution story, but two facts were established by the prosecution that A-3 was his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by A-3. 193 bags which were part of 200 bags of Mangala urea which were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Balehonnur has been proved by PW-8 as being purchased by the Pennabur factory.(14) The fourth circumstantial evidence appearing against the accused is the recovery of MOs. 20, 21 and 22 at the instance of A-3. M-20 is the wooden "katte" alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance on MO-21 the side mirror of the lorry and MO-22 sunmica piece fixed at the lorry. However both the courts relied upon M-20 the assaulting weapon. Further M-20 was stained with blood and it was sent to forensic science lab and it is confirmed to have been stained with human blood.(15) The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their own cob-web. As already noticed A-2 lodged the complaint exhibit P-45. In the complaint A-2 has stated that they were the occupants of the lorry which met with an accident on 18.2.1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin DSouza suffered severe injuries and they are being treated in government hospital. On the basis of the complaint, a case was registered under section 279/ 337 IPC. In the complaint A-2 gave his. name as Sunil Fernandis which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that accused have been treated at various hospitals which is borne out from the evidence of Dr.Prakash Inamdar P-28 and Dr. Vasanth Kumar PW-26 and PW-29 Dr. Chandra Kumar Ballal, as noticed earher. This would go to show that the act cused had admitted the boarding of this lorry and the lorry met with an accident and they sustained injuries on their bodies out of the lorry accident. In their exit amination under section 313 Cr.P.C. the accused denied the prosecution story in toto. They denied that lorry accident had taken place. They also denied to have received any injuries. In short, in their 313 statement they completely denied the established facts and offered false answers. By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing the chain. (16) In Swapan Patra v. State of West Bengal, this Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra v. Suresh, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and Ors. v. State of Rajasthan (17) In our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.(18) However, one error has been committed by the High Court by converting the conviction from section 302 read with section 149 I.P.C. to one under section 302 in aid of section 34 I.P.C. It is in the evidence of PW-16 Kiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul. As already noticed the trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under section 302 IPC read with section 149 IPC
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byin the court with physical identifiable mark noted in exhibit P30 and 31 tallying with the actual birth marks in the courts clearly establish beyond any reasonable doubt that it was accused nos. 2 and 4 who went to the Wenlock hospital in injured condition on 18.2.1992 with the history of road accident. This apart, as already noticed,also lodged a complaint of the accident vide exhibit5 B.Vasudeva PSI of Mangalore south police station recorded the statement ofwherein he stated his name as Sunil. In exhibit2 stated that on 18.2.1992 he along with his4 travelled in a lorry towards Mangalore and when the lorry came near Belagodu due to rash and negligent driving of the driver at about 10.30 am the lorry capsized and the inmates received the injuries and the driver and the cleaner ran away from the place. It is seen, thus,had admitted that A2 andtravelled in the truck and met with an accident at Belagodu and both of them received injuries and they were brought to Sakleshpur by car for treatment and from there to Wenlock hospital, Mangalore.however, disowned his statement and even denied of receiving any injures or there was any lorry accident, in his statement under section 313 Cr.P.C.(13) The third circumstantial evidence relied upon by the prosecution connecting the accused with the guilt is the various recoveries made at the disclosure of the accused. At the time of interrogation accused nos. 1 to 3 made disclosure statements leading to the discovery of incriminating materials.gave a voluntary disclosure statement exhibitwhich led to the discovery of wrist watchof deceased Vittal Shetty from PW 30 the taxi driver. As already noticed exhibitwrist watch belongs to the deceased Vittal Shetty has been proved by PWs 5 and 8. The other recovery is 193 bags of fertilizer from the estate ofThis recovery has been made on the basis of the voluntary statement vide exhibitPursuant to the disclosure statementrecovered 193 bags of Mangala urea which were found stored in the godown ofThe said urea bags were carried by the deceased in the lorry from Mangalore to Balehonnur.was declared hostile and did not support the prosecution story.however admitted thatSeril DSouza was working as a servant in his estate. He has also admitted that around 23rd or 24th February, 1992 the police party came to his estate and seized 193 bags of fertilizer from his estate. He has also admitted that he has put his signature on the seizure panchanama exhibit13 did not support the prosecution story, but two facts were established by the prosecution thatwas his servant and 193 bags of fertilizer which did not belong to him were seized from his estate by the police on a voluntary disclosure statement made by193 bags which were part of 200 bags of Mangala urea which were carried by the said lorry from Mangalore to Balehonnur. The seizure has been proved by the IO and the panch witness. The fertilizer bags belong to M.C.C.W. of Balehonnur has been proved byas being purchased by the Pennabur factory.(14) The fourth circumstantial evidence appearing against the accused is the recovery of MOs. 20, 21 and 22 at the instance of0 is the wooden "katte" alleged to have been used for murdering both the deceased. Both the courts below did not place much reliance onthe side mirror of the lorry andsunmica piece fixed at the lorry. However both the courts relied uponthe assaulting weapon. Furtherwas stained with blood and it was sent to forensic science lab and it is confirmed to have been stained with human blood.(15) The last and probably the most formidable circumstantial evidence against the accused is their own conduct. It appears that the accused were entangled in their ownAs already noticedlodged the complaint exhibitIn the complainthas stated that they were the occupants of the lorry which met with an accident on 18.2.1992 near Belagodu via Sakleshpur due to rash and negligent driving of the driver. Their lorry fell down reversely and due to the accident the complainant and his cousin DSouza suffered severe injuries and they are being treated in government hospital. On the basis of the complaint, a case was registered under section 279/ 337 IPC.In the complaintgave his. name as Sunil Fernandis which later on proved to be false and established as Anil, as noticed earlier. There is also enough evidence on record that accused have been treated at various hospitals which is borne out from the evidence of Dr.Prakash Inamdarand Dr. Vasanth Kumar29 Dr. Chandra Kumar Ballal, as noticed earher. This would go to show that the act cused had admitted the boarding of this lorry and the lorry met with an accident and they sustained injuries on their bodies out of the lorry accident. In their exit amination under section 313 Cr.P.C. the accused denied the prosecution story in toto. They denied that lorry accident had taken place. They also denied to have received any injuries. In short, in their 313 statement they completely denied the established facts and offered false answers. By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing theIn our view, therefore, the chain of circumstances as recited above coupled with the law laid down by this Court unerringly lead to one conclusion and that is the guilt of the accused.(18) However, one error has been committed by the High Court by converting the conviction from section 302 read with section 149 I.P.C. to one under section 302 in aid of section 34 I.P.C. It is in the evidence ofKiran Castelino that the juvenile accused Manjunatha had disclosed to him that all the five accused participated in the murder of deceased Vittal Shetty and Paul.As already noticedthe trial of juvenile accused Manjunatha has been splitted. The trial court, therefore, was right in convicting the appellants under section 302 IPC read with section 149 IPC
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The Patna Electric Supply Co., Ltd.,Patna Vs. The Patna Electric Supply Workers'Union | this question once again. In dealing with the merits of the problem, it accepted the decision of the appellate tribunal in 1953 Lab AC 677 (supra) and observed that"where the basic wage and dearness allowance are consolidated, house rent at the normal time and the subsequent rise must be presumed to have been taken into account when the total consolidated amount was fixed".19. The same view was taken by the Labour Appellate Tribunal in National Carbon Co. (India) Ltd. v. National Carbon Co., Mazdoor Union, Calcutta, 1956 Lab AC 660. In that case the tribunal had directed the employer to pay his workmen house rent allowance because it had taken the view that in making the said order it was granting a relief lesser than granting free quarters which the employees had claimed and that the lesser was involved in the greater relief and could be granted by it. On the evidence adduced in the said proceedings the Labour Appellate Tribunal did not agree with this view. It held that"provision for free quarters by constructing houses cannot permit of comparison with payment of house rent allowance in money month after month to determine which is greater and which is smaller than the relief of providing free quarters".On this view the Labour Appellate Tribunal came to the conclusion that the tribunal had no jurisdiction to award house rent allowance when the dispute referred to it for adjudication was about free quarters.20. It is thus clear that industrial tribunals have consistently refused to entertain a claim for housing accommodation or for the grant of a special and separate housing allowance against their employers. That is why in making the award under appeal the tribunals below were at pains to emphasise the fact that the scheme sanctioned by the Bihar Government made the position substantially different so far as Bihar was concerned.21. The problem of housing industrial labour has been the subject-matter of some legislative enactments. As regards the workers employed in Plantations, the Plantations Labour Act, 1951 (69 of 1951) provides that it shall be the duty of every employer to construct and maintain for every worker and his family residing in the plantation necessary housing accommodation subject to the other provisions of the Act. Housing Boards have also been established in different states to tackle the larger problem of housing in general. The Bombay Housing Board Act, 1948 (Bom 69 of 1948), the Mysore Labour Housing Act, 1949 (Mys. 28 of 1949), the Madhya Pradesh Housing Board Act, 1950 (Madhya Pradesh 43 of 1950), the Hyderabad Labour Housing Act, 1952 (Hyd. 36 0f 1952), the Saurashtra Housing Act, l954 (Saurashtra 32 of 1954) and the U. P. Industrial Housing Act, 1955 (U. P. 32 of 1955) are attempts made by the respective States to meet their responsibility in the matter of providing housing accommodation to its citizens in general and to industrial labour in particular.22. This problem appears to have been considered by the planing Commission in its report on the Second Five Year Plan. Chapter 26 of the report deals with the general problem of housing and ch. 27 deals with labour policy and programmes: The discussion of the problem in these two chapters shows that housing shortage can be conquered only by sustained and well-planned efforts made by the States and the industry together. It is a very big problem and involves the expenditure of a huge amount. Efforts are being made by the Central Government to invite the co-operation of industrial employers to tackle this problem with the progressively increasing financial and other assistance offered by the state Governments. But it is obvious that this problem cannot at present be tacked in isolation by industrial tribunals in dealing with housing demands made by employees in individual cases. In the present economic condition of our industries it would be inexpedient to impose this additional burden on the employers. Such an imposition may retard the progress of our industrial development and production and thereby prejudicially affect the national economy. Besides such an imposition on the employers would ultimately be passed by them to the consumers and that may result in an increase in prices, which is not desirable from a national point of view. It is true that the concept of social justice is not static and may expand with the growth and prosperity of our industries and a rise in our production and national income; but so far as the present state of our national economy, and the general financial condition of our industry are concerned it would be undesirable to think of introducing such an obligation on the employers today. That is why we think the industrial tribunal have very wisely refused to entertain pleas for housing accommodation made by workmen from time to time against their employers.23. In the present case it is clear that the question about the financial ability of the appellant to meet the additional burden imposed by the award has not been considered at all. In fact the tribunals below seem to have taken the view that since the appellant is bound by the scheme it is immaterial, if not irrelevant, to enquire whether the appellant would be able to meet the expenses involved in the construction of quarters as directed by the award. It is obvious that such a view proceeds on purely theoretical considerations which have no relation to existing facts in regard to the financial position of the industry or the state of national economy. In fairness to the tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation.24. Since we hold that on the merits the award cannot be sustained we do not think it is necessary to consider whether the expenditure involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act. | 1[ds]20. It is thus clear that industrial tribunals have consistently refused to entertain a claim for housing accommodation or for the grant of a special and separate housing allowance against their employers. That is why in making the award under appeal the tribunals below were at pains to emphasise the fact that the scheme sanctioned by the Bihar Government made the position substantially different so far as Bihar was concerned.21. The problem of housing industrial labour has been the subject-matter of some legislative enactments. As regards the workers employed in Plantations, the Plantations Labour Act, 1951 (69 of 1951) provides that it shall be the duty of every employer to construct and maintain for every worker and his family residing in the plantation necessary housing accommodation subject to the other provisions of the Act. Housing Boards have also been established in different states to tackle the larger problem of housing in general. The Bombay Housing Board Act, 1948 (Bom 69 of 1948), the Mysore Labour Housing Act, 1949 (Mys. 28 of 1949), the Madhya Pradesh Housing Board Act, 1950 (Madhya Pradesh 43 of 1950), the Hyderabad Labour Housing Act, 1952 (Hyd. 36 0f 1952), the Saurashtra Housing Act, l954 (Saurashtra 32 of 1954) and the U. P. Industrial Housing Act, 1955 (U. P. 32 of 1955) are attempts made by the respective States to meet their responsibility in the matter of providing housing accommodation to its citizens in general and to industrial labour in particular.This problem appears to have been considered by the planing Commission in its report on the Second Five Year Plan. Chapter 26 of the report deals with the general problem of housing and ch. 27 deals with labour policy and programmes: The discussion of the problem in these two chapters shows that housing shortage can be conquered only by sustained and well-planned efforts made by the States and the industry together. It is a very big problem and involves the expenditure of a huge amount. Efforts are being made by the Central Government to invite the co-operation of industrial employers to tackle this problem with the progressively increasing financial and other assistance offered by the state Governments. But it is obvious that this problem cannot at present be tacked in isolation by industrial tribunals in dealing with housing demands made by employees in individual cases. In the present economic condition of our industries it would be inexpedient to impose this additional burden on the employers. Such an imposition may retard the progress of our industrial development and production and thereby prejudicially affect the national economy. Besides such an imposition on the employers would ultimately be passed by them to the consumers and that may result in an increase in prices, which is not desirable from a national point of view. It is true that the concept of social justice is not static and may expand with the growth and prosperity of our industries and a rise in our production and national income; but so far as the present state of our national economy, and the general financial condition of our industry are concerned it would be undesirable to think of introducing such an obligation on the employers today. That is why we think the industrial tribunal have very wisely refused to entertain pleas for housing accommodation made by workmen from time to time against their employers.23. In the present case it is clear that the question about the financial ability of the appellant to meet the additional burden imposed by the award has not been considered at all. In fact the tribunals below seem to have taken the view that since the appellant is bound by the scheme it is immaterial, if not irrelevant, to enquire whether the appellant would be able to meet the expenses involved in the construction of quarters as directed by the award. It is obvious that such a view proceeds on purely theoretical considerations which have no relation to existing facts in regard to the financial position of the industry or the state of national economy. In fairness to the tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation.24. Since we hold that on the merits the award cannot be sustained we do not think it is necessary to consider whether the expenditure involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act. | 1 | 5,050 | 822 | ### 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:
this question once again. In dealing with the merits of the problem, it accepted the decision of the appellate tribunal in 1953 Lab AC 677 (supra) and observed that"where the basic wage and dearness allowance are consolidated, house rent at the normal time and the subsequent rise must be presumed to have been taken into account when the total consolidated amount was fixed".19. The same view was taken by the Labour Appellate Tribunal in National Carbon Co. (India) Ltd. v. National Carbon Co., Mazdoor Union, Calcutta, 1956 Lab AC 660. In that case the tribunal had directed the employer to pay his workmen house rent allowance because it had taken the view that in making the said order it was granting a relief lesser than granting free quarters which the employees had claimed and that the lesser was involved in the greater relief and could be granted by it. On the evidence adduced in the said proceedings the Labour Appellate Tribunal did not agree with this view. It held that"provision for free quarters by constructing houses cannot permit of comparison with payment of house rent allowance in money month after month to determine which is greater and which is smaller than the relief of providing free quarters".On this view the Labour Appellate Tribunal came to the conclusion that the tribunal had no jurisdiction to award house rent allowance when the dispute referred to it for adjudication was about free quarters.20. It is thus clear that industrial tribunals have consistently refused to entertain a claim for housing accommodation or for the grant of a special and separate housing allowance against their employers. That is why in making the award under appeal the tribunals below were at pains to emphasise the fact that the scheme sanctioned by the Bihar Government made the position substantially different so far as Bihar was concerned.21. The problem of housing industrial labour has been the subject-matter of some legislative enactments. As regards the workers employed in Plantations, the Plantations Labour Act, 1951 (69 of 1951) provides that it shall be the duty of every employer to construct and maintain for every worker and his family residing in the plantation necessary housing accommodation subject to the other provisions of the Act. Housing Boards have also been established in different states to tackle the larger problem of housing in general. The Bombay Housing Board Act, 1948 (Bom 69 of 1948), the Mysore Labour Housing Act, 1949 (Mys. 28 of 1949), the Madhya Pradesh Housing Board Act, 1950 (Madhya Pradesh 43 of 1950), the Hyderabad Labour Housing Act, 1952 (Hyd. 36 0f 1952), the Saurashtra Housing Act, l954 (Saurashtra 32 of 1954) and the U. P. Industrial Housing Act, 1955 (U. P. 32 of 1955) are attempts made by the respective States to meet their responsibility in the matter of providing housing accommodation to its citizens in general and to industrial labour in particular.22. This problem appears to have been considered by the planing Commission in its report on the Second Five Year Plan. Chapter 26 of the report deals with the general problem of housing and ch. 27 deals with labour policy and programmes: The discussion of the problem in these two chapters shows that housing shortage can be conquered only by sustained and well-planned efforts made by the States and the industry together. It is a very big problem and involves the expenditure of a huge amount. Efforts are being made by the Central Government to invite the co-operation of industrial employers to tackle this problem with the progressively increasing financial and other assistance offered by the state Governments. But it is obvious that this problem cannot at present be tacked in isolation by industrial tribunals in dealing with housing demands made by employees in individual cases. In the present economic condition of our industries it would be inexpedient to impose this additional burden on the employers. Such an imposition may retard the progress of our industrial development and production and thereby prejudicially affect the national economy. Besides such an imposition on the employers would ultimately be passed by them to the consumers and that may result in an increase in prices, which is not desirable from a national point of view. It is true that the concept of social justice is not static and may expand with the growth and prosperity of our industries and a rise in our production and national income; but so far as the present state of our national economy, and the general financial condition of our industry are concerned it would be undesirable to think of introducing such an obligation on the employers today. That is why we think the industrial tribunal have very wisely refused to entertain pleas for housing accommodation made by workmen from time to time against their employers.23. In the present case it is clear that the question about the financial ability of the appellant to meet the additional burden imposed by the award has not been considered at all. In fact the tribunals below seem to have taken the view that since the appellant is bound by the scheme it is immaterial, if not irrelevant, to enquire whether the appellant would be able to meet the expenses involved in the construction of quarters as directed by the award. It is obvious that such a view proceeds on purely theoretical considerations which have no relation to existing facts in regard to the financial position of the industry or the state of national economy. In fairness to the tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation.24. Since we hold that on the merits the award cannot be sustained we do not think it is necessary to consider whether the expenditure involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act.
### Response:
1
### Explanation:
20. It is thus clear that industrial tribunals have consistently refused to entertain a claim for housing accommodation or for the grant of a special and separate housing allowance against their employers. That is why in making the award under appeal the tribunals below were at pains to emphasise the fact that the scheme sanctioned by the Bihar Government made the position substantially different so far as Bihar was concerned.21. The problem of housing industrial labour has been the subject-matter of some legislative enactments. As regards the workers employed in Plantations, the Plantations Labour Act, 1951 (69 of 1951) provides that it shall be the duty of every employer to construct and maintain for every worker and his family residing in the plantation necessary housing accommodation subject to the other provisions of the Act. Housing Boards have also been established in different states to tackle the larger problem of housing in general. The Bombay Housing Board Act, 1948 (Bom 69 of 1948), the Mysore Labour Housing Act, 1949 (Mys. 28 of 1949), the Madhya Pradesh Housing Board Act, 1950 (Madhya Pradesh 43 of 1950), the Hyderabad Labour Housing Act, 1952 (Hyd. 36 0f 1952), the Saurashtra Housing Act, l954 (Saurashtra 32 of 1954) and the U. P. Industrial Housing Act, 1955 (U. P. 32 of 1955) are attempts made by the respective States to meet their responsibility in the matter of providing housing accommodation to its citizens in general and to industrial labour in particular.This problem appears to have been considered by the planing Commission in its report on the Second Five Year Plan. Chapter 26 of the report deals with the general problem of housing and ch. 27 deals with labour policy and programmes: The discussion of the problem in these two chapters shows that housing shortage can be conquered only by sustained and well-planned efforts made by the States and the industry together. It is a very big problem and involves the expenditure of a huge amount. Efforts are being made by the Central Government to invite the co-operation of industrial employers to tackle this problem with the progressively increasing financial and other assistance offered by the state Governments. But it is obvious that this problem cannot at present be tacked in isolation by industrial tribunals in dealing with housing demands made by employees in individual cases. In the present economic condition of our industries it would be inexpedient to impose this additional burden on the employers. Such an imposition may retard the progress of our industrial development and production and thereby prejudicially affect the national economy. Besides such an imposition on the employers would ultimately be passed by them to the consumers and that may result in an increase in prices, which is not desirable from a national point of view. It is true that the concept of social justice is not static and may expand with the growth and prosperity of our industries and a rise in our production and national income; but so far as the present state of our national economy, and the general financial condition of our industry are concerned it would be undesirable to think of introducing such an obligation on the employers today. That is why we think the industrial tribunal have very wisely refused to entertain pleas for housing accommodation made by workmen from time to time against their employers.23. In the present case it is clear that the question about the financial ability of the appellant to meet the additional burden imposed by the award has not been considered at all. In fact the tribunals below seem to have taken the view that since the appellant is bound by the scheme it is immaterial, if not irrelevant, to enquire whether the appellant would be able to meet the expenses involved in the construction of quarters as directed by the award. It is obvious that such a view proceeds on purely theoretical considerations which have no relation to existing facts in regard to the financial position of the industry or the state of national economy. In fairness to the tribunals we ought to add that if the tribunals had not taken an erroneous view about the effect of the scheme sanctioned by the Bihar Government they would not have granted the demand made by the respondent for housing accommodation.24. Since we hold that on the merits the award cannot be sustained we do not think it is necessary to consider whether the expenditure involved in the construction of quarters would be admissible under the relevant provisions of the Electricity Act.
|
Limbaji Vs. State Of Maharashtra | was bilateral haemothorax with heart injury, liver injury and haemoperitonium. According to him, external injuries 1 and 2 could have been caused if the ear rings were forcibly snatched. External injuries 3 and 4 could have been caused by hard and blunt object like a stone. He clarified that internal injuries could be caused by article No. 1 (stone weighing 10 k.g.) if it is forcibly hit on the chest. Further he deposed that the external injuries and internal injuries were sufficient in the ordinary course of nature to cause death. He denied the suggestion that the deceased could not have been hit with a stone. In the light of the medical evidence, there are three points which are to be prominently kept in view. Firstly, there was a lacerated wound on the posterior aspect of the left ear and another such wound on the right ear lobule which according to the doctor could have been caused in the process of forcibly snatching the ear rings worn by the victim. Secondly, the internal injuries which were the immediate cause of death would have been caused by a hard and blunt object. According to the prosecution the deceased was hit by a heavy stone found at the spot and seized under a panchanama. Thirdly, the injuries in question were antemortem. In this state of evidence, it is clear beyond reasonable doubt that the person or persons who removed the ornaments worn by the deceased themselves inflicted the wounds in the process of removing them. There was evidently a hush-hush operation to run away with the booty without allowing much time to pass. The fact that the ornaments on the person of the deceased came into the hands of the accused soon after the crime and they failed to give any explanation for the circumstances appearing against them justifies the presumption, as already discussed, that they themselves removed there articles from the person of the deceased. Causing injuries to the deceased in the process of removal of ear rings is, in our view, inextricably inter-linked with the commission of theft which is an ingredient of robbery. It would be far-fetched to think, as the trial Judge has expressed that someone else might have caused injuries and the appellant would have stolen the articles thereafter. The fact that the booty was distributed between the three accused and that they had secreted the robbed articles would clearly reveal that the three accused shared the common intention to commit robbery. Hence, we are of the view that by having resort to the presumption under Section 114, an inference can be safely drawn that the appellants committed robbery in furtherance of common intention. No other reasonable hypothesis consistent with the innocence of the accused is possible. VI(c) Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khans case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilize the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim. VII. In the result, we set aside the conviction of the accused under Section 302 IPC. We find the accused guilty of the offence punishable under Section 394 read with Section 34 IPC and accordingly convict the accused under Section 394 and sentence them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/- each and in default to undergo further imprisonment for a period of three months. The appeals are thus partly allowed. 22. | 1[ds]Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered.It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khans case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilize the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim. | 1 | 8,706 | 491 | ### 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:
was bilateral haemothorax with heart injury, liver injury and haemoperitonium. According to him, external injuries 1 and 2 could have been caused if the ear rings were forcibly snatched. External injuries 3 and 4 could have been caused by hard and blunt object like a stone. He clarified that internal injuries could be caused by article No. 1 (stone weighing 10 k.g.) if it is forcibly hit on the chest. Further he deposed that the external injuries and internal injuries were sufficient in the ordinary course of nature to cause death. He denied the suggestion that the deceased could not have been hit with a stone. In the light of the medical evidence, there are three points which are to be prominently kept in view. Firstly, there was a lacerated wound on the posterior aspect of the left ear and another such wound on the right ear lobule which according to the doctor could have been caused in the process of forcibly snatching the ear rings worn by the victim. Secondly, the internal injuries which were the immediate cause of death would have been caused by a hard and blunt object. According to the prosecution the deceased was hit by a heavy stone found at the spot and seized under a panchanama. Thirdly, the injuries in question were antemortem. In this state of evidence, it is clear beyond reasonable doubt that the person or persons who removed the ornaments worn by the deceased themselves inflicted the wounds in the process of removing them. There was evidently a hush-hush operation to run away with the booty without allowing much time to pass. The fact that the ornaments on the person of the deceased came into the hands of the accused soon after the crime and they failed to give any explanation for the circumstances appearing against them justifies the presumption, as already discussed, that they themselves removed there articles from the person of the deceased. Causing injuries to the deceased in the process of removal of ear rings is, in our view, inextricably inter-linked with the commission of theft which is an ingredient of robbery. It would be far-fetched to think, as the trial Judge has expressed that someone else might have caused injuries and the appellant would have stolen the articles thereafter. The fact that the booty was distributed between the three accused and that they had secreted the robbed articles would clearly reveal that the three accused shared the common intention to commit robbery. Hence, we are of the view that by having resort to the presumption under Section 114, an inference can be safely drawn that the appellants committed robbery in furtherance of common intention. No other reasonable hypothesis consistent with the innocence of the accused is possible. VI(c) Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khans case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilize the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim. VII. In the result, we set aside the conviction of the accused under Section 302 IPC. We find the accused guilty of the offence punishable under Section 394 read with Section 34 IPC and accordingly convict the accused under Section 394 and sentence them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/- each and in default to undergo further imprisonment for a period of three months. The appeals are thus partly allowed. 22.
### Response:
1
### Explanation:
Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered.It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khans case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this. Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No. 1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilize the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of Section 34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.
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