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National & Grindlays Bank Ltd Vs. The Municipal Corporation Of Greaterbombay | (2) (a). In the context of Section 148 (3) the lessor of the premises as mentioned in Section 146 (2) (a) must be construed as to mean the lessor of the land on which the building has been constructed by the tenant. In this connection, reference should be made to Section 147 which provides for an apportionment of responsibility for property tax when the premises assessed are let or sub-let.The language of this sub-section suggests that the lessor of the land has the right of recovering from his tenant the amount of tax which he has paid in excess of the tax which the property is liable to pay on the basis of the rent recovered by the lessor. It is also clear that the intention of the Legislature in fixing the primary liability of property tax upon the owner of the land in a case not falling under Section 146 (3) of the Act is to facilitate the collection of property tax. In the case of a monthly tenant who puts up a temporary shack or asbestos shed on the land and who may at any time terminate the lease at a short notice, it is not always possible for the Corporation to keep track of the lessee and to collect the property tax from him. It is not unreasonable therefore that in a case of this description the Legislature should impose the primary liability for the payment of the property tax upon the lessor of the land and to give him the right of recoupment under Section 147. A similar view with regard to the interpretation of Section 146 of the Act was expressed by a Division Bench of the Bombay High Court consisting of Chagla, C. J. and Shah, J., in Ramji Keshavjis case, (1954) 56 Bom LR l132 (supra).It was held by the learned Judges in that case that the owner of a land had leased it to a tenant for a period of one year and the tenant had put up a structure upon the land, the owner of the land was primarily liable to pay property tax together with the structure constructed thereon. Counsel on behalf of the appellant challenged the correctness of this decision, but for the reasons already expressed we hold that the ratio of this decision is correct.5. We shall, however, assume in favour of the appellant that the meaning of Section 146 (2) of the Act is obscure and that it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has constructed a building on the land.Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time.The principle applicable is "optima legum interpres est consuetudo": 2 Co Rep 81. In Ohlsons case, The Queen v. Commrs. of Inland Revenue, (1891) 1 QB 485, 489, in dealing with the interpretation of Section 39 of the Pawnbrokers Act, 1872, Stephen, J., said:"What weighs with me very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen years. So long ago as 1874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the case before him is that he pointedly called the attention of the commissioners to the case - the learned Magistrate having offered to state a case - an offer refused by the commissioner, who by their refusal must be taken to have acquiesced in the decision. That is a very strong contemporaneous exposition of the meaning of the Act".The same principle was referred to by Lord Blackburn in Clyde Navigation Trustees v. Laird, (1883) 8 AC 658, 670. The question in dispute in that case was whether the Clyde Navigation Consolidation Act, 1858 (repealing eight prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners and some Judges in the Court of Session suggested that this non-resistance might be considered in construing the statute. On this point Lord Blackburn said:"I think that submission raises a strong prima facie ground for thinking that there must exist some legal ground on which they (the owners) could not resist. And I think a Court should be cautious, and not decided unnecessarily that there is no such ground. If the Lord President (Inglis) means no more than this when he calls it contemporanea expositio of the statutes which is almost irresistible, I agree with him. I do not think that he means that enjoyment at least for any period short of that which gives rise to prescription, if founded on a mistaken construction of a statute, binds the Court so as to prevent it from giving the true construction. If he did, I should not agree with him, for whom I know of no authority, and am not aware of any principle, for so saying".In our opinion, the principle of contemporanea expositio applies to the present case. The Act was passed in the year 1888 and there appears to be a practice followed by the Bombay Municipal Corporation for a very long time of treating the land and the building constructed upon it as single unit and charging the property tax upon the owner of the land in a case where the land is let for a period of less than one year to a tenant who has constructed a building thereon (see Ramji Keshavjis case, (1954) 56 from LR 1132 (supra) ). | 0[ds]In our opinion, the argument put forward on behalf of the respondent is well founded and must be accepted as correct. In the first place, the language of Section 146 (2) indicates that the Legislature contemplated that in a case where the land and the building are owned by different persons there should be a composite assessment of property tax. The reason is that in Section 146 (1) and (2) the word premises is used in contrast to Section 146 (3) where the words land and building are separately mentioned. In Section 154 (1) of the Act again, the Legislature uses the expression building or land. Then Section 155 provides for the right of the Commissioner to call information from, the owner or the occupier in order to enable him to determine the rateable value of any building or land and the person primarily liable for the payment of any property tax levied in respect thereof. Section 156 provides that the Commissioner shall maintain a book to be called the assessment book which book is to contain among other things a list of all lands and building.Therefore, the scheme of Section 146 is that when the land is let and the tenant has built upon the land, there should be a composite assessment of tax upon the land and building taken together. We are further of opinion that in the case of such a composite unit the primary liability of assessment of tax is intended to be on the lessor of the land under Section 146 (2) (a) of the Act.We shall, however, assume in favour of the appellant that the meaning of Section 146 (2) of the Act is obscure and that it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has constructed a building on the land.Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time.The principle applicable is "optima legum interpres est consuetudo": 2 Co Rep 81. InOhlsons case, The Queen v. Commrs. of Inland Revenue, (1891) 1 QB 485,489, in dealing with the interpretation of Section 39 of the Pawnbrokers Act, 1872, Stephen, J.,weighs with me very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen years. So long ago as 1874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the case before him is that he pointedly called the attention of the commissioners to the case - the learned Magistrate having offered to state a case - an offer refused by the commissioner, who by their refusal must be taken to have acquiesced in the decision. That is a very strong contemporaneous exposition of the meaning of thesame principle was referred to by Lord Blackburn in ClydeNavigation Trustees v. Laird, (1883) 8 AC 658,The question in dispute in that case was whether the Clyde Navigation Consolidation Act, 1858 (repealing eight prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners and some Judges in the Court of Session suggested that this non-resistance might be considered in construing the statute. On this point Lord Blackburnthink that submission raises a strong prima facie ground for thinking that there must exist some legal ground on which they (the owners) could not resist. And I think a Court should be cautious, and not decided unnecessarily that there is no such ground. If the Lord President (Inglis) means no more than this when he calls it contemporanea expositio of the statutes which is almost irresistible, I agree with him. I do not think that he means that enjoyment at least for any period short of that which gives rise to prescription, if founded on a mistaken construction of a statute, binds the Court so as to prevent it from giving the true construction. If he did, I should not agree with him, for whom I know of no authority, and am not aware of any principle, for so saying".In our opinion, the principle of contemporanea expositio applies to the present case. The Act was passed in the year 1888 and there appears to be a practice followed by the Bombay Municipal Corporation for a very long time of treating the land and the building constructed upon it as single unit and charging the property tax upon the owner of the land in a case where the land is let for a period of less than one year to a tenant who has constructed a building thereon (see Ramji Keshavjis case, (1954) 56 from LR 1132 (supra) ). | 0 | 3,669 | 956 | ### 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:
(2) (a). In the context of Section 148 (3) the lessor of the premises as mentioned in Section 146 (2) (a) must be construed as to mean the lessor of the land on which the building has been constructed by the tenant. In this connection, reference should be made to Section 147 which provides for an apportionment of responsibility for property tax when the premises assessed are let or sub-let.The language of this sub-section suggests that the lessor of the land has the right of recovering from his tenant the amount of tax which he has paid in excess of the tax which the property is liable to pay on the basis of the rent recovered by the lessor. It is also clear that the intention of the Legislature in fixing the primary liability of property tax upon the owner of the land in a case not falling under Section 146 (3) of the Act is to facilitate the collection of property tax. In the case of a monthly tenant who puts up a temporary shack or asbestos shed on the land and who may at any time terminate the lease at a short notice, it is not always possible for the Corporation to keep track of the lessee and to collect the property tax from him. It is not unreasonable therefore that in a case of this description the Legislature should impose the primary liability for the payment of the property tax upon the lessor of the land and to give him the right of recoupment under Section 147. A similar view with regard to the interpretation of Section 146 of the Act was expressed by a Division Bench of the Bombay High Court consisting of Chagla, C. J. and Shah, J., in Ramji Keshavjis case, (1954) 56 Bom LR l132 (supra).It was held by the learned Judges in that case that the owner of a land had leased it to a tenant for a period of one year and the tenant had put up a structure upon the land, the owner of the land was primarily liable to pay property tax together with the structure constructed thereon. Counsel on behalf of the appellant challenged the correctness of this decision, but for the reasons already expressed we hold that the ratio of this decision is correct.5. We shall, however, assume in favour of the appellant that the meaning of Section 146 (2) of the Act is obscure and that it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has constructed a building on the land.Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time.The principle applicable is "optima legum interpres est consuetudo": 2 Co Rep 81. In Ohlsons case, The Queen v. Commrs. of Inland Revenue, (1891) 1 QB 485, 489, in dealing with the interpretation of Section 39 of the Pawnbrokers Act, 1872, Stephen, J., said:"What weighs with me very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen years. So long ago as 1874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the case before him is that he pointedly called the attention of the commissioners to the case - the learned Magistrate having offered to state a case - an offer refused by the commissioner, who by their refusal must be taken to have acquiesced in the decision. That is a very strong contemporaneous exposition of the meaning of the Act".The same principle was referred to by Lord Blackburn in Clyde Navigation Trustees v. Laird, (1883) 8 AC 658, 670. The question in dispute in that case was whether the Clyde Navigation Consolidation Act, 1858 (repealing eight prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners and some Judges in the Court of Session suggested that this non-resistance might be considered in construing the statute. On this point Lord Blackburn said:"I think that submission raises a strong prima facie ground for thinking that there must exist some legal ground on which they (the owners) could not resist. And I think a Court should be cautious, and not decided unnecessarily that there is no such ground. If the Lord President (Inglis) means no more than this when he calls it contemporanea expositio of the statutes which is almost irresistible, I agree with him. I do not think that he means that enjoyment at least for any period short of that which gives rise to prescription, if founded on a mistaken construction of a statute, binds the Court so as to prevent it from giving the true construction. If he did, I should not agree with him, for whom I know of no authority, and am not aware of any principle, for so saying".In our opinion, the principle of contemporanea expositio applies to the present case. The Act was passed in the year 1888 and there appears to be a practice followed by the Bombay Municipal Corporation for a very long time of treating the land and the building constructed upon it as single unit and charging the property tax upon the owner of the land in a case where the land is let for a period of less than one year to a tenant who has constructed a building thereon (see Ramji Keshavjis case, (1954) 56 from LR 1132 (supra) ).
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0
### Explanation:
In our opinion, the argument put forward on behalf of the respondent is well founded and must be accepted as correct. In the first place, the language of Section 146 (2) indicates that the Legislature contemplated that in a case where the land and the building are owned by different persons there should be a composite assessment of property tax. The reason is that in Section 146 (1) and (2) the word premises is used in contrast to Section 146 (3) where the words land and building are separately mentioned. In Section 154 (1) of the Act again, the Legislature uses the expression building or land. Then Section 155 provides for the right of the Commissioner to call information from, the owner or the occupier in order to enable him to determine the rateable value of any building or land and the person primarily liable for the payment of any property tax levied in respect thereof. Section 156 provides that the Commissioner shall maintain a book to be called the assessment book which book is to contain among other things a list of all lands and building.Therefore, the scheme of Section 146 is that when the land is let and the tenant has built upon the land, there should be a composite assessment of tax upon the land and building taken together. We are further of opinion that in the case of such a composite unit the primary liability of assessment of tax is intended to be on the lessor of the land under Section 146 (2) (a) of the Act.We shall, however, assume in favour of the appellant that the meaning of Section 146 (2) of the Act is obscure and that it is possible to interpret it as throwing the primary liability for payment of property tax upon the lessee who has constructed a building on the land.Even upon that assumption we think that the view of the law expressed by the Bombay High Court in this case ought not to be interfered with. The reason is that in a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time.The principle applicable is "optima legum interpres est consuetudo": 2 Co Rep 81. InOhlsons case, The Queen v. Commrs. of Inland Revenue, (1891) 1 QB 485,489, in dealing with the interpretation of Section 39 of the Pawnbrokers Act, 1872, Stephen, J.,weighs with me very greatly in coming to the present conclusion is the practice of the Inland Revenue Commissioners for the past sixteen years. So long ago as 1874 this very point was decided by Sir Thomas Henry, for whose decisions we all have very great respect; and the least that can be said with regard to the case before him is that he pointedly called the attention of the commissioners to the case - the learned Magistrate having offered to state a case - an offer refused by the commissioner, who by their refusal must be taken to have acquiesced in the decision. That is a very strong contemporaneous exposition of the meaning of thesame principle was referred to by Lord Blackburn in ClydeNavigation Trustees v. Laird, (1883) 8 AC 658,The question in dispute in that case was whether the Clyde Navigation Consolidation Act, 1858 (repealing eight prior Acts) imposed navigation dues on timber floated up the Clyde in logs chained together. From 1858 to 1882 dues had been levied on this class of timber without resistance from the owners and some Judges in the Court of Session suggested that this non-resistance might be considered in construing the statute. On this point Lord Blackburnthink that submission raises a strong prima facie ground for thinking that there must exist some legal ground on which they (the owners) could not resist. And I think a Court should be cautious, and not decided unnecessarily that there is no such ground. If the Lord President (Inglis) means no more than this when he calls it contemporanea expositio of the statutes which is almost irresistible, I agree with him. I do not think that he means that enjoyment at least for any period short of that which gives rise to prescription, if founded on a mistaken construction of a statute, binds the Court so as to prevent it from giving the true construction. If he did, I should not agree with him, for whom I know of no authority, and am not aware of any principle, for so saying".In our opinion, the principle of contemporanea expositio applies to the present case. The Act was passed in the year 1888 and there appears to be a practice followed by the Bombay Municipal Corporation for a very long time of treating the land and the building constructed upon it as single unit and charging the property tax upon the owner of the land in a case where the land is let for a period of less than one year to a tenant who has constructed a building thereon (see Ramji Keshavjis case, (1954) 56 from LR 1132 (supra) ).
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Charan Singh And Anr Vs. Darshan Singh And Ors | 1952 SC 143 ) it was pointed out at page 517 by Mukherjea, J. as he then was, speaking for the Court.,"A suit under Section 92, Civil P. C., is a suit of a special nature which presup poses the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil P.C. As was observed by the Privy Council in 55 Ind App 96 = (AIR 1928 PC 16 ) a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, Civil P.C."In a very recent, decision, this Court speaking through one of us (Mathew, J.) in the case of Swami Parmatmanand Saraswati v. Ramji Tripathi, (1974) 2 SCC 695 = (AIR 1974 SC 2141 ) has reiterated the same view in paragraph 10 at page 699 = (at p. 2144 of AIR) wherein it has been further added."It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92."10. Mr. B. P. Maheshwari, learned counsel for the respondents placed strong reliance upon a decision of the Patna High Court in Ganpat Pujari v. Kanaiyalal, AIR 1933 Pat 246 and the decision of this Court in Harendra Nath v. Kaliram Das, (1972) 2 SCR 492 = (AIR 1972 SC 246 ). In the Patna case the first relief asked for in the suit was for an adjudication of the property in the suit belonging to the general public and for a declaration of their right to that effect. The Thakurbari in question was claimed to be a public property to which the entire Hindu community was entitled to go and worship. The appeal arising not of the suit came up before Wort and Fazl Ali, JJ. as they then were. There was a difference of opinion as to the application of Section 92 of the Code between them, the latter taking the view that Section 92 of the Code was not a bar. On reference to the third learned Judge, Kulwant Sahay, J. agreeing with the view of Fazl Ali, J. held that the relief claimed in the suit was not covered by clauses (a) to (h) of Section 92. The facts of the instant case are different and the Letters Patent Appeal Bench of the Punjab High Court committed an error in applying the ratio of the Patna case to the facts of the present case. In (1972) 2 SCR 492 = (AIR 1972 SC 246 ) (supra), Grover, J. delivering the judgment of this Court referred to the analysis made by the High Court as to the reliefs claimed in the plaint of that suit. In the main there were 4 reliefs as enumerated at pages 498 and 499 of the report = (at p. 250 of AIR). Reliefs (1), (2) and (4) were clearly outside the scope of Section 92 of the Code. Learned counsel for the respondents submitted that relief No. 3 which was very much akin to the relief in the present suit was also held to be a relief not covered by any of the clauses of sub-section (1) of S. 92 of the Code. In our opinion the contention is not sound and cannot be accepted. The third relief in that case as analysed by the Court was in the following terms:(3) "For a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and that they had a right to access to the use of the Satra for various religious purposes."11. There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct. | 1[ds]6. It is well-settled that a suit of the nature envisaged by Section 92 (1) of the Code to obtain a decree for any one or more of the reliefs enumerated in clauses (a) to (h) of the Code has to be filed by the Advocate-General or two or more persons having an interest in the Trust with the consent in writing of the Advocate-General. Sub-section (2) provides that save under certain circumstances "..................no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section." Out of the 3 conditions which are necessary to be fulfilled for the application of Section 92, two are in disputably present in this case viz. (1) the suit relates to a Public Charitable or Religious. Trust; (2) it is founded on an allegation of a breach of trust and the direction of the Court is required for administration of the trust. The debate and dispute between the parties centered round the requirement of the fulfillment of the third condition namely whether the reliefs claimed are those which are mentioned in sub-section (1) of S. 92 of the Code. A suit may be instituted under Section 92 (1) to obtain a decree -(a) removing any trustee;(b) appointing a new trustee;(c) vesting any property in a trustee;(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;(d) directing accounts and inquiries;(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as the nature of the case may require.7. The High Court in the Letters Patent appeal has taken the view that the relief sought for in the suit does not fall under any of the clauses (a) to (h) of Section 92 of the Code. Learned counsel for the appellant has assailed this view and submitted that the relief sought for falls under clause (e) or (g) or in any event under clause (h).In our judgment the relief sought for in this case does not strictly or squarely fall within clause (e) or (g) but is very much akin to either and hence is covered by the residuary clause (h).There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct. | 1 | 3,581 | 759 | ### 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:
1952 SC 143 ) it was pointed out at page 517 by Mukherjea, J. as he then was, speaking for the Court.,"A suit under Section 92, Civil P. C., is a suit of a special nature which presup poses the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil P.C. As was observed by the Privy Council in 55 Ind App 96 = (AIR 1928 PC 16 ) a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, Civil P.C."In a very recent, decision, this Court speaking through one of us (Mathew, J.) in the case of Swami Parmatmanand Saraswati v. Ramji Tripathi, (1974) 2 SCC 695 = (AIR 1974 SC 2141 ) has reiterated the same view in paragraph 10 at page 699 = (at p. 2144 of AIR) wherein it has been further added."It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92."10. Mr. B. P. Maheshwari, learned counsel for the respondents placed strong reliance upon a decision of the Patna High Court in Ganpat Pujari v. Kanaiyalal, AIR 1933 Pat 246 and the decision of this Court in Harendra Nath v. Kaliram Das, (1972) 2 SCR 492 = (AIR 1972 SC 246 ). In the Patna case the first relief asked for in the suit was for an adjudication of the property in the suit belonging to the general public and for a declaration of their right to that effect. The Thakurbari in question was claimed to be a public property to which the entire Hindu community was entitled to go and worship. The appeal arising not of the suit came up before Wort and Fazl Ali, JJ. as they then were. There was a difference of opinion as to the application of Section 92 of the Code between them, the latter taking the view that Section 92 of the Code was not a bar. On reference to the third learned Judge, Kulwant Sahay, J. agreeing with the view of Fazl Ali, J. held that the relief claimed in the suit was not covered by clauses (a) to (h) of Section 92. The facts of the instant case are different and the Letters Patent Appeal Bench of the Punjab High Court committed an error in applying the ratio of the Patna case to the facts of the present case. In (1972) 2 SCR 492 = (AIR 1972 SC 246 ) (supra), Grover, J. delivering the judgment of this Court referred to the analysis made by the High Court as to the reliefs claimed in the plaint of that suit. In the main there were 4 reliefs as enumerated at pages 498 and 499 of the report = (at p. 250 of AIR). Reliefs (1), (2) and (4) were clearly outside the scope of Section 92 of the Code. Learned counsel for the respondents submitted that relief No. 3 which was very much akin to the relief in the present suit was also held to be a relief not covered by any of the clauses of sub-section (1) of S. 92 of the Code. In our opinion the contention is not sound and cannot be accepted. The third relief in that case as analysed by the Court was in the following terms:(3) "For a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and that they had a right to access to the use of the Satra for various religious purposes."11. There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct.
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6. It is well-settled that a suit of the nature envisaged by Section 92 (1) of the Code to obtain a decree for any one or more of the reliefs enumerated in clauses (a) to (h) of the Code has to be filed by the Advocate-General or two or more persons having an interest in the Trust with the consent in writing of the Advocate-General. Sub-section (2) provides that save under certain circumstances "..................no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section." Out of the 3 conditions which are necessary to be fulfilled for the application of Section 92, two are in disputably present in this case viz. (1) the suit relates to a Public Charitable or Religious. Trust; (2) it is founded on an allegation of a breach of trust and the direction of the Court is required for administration of the trust. The debate and dispute between the parties centered round the requirement of the fulfillment of the third condition namely whether the reliefs claimed are those which are mentioned in sub-section (1) of S. 92 of the Code. A suit may be instituted under Section 92 (1) to obtain a decree -(a) removing any trustee;(b) appointing a new trustee;(c) vesting any property in a trustee;(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;(d) directing accounts and inquiries;(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as the nature of the case may require.7. The High Court in the Letters Patent appeal has taken the view that the relief sought for in the suit does not fall under any of the clauses (a) to (h) of Section 92 of the Code. Learned counsel for the appellant has assailed this view and submitted that the relief sought for falls under clause (e) or (g) or in any event under clause (h).In our judgment the relief sought for in this case does not strictly or squarely fall within clause (e) or (g) but is very much akin to either and hence is covered by the residuary clause (h).There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct.
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The State Of Uttar Pradesh Vs. M/S. Swadeshi Cotton Mills Co., Ltd.,And Another(And Conn | to awards that have become final, the Tribunal overlooked the fact that this sub-section referred to awards which may be made even after the commencement of the Ordinance and it is not easy to appreciate how finality could be said to attach to these awards on the date when the Ordinance was promulgated. The Tribunal also felt impressed by the argument that if S. 6-A applies to appeals or proceedings against awards pending at the date of the commencement of the Ordinance, there was no reason why the same provision should not apply to appeals or proceedings which may be taken against the awards after the commencement of the Ordinance. In giving expression to this view, however, the Tribunal clearly overlooked the fact that S. 3 (3) is deliberately confined to proceedings against an award pending at the commencement of the Ordinance and no others.12.There can be little doubt, in our opinion, that the main purpose of the Ordinance was to validate orders of extension of time within which an award had to be submitted as well as to prevent its validity being questioned merely on the ground that it had been submitted beyond the specified time or any enlargement thereof. Apart from an order of extension of time the Ordinance purported to deal with at least three situations so far as the submission of an award was concerned. One was where an award was submitted before the commencement of the Ordinance and against which no proceeding was pending before any Court or Tribunal at the commencement of the Ordinance; another was where an award was submitted after the Ordinance came into force. These cases were dealt with by Cl. (2) of S. 3 of the Ordinance. The third was the case where an award was submitted before the commencement of the Ordinance against which a proceeding was pending before a Court or a Tribunal before the Ordinance came into force. S. 3 (3) of the Ordinance was so drafted that it should not interfere with judicial proceedings already pending against an award. It merely directed that such a proceeding must be decided as if S. 6-A had been a part of the Act from the date of its enactment. Where, however, no judicial proceedings against an award were pending it was the intention of the Ordinance that the award shall not be questioned merely on the ground that it was submitted after the specified period for its submission or any enlargement thereof. Although S. 3 (2) of the Ordinance is not happily worded and appears to have been the result of hasty legislation, we think, that upon a reasonable construction of its provisions its meaning is clear and there is no real conflict between its provisions and the provisions of Clause (3) of the section. The words "as if Section 6-A had been in force at all material dates" have to be given some meaning and they cannot be regarded as redundant as suggested on behalf of the appellants. Grammatically they should be regarded as referring to any action or proceeding taken, direction issued or jurisdiction exercised in pursuance of or upon an award. S. 6-A of the Act, however, has nothing to do with this and these words cannot apply to that part of the clause. These words also cannot refer to a case where the award has been made beyond the specified period and in which there has been no order of enlargement of time as S. 6-A of the Act does not apply to such a case. The words in question, therefore, can only apply to that part of the clause which refers to an enlargement of time for the submission of the award, which is the purpose of Section 6-A of the Act. In our opinion, if Section 3 (2) of the Ordinance is read in this way an intelligible meaning is given to it which is consistent with Section 6-A of the Act and not in conflict with Section 3 (3) of the Ordinance. The awards referred to in Section 3 (2) are awards against which no judicial proceeding was pending at the commencement of the Ordinance. In our opinion, the provisions of Section 3 (2) and (3) are not in conflict with each other. We cannot accept the view of the Labour Appellate Tribunal that Section 3(2) refers only to awards that had become final.13. Having construed the provisions of S. 3 of the Ordinance, it is now necessary to deal specifically with the appeals before us. Appeal No. III-198/53 of the Labor Appellate Tribunal, out of which Civil Appeal No. 14 of 1955 arises,was filed before the commencement of the Ordinance and by virtue of S.3 (3) of the Ordinance the appeal had to be decided as if the provisions of S. 6-A had been in force at all material dates. To such an appeal the provisions of Cl. (2) of S. 3 of the Ordinance would not apply. This appeal would, therefore, be governed by Cl (3). As in this case, the award had been submitted on 13-5-1953, and, the last date of enlargement gave time for the submission of the award upto 10-3-1953, the award was submitted beyond time and, therefore, was invalid as having been made without jurisdiction.In Civil Appeal No. 15 of 1955, arising out of Appeal No. III-321 of 1953 of the Labour Appellate Tribunal, the appeal was filed before that Tribunal after the commencement of the Ordinance. The award was submitted long after the period, namely, 40 days, within which it had to be submitted and there were no orders of enlargement of time. S. 3 (2) of the Ordinance and no S. 3 (3) would, therefore, apply to this appeal. The award in this case consequently has been validated by virtue of the provisions of S. 3 (2) of the Ordinance and its validity cannot be questioned merely on the ground that it was submitted after the period within which it should have been submitted. | 0[ds]12.There can be little doubt, in our opinion, that the main purpose of the Ordinance was to validate orders of extension of time within which an award had to be submitted as well as to prevent its validity being questioned merely on the ground that it had been submitted beyond the specified time or any enlargement thereof. Apart from an order of extension of time the Ordinance purported to deal with at least three situations so far as the submission of an award was concerned. One was where an award was submitted before the commencement of the Ordinance and against which no proceeding was pending before any Court or Tribunal at the commencement of the Ordinance; another was where an award was submitted after the Ordinance came into force. These cases were dealt with by(2) of S. 3 of the Ordinance. The third was the case where an award was submitted before the commencement of the Ordinance against which a proceeding was pending before a Court or a Tribunal before the Ordinance came into force. S. 3 (3) of the Ordinance was so drafted that it should not interfere with judicial proceedings already pending against an award. It merely directed that such a proceeding must be decided as if S. 6-A had been a part of the Act from the date of its enactment. Where, however, no judicial proceedings against an award were pending it was the intention of the Ordinance that the award shall not be questioned merely on the ground that it was submitted after the specified period for its submission or any enlargement thereof. Although S. 3 (2) of the Ordinance is not happily worded and appears to have been the result of hasty legislation, we think, that upon a reasonable construction of its provisions its meaning is clear and there is no real conflict between its provisions and the provisions of Clause (3) of the section. The words "as if Section 6-A had been in force at all material dates" have to be given some meaning and they cannot be regarded as redundant as suggested on behalf of the appellants. Grammatically they should be regarded as referring to any action or proceeding taken, direction issued or jurisdiction exercised in pursuance of or upon an award. S. 6-A of the Act, however, has nothing to do with this and these words cannot apply to that part of the clause. These words also cannot refer to a case where the award has been made beyond the specified period and in which there has been no order of enlargement of time as S. 6-A of the Act does not apply to such a case. The words in question, therefore, can only apply to that part of the clause which refers to an enlargement of time for the submission of the award, which is the purpose of Section 6-A of the Act. In our opinion, if Section 3 (2) of the Ordinance is read in this way an intelligible meaning is given to it which is consistent with Section 6-A of the Act and not in conflict with Section 3 (3) of the Ordinance. The awards referred to in Section 3 (2) are awards against which no judicial proceeding was pending at the commencement of the Ordinance. In our opinion, the provisions of Section 3 (2) and (3) are not in conflict with each other. We cannot accept the view of the Labour Appellate Tribunal that Section 3(2) refers only to awards that had become final.13. Having construed the provisions of S. 3 of the Ordinance, it is now necessary to deal specifically with the appeals before us. Appeal No. III-198/53 of the Labor Appellate Tribunal, out of which Civil Appeal No. 14 of 1955 arises,was filed before the commencement of the Ordinance and by virtue of S.3 (3) of the Ordinance the appeal had to be decided as if the provisions of S. 6-A had been in force at all material dates. To such an appeal the provisions of(2) of S. 3 of the Ordinance would not apply. This appeal would, therefore, be governed by Cl (3). As in this case, the award had been submitted on 13-5-1953, and, the last date of enlargement gave time for the submission of the award upto 10-3-1953, the award was submitted beyond time and, therefore, was invalid as having been made without jurisdiction.n Civil Appeal No. 15 of 1955, arising out of Appeal No. III-321 of 1953 of the Labour Appellate Tribunal, the appeal was filed before that Tribunal after the commencement of the Ordinance. The award was submitted long after the period, namely, 40 days, within which it had to be submitted and there were no orders of enlargement of time. S. 3 (2) of the Ordinance and no S. 3 (3) would, therefore, apply to this appeal. The award in this case consequently has been validated by virtue of the provisions of S. 3 (2) of the Ordinance and its validity cannot be questioned merely on the ground that it was submitted after the period within which it should have been submitted. | 0 | 4,483 | 962 | ### Instruction:
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to awards that have become final, the Tribunal overlooked the fact that this sub-section referred to awards which may be made even after the commencement of the Ordinance and it is not easy to appreciate how finality could be said to attach to these awards on the date when the Ordinance was promulgated. The Tribunal also felt impressed by the argument that if S. 6-A applies to appeals or proceedings against awards pending at the date of the commencement of the Ordinance, there was no reason why the same provision should not apply to appeals or proceedings which may be taken against the awards after the commencement of the Ordinance. In giving expression to this view, however, the Tribunal clearly overlooked the fact that S. 3 (3) is deliberately confined to proceedings against an award pending at the commencement of the Ordinance and no others.12.There can be little doubt, in our opinion, that the main purpose of the Ordinance was to validate orders of extension of time within which an award had to be submitted as well as to prevent its validity being questioned merely on the ground that it had been submitted beyond the specified time or any enlargement thereof. Apart from an order of extension of time the Ordinance purported to deal with at least three situations so far as the submission of an award was concerned. One was where an award was submitted before the commencement of the Ordinance and against which no proceeding was pending before any Court or Tribunal at the commencement of the Ordinance; another was where an award was submitted after the Ordinance came into force. These cases were dealt with by Cl. (2) of S. 3 of the Ordinance. The third was the case where an award was submitted before the commencement of the Ordinance against which a proceeding was pending before a Court or a Tribunal before the Ordinance came into force. S. 3 (3) of the Ordinance was so drafted that it should not interfere with judicial proceedings already pending against an award. It merely directed that such a proceeding must be decided as if S. 6-A had been a part of the Act from the date of its enactment. Where, however, no judicial proceedings against an award were pending it was the intention of the Ordinance that the award shall not be questioned merely on the ground that it was submitted after the specified period for its submission or any enlargement thereof. Although S. 3 (2) of the Ordinance is not happily worded and appears to have been the result of hasty legislation, we think, that upon a reasonable construction of its provisions its meaning is clear and there is no real conflict between its provisions and the provisions of Clause (3) of the section. The words "as if Section 6-A had been in force at all material dates" have to be given some meaning and they cannot be regarded as redundant as suggested on behalf of the appellants. Grammatically they should be regarded as referring to any action or proceeding taken, direction issued or jurisdiction exercised in pursuance of or upon an award. S. 6-A of the Act, however, has nothing to do with this and these words cannot apply to that part of the clause. These words also cannot refer to a case where the award has been made beyond the specified period and in which there has been no order of enlargement of time as S. 6-A of the Act does not apply to such a case. The words in question, therefore, can only apply to that part of the clause which refers to an enlargement of time for the submission of the award, which is the purpose of Section 6-A of the Act. In our opinion, if Section 3 (2) of the Ordinance is read in this way an intelligible meaning is given to it which is consistent with Section 6-A of the Act and not in conflict with Section 3 (3) of the Ordinance. The awards referred to in Section 3 (2) are awards against which no judicial proceeding was pending at the commencement of the Ordinance. In our opinion, the provisions of Section 3 (2) and (3) are not in conflict with each other. We cannot accept the view of the Labour Appellate Tribunal that Section 3(2) refers only to awards that had become final.13. Having construed the provisions of S. 3 of the Ordinance, it is now necessary to deal specifically with the appeals before us. Appeal No. III-198/53 of the Labor Appellate Tribunal, out of which Civil Appeal No. 14 of 1955 arises,was filed before the commencement of the Ordinance and by virtue of S.3 (3) of the Ordinance the appeal had to be decided as if the provisions of S. 6-A had been in force at all material dates. To such an appeal the provisions of Cl. (2) of S. 3 of the Ordinance would not apply. This appeal would, therefore, be governed by Cl (3). As in this case, the award had been submitted on 13-5-1953, and, the last date of enlargement gave time for the submission of the award upto 10-3-1953, the award was submitted beyond time and, therefore, was invalid as having been made without jurisdiction.In Civil Appeal No. 15 of 1955, arising out of Appeal No. III-321 of 1953 of the Labour Appellate Tribunal, the appeal was filed before that Tribunal after the commencement of the Ordinance. The award was submitted long after the period, namely, 40 days, within which it had to be submitted and there were no orders of enlargement of time. S. 3 (2) of the Ordinance and no S. 3 (3) would, therefore, apply to this appeal. The award in this case consequently has been validated by virtue of the provisions of S. 3 (2) of the Ordinance and its validity cannot be questioned merely on the ground that it was submitted after the period within which it should have been submitted.
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12.There can be little doubt, in our opinion, that the main purpose of the Ordinance was to validate orders of extension of time within which an award had to be submitted as well as to prevent its validity being questioned merely on the ground that it had been submitted beyond the specified time or any enlargement thereof. Apart from an order of extension of time the Ordinance purported to deal with at least three situations so far as the submission of an award was concerned. One was where an award was submitted before the commencement of the Ordinance and against which no proceeding was pending before any Court or Tribunal at the commencement of the Ordinance; another was where an award was submitted after the Ordinance came into force. These cases were dealt with by(2) of S. 3 of the Ordinance. The third was the case where an award was submitted before the commencement of the Ordinance against which a proceeding was pending before a Court or a Tribunal before the Ordinance came into force. S. 3 (3) of the Ordinance was so drafted that it should not interfere with judicial proceedings already pending against an award. It merely directed that such a proceeding must be decided as if S. 6-A had been a part of the Act from the date of its enactment. Where, however, no judicial proceedings against an award were pending it was the intention of the Ordinance that the award shall not be questioned merely on the ground that it was submitted after the specified period for its submission or any enlargement thereof. Although S. 3 (2) of the Ordinance is not happily worded and appears to have been the result of hasty legislation, we think, that upon a reasonable construction of its provisions its meaning is clear and there is no real conflict between its provisions and the provisions of Clause (3) of the section. The words "as if Section 6-A had been in force at all material dates" have to be given some meaning and they cannot be regarded as redundant as suggested on behalf of the appellants. Grammatically they should be regarded as referring to any action or proceeding taken, direction issued or jurisdiction exercised in pursuance of or upon an award. S. 6-A of the Act, however, has nothing to do with this and these words cannot apply to that part of the clause. These words also cannot refer to a case where the award has been made beyond the specified period and in which there has been no order of enlargement of time as S. 6-A of the Act does not apply to such a case. The words in question, therefore, can only apply to that part of the clause which refers to an enlargement of time for the submission of the award, which is the purpose of Section 6-A of the Act. In our opinion, if Section 3 (2) of the Ordinance is read in this way an intelligible meaning is given to it which is consistent with Section 6-A of the Act and not in conflict with Section 3 (3) of the Ordinance. The awards referred to in Section 3 (2) are awards against which no judicial proceeding was pending at the commencement of the Ordinance. In our opinion, the provisions of Section 3 (2) and (3) are not in conflict with each other. We cannot accept the view of the Labour Appellate Tribunal that Section 3(2) refers only to awards that had become final.13. Having construed the provisions of S. 3 of the Ordinance, it is now necessary to deal specifically with the appeals before us. Appeal No. III-198/53 of the Labor Appellate Tribunal, out of which Civil Appeal No. 14 of 1955 arises,was filed before the commencement of the Ordinance and by virtue of S.3 (3) of the Ordinance the appeal had to be decided as if the provisions of S. 6-A had been in force at all material dates. To such an appeal the provisions of(2) of S. 3 of the Ordinance would not apply. This appeal would, therefore, be governed by Cl (3). As in this case, the award had been submitted on 13-5-1953, and, the last date of enlargement gave time for the submission of the award upto 10-3-1953, the award was submitted beyond time and, therefore, was invalid as having been made without jurisdiction.n Civil Appeal No. 15 of 1955, arising out of Appeal No. III-321 of 1953 of the Labour Appellate Tribunal, the appeal was filed before that Tribunal after the commencement of the Ordinance. The award was submitted long after the period, namely, 40 days, within which it had to be submitted and there were no orders of enlargement of time. S. 3 (2) of the Ordinance and no S. 3 (3) would, therefore, apply to this appeal. The award in this case consequently has been validated by virtue of the provisions of S. 3 (2) of the Ordinance and its validity cannot be questioned merely on the ground that it was submitted after the period within which it should have been submitted.
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Sudhir Ranjan Patra (Dead) thr. LRs. & Anr Vs. Himansu Sekhar Srichandan & Ors | Court ought not to have observed anything on the same and ought to have left it to the learned Trial Court. 3.4 It is submitted that in the present case no order was passed by the learned Trial Court on whether the written statement be taken on record or not, the decisions relied upon by the High Court in the case of Sangram Singh Vs. Election Tribunal, Kotah and another; AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others; AIR 1964 SC 993 shall not be applicable to the facts of the case on hand. 4. Present appeals are vehemently opposed by Shri Nitesh Bhandari, learned counsel appearing on behalf of respondent No. 1 herein – original plaintiff. 4.1 It is submitted that despite the fact that a number of opportunities were given to defendant Nos. 2 and 3 to file their written statement between 2012 to 2017 (till the exparte decree was passed). Hence, the High Court was justified in passing the impugned order by observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement on setting aside the ex-parte decree. 4.2 It is submitted that as held by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit and he would be debarred from filing any written statement in the suit. It is submitted that therefore, the impugned order passed by the High Court is absolutely in consonance with the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). 5. We have heard learned counsel appearing on behalf of the respective parties at length. 6. At the outset it is required to be noted that when the appellants – original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC they prayed to condone the delay as well as to set aside the ex-parte decree and also to allow filing of the written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed CMA No. 31/2018 and condoned the delay and set aside the ex-parte decree subject to cost of Rs. 25,000/- each to be paid to the plaintiff. From order dated 05.12.2019, it does not appear that any further order was passed by the learned Trial Court on whether by setting aside the ex-parte decree, defendant Nos. 2 and 3 may be permitted to file written statement or not. The order passed by the learned Trial Court condoning the delay and setting aside the ex-parte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the ex-parte decree and restoring the suit to file, defendant Nos. 2 and 3 cannot be permitted to file the written statement. Reliance is placed upon the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). However, it is true that as per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the ex-parte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex-parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018. As observed hereinabove, there was no order passed by the learned Trial Court on the specific prayer made by defendant Nos. 2 and 3 to allow them to file written statement. The learned Trial Court while passing order dated 05.12.2019 condoned the delay and set aside the exparte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to the learned Trial Court. | 1[ds]6. At the outset it is required to be noted that when the appellants – original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC they prayed to condone the delay as well as to set aside the ex-parte decree and also to allow filing of the written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed CMA No. 31/2018 and condoned the delay and set aside the ex-parte decree subject to cost of Rs. 25,000/- each to be paid to the plaintiff. From order dated 05.12.2019, it does not appear that any further order was passed by the learned Trial Court on whether by setting aside the ex-parte decree, defendant Nos. 2 and 3 may be permitted to file written statement or not. The order passed by the learned Trial Court condoning the delay and setting aside the ex-parte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the ex-parte decree and restoring the suit to file, defendant Nos. 2 and 3 cannot be permitted to file the written statement. Reliance is placed upon the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). However, it is true that as per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the ex-parte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex-parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018.As observed hereinabove, there was no order passed by the learned Trial Court on the specific prayer made by defendant Nos. 2 and 3 to allow them to file written statement. The learned Trial Court while passing order dated 05.12.2019 condoned the delay and set aside the exparte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to the learned Trial Court. | 1 | 2,125 | 769 | ### Instruction:
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Court ought not to have observed anything on the same and ought to have left it to the learned Trial Court. 3.4 It is submitted that in the present case no order was passed by the learned Trial Court on whether the written statement be taken on record or not, the decisions relied upon by the High Court in the case of Sangram Singh Vs. Election Tribunal, Kotah and another; AIR 1955 SC 425 and Arjun Singh Vs. Mohindra Kumar and others; AIR 1964 SC 993 shall not be applicable to the facts of the case on hand. 4. Present appeals are vehemently opposed by Shri Nitesh Bhandari, learned counsel appearing on behalf of respondent No. 1 herein – original plaintiff. 4.1 It is submitted that despite the fact that a number of opportunities were given to defendant Nos. 2 and 3 to file their written statement between 2012 to 2017 (till the exparte decree was passed). Hence, the High Court was justified in passing the impugned order by observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement on setting aside the ex-parte decree. 4.2 It is submitted that as held by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to the date of hearing of the suit and he would be debarred from filing any written statement in the suit. It is submitted that therefore, the impugned order passed by the High Court is absolutely in consonance with the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). 5. We have heard learned counsel appearing on behalf of the respective parties at length. 6. At the outset it is required to be noted that when the appellants – original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC they prayed to condone the delay as well as to set aside the ex-parte decree and also to allow filing of the written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed CMA No. 31/2018 and condoned the delay and set aside the ex-parte decree subject to cost of Rs. 25,000/- each to be paid to the plaintiff. From order dated 05.12.2019, it does not appear that any further order was passed by the learned Trial Court on whether by setting aside the ex-parte decree, defendant Nos. 2 and 3 may be permitted to file written statement or not. The order passed by the learned Trial Court condoning the delay and setting aside the ex-parte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the ex-parte decree and restoring the suit to file, defendant Nos. 2 and 3 cannot be permitted to file the written statement. Reliance is placed upon the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). However, it is true that as per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the ex-parte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex-parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018. As observed hereinabove, there was no order passed by the learned Trial Court on the specific prayer made by defendant Nos. 2 and 3 to allow them to file written statement. The learned Trial Court while passing order dated 05.12.2019 condoned the delay and set aside the exparte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to the learned Trial Court.
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6. At the outset it is required to be noted that when the appellants – original defendant Nos. 2 and 3 filed CMA No. 31/2018 under Order IX Rule 13 of CPC they prayed to condone the delay as well as to set aside the ex-parte decree and also to allow filing of the written statement and to take up the suit on merits. By order dated 05.12.2019, the learned Trial Court allowed CMA No. 31/2018 and condoned the delay and set aside the ex-parte decree subject to cost of Rs. 25,000/- each to be paid to the plaintiff. From order dated 05.12.2019, it does not appear that any further order was passed by the learned Trial Court on whether by setting aside the ex-parte decree, defendant Nos. 2 and 3 may be permitted to file written statement or not. The order passed by the learned Trial Court condoning the delay and setting aside the ex-parte decree has been confirmed by the High Court by passing the impugned judgment and order. However, the High Court has observed that on setting aside the ex-parte decree and restoring the suit to file, defendant Nos. 2 and 3 cannot be permitted to file the written statement. Reliance is placed upon the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra). However, it is true that as per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte. He would be debarred from filing any written statement in the suit, but then he can participate in the hearing of the suit inasmuch crossexamine the witness of the plaintiff and address arguments. However, in our view, in the facts and circumstances of the case, the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case by filing the CMA under Order IX Rule 13, appellants herein – original defendant Nos. 2 and 3 not only prayed to set aside the ex-parte decree but also prayed to allow them to file written statement. As observed above, there was no order and/or decision by the learned Trial Court on the second prayer, namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the ex-parte decree is set aside and the suit is restored to file and even as per the decisions of this Court in the case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to the position prior to the date of hearing of the suit in that case also, it should have been left to the learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file written statement or not, which was also prayed in CMA No. 31/2018.As observed hereinabove, there was no order passed by the learned Trial Court on the specific prayer made by defendant Nos. 2 and 3 to allow them to file written statement. The learned Trial Court while passing order dated 05.12.2019 condoned the delay and set aside the exparte decree and the said order of condonation of delay and setting aside the ex-parte decree was the subject matter before the High Court. Therefore, the further observations made by the High Court that defendant Nos. 2 and 3 cannot be permitted to file their written statement can be said to be beyond the scope and ambit of the CMP filed before the High Court. Under the circumstances, the impugned judgment and order passed by the High Court to the extent of observing that defendant Nos. 2 and 3 cannot be permitted to file their written statement is unsustainable and the issue/question whether defendant Nos. 2 and 3 may be allowed to file their written statement or not, shall have to be remanded to the learned Trial Court.
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R. R. Engineering Co Vs. Zila Parishad, Bareilly & Anr | the tax on circumstances, that is to say, status or financial position, meant the tax on mans trade, business, profession or employment which was covered by Item 60 of the State List.This question was also considered by a Special Bench consisting of Five Judges of the Allahabad High Court in The Notified Area Committee and Anr. v. Sri Ram Singhasan Prasad Kalwar. Mr. Justice S.N. Dwivedi who delivered the Judgment of the Special Bench traced the entire history of the impugned tax in reference to three periods: (1) the period prior to the 1 935 Constitution Act; (2) the period between 1935 and 1950; and (3) the post-Constitution period. After a careful examination of the nature of the tax the learned Judge summed up the position thus:"To sum up, the history of the tax on circumstances and property after 1935 definitely shows that it was not a distinct and separate impost. The Government of India Act, 1935 and the Constitution treat it as a composite tax as its name suggests. As its constituents are already covered by one or the other entry in the legislative Lists, it is not enumerated as a category in the Lists as it was enumerated in the White Paper."17. The conclusion to which the Special Bench came was that a tax on circumstances and property is a composite tax, that its components are varied, but that two of such components are firstly a tax on trades, callings, professions and employments and secondly, a tax on lands and buildings. In coming to this conclusion, reliance was placed by the learned Judge on the decision of the Supreme Court in Pandit Ram Narain (supra) and that of the Full Bench in the District Board of Farrukhabad (supra). But the amplification of the legislative authority which the Special Bench made is significant. It did not say as Broome, J. said in the Full Bench decision in the Zila Parishad, Muzaffarnagar (supra) that the tax on circumstances and property is referable only to two entries in List II namely, Entries 49 an d 60. According to the Special Bench, the tax was wide enough to cover certain other items in List II, like Item 58 which relates to "taxes on animals and boats". We are of the opinion that the Special Bench was right in coming to this conclusion. Accordingly, we affirm its view that the tax on circumstances and property is referable to items 49 and 60 of List II of the Seventh Schedule, and amongst other items, to item 58 of that List. The validity of the tax has therefore to be upheld.While doing so, we would like to utter a word of caution. The fact that one of the components of the impugned tax, namely, the component of circumstances is referable to other entries in addition to Entry 60, should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. An excessive levy on circumstances will tend to blur the distinction between a tax on income and a tax on circumstances. Income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax. Restraint in this behalf will be a prudent prescription for t he local authorities to follow.18. All that remains to be done is to express our inability to accept as correct the view taken by Mr. Justice R.S. Pathak and Mr. Justice M.H. Beg in R. R. Engineering Co. (supra) that by reason of the fact tha t the circumstances and property tax is a composite tax and since the element of property necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. Our conclusion that the tax is referable, inter alia, to entries 49 and 60 of List II must necessarily result in the rejection of that view. The learned Judges were of the opinion, with which we are respectfully unable to agree, that since the tax on circumstances and property did not find place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule, it falls under the residuary entry, namely, Entry 97 of List I. On that basis they held that Article 277 of the Constitution would save the tax since it was within the competence of the Parliament to impose it. In the view that we have taken, namely, that the impugned tax falls within the competence of the State Legislature by virtue of entries 49 and 6 0, inter alia, of List II, this part of the reasoning of the learned Judges has to be rejected. It is unnecessary and in fact erroneous to take resort to Article 277 of the Constitution for the purpose of saving the tax on circumstances and property. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. What is true in other jurisdictions is true in this branch of law also, namely, that one must have regard to the substance of the matter and not to the form or label. We may also mention that in so far as the Town Area Committees are concerned, Article 277 will not save the impugned tax since it was levied by the Town Area Committee in pursuance of the power conferred by clause (f) of section 14 of the Town Areas Act, which was introduced by a post- Constitution amendment. We accept the reasoning of Mr. Justice S. N. Dwivedi in The Notified Area Committee, (supra) by which the Special Bench expressed its disagreement with the view taken by the two learned Judges in R. R. Engineering Co (supra) in regard to the application of Article 277 on the basis that the residuary entry is attracted.19. | 0[ds]It is trite thatcan only be levied on income, that is to say, it can be levied provided the assessee is in receipt of an income. If there is no income, there can be noIn contrast, the relevant consideration in the case of a tax on circumstances and property" can be the total turnover of the assessee from his trade or calling or the fact of his having an interest in a property. This consideration assumes relevance because the tax on circumstances and property is a tax, so to say, on the status of the assessee, in their endeavour to give to that tax a local name and habitation, in order perhaps to soften resistance to it, the learned Judges of the Allahabad High Court have described it as a tax on Haisiat which, as far and as best as translation can go, means status. For the levy of tax on circumstances and property, it is not necessary that there should be income in the hands of the asses see, in the sense of theAct. The outgoings, the deductions, thelosses, the development rebate and the like may leave no income in the hands of an assessee which could be brought to tax under theAct. But a person can be subjected to tax on circumstances and property in relation to his Haisiat, that is to say, the status which he occupies by reason of the fact of the pursuit by him of a beneficial calling or the possession by him of an interest in property. While determining the status of an individual for the purposes of the tax on circumstances, the total turnover of his business or avocation may therefore be legitimately taken intomay be, and is often so, that the tax on circumstances and property is levied on the basis of income which the assessee receives from his profession, trade, calling or property. That is, however, not conclusive on the nature of the tax. It is only as a matter of convenience that income is adopted as a yardstick or measure for assessing the tax. As pointed out in Re a Reference under Govt. of Ireland Act, the measure of the tax is not a true test of the nature of the tax. Therefore, while determining the nature of a tax, though the standard on which the tax is levied may be a relevant consideration, it is not a conclusive consideration. One must have regard in such matters, as stated by the Privy Council in Governor General i n Council v. Province of Madras, not to the name of the tax but to its real nature, its pith and substance, which must determine into what category it falls. Applying these tests, the tax on circumstances will fall in the category of a tax on "a ma ns financial position, his status taken as a whole and includes what may not properly be comprised under the term property and at the same time ought not to escape assessment." This quotation finds place in the judgment of Malik C.J. in the Full Bench decision in District Board of Farrukhabad. (supra) The formulation, which the learned Chief Justice would appear to have extracted from another source, since he has put it within quotes, is in similar terms as that of this Court in Pandit Ram Narain v. The State of U.P. In that case an assessee challenged his liability to pay the tax on circumstances and property under section 14 (1) (f) of the U. P. Town Areas Act, 1914 on the ground that he did not reside within the jurisdiction of the Town Area Committee of Karhal and that Rule 3 framed under section 39 (2) of the Act was invalid. This Court, after referring approvingly to the decision in District Board of Farrukhabad, (supra) particularly to the statement therein that the name given to a tax did not matter and that what had to be considered was the pith and substance of it,tax on circumstances and property is a composite tax and the word circumstances means a mans financial position, his status as a whole depending, among other things, on his income from trade orFull Bench decision under appeal in the instant case, R. R. Engineering Co. (supra) has taken the same view of the nature of the tax on circumstances and property by holding that it is not a tax on income but is a tax on a mans financial position, his status as a whole, depending upon his income from trade or business. Earlier another Full Bench of t he Allahabad High Court had held in Zila Parishad Muzaffrnagar v. Jugal Kishore that the tax on circumstances and property is fundamentally distinct from and cannot be equated with income tax, that it is not covered by item 82, List I, Schedule 7, o f the Constitution and that it is essentially a tax on status or financial position combined with a tax on property. These decisions correctly describe the nature of the tax on circumstances and property. We affirm the view taken therein, especially that the aforesaid tax is not a tax oneven though the impugned tax is not a tax on income, it is necessary to consider whether it is within the legislative competence of the State legislature and, if so, under which entry it would fall. The reason for such an inquiry is mainlyfirstly, even if the tax on circumstances is within the legislative competence of the State legislature, being referable to entry 60 of List II which relates to taxes on professions, trades, callings and employments, it cannot exceed the limit of two hundred and fifty rupees per annum prescribed by Article 276(2) of the Constitution, unless the proviso to that article is attracted: secondly, if the tax is beyond the legislative competence of the State legislature, being a composite tax not liable to be split up into distinct component parts, it will be necessary to examine whether the tax is saved by article 277 of the Constitution.Article 276(1) of the Constitution provides that notwithstanding anything in article 246, no law of the legislature of a State relating to taxes for the benefit of the State or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. By clause (2) of that Article, the total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. The proviso to this clause says that if in the financial year immediately preceding the commencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate of which exceeded two hundred and fifty rupees per annum, such tax may continue to be levied until provision to the contrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, municipalities, boards orsum up, the history of the tax on circumstances and property after 1935 definitely shows that it was not a distinct and separate impost. The Government of India Act, 1935 and the Constitution treat it as a composite tax as its name suggests. As its constituents are already covered by one or the other entry in the legislative Lists, it is not enumerated as a category in the Lists as it was enumerated in the Whiteconclusion to which the Special Bench came was that a tax on circumstances and property is a composite tax, that its components are varied, but that two of such components are firstly a tax on trades, callings, professions and employments and secondly, a tax on lands and buildings. In coming to this conclusion, reliance was placed by the learned Judge on the decision of the Supreme Court in Pandit Ram Narain (supra) and that of the Full Bench in the District Board of Farrukhabad (supra). But the amplification of the legislative authority which the Special Bench made is significant. It did not say as Broome, J. said in the Full Bench decision in the Zila Parishad, Muzaffarnagar (supra) that the tax on circumstances and property is referable only to two entries in List II namely, Entries 49 an d 60. According to the Special Bench, the tax was wide enough to cover certain other items in List II, like Item 58 which relates to "taxes on animals and boats". We are of the opinion that the Special Bench was right in coming to this conclusion. Accordingly, we affirm its view that the tax on circumstances and property is referable to items 49 and 60 of List II of the Seventh Schedule, and amongst other items, to item 58 of that List. The validity of the tax has therefore to be upheld.While doing so, we would like to utter a word of caution. The fact that one of the components of the impugned tax, namely, the component of circumstances is referable to other entries in addition to Entry 60, should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. An excessive levy on circumstances will tend to blur the distinction between a tax on income and a tax on circumstances. Income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax. Restraint in this behalf will be a prudent prescription for t he local authorities tothat remains to be done is to express our inability to accept as correct the view taken by Mr. Justice R.S. Pathak and Mr. Justice M.H. Beg in R. R. Engineering Co. (supra) that by reason of the fact tha t the circumstances and property tax is a composite tax and since the element of property necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. Our conclusion that the tax is referable, inter alia, to entries 49 and 60 of List II must necessarily result in the rejection of that view. The learned Judges were of the opinion, with which we are respectfully unable to agree, that since the tax on circumstances and property did not find place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule, it falls under the residuary entry, namely, Entry 97 of List I. On that basis they held that Article 277 of the Constitution would save the tax since it was within the competence of the Parliament to impose it. In the view that we have taken, namely, that the impugned tax falls within the competence of the State Legislature by virtue of entries 49 and 6 0, inter alia, of List II, this part of the reasoning of the learned Judges has to be rejected. It is unnecessary and in fact erroneous to take resort to Article 277 of the Constitution for the purpose of saving the tax on circumstances and property. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. What is true in other jurisdictions is true in this branch of law also, namely, that one must have regard to the substance of the matter and not to the form or label. We may also mention that in so far as the Town Area Committees are concerned, Article 277 will not save the impugned tax since it was levied by the Town Area Committee in pursuance of the power conferred by clause (f) of section 14 of the Town Areas Act, which was introduced by a postConstitution amendment. We accept the reasoning of Mr. Justice S. N. Dwivedi in The Notified Area Committee, (supra) by which the Special Bench expressed its disagreement with the view taken by the two learned Judges in R. R. Engineering Co (supra) in regard to the application of Article 277 on the basis that the residuary entry is attracted. | 0 | 5,444 | 2,306 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the tax on circumstances, that is to say, status or financial position, meant the tax on mans trade, business, profession or employment which was covered by Item 60 of the State List.This question was also considered by a Special Bench consisting of Five Judges of the Allahabad High Court in The Notified Area Committee and Anr. v. Sri Ram Singhasan Prasad Kalwar. Mr. Justice S.N. Dwivedi who delivered the Judgment of the Special Bench traced the entire history of the impugned tax in reference to three periods: (1) the period prior to the 1 935 Constitution Act; (2) the period between 1935 and 1950; and (3) the post-Constitution period. After a careful examination of the nature of the tax the learned Judge summed up the position thus:"To sum up, the history of the tax on circumstances and property after 1935 definitely shows that it was not a distinct and separate impost. The Government of India Act, 1935 and the Constitution treat it as a composite tax as its name suggests. As its constituents are already covered by one or the other entry in the legislative Lists, it is not enumerated as a category in the Lists as it was enumerated in the White Paper."17. The conclusion to which the Special Bench came was that a tax on circumstances and property is a composite tax, that its components are varied, but that two of such components are firstly a tax on trades, callings, professions and employments and secondly, a tax on lands and buildings. In coming to this conclusion, reliance was placed by the learned Judge on the decision of the Supreme Court in Pandit Ram Narain (supra) and that of the Full Bench in the District Board of Farrukhabad (supra). But the amplification of the legislative authority which the Special Bench made is significant. It did not say as Broome, J. said in the Full Bench decision in the Zila Parishad, Muzaffarnagar (supra) that the tax on circumstances and property is referable only to two entries in List II namely, Entries 49 an d 60. According to the Special Bench, the tax was wide enough to cover certain other items in List II, like Item 58 which relates to "taxes on animals and boats". We are of the opinion that the Special Bench was right in coming to this conclusion. Accordingly, we affirm its view that the tax on circumstances and property is referable to items 49 and 60 of List II of the Seventh Schedule, and amongst other items, to item 58 of that List. The validity of the tax has therefore to be upheld.While doing so, we would like to utter a word of caution. The fact that one of the components of the impugned tax, namely, the component of circumstances is referable to other entries in addition to Entry 60, should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. An excessive levy on circumstances will tend to blur the distinction between a tax on income and a tax on circumstances. Income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax. Restraint in this behalf will be a prudent prescription for t he local authorities to follow.18. All that remains to be done is to express our inability to accept as correct the view taken by Mr. Justice R.S. Pathak and Mr. Justice M.H. Beg in R. R. Engineering Co. (supra) that by reason of the fact tha t the circumstances and property tax is a composite tax and since the element of property necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. Our conclusion that the tax is referable, inter alia, to entries 49 and 60 of List II must necessarily result in the rejection of that view. The learned Judges were of the opinion, with which we are respectfully unable to agree, that since the tax on circumstances and property did not find place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule, it falls under the residuary entry, namely, Entry 97 of List I. On that basis they held that Article 277 of the Constitution would save the tax since it was within the competence of the Parliament to impose it. In the view that we have taken, namely, that the impugned tax falls within the competence of the State Legislature by virtue of entries 49 and 6 0, inter alia, of List II, this part of the reasoning of the learned Judges has to be rejected. It is unnecessary and in fact erroneous to take resort to Article 277 of the Constitution for the purpose of saving the tax on circumstances and property. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. What is true in other jurisdictions is true in this branch of law also, namely, that one must have regard to the substance of the matter and not to the form or label. We may also mention that in so far as the Town Area Committees are concerned, Article 277 will not save the impugned tax since it was levied by the Town Area Committee in pursuance of the power conferred by clause (f) of section 14 of the Town Areas Act, which was introduced by a post- Constitution amendment. We accept the reasoning of Mr. Justice S. N. Dwivedi in The Notified Area Committee, (supra) by which the Special Bench expressed its disagreement with the view taken by the two learned Judges in R. R. Engineering Co (supra) in regard to the application of Article 277 on the basis that the residuary entry is attracted.19.
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### Explanation:
to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. The proviso to this clause says that if in the financial year immediately preceding the commencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate of which exceeded two hundred and fifty rupees per annum, such tax may continue to be levied until provision to the contrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, municipalities, boards orsum up, the history of the tax on circumstances and property after 1935 definitely shows that it was not a distinct and separate impost. The Government of India Act, 1935 and the Constitution treat it as a composite tax as its name suggests. As its constituents are already covered by one or the other entry in the legislative Lists, it is not enumerated as a category in the Lists as it was enumerated in the Whiteconclusion to which the Special Bench came was that a tax on circumstances and property is a composite tax, that its components are varied, but that two of such components are firstly a tax on trades, callings, professions and employments and secondly, a tax on lands and buildings. In coming to this conclusion, reliance was placed by the learned Judge on the decision of the Supreme Court in Pandit Ram Narain (supra) and that of the Full Bench in the District Board of Farrukhabad (supra). But the amplification of the legislative authority which the Special Bench made is significant. It did not say as Broome, J. said in the Full Bench decision in the Zila Parishad, Muzaffarnagar (supra) that the tax on circumstances and property is referable only to two entries in List II namely, Entries 49 an d 60. According to the Special Bench, the tax was wide enough to cover certain other items in List II, like Item 58 which relates to "taxes on animals and boats". We are of the opinion that the Special Bench was right in coming to this conclusion. Accordingly, we affirm its view that the tax on circumstances and property is referable to items 49 and 60 of List II of the Seventh Schedule, and amongst other items, to item 58 of that List. The validity of the tax has therefore to be upheld.While doing so, we would like to utter a word of caution. The fact that one of the components of the impugned tax, namely, the component of circumstances is referable to other entries in addition to Entry 60, should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. An excessive levy on circumstances will tend to blur the distinction between a tax on income and a tax on circumstances. Income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax. Restraint in this behalf will be a prudent prescription for t he local authorities tothat remains to be done is to express our inability to accept as correct the view taken by Mr. Justice R.S. Pathak and Mr. Justice M.H. Beg in R. R. Engineering Co. (supra) that by reason of the fact tha t the circumstances and property tax is a composite tax and since the element of property necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. Our conclusion that the tax is referable, inter alia, to entries 49 and 60 of List II must necessarily result in the rejection of that view. The learned Judges were of the opinion, with which we are respectfully unable to agree, that since the tax on circumstances and property did not find place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule, it falls under the residuary entry, namely, Entry 97 of List I. On that basis they held that Article 277 of the Constitution would save the tax since it was within the competence of the Parliament to impose it. In the view that we have taken, namely, that the impugned tax falls within the competence of the State Legislature by virtue of entries 49 and 6 0, inter alia, of List II, this part of the reasoning of the learned Judges has to be rejected. It is unnecessary and in fact erroneous to take resort to Article 277 of the Constitution for the purpose of saving the tax on circumstances and property. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. What is true in other jurisdictions is true in this branch of law also, namely, that one must have regard to the substance of the matter and not to the form or label. We may also mention that in so far as the Town Area Committees are concerned, Article 277 will not save the impugned tax since it was levied by the Town Area Committee in pursuance of the power conferred by clause (f) of section 14 of the Town Areas Act, which was introduced by a postConstitution amendment. We accept the reasoning of Mr. Justice S. N. Dwivedi in The Notified Area Committee, (supra) by which the Special Bench expressed its disagreement with the view taken by the two learned Judges in R. R. Engineering Co (supra) in regard to the application of Article 277 on the basis that the residuary entry is attracted.
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M/s. Groupe Chimique Tunisien SA Vs. M/s. Southern Petrochemicals Industries Corpn. Ltd | is that the petitioner having denied the arbitration agreement before the Jordanian Court, cannot now contend that there is an arbitration agreement. Respondent also contends that in the absence of any letter from the petitioner specifically referring to or agreeing to arbitration and in view of petitioners denial of the existence of arbitration agreement in its pleadings before the Jordanian Court, there is no consensus ad idem between the parties to refer the disputes to arbitration and therefore there cannot be any reference to arbitration. 6. Whether there is an arbitration agreement or not, has to be decided with reference to the contract documents and not with reference to any contention raised before a court of law after the dispute has arisen. Reference to pleadings before the Jordanian Courts would have been relevant if the plea was that the arbitration agreement between the parties is contained in the exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other (as contemplated under section 7(4)(c) of the Act.) Be that as it may, Section 2(b) of the Act defines arbitration agreement as meaning an agreement referred to in Section 7 (extracted below): "7. Arbitration agreement. - (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract." 7. The purchase orders placed by the respondent on the petitioner are the contracts between the parties and they are subject to FAI terms which contain the arbitration clause. Sub-section (5) of section 7 specifically provides that where there is reference in a contract (in this case, the purchase order) to a document containing an arbitration clause (in this case, the FAI terms), such reference constitutes an arbitration agreement, if the contract is in writing and the reference is such as to make that arbitration clause a part of the contract. The case squarely falls under section 7(5) of the Act and there is an arbitration agreement between the parties as per clause 15 of the FAI terms. 8. The respondent next contended that in the invoices for the supplies, there is no reference to FAI terms or arbitration agreement and, therefore, the disputes are not arbitrable. As noticed above, the purchase orders are the contracts. Invoice is a document which is prepared with reference to the supplies made under the contract. When the contract (purchase order) incorporates an arbitration agreement by reference, the invoice need not contain a provision for arbitration. 9. It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want or jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. vs. Indore (P) Ltd. - 1996 (2) SCC 667 - where the contention based on estoppel was negatived while considering a reserve situation). 10. In regard to limitation, the petitioner submitted that having regard to the acknowledgements contained in the series of letters written by Respondent requesting for time and the acknowledgements contained in the balance-sheets where these amounts are shown as due and outstanding, the petitioners claim is not barred by limitation. It is, however, unnecessary to examine this aspect as the learned counsel for the respondent fairly conceded that this is a question which can be examined by the Arbitral Tribunal, in the event of a reference to arbitration being made. It is now well-settled that the limitation is an issue that can be considered and decided by the Arbitral Tribunal. 11. The next question is whether the respondent has lost its right to appoint its nominee to the Arbitral Tribunal in view of its failure to comply with the demand of the petitioner to appoint the arbitrator within 30 days from the date of receipt of notice dated 30.8.2005. It is apparent that the respondent did not appoint an Arbitrator as it was under a bona fide impression that there cannot be an arbitration. Further without prejudice to its contentions, it has nominated its Arbitrator. 12. Section 10 of the Act provides that the number of Arbitrators shall not be even. The arbitrations clause provides that the dispute shall be referred to two Arbitrators and in the event of Arbitrators not agreeing then an Umpire to be appointed by the Arbitrators in writing before proceeding to the reference. Having regard to section 10 of the Act, the Arbitral Tribunal shall consist of three Arbitrators (one to be appointed by each of the two parties and the Presiding Arbitrator). | 1[ds]As noticed above, the purchase orders are the contracts. Invoice is a document which is prepared with reference to the supplies made under the contract. When the contract (purchase order) incorporates an arbitration agreement by reference, the invoice need not contain a provision for arbitration9. It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want or jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. vs. Indore (P) Ltd.1996 (2) SCC 667 where the contention based on estoppel was negatived while considering a reserve situation)10. In regard to limitation, the petitioner submitted that having regard to the acknowledgements contained in the series of letters written by Respondent requesting for time and the acknowledgements contained in thes where these amounts are shown as due and outstanding, the petitioners claim is not barred by limitation. It is, however, unnecessary to examine this aspect as the learned counsel for the respondent fairly conceded that this is a question which can be examined by the Arbitral Tribunal, in the event of a reference to arbitration being made. It is nowd that the limitation is an issue that can be considered and decided by the Arbitral Tribunal | 1 | 2,349 | 333 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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is that the petitioner having denied the arbitration agreement before the Jordanian Court, cannot now contend that there is an arbitration agreement. Respondent also contends that in the absence of any letter from the petitioner specifically referring to or agreeing to arbitration and in view of petitioners denial of the existence of arbitration agreement in its pleadings before the Jordanian Court, there is no consensus ad idem between the parties to refer the disputes to arbitration and therefore there cannot be any reference to arbitration. 6. Whether there is an arbitration agreement or not, has to be decided with reference to the contract documents and not with reference to any contention raised before a court of law after the dispute has arisen. Reference to pleadings before the Jordanian Courts would have been relevant if the plea was that the arbitration agreement between the parties is contained in the exchange of statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other (as contemplated under section 7(4)(c) of the Act.) Be that as it may, Section 2(b) of the Act defines arbitration agreement as meaning an agreement referred to in Section 7 (extracted below): "7. Arbitration agreement. - (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract." 7. The purchase orders placed by the respondent on the petitioner are the contracts between the parties and they are subject to FAI terms which contain the arbitration clause. Sub-section (5) of section 7 specifically provides that where there is reference in a contract (in this case, the purchase order) to a document containing an arbitration clause (in this case, the FAI terms), such reference constitutes an arbitration agreement, if the contract is in writing and the reference is such as to make that arbitration clause a part of the contract. The case squarely falls under section 7(5) of the Act and there is an arbitration agreement between the parties as per clause 15 of the FAI terms. 8. The respondent next contended that in the invoices for the supplies, there is no reference to FAI terms or arbitration agreement and, therefore, the disputes are not arbitrable. As noticed above, the purchase orders are the contracts. Invoice is a document which is prepared with reference to the supplies made under the contract. When the contract (purchase order) incorporates an arbitration agreement by reference, the invoice need not contain a provision for arbitration. 9. It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want or jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. vs. Indore (P) Ltd. - 1996 (2) SCC 667 - where the contention based on estoppel was negatived while considering a reserve situation). 10. In regard to limitation, the petitioner submitted that having regard to the acknowledgements contained in the series of letters written by Respondent requesting for time and the acknowledgements contained in the balance-sheets where these amounts are shown as due and outstanding, the petitioners claim is not barred by limitation. It is, however, unnecessary to examine this aspect as the learned counsel for the respondent fairly conceded that this is a question which can be examined by the Arbitral Tribunal, in the event of a reference to arbitration being made. It is now well-settled that the limitation is an issue that can be considered and decided by the Arbitral Tribunal. 11. The next question is whether the respondent has lost its right to appoint its nominee to the Arbitral Tribunal in view of its failure to comply with the demand of the petitioner to appoint the arbitrator within 30 days from the date of receipt of notice dated 30.8.2005. It is apparent that the respondent did not appoint an Arbitrator as it was under a bona fide impression that there cannot be an arbitration. Further without prejudice to its contentions, it has nominated its Arbitrator. 12. Section 10 of the Act provides that the number of Arbitrators shall not be even. The arbitrations clause provides that the dispute shall be referred to two Arbitrators and in the event of Arbitrators not agreeing then an Umpire to be appointed by the Arbitrators in writing before proceeding to the reference. Having regard to section 10 of the Act, the Arbitral Tribunal shall consist of three Arbitrators (one to be appointed by each of the two parties and the Presiding Arbitrator).
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1
### Explanation:
As noticed above, the purchase orders are the contracts. Invoice is a document which is prepared with reference to the supplies made under the contract. When the contract (purchase order) incorporates an arbitration agreement by reference, the invoice need not contain a provision for arbitration9. It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want or jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. vs. Indore (P) Ltd.1996 (2) SCC 667 where the contention based on estoppel was negatived while considering a reserve situation)10. In regard to limitation, the petitioner submitted that having regard to the acknowledgements contained in the series of letters written by Respondent requesting for time and the acknowledgements contained in thes where these amounts are shown as due and outstanding, the petitioners claim is not barred by limitation. It is, however, unnecessary to examine this aspect as the learned counsel for the respondent fairly conceded that this is a question which can be examined by the Arbitral Tribunal, in the event of a reference to arbitration being made. It is nowd that the limitation is an issue that can be considered and decided by the Arbitral Tribunal
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Commner. of Income Tax, Coimbatore Vs. M/s. Textool Co. Ltd | ground that payment towards the gratuity fund was made by the assessee directly to the LIC and not to an approved gratuity fund and, therefore, it was not allowable under Section 36(1)(v) of the Act. 3. Being aggrieved, the assessee preferred appeal to the Commissioner of Income Tax (Appeals). The Commissioner observed that the initial payment of Rs.50,00,000/- and the annual premium of Rs. 5,57,943/- was made by the assessee directly to the LIC instead of as a contribution towards the approved gratuity fund; the LIC had accepted the said payment on behalf of the Group Life Assurance Scheme for the exclusive benefit of the employees of the assessee under the policy issued by it. Upon perusal of the original Master policy issued by the LIC, the Commissioner recorded his satisfaction that the initial contribution as well as annual premium had been credited by the LIC to the Group Life Assurance Scheme on behalf of the Textool Company Ltd. Employees Group Gratuity Fund only, meaning thereby that the insurance policy had been taken in the name of the approved gratuity fund only; this fund was shown as the payee in the policy; vide its letter dated 20th November, 1985, addressed to the I.A.C., the assessee had confirmed that in the subsequent assessment years, they had contributed funds to the Employees Group Gratuity Fund and the trustees in turn had made payment to the LIC in respect of the Textool Co. Ltd.; Employees Group Gratuity Assurance Scheme under the said policy and it was only the initial payment and first annual premium had been made directly to the LIC against the said policy. The Commissioner was thus, convinced that by making payment of the amounts in question directly to the LIC, the assessee had not violated any of the conditions stipulated in Section 36 (1) (v) of the Act. Accordingly, the Commissioner came to the conclusion that since, on the facts of the case, the objective of the fund was achieved, a narrow interpretation of the provision would be straining the language of Section 36(1)(v) of the Act so as to deny the deduction claimed by the assessee. Consequently, the Commissioner allowed the said amount of Rs. 58,84,754/- as deduction for the relevant assessment year. 4. Being dissatisfied with the view taken by the Commissioner, the Revenue took the matter in further appeal to the Tribunal. Relying on its earlier decision in the case of Janambikai Mills Ltd, the Tribunal dismissed the appeal. 5. As stated above, by the impugned order, the afore extracted question, referred at the instance of the revenue, has been answered by the High Court in favour of the assessee. While answering the question, the High Court has observed as follows : "In our opinion, the Commissioner of Income Tax (Appeals) as well as the Tribunal have correctly held that merely because the payments were made directly to the LIC, the company could not be denied the benefit under Section 36(1)(v) and the amount had to be credited in favour of the assessee. Both the Commissioner (appeals) as well as the Tribunal have correctly read the law and have correctly relied upon the aforementioned Supreme Court judgment. In our opinion, since the finding of fact is that all the payments made were only towards the Group Gratuity Fund, there would be no question of finding otherwise." 6. Learned counsel appearing on behalf of the Revenue has submitted before us that the provisions of Section 36(1)(v) of the Act have to be construed strictly and for claiming deduction, conditions laid down in Section 36(1)(v) of the Act must be fulfilled. It is urged that since during the relevant previous year the contribution by the assessee towards the gratuity fund was not in an approved gratuity fund the High Court was not justified in affirming the view taken by the Commissioner as also by the Tribunal while answering the reference in favour of the assessee. However, on a query by us as to whether the contribution made by the assessee in the approved gratuity fund credited by the LIC for the employees of the assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned counsel is not in a position to make a categorical statement in that behalf. 7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See : Shri Sajjan Mills Ltd. vs. Commissioner of Income Tax, M.P. & Anr. (1985) 156 ITR 585 ). From a bare reading of Sectin 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. Having regard to the facts found by the Commissioner and affirmed by the Tribunal, no fault can be found with the opinion expressed by the High court, warranting our interference. 8. | 0[ds]Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See : Shri Sajjan Mills Ltd. vs. Commissioner of Income Tax, M.P. & Anr. (1985) 156 ITR 585 ). From a bare reading of Sectin 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. Having regard to the facts found by the Commissioner and affirmed by the Tribunal, no fault can be found with the opinion expressed by the High court, warranting our interference. | 0 | 1,520 | 299 | ### Instruction:
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ground that payment towards the gratuity fund was made by the assessee directly to the LIC and not to an approved gratuity fund and, therefore, it was not allowable under Section 36(1)(v) of the Act. 3. Being aggrieved, the assessee preferred appeal to the Commissioner of Income Tax (Appeals). The Commissioner observed that the initial payment of Rs.50,00,000/- and the annual premium of Rs. 5,57,943/- was made by the assessee directly to the LIC instead of as a contribution towards the approved gratuity fund; the LIC had accepted the said payment on behalf of the Group Life Assurance Scheme for the exclusive benefit of the employees of the assessee under the policy issued by it. Upon perusal of the original Master policy issued by the LIC, the Commissioner recorded his satisfaction that the initial contribution as well as annual premium had been credited by the LIC to the Group Life Assurance Scheme on behalf of the Textool Company Ltd. Employees Group Gratuity Fund only, meaning thereby that the insurance policy had been taken in the name of the approved gratuity fund only; this fund was shown as the payee in the policy; vide its letter dated 20th November, 1985, addressed to the I.A.C., the assessee had confirmed that in the subsequent assessment years, they had contributed funds to the Employees Group Gratuity Fund and the trustees in turn had made payment to the LIC in respect of the Textool Co. Ltd.; Employees Group Gratuity Assurance Scheme under the said policy and it was only the initial payment and first annual premium had been made directly to the LIC against the said policy. The Commissioner was thus, convinced that by making payment of the amounts in question directly to the LIC, the assessee had not violated any of the conditions stipulated in Section 36 (1) (v) of the Act. Accordingly, the Commissioner came to the conclusion that since, on the facts of the case, the objective of the fund was achieved, a narrow interpretation of the provision would be straining the language of Section 36(1)(v) of the Act so as to deny the deduction claimed by the assessee. Consequently, the Commissioner allowed the said amount of Rs. 58,84,754/- as deduction for the relevant assessment year. 4. Being dissatisfied with the view taken by the Commissioner, the Revenue took the matter in further appeal to the Tribunal. Relying on its earlier decision in the case of Janambikai Mills Ltd, the Tribunal dismissed the appeal. 5. As stated above, by the impugned order, the afore extracted question, referred at the instance of the revenue, has been answered by the High Court in favour of the assessee. While answering the question, the High Court has observed as follows : "In our opinion, the Commissioner of Income Tax (Appeals) as well as the Tribunal have correctly held that merely because the payments were made directly to the LIC, the company could not be denied the benefit under Section 36(1)(v) and the amount had to be credited in favour of the assessee. Both the Commissioner (appeals) as well as the Tribunal have correctly read the law and have correctly relied upon the aforementioned Supreme Court judgment. In our opinion, since the finding of fact is that all the payments made were only towards the Group Gratuity Fund, there would be no question of finding otherwise." 6. Learned counsel appearing on behalf of the Revenue has submitted before us that the provisions of Section 36(1)(v) of the Act have to be construed strictly and for claiming deduction, conditions laid down in Section 36(1)(v) of the Act must be fulfilled. It is urged that since during the relevant previous year the contribution by the assessee towards the gratuity fund was not in an approved gratuity fund the High Court was not justified in affirming the view taken by the Commissioner as also by the Tribunal while answering the reference in favour of the assessee. However, on a query by us as to whether the contribution made by the assessee in the approved gratuity fund credited by the LIC for the employees of the assessee and ultimately the entire amount deposited with the LIC came back to the fund created by the assessee for the benefit of its employees and approved by the Commissioner w.e.f. 25th February, 1983, or not, learned counsel is not in a position to make a categorical statement in that behalf. 7. Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See : Shri Sajjan Mills Ltd. vs. Commissioner of Income Tax, M.P. & Anr. (1985) 156 ITR 585 ). From a bare reading of Sectin 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. Having regard to the facts found by the Commissioner and affirmed by the Tribunal, no fault can be found with the opinion expressed by the High court, warranting our interference. 8.
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0
### Explanation:
Having considered the matter in the light of the background facts, we are of the opinion that there is no merit in the appeal. True that a fiscal statute is to be construed strictly and nothing should be added or subtracted to the language employed in the Section, yet a strict construction of a provision does not rule out the application of the principles of reasonable construction to give effect to the purpose and intention of any particular provision of the Act. (See : Shri Sajjan Mills Ltd. vs. Commissioner of Income Tax, M.P. & Anr. (1985) 156 ITR 585 ). From a bare reading of Sectin 36(1)(v) of the Act, it is manifest that the real intention behind the provision is that the employer should not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees. In the instant case, it is evident from the findings recorded by the Commissioner and affirmed by the Tribunal that the assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Textool Employees Gratuity Fund, approved by the Commissioner with effect from the following previous year. Thus, the conditions stipulated in Section 36(1)(v) of the Act were satisfied. Having regard to the facts found by the Commissioner and affirmed by the Tribunal, no fault can be found with the opinion expressed by the High court, warranting our interference.
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Superintendent (Tech. I) Central Excise I.D.D.Jabalpur And Vs. Pratap Rai | written or said without prejudice can be considered at the trial without the consent of both parties - not even by a judge in determining whether or not there is good cause for depriving a successful litigant of costs... The word is also frequently used without the foregoing implication in statutes and inter partes to exclude or save transactions, acts and rights from the consequences of a stated proposition and so as to mean not affecting, saving or excepting."8. In short, therefore, the implication of the term "without prejudice" means, (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view, a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated, the parties would be relegated to the position which they occupied before the order of the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.The High Court, however, strongly relied on two decisions, namely, the decision of the Madras High Court in the case of Collector of Central Excise, Madras v. K. Palappa Nadar, AIR 1964 Mad 111 , and of the Gujarat High Court in the case of Marsden Spg. and Co. Ltd. v. L. V. Pol, Superintendent of Central Excise (Tax), ILR 1965 Guj. 240.9. In the Madras case the order impugned ran as follows (page 111) :"Having regard to all the circumstances of the case, the Central Board of Revenue hereby directs, without prejudice to the merits of the case, the order dated 3rd March, 1956, passed by The Collector of Central Excise, Madras, shall be vacated, ""After careful consideration of the arguments of the learned Advocate General for the appellant and also of the respondent, we are of the opinion that, in the absence of any specific words in the order of the Central Board of Revenue, it is not possible to spell out from its terms a precise direction for a de novo enquiry, giving jurisdiction to the Collector, for that purpose."10. In our opinion, the interpretation put by the Madras High Court does not appear to be correct and is too narrow and does not carry out the object of the Act. The Central Board of Revenue had merely vacated the order without prejudice to the merits of the case which clearly meant that the merits were not decided by it, Secondly, the order impugned in the Madras case does not indicate the ground on which the order was vacated whereas in the instant case the Appellate Collector has expressly stated that the order was vacated because it violated the rules of natural justice. The reason given by the Appellate Collector in the instant case makes all the difference. In the circumstances, therefore, the Madras case being clearly distinguishable as indicated above, we are of the opinion that the view taken by the Madras High Court is ofno assistance to the respondent.The case of Marsden Spg. & Co. Ltd., ILR 1965 Guj 240, is also clearly distinguishable. In that case the impugned order was extracted thus :"Having regard to all the facts of the case and taking into account the contentions put forth by the appellants, I hereby order that the decision of the Superintendent, Central Excise (Tax), Ahmedabad, shall be set aside.2. The amounts of excise duty and penalty recovered from the appellants in pursuance thereof shall be refunded to them."Construing this order the High Court observed as follows :"If the appellate order merely annulled the original order without containing any other directions there wasno power in the original Tribunal to initiate de novo proceedings and impose a fresh penalty."11. It appears that the Gujarat High Court practically adopted the reasonings impugned in the Gujarat case was clear and explicit and was final and irrevocable. The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant. Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there wasno question of any fresh proceedings being initiated. On the other hand, in the instant case, such a consequential order is wholly wanting in the judgment of the Appellate Collector. For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case. Thus, on a careful consideration of the facts and circumstances of the present case, we are clearly of the opinion that where an order passed in appeal vacates the order of the first Tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law. It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case with the High Court that asno express words were used in the order of the Appellate Collector remanding the case, the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent.12. | 1[ds]In our opinion, the contention of counsel for the appellants appears to be sound and must prevail. A perusal of the order of the Appellate Collector extracted above clearly shows two important facts :(1) that the Appellate Collector has not set aside or vacated the order of the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the violation of the rules of natural justice and that is why the Appellate Collector had advisedly used the words "without prejudice" in his order,(2) that the Assistant Collector in his order dated 30th June, 1969, had directed confiscation of the watches and imposed a penalty of Rs. 250 and if the Appellate Collector intended to set aside this order completely and irrevocably then he should have passed a consequential order for refund of the amount of the penalty and release of the property confiscated. The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice. It seems to us that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no final decision of the cause and fresh proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.In the case of Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise, Nellore Dn., AIR 1961 AP 324 , 325, while construing the provisions of the Central Excises and salt Act which was almost on identical terms as the Customs Act, a Division Bench of the Andhra Pradesh High Court observed as follows :"Assuming that section 35 of the Central Excises Act does not clothe the appellate authority with power to remand the matter to the officer whose order is appealed against, nothing stands in the way of the Assistant Collector initiating the proceedings afresh, when his order was quashed not on merits but on technical grounds, i.e., for not following either the procedure or the dictates of natural justice. In a case where the flaw in the order appealed against consists of in the non-observance of certain procedure or in not giving effect to the maxim audialteram partem, it is open to the officer concerned to start the procedure once again with a view to follow the rules of procedure and the principles of naturalfind ourselves in complete agreement with the view taken by the Andhra Pradesh High Court and the observations made by Reddy C.J., who spoke for the court. It is obvious that in the instant case the Appellate Collector found that the order of the Assistant Collector suffered from a serious procedural infirmity, viz., that it was passed without giving the respondent a proper opportunity of being heard, and, therefore, had to be vacated. In such circumstances, therefore, it cannot be said that fresh proceedings by complying with the rules of natural justice could not be started against the respondent. The Appellate Collector has clearly used the words "Without prejudice" which also indicate that the order of the Collector was not final and irrevocable. The term "without prejudice" has been defined in Blacks Law Dictionary as followsan offer or admission is made without prejudice, or a motion is denied or a bill in equity dismissed without prejudice, it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. See, also, Dismissal withoutshort, therefore, the implication of the term "without prejudice" means, (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view, a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated, the parties would be relegated to the position which they occupied before the order of the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.The High Court, however, strongly relied on two decisions, namely, the decision of the Madras High Court in the case of Collector of Central Excise, Madras v. K. Palappa Nadar, AIR 1964 Mad 111 , and of the Gujarat High Court in the case of Marsden Spg. and Co. Ltd. v. L. V. Pol, Superintendent of Central Excise (Tax), ILR 1965 Guj.appears that the Gujarat High Court practically adopted the reasonings impugned in the Gujarat case was clear and explicit and was final and irrevocable. The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant. Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there wasno question of any fresh proceedings being initiated. On the other hand, in the instant case, such a consequential order is wholly wanting in the judgment of the Appellate Collector. For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case. Thus, on a careful consideration of the facts and circumstances of the present case, we are clearly of the opinion that where an order passed in appeal vacates the order of the first Tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law. It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case with the High Court that asno express words were used in the order of the Appellate Collector remanding the case, the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent. | 1 | 2,533 | 1,239 | ### Instruction:
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written or said without prejudice can be considered at the trial without the consent of both parties - not even by a judge in determining whether or not there is good cause for depriving a successful litigant of costs... The word is also frequently used without the foregoing implication in statutes and inter partes to exclude or save transactions, acts and rights from the consequences of a stated proposition and so as to mean not affecting, saving or excepting."8. In short, therefore, the implication of the term "without prejudice" means, (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view, a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated, the parties would be relegated to the position which they occupied before the order of the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.The High Court, however, strongly relied on two decisions, namely, the decision of the Madras High Court in the case of Collector of Central Excise, Madras v. K. Palappa Nadar, AIR 1964 Mad 111 , and of the Gujarat High Court in the case of Marsden Spg. and Co. Ltd. v. L. V. Pol, Superintendent of Central Excise (Tax), ILR 1965 Guj. 240.9. In the Madras case the order impugned ran as follows (page 111) :"Having regard to all the circumstances of the case, the Central Board of Revenue hereby directs, without prejudice to the merits of the case, the order dated 3rd March, 1956, passed by The Collector of Central Excise, Madras, shall be vacated, ""After careful consideration of the arguments of the learned Advocate General for the appellant and also of the respondent, we are of the opinion that, in the absence of any specific words in the order of the Central Board of Revenue, it is not possible to spell out from its terms a precise direction for a de novo enquiry, giving jurisdiction to the Collector, for that purpose."10. In our opinion, the interpretation put by the Madras High Court does not appear to be correct and is too narrow and does not carry out the object of the Act. The Central Board of Revenue had merely vacated the order without prejudice to the merits of the case which clearly meant that the merits were not decided by it, Secondly, the order impugned in the Madras case does not indicate the ground on which the order was vacated whereas in the instant case the Appellate Collector has expressly stated that the order was vacated because it violated the rules of natural justice. The reason given by the Appellate Collector in the instant case makes all the difference. In the circumstances, therefore, the Madras case being clearly distinguishable as indicated above, we are of the opinion that the view taken by the Madras High Court is ofno assistance to the respondent.The case of Marsden Spg. & Co. Ltd., ILR 1965 Guj 240, is also clearly distinguishable. In that case the impugned order was extracted thus :"Having regard to all the facts of the case and taking into account the contentions put forth by the appellants, I hereby order that the decision of the Superintendent, Central Excise (Tax), Ahmedabad, shall be set aside.2. The amounts of excise duty and penalty recovered from the appellants in pursuance thereof shall be refunded to them."Construing this order the High Court observed as follows :"If the appellate order merely annulled the original order without containing any other directions there wasno power in the original Tribunal to initiate de novo proceedings and impose a fresh penalty."11. It appears that the Gujarat High Court practically adopted the reasonings impugned in the Gujarat case was clear and explicit and was final and irrevocable. The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant. Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there wasno question of any fresh proceedings being initiated. On the other hand, in the instant case, such a consequential order is wholly wanting in the judgment of the Appellate Collector. For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case. Thus, on a careful consideration of the facts and circumstances of the present case, we are clearly of the opinion that where an order passed in appeal vacates the order of the first Tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law. It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case with the High Court that asno express words were used in the order of the Appellate Collector remanding the case, the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent.12.
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of the penalty and release of the property confiscated. The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice. It seems to us that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no final decision of the cause and fresh proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.In the case of Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise, Nellore Dn., AIR 1961 AP 324 , 325, while construing the provisions of the Central Excises and salt Act which was almost on identical terms as the Customs Act, a Division Bench of the Andhra Pradesh High Court observed as follows :"Assuming that section 35 of the Central Excises Act does not clothe the appellate authority with power to remand the matter to the officer whose order is appealed against, nothing stands in the way of the Assistant Collector initiating the proceedings afresh, when his order was quashed not on merits but on technical grounds, i.e., for not following either the procedure or the dictates of natural justice. In a case where the flaw in the order appealed against consists of in the non-observance of certain procedure or in not giving effect to the maxim audialteram partem, it is open to the officer concerned to start the procedure once again with a view to follow the rules of procedure and the principles of naturalfind ourselves in complete agreement with the view taken by the Andhra Pradesh High Court and the observations made by Reddy C.J., who spoke for the court. It is obvious that in the instant case the Appellate Collector found that the order of the Assistant Collector suffered from a serious procedural infirmity, viz., that it was passed without giving the respondent a proper opportunity of being heard, and, therefore, had to be vacated. In such circumstances, therefore, it cannot be said that fresh proceedings by complying with the rules of natural justice could not be started against the respondent. The Appellate Collector has clearly used the words "Without prejudice" which also indicate that the order of the Collector was not final and irrevocable. The term "without prejudice" has been defined in Blacks Law Dictionary as followsan offer or admission is made without prejudice, or a motion is denied or a bill in equity dismissed without prejudice, it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. See, also, Dismissal withoutshort, therefore, the implication of the term "without prejudice" means, (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view, a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated, the parties would be relegated to the position which they occupied before the order of the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.The High Court, however, strongly relied on two decisions, namely, the decision of the Madras High Court in the case of Collector of Central Excise, Madras v. K. Palappa Nadar, AIR 1964 Mad 111 , and of the Gujarat High Court in the case of Marsden Spg. and Co. Ltd. v. L. V. Pol, Superintendent of Central Excise (Tax), ILR 1965 Guj.appears that the Gujarat High Court practically adopted the reasonings impugned in the Gujarat case was clear and explicit and was final and irrevocable. The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant. Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there wasno question of any fresh proceedings being initiated. On the other hand, in the instant case, such a consequential order is wholly wanting in the judgment of the Appellate Collector. For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case. Thus, on a careful consideration of the facts and circumstances of the present case, we are clearly of the opinion that where an order passed in appeal vacates the order of the first Tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such an order does not debar fresh adjudicatory proceedings which may be justified under the law. It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case with the High Court that asno express words were used in the order of the Appellate Collector remanding the case, the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent.
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Messrs. Dhandhania Kedia & Co Vs. The Commissioner Of Income-Tax | preceding the liquidation, and that the words previous years would be redundant.But the words preceding years would have meant calendar years, whereas the accounting years of the company for ascertainment of profits and loss might be different from the calendar years, and the words previous year would be more appropriate to connote the financial year of a company. Now it should be mentioned that when a company in liquidation distributes its current profits, that would also be not dividend as held in Burrells case, (1924) 9 Tax Cas 27 and the law to that extent has been left untouched by S. 2(6A) (c). And it has accordingly been held by the High Courts that the current profits of a company in liquidation which are distributed to the shareholders are not dividend within S. 2(6A) (c),Vide Appavu Chettiar v. Commr. of Income-tax, 1956-29 I. T. R. 768 :(A. I. R, 1956 Mad 474) and Girdhardas and Co. Ltd. v. Commr. of Income-tax, 1957-31 I. T. R. 82 : (A. I. R, 1957 Bom. 4 . Therefore, accumulated profits which are sought to be caught in S. 2 (6A) (c) would be the profits accumulated in the financial years preceding the year in which the liquidation takes place, and it is this that is sought to be expressed by the words previous years S. 2(6)(c). In the present case, as the Company went into liquidation on 18th January 1950, excluding the current year which commenced on 1st April 1949 the six previous years will be the years 19943-44 to 1948-49 8. So far, we have considered the question on the language of S. 2 (6A)(c) and the policy underlying it. On behalf of the respondent, certain authorities were cited as supporting his contention that the expression previous years in S. 2 (6A) (c) is not to be interpreted in the sense in which the expression previous year is defined in S. 2(11) of the Act, It is sufficient to refer to one of them, and that is the decision of this Court in Commr. of Income-tax, Madras v. K. Srinivasan,1953 S. C. R. 485 at p. 501 : (A. I. R. 1953 S. C. l13 at p. 118. ). There, the point for decision was as to the interpretation to be put on the words end of the previous year in S. 25 sub-ss. (3) and (4) of the Act which dealt with discontinuance of or succession to a business, and it was held that the expression previous year in those provisions meant an accounting year expiring immediately preceding the date of discontinuance or succession. The decision is not itself relevant to the present discussion, but certain observations therein are relied on as bearing on the point now under consideration. Mahajan, J. delivering the judgment of the Court observed : The expression previous year substantially means an accounting year comprised at a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment. It also means an accounting year comprised of a full period of twelve months adopted by the asessee for maintaining his accounts but different from the financial year and preceding a financial year. For purposes of the charging sections of the Act unless otherwise provided for it is co-related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression previous year has no meaning unless it is used it relation to a financial year. In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency. The learned Judges in the Court below have relied on these observations, and quite rightly as supporting their conclusion that the expression six previous years in S. 2 (6A) (c) means only the six accounting years of a company preceding the date of liquidation 9. The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on 1st April 1951, only by force of the Part B States Laws Act (III of 1951 that during the relevant period the Mewar Industries Ltd. was not a company as defined in S. 2 (5A) of the Act, and that therefore the distribution of assets made by that Company on 22-4-1950, could not be held to be a dividend as defined in S 2 (6A) (c).But that is not a question which was referred for the opinion of the High Court under S. 66 (1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.Moreover, whether the Mewar Industries. Ltd., is a Company as defined in the Indian Income-tax Act is itself a question over which the parties are in controversy. The definition of Company under the Indian Income-tax Act has undergone several changes from time to time, and on the relevant date it stood as follows : 2(6) Company means (i) any Indian Company or (ii) any association whether incorporated or not and whether Indian or non-Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act. It is contended for the respondent that the Mewar Industries Ltd., was an association which was assessable as a Company for the year ending 31-3-1948, and that it was in fact, assessed; but the appellant disputes this.As the point turns on disputed question of fact, it cannot be allowed to be raised at this stage. 10. In the result, we hold that the sum of Rs. 26,000 received by the appellant on 22-4-1950 was dividend as defined in S. 2 (6A) (C) of the Act and is chargeable to tax. | 0[ds]6. Turning to the language of S. 2 (11), we have this that according to the definition contained therin, previous year is the year which is previous to the year of assessment, and that means that there can be only one previous year to a given year of assessment. When S. 2 (6A) (c) speaks of six previous years, it is obvious that it uses the expressions previous year in a sense different from that which is given to it in S. 2( 11), because it would be a contradiction in terms to speak of six previous years in relation to any specified assessment year. It was argued that under S. 13 (2) of the General Clauses Act, 1897, words in the singular should be read as including the plural and that, therefore, the definition of previous year in S.2(11) could be read as meaning previous years . But S. 13 only enacts a rule of construction which is to apply unless there is anything repugnant in the subject or context, and to read a previous year as previous years in S.2 (11) would be to nullify the very definition of a previous year enacted therein, and such a construction must therefore be rejected as repugnant to the context.It was then suggested that the six previous years might be regarded as previous each to the next following year if that was itself a year of assessment, and that such a construction would, consistently with the contention of the appellant, give full effect to the definition in S. 2 (11) of the Act.But this argument overlooks that while there may be several preceding years to a given year of assessment there can be only one previous year in relation to it, and that it would make no sense to speak of six previous years with reference to a year of assessment .We are satisfied that it would be repugnant to the defination of dividend in S. 2(6A) (c) to import into the words six previous years the definition of previous years in S. 2 (11) of the Act8. So far, we have considered the question on the language of S. 2 (6A)(c) and the policy underlying it.On behalf of the respondent, certain authorities were cited as supporting his contention that the expression previous years in S. 2 (6A) (c) is not to be interpreted in the sense in which the expression previous year is defined in S. 2(11) of the Act, It is sufficient to refer to one of them, and that is the decision of this Court in Commr. of, Madras v. K. Srinivasan,1953 S. C. R. 485 at p. 501 : (A. I. R. 1953 S. C. l13 at p. 118. ).The learned Judges in the Court below have relied on these observations, and quite rightly as supporting their conclusion that the expression six previous years in S. 2 (6A) (c) means only the six accounting years of a company preceding the date of liquidation9. The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on 1st April 1951, only by force of the Part B States Laws Act (III of 1951 that during the relevant period the Mewar Industries Ltd. was not a company as defined in S. 2 (5A) of the Act, and that therefore the distribution of assets made by that Company on, could not be held to be a dividend as defined in S 2 (6A)t that is not a question which was referred for the opinion of the High Court under S. 66 (1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.Moreover, whether the Mewar Industries. Ltd., is a Company as defined in the Indianx Act is itself a question over which the parties are in controversy10. In the result, we hold that the sum of Rs. 26,000 received by the appellant on0 was dividend as defined in S. 2 (6A) (C) of the Act and is chargeable to tax. | 0 | 3,359 | 783 | ### Instruction:
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preceding the liquidation, and that the words previous years would be redundant.But the words preceding years would have meant calendar years, whereas the accounting years of the company for ascertainment of profits and loss might be different from the calendar years, and the words previous year would be more appropriate to connote the financial year of a company. Now it should be mentioned that when a company in liquidation distributes its current profits, that would also be not dividend as held in Burrells case, (1924) 9 Tax Cas 27 and the law to that extent has been left untouched by S. 2(6A) (c). And it has accordingly been held by the High Courts that the current profits of a company in liquidation which are distributed to the shareholders are not dividend within S. 2(6A) (c),Vide Appavu Chettiar v. Commr. of Income-tax, 1956-29 I. T. R. 768 :(A. I. R, 1956 Mad 474) and Girdhardas and Co. Ltd. v. Commr. of Income-tax, 1957-31 I. T. R. 82 : (A. I. R, 1957 Bom. 4 . Therefore, accumulated profits which are sought to be caught in S. 2 (6A) (c) would be the profits accumulated in the financial years preceding the year in which the liquidation takes place, and it is this that is sought to be expressed by the words previous years S. 2(6)(c). In the present case, as the Company went into liquidation on 18th January 1950, excluding the current year which commenced on 1st April 1949 the six previous years will be the years 19943-44 to 1948-49 8. So far, we have considered the question on the language of S. 2 (6A)(c) and the policy underlying it. On behalf of the respondent, certain authorities were cited as supporting his contention that the expression previous years in S. 2 (6A) (c) is not to be interpreted in the sense in which the expression previous year is defined in S. 2(11) of the Act, It is sufficient to refer to one of them, and that is the decision of this Court in Commr. of Income-tax, Madras v. K. Srinivasan,1953 S. C. R. 485 at p. 501 : (A. I. R. 1953 S. C. l13 at p. 118. ). There, the point for decision was as to the interpretation to be put on the words end of the previous year in S. 25 sub-ss. (3) and (4) of the Act which dealt with discontinuance of or succession to a business, and it was held that the expression previous year in those provisions meant an accounting year expiring immediately preceding the date of discontinuance or succession. The decision is not itself relevant to the present discussion, but certain observations therein are relied on as bearing on the point now under consideration. Mahajan, J. delivering the judgment of the Court observed : The expression previous year substantially means an accounting year comprised at a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment. It also means an accounting year comprised of a full period of twelve months adopted by the asessee for maintaining his accounts but different from the financial year and preceding a financial year. For purposes of the charging sections of the Act unless otherwise provided for it is co-related to a year of assessment immediately following it, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression previous year has no meaning unless it is used it relation to a financial year. In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency. The learned Judges in the Court below have relied on these observations, and quite rightly as supporting their conclusion that the expression six previous years in S. 2 (6A) (c) means only the six accounting years of a company preceding the date of liquidation 9. The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on 1st April 1951, only by force of the Part B States Laws Act (III of 1951 that during the relevant period the Mewar Industries Ltd. was not a company as defined in S. 2 (5A) of the Act, and that therefore the distribution of assets made by that Company on 22-4-1950, could not be held to be a dividend as defined in S 2 (6A) (c).But that is not a question which was referred for the opinion of the High Court under S. 66 (1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.Moreover, whether the Mewar Industries. Ltd., is a Company as defined in the Indian Income-tax Act is itself a question over which the parties are in controversy. The definition of Company under the Indian Income-tax Act has undergone several changes from time to time, and on the relevant date it stood as follows : 2(6) Company means (i) any Indian Company or (ii) any association whether incorporated or not and whether Indian or non-Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act. It is contended for the respondent that the Mewar Industries Ltd., was an association which was assessable as a Company for the year ending 31-3-1948, and that it was in fact, assessed; but the appellant disputes this.As the point turns on disputed question of fact, it cannot be allowed to be raised at this stage. 10. In the result, we hold that the sum of Rs. 26,000 received by the appellant on 22-4-1950 was dividend as defined in S. 2 (6A) (C) of the Act and is chargeable to tax.
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### Explanation:
6. Turning to the language of S. 2 (11), we have this that according to the definition contained therin, previous year is the year which is previous to the year of assessment, and that means that there can be only one previous year to a given year of assessment. When S. 2 (6A) (c) speaks of six previous years, it is obvious that it uses the expressions previous year in a sense different from that which is given to it in S. 2( 11), because it would be a contradiction in terms to speak of six previous years in relation to any specified assessment year. It was argued that under S. 13 (2) of the General Clauses Act, 1897, words in the singular should be read as including the plural and that, therefore, the definition of previous year in S.2(11) could be read as meaning previous years . But S. 13 only enacts a rule of construction which is to apply unless there is anything repugnant in the subject or context, and to read a previous year as previous years in S.2 (11) would be to nullify the very definition of a previous year enacted therein, and such a construction must therefore be rejected as repugnant to the context.It was then suggested that the six previous years might be regarded as previous each to the next following year if that was itself a year of assessment, and that such a construction would, consistently with the contention of the appellant, give full effect to the definition in S. 2 (11) of the Act.But this argument overlooks that while there may be several preceding years to a given year of assessment there can be only one previous year in relation to it, and that it would make no sense to speak of six previous years with reference to a year of assessment .We are satisfied that it would be repugnant to the defination of dividend in S. 2(6A) (c) to import into the words six previous years the definition of previous years in S. 2 (11) of the Act8. So far, we have considered the question on the language of S. 2 (6A)(c) and the policy underlying it.On behalf of the respondent, certain authorities were cited as supporting his contention that the expression previous years in S. 2 (6A) (c) is not to be interpreted in the sense in which the expression previous year is defined in S. 2(11) of the Act, It is sufficient to refer to one of them, and that is the decision of this Court in Commr. of, Madras v. K. Srinivasan,1953 S. C. R. 485 at p. 501 : (A. I. R. 1953 S. C. l13 at p. 118. ).The learned Judges in the Court below have relied on these observations, and quite rightly as supporting their conclusion that the expression six previous years in S. 2 (6A) (c) means only the six accounting years of a company preceding the date of liquidation9. The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on 1st April 1951, only by force of the Part B States Laws Act (III of 1951 that during the relevant period the Mewar Industries Ltd. was not a company as defined in S. 2 (5A) of the Act, and that therefore the distribution of assets made by that Company on, could not be held to be a dividend as defined in S 2 (6A)t that is not a question which was referred for the opinion of the High Court under S. 66 (1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.Moreover, whether the Mewar Industries. Ltd., is a Company as defined in the Indianx Act is itself a question over which the parties are in controversy10. In the result, we hold that the sum of Rs. 26,000 received by the appellant on0 was dividend as defined in S. 2 (6A) (C) of the Act and is chargeable to tax.
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Commissioner Of Taxes, Assam Vs. M/S. Jalannagar South Estate Ltd.& Ors | controversy in these appeals. Each of the three assessees with whom we are concerned in these appeals had given certain donations to the Jalan Charity Trust in the relevant assessment years, which in the case of two of the assessees is 1955-56 and in the case of the third is 1955-56 and 1957-58. The question for consideration is whether those donations can be considered as "amounts actually went for charitable purposes" under rule 2 (1) of the Rules framed under the Act.3. The agricultural income of the assessee was computed at 60 per cent of the total net income ascertained by the Income-tax Officer under the Indian Income-tax Act, 1922. Before, the Income-tax Officer the assessees claimed exemption under Section 15-B of the Indian Income-tax Act in respect of the donations made by them to the Jalan Trust, but that Officer did not grant the exemption asked for but reserved that question for decision to a latter date as he wanted to examine the nature of those donations. He determined the income of the assessees for the years in question without taking into consideration those donations. Thereafter the Agricultural Income-tax Officer proceeded to assess the agricultural income of the assessees. Before that Officer the assessees again claimed exemption under rule 2 (1) of the Rules, of the donations given by them to the Jalan Charity Trust. That Officer refused to grant the exemption asked for. Thereafter the assessees took up the matter appeal to the Assistant Commissioner. The Assistant Commissioner granted to each of the assessees exemption to the extent of 60 per cent of the amounts donated. Then the assessees took up the matter in appeal to the Board of Revenue. The Department had no right to appeal against the order of the Assistant Commissioner. The Board of Revenue came to the conclusion that the assessees were not entitled to any exemption under the Act but all the same as the order of the Assistant Commissioner had become final in respect of exemption given, the assessees were entitled to retain the exemption granted by the Assistant Commissioner. Alternatively it also came to the conclusion that even if the assessees were entitled to any exemption under the Act and the Rules, the exemption granted to them by the Assistant Commissioner was more than what they were entitled to. Thereafter the assessees moved the Board to refer to the High Court for its opinion the two questions mentioned earlier.4. There is no substance in the first question referred to above. It is true that the exemption granted by the Assistant Commissioner could not be interfered with by the Board of Revenue. But all the same while considering whether the assessees were entitled to the further exemption claimed by them the Board of Revenue had to examine the true legal position under the Act and the Rules for the purpose of deciding the matter in issue before it. In our opinion the High Court was wholly in error in opining that the Board of Revenue was not competent to determine the true position under law in view of the decision of the Assistant Commissioner. The High Court overlooked the fact that for pronouncing on the claim made by the assessees before the Board if Revenue, the Board had to examine the legality of the claim. It is one thing to say that the Board could not reverse the decision of the Assistant Commissioner, which had become final but it is entirely a different thing to say that the Board was not competent to consider whether the Assistant Commissioner took a correct view of the law or not when the true position in law is necessary to be determined for deciding the issue before it.5. Now coming to the second question unlike S. 15-B of the Indian Income-tax Act, 1922, which exempts any sums paid to an institution or a fund coming within the scope of that section upto the prescribed limit, under Rule 2 (1) read with S. 8 (g) of the Act. the assessee is entitled to deduct from his income only those sums actually spent by him for charitable purposes. Charitable purpose under that rule is defined as including relief to the poor, education, medical relief and the advancement of any other object of public utility.6. Under rule 2 (1) read with S. 8 (g) before an assessee can claim any exemption, he has to establish that in the relevant year, he had actually spent for one or the other of the charitable purposes mentioned in that rule the amount in respect of which he claims exemption. Mere contribution to a fund would not entitle him to the exemption claimed. It is true that the assessees in these cases are proved to have contributed certain amounts to the Jalan Trust Fund. It may also be true -about which we express no opinion-that the objects of Jalan Trust are similar to those mentioned in rule 2 (1).But there is no proof in these cases that the Jalan Trust had expended the amounts donated by the assessees to that fund for any charitable purpose during the relevant years. From the material placed before the court, it appears that Jalan Trust had spent in the year in question some amounts for charitable purposes. But the amount spent is much less than the donations received. Further the assessees have not established any co-relationship between the amounts spent by the Jalan Trust and the amounts donated by them to the Trust. Under these circumstances, it is not necessary for us to decide whether the actual spending referred to in rule 2 (1) must be by the assessees themselves or it may also be through some other agency. In our opinion before the assessees can claim the exemption under rule 2 (1) in regard to any amount, they have to establish to the satisfaction of the assessing authority that they had actually spent that amount for charitable purposes. No such proof is forthcoming in these cases. | 1[ds]4. There is no substance in the first question referred to above. It is true that the exemption granted by the Assistant Commissioner could not be interfered with by the Board of Revenue. But all the same while considering whether the assessees were entitled to the further exemption claimed by them the Board of Revenue had to examine the true legal position under the Act and the Rules for the purpose of deciding the matter in issue before it. In our opinion the High Court was wholly in error in opining that the Board of Revenue was not competent to determine the true position under law in view of the decision of the Assistant Commissioner. The High Court overlooked the fact that for pronouncing on the claim made by the assessees before the Board if Revenue, the Board had to examine the legality of the claim. It is one thing to say that the Board could not reverse the decision of the Assistant Commissioner, which had become final but it is entirely a different thing to say that the Board was not competent to consider whether the Assistant Commissioner took a correct view of the law or not when the true position in law is necessary to be determined for deciding the issue before it.5. Now coming to the second question unlike S. 15-B of the Indian Income-tax Act, 1922, which exempts any sums paid to an institution or a fund coming within the scope of that section upto the prescribed limit, under Rule 2 (1) read with S. 8 (g) of the Act. the assessee is entitled to deduct from his income only those sums actually spent by him for charitable purposes. Charitable purpose under that rule is defined as including relief to the poor, education, medical relief and the advancement of any other object of public utility.6. Under rule 2 (1) read with S. 8 (g) before an assessee can claim any exemption, he has to establish that in the relevant year, he had actually spent for one or the other of the charitable purposes mentioned in that rule the amount in respect of which he claims exemption. Mere contribution to a fund would not entitle him to the exemption claimed. It is true that the assessees in these cases are proved to have contributed certain amounts to the Jalan Trust Fund. It may also be true -about which we express no opinion-that the objects of Jalan Trust are similar to those mentioned in rule 2 (1).But there is no proof in these cases that the Jalan Trust had expended the amounts donated by the assessees to that fund for any charitable purpose during the relevant years. From the material placed before the court, it appears that Jalan Trust had spent in the year in question some amounts for charitable purposes. But the amount spent is much less than the donations received. Further the assessees have not established any co-relationship between the amounts spent by the Jalan Trust and the amounts donated by them to the Trust. Under these circumstances, it is not necessary for us to decide whether the actual spending referred to in rule 2 (1) must be by the assessees themselves or it may also be through some other agency. In our opinion before the assessees can claim the exemption under rule 2 (1) in regard to any amount, they have to establish to the satisfaction of the assessing authority that they had actually spent that amount for charitable purposes. No such proof is forthcoming in these cases. | 1 | 1,339 | 644 | ### 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:
controversy in these appeals. Each of the three assessees with whom we are concerned in these appeals had given certain donations to the Jalan Charity Trust in the relevant assessment years, which in the case of two of the assessees is 1955-56 and in the case of the third is 1955-56 and 1957-58. The question for consideration is whether those donations can be considered as "amounts actually went for charitable purposes" under rule 2 (1) of the Rules framed under the Act.3. The agricultural income of the assessee was computed at 60 per cent of the total net income ascertained by the Income-tax Officer under the Indian Income-tax Act, 1922. Before, the Income-tax Officer the assessees claimed exemption under Section 15-B of the Indian Income-tax Act in respect of the donations made by them to the Jalan Trust, but that Officer did not grant the exemption asked for but reserved that question for decision to a latter date as he wanted to examine the nature of those donations. He determined the income of the assessees for the years in question without taking into consideration those donations. Thereafter the Agricultural Income-tax Officer proceeded to assess the agricultural income of the assessees. Before that Officer the assessees again claimed exemption under rule 2 (1) of the Rules, of the donations given by them to the Jalan Charity Trust. That Officer refused to grant the exemption asked for. Thereafter the assessees took up the matter appeal to the Assistant Commissioner. The Assistant Commissioner granted to each of the assessees exemption to the extent of 60 per cent of the amounts donated. Then the assessees took up the matter in appeal to the Board of Revenue. The Department had no right to appeal against the order of the Assistant Commissioner. The Board of Revenue came to the conclusion that the assessees were not entitled to any exemption under the Act but all the same as the order of the Assistant Commissioner had become final in respect of exemption given, the assessees were entitled to retain the exemption granted by the Assistant Commissioner. Alternatively it also came to the conclusion that even if the assessees were entitled to any exemption under the Act and the Rules, the exemption granted to them by the Assistant Commissioner was more than what they were entitled to. Thereafter the assessees moved the Board to refer to the High Court for its opinion the two questions mentioned earlier.4. There is no substance in the first question referred to above. It is true that the exemption granted by the Assistant Commissioner could not be interfered with by the Board of Revenue. But all the same while considering whether the assessees were entitled to the further exemption claimed by them the Board of Revenue had to examine the true legal position under the Act and the Rules for the purpose of deciding the matter in issue before it. In our opinion the High Court was wholly in error in opining that the Board of Revenue was not competent to determine the true position under law in view of the decision of the Assistant Commissioner. The High Court overlooked the fact that for pronouncing on the claim made by the assessees before the Board if Revenue, the Board had to examine the legality of the claim. It is one thing to say that the Board could not reverse the decision of the Assistant Commissioner, which had become final but it is entirely a different thing to say that the Board was not competent to consider whether the Assistant Commissioner took a correct view of the law or not when the true position in law is necessary to be determined for deciding the issue before it.5. Now coming to the second question unlike S. 15-B of the Indian Income-tax Act, 1922, which exempts any sums paid to an institution or a fund coming within the scope of that section upto the prescribed limit, under Rule 2 (1) read with S. 8 (g) of the Act. the assessee is entitled to deduct from his income only those sums actually spent by him for charitable purposes. Charitable purpose under that rule is defined as including relief to the poor, education, medical relief and the advancement of any other object of public utility.6. Under rule 2 (1) read with S. 8 (g) before an assessee can claim any exemption, he has to establish that in the relevant year, he had actually spent for one or the other of the charitable purposes mentioned in that rule the amount in respect of which he claims exemption. Mere contribution to a fund would not entitle him to the exemption claimed. It is true that the assessees in these cases are proved to have contributed certain amounts to the Jalan Trust Fund. It may also be true -about which we express no opinion-that the objects of Jalan Trust are similar to those mentioned in rule 2 (1).But there is no proof in these cases that the Jalan Trust had expended the amounts donated by the assessees to that fund for any charitable purpose during the relevant years. From the material placed before the court, it appears that Jalan Trust had spent in the year in question some amounts for charitable purposes. But the amount spent is much less than the donations received. Further the assessees have not established any co-relationship between the amounts spent by the Jalan Trust and the amounts donated by them to the Trust. Under these circumstances, it is not necessary for us to decide whether the actual spending referred to in rule 2 (1) must be by the assessees themselves or it may also be through some other agency. In our opinion before the assessees can claim the exemption under rule 2 (1) in regard to any amount, they have to establish to the satisfaction of the assessing authority that they had actually spent that amount for charitable purposes. No such proof is forthcoming in these cases.
### Response:
1
### Explanation:
4. There is no substance in the first question referred to above. It is true that the exemption granted by the Assistant Commissioner could not be interfered with by the Board of Revenue. But all the same while considering whether the assessees were entitled to the further exemption claimed by them the Board of Revenue had to examine the true legal position under the Act and the Rules for the purpose of deciding the matter in issue before it. In our opinion the High Court was wholly in error in opining that the Board of Revenue was not competent to determine the true position under law in view of the decision of the Assistant Commissioner. The High Court overlooked the fact that for pronouncing on the claim made by the assessees before the Board if Revenue, the Board had to examine the legality of the claim. It is one thing to say that the Board could not reverse the decision of the Assistant Commissioner, which had become final but it is entirely a different thing to say that the Board was not competent to consider whether the Assistant Commissioner took a correct view of the law or not when the true position in law is necessary to be determined for deciding the issue before it.5. Now coming to the second question unlike S. 15-B of the Indian Income-tax Act, 1922, which exempts any sums paid to an institution or a fund coming within the scope of that section upto the prescribed limit, under Rule 2 (1) read with S. 8 (g) of the Act. the assessee is entitled to deduct from his income only those sums actually spent by him for charitable purposes. Charitable purpose under that rule is defined as including relief to the poor, education, medical relief and the advancement of any other object of public utility.6. Under rule 2 (1) read with S. 8 (g) before an assessee can claim any exemption, he has to establish that in the relevant year, he had actually spent for one or the other of the charitable purposes mentioned in that rule the amount in respect of which he claims exemption. Mere contribution to a fund would not entitle him to the exemption claimed. It is true that the assessees in these cases are proved to have contributed certain amounts to the Jalan Trust Fund. It may also be true -about which we express no opinion-that the objects of Jalan Trust are similar to those mentioned in rule 2 (1).But there is no proof in these cases that the Jalan Trust had expended the amounts donated by the assessees to that fund for any charitable purpose during the relevant years. From the material placed before the court, it appears that Jalan Trust had spent in the year in question some amounts for charitable purposes. But the amount spent is much less than the donations received. Further the assessees have not established any co-relationship between the amounts spent by the Jalan Trust and the amounts donated by them to the Trust. Under these circumstances, it is not necessary for us to decide whether the actual spending referred to in rule 2 (1) must be by the assessees themselves or it may also be through some other agency. In our opinion before the assessees can claim the exemption under rule 2 (1) in regard to any amount, they have to establish to the satisfaction of the assessing authority that they had actually spent that amount for charitable purposes. No such proof is forthcoming in these cases.
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M/s Continental India Private Limited Vs. General Manager Northern Railway | appearing on behalf of the respondent is not in a position to dispute that after the invocation of the arbitration clause, the General Manager/Railway failed to appoint the sole arbitrator in terms of the agreement. He is also not in a position to satisfy the Court as to how the General Conditions of Contract shall be applicable with respect to the agreement between the parties which has been entered into much prior to the GCC coming into force i.e., July, 2020 and that neither is there any reference to the GCC in the original agreement nor the GCC has been signed by the parties. Therefore, he is unable to support the impugned judgment and order passed by the High Court directing to constitute an Arbitral Tribunal as per clause 64(3)(b) of the GCC. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. It is not in dispute that the parties to the agreement agreed to resolve the dispute as per clause 32 of the original agreement which reads as under: ¬ 32. Arbitration. (a) In the event of any question, dispute or difference arising under or in connection with this Agreement (except as to matters the decision of which is specially provided for by this Agreement) the same shall be referred to the sole arbitration of a person appointed to be the arbitrator, by the General Manager or the Railway. It will be no objection if the arbitrator is a Government servant, that he had to deal with matters to which the Agreement relates or that in the course of his duties as a Government servant he has expressed views on all or any of the matters in dispute or difference. The Award of the arbitrator shall be final and binding on the parties to this Agreement. Provided always that the decision of the General Manager of the Railway as to the disputes which fell within the excepted matters referred to above shall be final and binding on the parties hereto and such decision of the General Manager shall not be called in question before the arbitrator by either of the parties hereto. (b) In the event of the arbitrator dying, neglecting or refusing to act, or resigning or being unable to act for any reason, or his award being set aside by the Court for any reason it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid. (c) It is further a term of this Agreement that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not be referred to arbitration at all. ……… The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent – General Manager/Railway failed to appoint the arbitrator in terms of clause 32, reproduced hereinabove. That thereafter, the appellant herein approached the High Court for appointment of the sole arbitrator in exercise of powers under Section 11(6) of the Act. Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act. 6.1 At this stage, the decision of this court in the case of Deep Trading Company (supra) is required to be referred to. In the said decision it is observed and held that once an arbitrator is not appointed as per the agreed procedure within stipulated time, right of the party concerned to appoint an arbitrator is forfeited and therefore, Chief Justice ought to have appointed an arbitrator under Section 11(6) of the Act. In the said decision the Corporation therein appointed the arbitrator as per the agreed procedure during pendency of the proceedings under Section 11(6) of the Act and to that it is observed and held that appointment of arbitrator by the Corporation during pendency of the proceedings under Section 11(6) of the Act was of no consequence, as failing to appoint an arbitrator within the prescribed time, the Corporation had lost its right to appoint an arbitrator. 6.2 In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act. 7. By the impugned judgment and order and while allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the parties. Even as per communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contract of Indian Railways with prospective effect. Therefore, the parties are not governed by the GCC at all. Therefore, the High Court has committed a serious error in directing to constitute an Arbitral Tribunal in terms of the provisions of the GCC, which are not binding to the parties. | 0[ds]The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent – General Manager/Railway failed to appoint the arbitrator in terms of clause 32, reproduced hereinabove. That thereafter, the appellant herein approached the High Court for appointment of the sole arbitrator in exercise of powers under Section 11(6) of the Act. Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act.6.1 At this stage, the decision of this court in the case of Deep Trading Company (supra) is required to be referred to. In the said decision it is observed and held that once an arbitrator is not appointed as per the agreed procedure within stipulated time, right of the party concerned to appoint an arbitrator is forfeited and therefore, Chief Justice ought to have appointed an arbitrator under Section 11(6) of the Act. In the said decision the Corporation therein appointed the arbitrator as per the agreed procedure during pendency of the proceedings under Section 11(6) of the Act and to that it is observed and held that appointment of arbitrator by the Corporation during pendency of the proceedings under Section 11(6) of the Act was of no consequence, as failing to appoint an arbitrator within the prescribed time, the Corporation had lost its right to appoint an arbitrator.6.2 In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act.7. By the impugned judgment and order and while allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the parties. Even as per communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contract of Indian Railways with prospective effect. Therefore, the parties are not governed by the GCC at all. Therefore, the High Court has committed a serious error in directing to constitute an Arbitral Tribunal in terms of the provisions of the GCC, which are not binding to the parties. | 0 | 1,923 | 602 | ### 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:
appearing on behalf of the respondent is not in a position to dispute that after the invocation of the arbitration clause, the General Manager/Railway failed to appoint the sole arbitrator in terms of the agreement. He is also not in a position to satisfy the Court as to how the General Conditions of Contract shall be applicable with respect to the agreement between the parties which has been entered into much prior to the GCC coming into force i.e., July, 2020 and that neither is there any reference to the GCC in the original agreement nor the GCC has been signed by the parties. Therefore, he is unable to support the impugned judgment and order passed by the High Court directing to constitute an Arbitral Tribunal as per clause 64(3)(b) of the GCC. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. It is not in dispute that the parties to the agreement agreed to resolve the dispute as per clause 32 of the original agreement which reads as under: ¬ 32. Arbitration. (a) In the event of any question, dispute or difference arising under or in connection with this Agreement (except as to matters the decision of which is specially provided for by this Agreement) the same shall be referred to the sole arbitration of a person appointed to be the arbitrator, by the General Manager or the Railway. It will be no objection if the arbitrator is a Government servant, that he had to deal with matters to which the Agreement relates or that in the course of his duties as a Government servant he has expressed views on all or any of the matters in dispute or difference. The Award of the arbitrator shall be final and binding on the parties to this Agreement. Provided always that the decision of the General Manager of the Railway as to the disputes which fell within the excepted matters referred to above shall be final and binding on the parties hereto and such decision of the General Manager shall not be called in question before the arbitrator by either of the parties hereto. (b) In the event of the arbitrator dying, neglecting or refusing to act, or resigning or being unable to act for any reason, or his award being set aside by the Court for any reason it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid. (c) It is further a term of this Agreement that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not be referred to arbitration at all. ……… The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent – General Manager/Railway failed to appoint the arbitrator in terms of clause 32, reproduced hereinabove. That thereafter, the appellant herein approached the High Court for appointment of the sole arbitrator in exercise of powers under Section 11(6) of the Act. Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act. 6.1 At this stage, the decision of this court in the case of Deep Trading Company (supra) is required to be referred to. In the said decision it is observed and held that once an arbitrator is not appointed as per the agreed procedure within stipulated time, right of the party concerned to appoint an arbitrator is forfeited and therefore, Chief Justice ought to have appointed an arbitrator under Section 11(6) of the Act. In the said decision the Corporation therein appointed the arbitrator as per the agreed procedure during pendency of the proceedings under Section 11(6) of the Act and to that it is observed and held that appointment of arbitrator by the Corporation during pendency of the proceedings under Section 11(6) of the Act was of no consequence, as failing to appoint an arbitrator within the prescribed time, the Corporation had lost its right to appoint an arbitrator. 6.2 In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act. 7. By the impugned judgment and order and while allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the parties. Even as per communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contract of Indian Railways with prospective effect. Therefore, the parties are not governed by the GCC at all. Therefore, the High Court has committed a serious error in directing to constitute an Arbitral Tribunal in terms of the provisions of the GCC, which are not binding to the parties.
### Response:
0
### Explanation:
The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent – General Manager/Railway failed to appoint the arbitrator in terms of clause 32, reproduced hereinabove. That thereafter, the appellant herein approached the High Court for appointment of the sole arbitrator in exercise of powers under Section 11(6) of the Act. Once the dispute has arisen between the parties and despite invocation of the arbitration clause in terms of the agreement no arbitrator is appointed, it can be said that the authority has forfeited its right to appoint the arbitrator in terms of the arbitration agreement and thereafter the arbitrator has to be appointed under Section 11(6) of the Act.6.1 At this stage, the decision of this court in the case of Deep Trading Company (supra) is required to be referred to. In the said decision it is observed and held that once an arbitrator is not appointed as per the agreed procedure within stipulated time, right of the party concerned to appoint an arbitrator is forfeited and therefore, Chief Justice ought to have appointed an arbitrator under Section 11(6) of the Act. In the said decision the Corporation therein appointed the arbitrator as per the agreed procedure during pendency of the proceedings under Section 11(6) of the Act and to that it is observed and held that appointment of arbitrator by the Corporation during pendency of the proceedings under Section 11(6) of the Act was of no consequence, as failing to appoint an arbitrator within the prescribed time, the Corporation had lost its right to appoint an arbitrator.6.2 In the present case also, the respondent failed to appoint an arbitrator as per the agreed procedure and in terms of the agreement. Therefore, the respondent forfeited its right to appoint an arbitrator in terms of the agreement and therefore the appellant was justified in filing the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act.7. By the impugned judgment and order and while allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the parties. Even as per communication dated 16.07.2020, the GCC, July 2020 shall be applicable to works contract of Indian Railways with prospective effect. Therefore, the parties are not governed by the GCC at all. Therefore, the High Court has committed a serious error in directing to constitute an Arbitral Tribunal in terms of the provisions of the GCC, which are not binding to the parties.
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MATA RAM Vs. NATIONAL INSURANCE COMPANY LTD | 1. Leave granted. 2. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court 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 given the recovery rights to the Insurance Company against the appellant herein. 3. The facts, in brief, are as follows :- i) The appellant herein got his Tractor and Trolley insured with the National Insurance Company Limited, Respondent No.1 herein and that extra premium was also paid for the insurance of the driver of the vehicle and three employees. ii) The vehicle met with an accident. The Claimants/proforma respondents filed claim petition in lieu of death of one Mohammad Khatrudin alias Khabu before the Motor Accidents Claim Tribunal (in short the Tribunal). iii) The Tribunal decided the claim petition on its merits in favour of the claimants and fastened the liability on the Respondent No.1-Insurance Company with a direction to the Insurance Company to indemnify the insured as Insurance Company has charged the premium for three 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 the Tribunal saddling it with the liability, filed FAO No. 106/2009 before the High Court of Himachal Pradesh. v) The High Court, by impugned judgment, disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. vi) Being aggrieved, the appellant preferred this appeal, by way of special leave. 4. Heard the learned counsel appearing for the parties. 5. 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 the Insurance Company has specifically charged a premium from the insured for carrying three persons excluding the driver. 6. 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. 7. 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. M/s Oriental Insurance Co. Ltd., AIR 1996 SC 2054 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. 8. 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. 9. 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 three 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. 10. 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]8. 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.9. 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 three 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.10. 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 | 666 | 146 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. Leave granted. 2. This appeal is directed against the judgment dated 28.08.2015 passed by the High Court 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 given the recovery rights to the Insurance Company against the appellant herein. 3. The facts, in brief, are as follows :- i) The appellant herein got his Tractor and Trolley insured with the National Insurance Company Limited, Respondent No.1 herein and that extra premium was also paid for the insurance of the driver of the vehicle and three employees. ii) The vehicle met with an accident. The Claimants/proforma respondents filed claim petition in lieu of death of one Mohammad Khatrudin alias Khabu before the Motor Accidents Claim Tribunal (in short the Tribunal). iii) The Tribunal decided the claim petition on its merits in favour of the claimants and fastened the liability on the Respondent No.1-Insurance Company with a direction to the Insurance Company to indemnify the insured as Insurance Company has charged the premium for three 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 the Tribunal saddling it with the liability, filed FAO No. 106/2009 before the High Court of Himachal Pradesh. v) The High Court, by impugned judgment, disposed of the FAO and modified the order passed by the Tribunal holding the insurer liable and given the recovery rights to the Insurance Company against the appellant herein. vi) Being aggrieved, the appellant preferred this appeal, by way of special leave. 4. Heard the learned counsel appearing for the parties. 5. 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 the Insurance Company has specifically charged a premium from the insured for carrying three persons excluding the driver. 6. 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. 7. 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. M/s Oriental Insurance Co. Ltd., AIR 1996 SC 2054 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. 8. 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. 9. 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 three 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. 10. 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:
8. 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.9. 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 three 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.10. 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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NARENDRA KUMAR MITTAL & ORS Vs. M/S NUPUR HOUSING DEVELOPMENT PVT. LTD. AND ANR | that such exclusion must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est."7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation. 8. A similar question in relation to the maintainability of the suit was considered by the Full Bench of the Allahabad High Court in Ram Padarath & Ors. v. Second ADDL D.J., Sultanpur & Ors.,(1989) RD 21 (All)(FB) and it was held thus:¬"We are of the view that the case of Indra Dev v. Smt. Ram Piari, (1982) 8 ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure¬holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court."9. This Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24 considered the question relating to maintainability of a suit by a recorded tenure holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters. After noticing the aforesaid judgment of the Full Bench of Allahabad High Court, this Court held that where recorded tenure holder, having a prima facie title and in possession files suit in the Civil Court for cancellation of sale deed having been obtained on the ground of fraud or impersonation, it cannot be directed to file a suit for declaration in the Revenue Court, reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. However, if the plaintiff is required to seek a declaration of title, he has to approach the Revenue Court. 10. In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable. 11. In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case. | 0[ds]7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation.In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable.In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case. | 0 | 1,634 | 463 | ### 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 such exclusion must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est."7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation. 8. A similar question in relation to the maintainability of the suit was considered by the Full Bench of the Allahabad High Court in Ram Padarath & Ors. v. Second ADDL D.J., Sultanpur & Ors.,(1989) RD 21 (All)(FB) and it was held thus:¬"We are of the view that the case of Indra Dev v. Smt. Ram Piari, (1982) 8 ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure¬holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court."9. This Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24 considered the question relating to maintainability of a suit by a recorded tenure holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters. After noticing the aforesaid judgment of the Full Bench of Allahabad High Court, this Court held that where recorded tenure holder, having a prima facie title and in possession files suit in the Civil Court for cancellation of sale deed having been obtained on the ground of fraud or impersonation, it cannot be directed to file a suit for declaration in the Revenue Court, reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. However, if the plaintiff is required to seek a declaration of title, he has to approach the Revenue Court. 10. In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable. 11. In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case.
### Response:
0
### Explanation:
7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation.In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable.In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case.
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Commissioner of Income Tax Vs. Sundaram Spinnings Mills | under:-"Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yearn, hosiery and rope." The Ninth Schedule was inserted by the Direct Taxes (Amendment) Act, 1974 w.e.f. 1.4.1975 but has been omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act. 1986 w.e.f. 1.4.1988. It is not disputed by the Revenue that in case the item manufactured by the assessee namely, "yarn", if falls under Item No. 21, namely, "textiles", the assessee would be entitled to a higher rate of depreciation. We find the word "textiles" in it is not used in isolation but is stretched by bringing in more in its company through the following words "including those dyed, printed or otherwise processed made wholly or mainly of cotton including cotton year, hosiery and rope." Thus we find "textiles" as is understood at common parlance or as is understood in its natural sense which is limited, is not indicated here. The legislature has deliberately widened its sphere for a purpose to give larger benefit to other items included in it by extending it to include even cotton yarn, hosiery and rope to be understood as "textiles". It is always open for a legislature to stretch or shrink or to give an artificial projection or slicing to any word including one used for `goods, to make it more meaningful to subserve to the objectives it intends to achieve. That is why this inclusive clause brings in more goods, which may not strictly come within the filed of such goods. This is in order to give them similar benefit or to make them equally treated. Similarly, "hosiery" and "rope" could not, but for their inclusion under this item could have been classified as "textiles". similarly many be "cotton yarn". It is true that manufacture of cotton yarn is a stage earlier then manufacture of "textiles" as understood commonly. In fact, cotton is the first stage, next comes `cotton yarn which finally produces "textiles". But here we find legislature intended to give higher rate of initial depreciation even to the manufacture of goods which commonly as understood could not have been included as "textiles". So, this entry has to be interpreted to subserve to the intended objective of the legislature. It is significant that "textiles" as included under two items. One under item No. 21 to which we are concerned and also under Item No. 22. This later Item No. 22 includes entirely different goods than what is under Item No. 21. Item No. 22 reads as under :"Textile (including those dyed, printed or otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This even includes jute twine and jute rope to be "textile".In Commissioner of Income-Tax West Bengal-V v. Shalimar Rope Works P. Ltd., (1980 125 ITR 331(Cal.) (supra), the High Court was called upon to interpret Item No.. 33 of the Fifth Schedule under the Income Tax Act, 1961. The question was whether the assessee would be entitled to higher rate of development rebate under Section 33(1)(b)(B)(i) on the plant and machinery installed for the purpose of the business of manufacture and production of jute ropes and twines. Item No. 33 of the fifth Schedule reads as under :"Textiles (including those dyed, printed and otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This item is similar to Item No. 22 in the Ninth Schedule. The Court held:"It is the finding of the Tribunal that the assessee has installed the plant or machinery for the purposes of business of manufacture and production of jute ropes and jute twines. Jute ropes and jute twines are included in item No. 33 of the Fifth Schedule and, therefore, it must be held that the assessee was entitled to the development rebate under cl.(B)(i)".In Commissioner of Income Tax, A.P.-II v. Vijaya Spinning Mills Ltd., (1983) 143 ITR 64,(A.P.), this case interpreted item No. 32 or the fifth Schedule which is similar to Item No. 21 of the Ninth Schedule. The Court held:"Now, the assessee is a manufacturer of cotton yarn only. The question is, whether he comes within the purview of cl.32. the clause having first mentioned "textile made wholly or mainly of cotton" proceeds to include "cotton yarn, hosiery and rope", therein. The Departments contention is that for falling under cl. 32, it must necessarily be "textiles made wholly or mainly of cotton including cotton yarn". But, this interpretation would make the words "including cotton yarn" superfluous because before cotton can be converted into textile it must first be converted into yarn. it is difficult to conceive of a textile made directly from cotton i.e, without first converting the cotton into yarn. Further, if this interpretation were to be accepted, the same interpretation must also be extended to the words "hosiery and rope" occurring in the said clause. But, then, there can be no textiles made out of hosiery, which is commonly understood as referring to clothes like banians, drawers, etc., or out of rope."In Commissioner of Income Tax, Tamil Naidu-II v. North Arcot District co-operative Spinning Mills Ltd., (1984) 148 ITR 406(Mad.), Entry 32 of the Fifth Schedule was the subject matter of the writ petition and the question was, similar to the present case, whether cotton yarn manufactured by the assessee is entitled for development rebate as higher rate of 35% by virtue of Section 33(1)(b)(B)(i). In this case the Assessing authority rejected the claim of the assessee on the finding that it was not manufacturing "textiles" which is the item in Entry 32 but was manufacturing "cotton yarn". The Tribunal set aside and upheld the assessees claim to include yarn within the Entry 32. This view of the Tribunal was upheld by the High Court.Entry 32 of fifth Schedule reads as under:Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."This is similar to Item No. 21 of Ninth Schedule to which the present case concerns. | 1[ds]The Ninth Schedule was inserted by the Direct Taxes (Amendment) Act, 1974 w.e.f. 1.4.1975 but has been omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act. 1986 w.e.f. 1.4.1988. It is not disputed by the Revenue that in case the item manufactured by the assessee namely, "yarn", if falls under Item No. 21, namely, "textiles", the assessee would be entitled to a higher rate of depreciation. We find the word "textiles" in it is not used in isolation but is stretched by bringing in more in its company through the following words "including those dyed, printed or otherwise processed made wholly or mainly of cotton including cotton year, hosiery and rope." Thus we find "textiles" as is understood at common parlance or as is understood in its natural sense which is limited, is not indicated here. The legislature has deliberately widened its sphere for a purpose to give larger benefit to other items included in it by extending it to include even cotton yarn, hosiery and rope to be understood as "textiles". It is always open for a legislature to stretch or shrink or to give an artificial projection or slicing to any word including one used for `goods, to make it more meaningful to subserve to the objectives it intends to achieve. That is why this inclusive clause brings in more goods, which may not strictly come within the filed of such goods. This is in order to give them similar benefit or to make them equally treated. Similarly, "hosiery" and "rope" could not, but for their inclusion under this item could have been classified as "textiles". similarly many be "cotton yarn". It is true that manufacture of cotton yarn is a stage earlier then manufacture of "textiles" as understood commonly. In fact, cotton is the first stage, next comes `cotton yarn which finally produces "textiles". But here we find legislature intended to give higher rate of initial depreciation even to the manufacture of goods which commonly as understood could not have been included as "textiles". So, this entry has to be interpreted to subserve to the intended objective of the legislature. It is significant that "textiles" as included under two items. One under item No. 21 to which we are concerned and also under Item No. 22. This later Item No. 22 includes entirely different goods than what is under Item No. 21. Item No. 22 reads as under :"Textile (including those dyed, printed or otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This even includes jute twine and jute rope to be "textile".In Commissioner of Income-Tax West Bengal-V v. Shalimar Rope Works P. Ltd., (1980 125 ITR 331(Cal.) (supra), the High Court was called upon to interpret Item No.. 33 of the Fifth Schedule under the Income Tax Act, 1961. The question was whether the assessee would be entitled to higher rate of development rebate under Section 33(1)(b)(B)(i) on the plant and machinery installed for the purpose of the business of manufacture and production of jute ropes and twines. Item No. 33 of the fifth Schedule reads as under :"Textiles (including those dyed, printed and otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This item is similar to Item No. 22 in the Ninth Schedule. The Court held:"It is the finding of the Tribunal that the assessee has installed the plant or machinery for the purposes of business of manufacture and production of jute ropes and jute twines. Jute ropes and jute twines are included in item No. 33 of the Fifth Schedule and, therefore, it must be held that the assessee was entitled to the development rebate under cl.(B)(i)".In Commissioner of Income Tax, A.P.-II v. Vijaya Spinning Mills Ltd., (1983) 143 ITR 64,(A.P.), this case interpreted item No. 32 or the fifth Schedule which is similar to Item No. 21 of the Ninth Schedule. The Court held:"Now, the assessee is a manufacturer of cotton yarn only. The question is, whether he comes within the purview of cl.32. the clause having first mentioned "textile made wholly or mainly of cotton" proceeds to include "cotton yarn, hosiery and rope", therein. The Departments contention is that for falling under cl. 32, it must necessarily be "textiles made wholly or mainly of cotton including cotton yarn". But, this interpretation would make the words "including cotton yarn" superfluous because before cotton can be converted into textile it must first be converted into yarn. it is difficult to conceive of a textile made directly from cotton i.e, without first converting the cotton into yarn. Further, if this interpretation were to be accepted, the same interpretation must also be extended to the words "hosiery and rope" occurring in the said clause. But, then, there can be no textiles made out of hosiery, which is commonly understood as referring to clothes like banians, drawers, etc., or out of rope."In Commissioner of Income Tax, Tamil Naidu-II v. North Arcot District co-operative Spinning Mills Ltd., (1984) 148 ITR 406(Mad.), Entry 32 of the Fifth Schedule was the subject matter of the writ petition and the question was, similar to the present case, whether cotton yarn manufactured by the assessee is entitled for development rebate as higher rate of 35% by virtue of Section 33(1)(b)(B)(i). In this case the Assessing authority rejected the claim of the assessee on the finding that it was not manufacturing "textiles" which is the item in Entry 32 but was manufacturing "cotton yarn". The Tribunal set aside and upheld the assessees claim to include yarn within the Entry 32. This view of the Tribunal was upheld by the High Court.Entry 32 of fifth Schedule reads as under:Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."This is similar to Item No. 21 of Ninth Schedule to which the present case concerns.Thus we have no hesitation to hold that `yarn manufactured by the assessee in view of language used in Item No. 21 of the Ninth Schedule, would fall within the meaning of "textiles". thus we do not find any error in the impugned order upholding the grant of higher rate of initial depreciation on the `yarn manufactured by the assessee. Accordingly, the present appeal fails and is dismissed. | 1 | 1,795 | 1,297 | ### 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:
under:-"Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yearn, hosiery and rope." The Ninth Schedule was inserted by the Direct Taxes (Amendment) Act, 1974 w.e.f. 1.4.1975 but has been omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act. 1986 w.e.f. 1.4.1988. It is not disputed by the Revenue that in case the item manufactured by the assessee namely, "yarn", if falls under Item No. 21, namely, "textiles", the assessee would be entitled to a higher rate of depreciation. We find the word "textiles" in it is not used in isolation but is stretched by bringing in more in its company through the following words "including those dyed, printed or otherwise processed made wholly or mainly of cotton including cotton year, hosiery and rope." Thus we find "textiles" as is understood at common parlance or as is understood in its natural sense which is limited, is not indicated here. The legislature has deliberately widened its sphere for a purpose to give larger benefit to other items included in it by extending it to include even cotton yarn, hosiery and rope to be understood as "textiles". It is always open for a legislature to stretch or shrink or to give an artificial projection or slicing to any word including one used for `goods, to make it more meaningful to subserve to the objectives it intends to achieve. That is why this inclusive clause brings in more goods, which may not strictly come within the filed of such goods. This is in order to give them similar benefit or to make them equally treated. Similarly, "hosiery" and "rope" could not, but for their inclusion under this item could have been classified as "textiles". similarly many be "cotton yarn". It is true that manufacture of cotton yarn is a stage earlier then manufacture of "textiles" as understood commonly. In fact, cotton is the first stage, next comes `cotton yarn which finally produces "textiles". But here we find legislature intended to give higher rate of initial depreciation even to the manufacture of goods which commonly as understood could not have been included as "textiles". So, this entry has to be interpreted to subserve to the intended objective of the legislature. It is significant that "textiles" as included under two items. One under item No. 21 to which we are concerned and also under Item No. 22. This later Item No. 22 includes entirely different goods than what is under Item No. 21. Item No. 22 reads as under :"Textile (including those dyed, printed or otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This even includes jute twine and jute rope to be "textile".In Commissioner of Income-Tax West Bengal-V v. Shalimar Rope Works P. Ltd., (1980 125 ITR 331(Cal.) (supra), the High Court was called upon to interpret Item No.. 33 of the Fifth Schedule under the Income Tax Act, 1961. The question was whether the assessee would be entitled to higher rate of development rebate under Section 33(1)(b)(B)(i) on the plant and machinery installed for the purpose of the business of manufacture and production of jute ropes and twines. Item No. 33 of the fifth Schedule reads as under :"Textiles (including those dyed, printed and otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This item is similar to Item No. 22 in the Ninth Schedule. The Court held:"It is the finding of the Tribunal that the assessee has installed the plant or machinery for the purposes of business of manufacture and production of jute ropes and jute twines. Jute ropes and jute twines are included in item No. 33 of the Fifth Schedule and, therefore, it must be held that the assessee was entitled to the development rebate under cl.(B)(i)".In Commissioner of Income Tax, A.P.-II v. Vijaya Spinning Mills Ltd., (1983) 143 ITR 64,(A.P.), this case interpreted item No. 32 or the fifth Schedule which is similar to Item No. 21 of the Ninth Schedule. The Court held:"Now, the assessee is a manufacturer of cotton yarn only. The question is, whether he comes within the purview of cl.32. the clause having first mentioned "textile made wholly or mainly of cotton" proceeds to include "cotton yarn, hosiery and rope", therein. The Departments contention is that for falling under cl. 32, it must necessarily be "textiles made wholly or mainly of cotton including cotton yarn". But, this interpretation would make the words "including cotton yarn" superfluous because before cotton can be converted into textile it must first be converted into yarn. it is difficult to conceive of a textile made directly from cotton i.e, without first converting the cotton into yarn. Further, if this interpretation were to be accepted, the same interpretation must also be extended to the words "hosiery and rope" occurring in the said clause. But, then, there can be no textiles made out of hosiery, which is commonly understood as referring to clothes like banians, drawers, etc., or out of rope."In Commissioner of Income Tax, Tamil Naidu-II v. North Arcot District co-operative Spinning Mills Ltd., (1984) 148 ITR 406(Mad.), Entry 32 of the Fifth Schedule was the subject matter of the writ petition and the question was, similar to the present case, whether cotton yarn manufactured by the assessee is entitled for development rebate as higher rate of 35% by virtue of Section 33(1)(b)(B)(i). In this case the Assessing authority rejected the claim of the assessee on the finding that it was not manufacturing "textiles" which is the item in Entry 32 but was manufacturing "cotton yarn". The Tribunal set aside and upheld the assessees claim to include yarn within the Entry 32. This view of the Tribunal was upheld by the High Court.Entry 32 of fifth Schedule reads as under:Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."This is similar to Item No. 21 of Ninth Schedule to which the present case concerns.
### Response:
1
### Explanation:
"yarn", if falls under Item No. 21, namely, "textiles", the assessee would be entitled to a higher rate of depreciation. We find the word "textiles" in it is not used in isolation but is stretched by bringing in more in its company through the following words "including those dyed, printed or otherwise processed made wholly or mainly of cotton including cotton year, hosiery and rope." Thus we find "textiles" as is understood at common parlance or as is understood in its natural sense which is limited, is not indicated here. The legislature has deliberately widened its sphere for a purpose to give larger benefit to other items included in it by extending it to include even cotton yarn, hosiery and rope to be understood as "textiles". It is always open for a legislature to stretch or shrink or to give an artificial projection or slicing to any word including one used for `goods, to make it more meaningful to subserve to the objectives it intends to achieve. That is why this inclusive clause brings in more goods, which may not strictly come within the filed of such goods. This is in order to give them similar benefit or to make them equally treated. Similarly, "hosiery" and "rope" could not, but for their inclusion under this item could have been classified as "textiles". similarly many be "cotton yarn". It is true that manufacture of cotton yarn is a stage earlier then manufacture of "textiles" as understood commonly. In fact, cotton is the first stage, next comes `cotton yarn which finally produces "textiles". But here we find legislature intended to give higher rate of initial depreciation even to the manufacture of goods which commonly as understood could not have been included as "textiles". So, this entry has to be interpreted to subserve to the intended objective of the legislature. It is significant that "textiles" as included under two items. One under item No. 21 to which we are concerned and also under Item No. 22. This later Item No. 22 includes entirely different goods than what is under Item No. 21. Item No. 22 reads as under :"Textile (including those dyed, printed or otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This even includes jute twine and jute rope to be "textile".In Commissioner of Income-Tax West Bengal-V v. Shalimar Rope Works P. Ltd., (1980 125 ITR 331(Cal.) (supra), the High Court was called upon to interpret Item No.. 33 of the Fifth Schedule under the Income Tax Act, 1961. The question was whether the assessee would be entitled to higher rate of development rebate under Section 33(1)(b)(B)(i) on the plant and machinery installed for the purpose of the business of manufacture and production of jute ropes and twines. Item No. 33 of the fifth Schedule reads as under :"Textiles (including those dyed, printed and otherwise processed) made wholly or mainly of jute, including jute twine and jute rope."This item is similar to Item No. 22 in the Ninth Schedule. The Court held:"It is the finding of the Tribunal that the assessee has installed the plant or machinery for the purposes of business of manufacture and production of jute ropes and jute twines. Jute ropes and jute twines are included in item No. 33 of the Fifth Schedule and, therefore, it must be held that the assessee was entitled to the development rebate under cl.(B)(i)".In Commissioner of Income Tax, A.P.-II v. Vijaya Spinning Mills Ltd., (1983) 143 ITR 64,(A.P.), this case interpreted item No. 32 or the fifth Schedule which is similar to Item No. 21 of the Ninth Schedule. The Court held:"Now, the assessee is a manufacturer of cotton yarn only. The question is, whether he comes within the purview of cl.32. the clause having first mentioned "textile made wholly or mainly of cotton" proceeds to include "cotton yarn, hosiery and rope", therein. The Departments contention is that for falling under cl. 32, it must necessarily be "textiles made wholly or mainly of cotton including cotton yarn". But, this interpretation would make the words "including cotton yarn" superfluous because before cotton can be converted into textile it must first be converted into yarn. it is difficult to conceive of a textile made directly from cotton i.e, without first converting the cotton into yarn. Further, if this interpretation were to be accepted, the same interpretation must also be extended to the words "hosiery and rope" occurring in the said clause. But, then, there can be no textiles made out of hosiery, which is commonly understood as referring to clothes like banians, drawers, etc., or out of rope."In Commissioner of Income Tax, Tamil Naidu-II v. North Arcot District co-operative Spinning Mills Ltd., (1984) 148 ITR 406(Mad.), Entry 32 of the Fifth Schedule was the subject matter of the writ petition and the question was, similar to the present case, whether cotton yarn manufactured by the assessee is entitled for development rebate as higher rate of 35% by virtue of Section 33(1)(b)(B)(i). In this case the Assessing authority rejected the claim of the assessee on the finding that it was not manufacturing "textiles" which is the item in Entry 32 but was manufacturing "cotton yarn". The Tribunal set aside and upheld the assessees claim to include yarn within the Entry 32. This view of the Tribunal was upheld by the High Court.Entry 32 of fifth Schedule reads as under:Textiles (including those dyed, printed or otherwise processed) made wholly or mainly of cotton, including cotton yarn, hosiery and rope."This is similar to Item No. 21 of Ninth Schedule to which the present case concerns.Thus we have no hesitation to hold that `yarn manufactured by the assessee in view of language used in Item No. 21 of the Ninth Schedule, would fall within the meaning of "textiles". thus we do not find any error in the impugned order upholding the grant of higher rate of initial depreciation on the `yarn manufactured by the assessee. Accordingly, the present appeal fails and is dismissed.
|
Commnr. Of Central Excise, Mumbai Vs. M/S. Fiat India (P) Ltd. | either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” We do not intend to overload this judgment by referring to other decisions on this well settled legal principle. 67. Reference to Valuation Rules: Shri. Bhattacharya, the learned ASG, contends that the assessees are not fulfilling the conditions enumerated in Section 4(1)(a) of the Act and therefore, the valuation has to be done in accordance with Section 4(1)(b) read with the 1975 Valuation Rules. He would submit that since the price of the cars sold by the assessee was not ascertainable, the Revenue is justified in computing the assessable value of the goods for the levy of excise duty under Section 4(1)(b) of the Act and the relevant rules. He would further submit that the Valuation Rules need not be applied sequentially. He would contend that all the Rules 3, 4, 5, 6 and 7 of the 1975 Valuation Rules specifically use the expression “shall…be determined”, “shall be based” or “shall determine the value” and nowhere word “sequentially” occurs in these Rules, unlike Rule 3(ii) of the Customs Valuation Rules, 1988. He would submit that merely the presence of word “shall” does not imply that all the Rules has to be applied sequentially. He would further submit that in the facts and circumstances of the present cases, Rule 7 is the only applicable Rule in view of the decision in Bombay Tyre’s case and assessing authority as well as the first appellate authority correctly adopted the application of this Rule. 68. Per Contra, Shri Joseph Vellapally, would submit that only when the normal price is not ascertainable in terms of Section 4(1)(a), then Section 4(1)(b) read with the 1975 Valuation Rules would come into play to determine the nearest equivalent assessable value of the goods. He would contend that the Valuation Rules have to be applied sequentially, i.e. first, Rules 4 and 5 should be invoked in order to determine the assessable value and if Rules 4 and 5 are not applicable or assessable, value cannot be ascertained by applying the said Rules, and then only Rule 6 can be invoked. He would further submit that it is only Rule 6(b)(ii) of the 1975 Valuation Rules which contemplates determining of assessable value on the basis of cost of manufacture, only when the goods are captively consumed by the manufacturer and value of comparable goods manufactured by the assessee or any other assessee are not available.69. Under Section 4(1)(b) of the Act, 1944, any goods which do not fall within the ambit of Section 4(1)(a) i.e. if the ‘normal price’ cannot be ascertained because the goods are not sold or for any other reason, the ‘normal price’ would have to be determined in the prescribed manner i.e. prior to 1st day of July, 2000, in accordance with Rules, 1975 and after 1st day of July 2000, in accordance with Rules, 2000. 70. Rule 2 of the 1975 Valuation Rules provides for definition of certain terms, such as “proper officer”, “value” etc., Rule 3 of the above Rules, provides that the value of any excisable goods, for the purposes of Clause (b) of Sub-Section (1) of Section 4 of the Act be determined in accordance with these Rules. Rule 4 provides that the value of the excisable goods shall be based on the value of such goods by the assessee for delivery at any other time nearest to the time of removal of goods under assessment. Rule 5 provides that when the goods are sold in the circumstances specified in Clause (a) of Sub-Section (1) of Section (4) of the Act except that the price is not the sole consideration, the value of such goods shall be based on the aggregate price and the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee. Rule 6 provides, that, if the value of the excisable goods under assessment cannot be made, then to invoke provisions of Rule 6 of the Rules, wherein certain adjustments requires to be made as provided therein. Rule 7 is in the nature of residuary clause. It provides that if the value of excisable goods cannot be determined under Rule 4, 5 and 6 of the Rules, the adjudging authority shall determine the value of such goods according to the best of his judgment and while doing so, he may have regard to any one or more methods provided under the aforesaid Rules. A bare reading of these rules does not give any indication that the adjudging authority while computing the assessable value of the excisable goods, he had to follow the rules sequentially. The rules only provides for arriving at the assessable value under different contingencies. Again, Rule 7 of the Valuation Rules which provides for the best judgment assessment gives an indication that the assessing authority while quantifying the assessable value under the said Rules, may take the assistance of the methods provided under Rules 4, 5 or 6 of the Valuation Rules. Therefore, contention of the learned counsel that the assessing authority before invoking Rule 7 of the 1975 Valuation Rules, ought to have invoked Rules 4, 5 and 6 of the said Rules cannot be accepted. In our view, since the assessing authority could not do the valuation with the help of the other rules, has resorted to best judgment method and while doing so, has taken the assistance of the report of the ‘Cost Accountant’ who was asked to conduct special audit to ascertain the correct price that requires to be adopted during the relevant period. Therefore, we cannot take exception of the assessable value of the excisable goods quantified by the assessing authority. | 1[ds]In the instant cases, the department never accepted the declared value. It is for this reason, provisional assessments were completed instead of accepting declared price by the assessee under Rule 9B of the Rules inter alia holding that during the enquiry, the assessees had admitted that they did not have any basis to arrive at the assessable value but they are selling their goods at ‘lossonly to penetrate the market. Secondly, as we have already noticed that for nearly five years the assessee was selling its cars in the wholesale trade for a ‘lossand therefore, the conditions envisaged under Section 4(1)(a) of the Act, namely; the normal price, ordinarily sold and sole consideration are not satisfied. We further hold that the decision incase (supra) will also not assist the assessees for the reason that the issue that came up for consideration is entirely different from the legal issue raised in these civil appeals. Before we conclude on this issue, we intend to refer to the often quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. We may also note the view expressed by this Court in the case of Sushil Suri vs. Central Bureau of Investigation & Anr. (2011) 5 SCC 708 , wherein this Court has observed,case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at allWe do not intend to overload this judgment by referring to other decisions on this well settled legalour view, since the assessing authority could not do the valuation with the help of the other rules, has resorted to best judgment method and while doing so, has taken the assistance of the report of the ‘Costwho was asked to conduct special audit to ascertain the correct price that requires to be adopted during the relevant period. Therefore, we cannot take exception of the assessable value of the excisable goods quantified by the assessing authority. | 1 | 17,492 | 446 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” We do not intend to overload this judgment by referring to other decisions on this well settled legal principle. 67. Reference to Valuation Rules: Shri. Bhattacharya, the learned ASG, contends that the assessees are not fulfilling the conditions enumerated in Section 4(1)(a) of the Act and therefore, the valuation has to be done in accordance with Section 4(1)(b) read with the 1975 Valuation Rules. He would submit that since the price of the cars sold by the assessee was not ascertainable, the Revenue is justified in computing the assessable value of the goods for the levy of excise duty under Section 4(1)(b) of the Act and the relevant rules. He would further submit that the Valuation Rules need not be applied sequentially. He would contend that all the Rules 3, 4, 5, 6 and 7 of the 1975 Valuation Rules specifically use the expression “shall…be determined”, “shall be based” or “shall determine the value” and nowhere word “sequentially” occurs in these Rules, unlike Rule 3(ii) of the Customs Valuation Rules, 1988. He would submit that merely the presence of word “shall” does not imply that all the Rules has to be applied sequentially. He would further submit that in the facts and circumstances of the present cases, Rule 7 is the only applicable Rule in view of the decision in Bombay Tyre’s case and assessing authority as well as the first appellate authority correctly adopted the application of this Rule. 68. Per Contra, Shri Joseph Vellapally, would submit that only when the normal price is not ascertainable in terms of Section 4(1)(a), then Section 4(1)(b) read with the 1975 Valuation Rules would come into play to determine the nearest equivalent assessable value of the goods. He would contend that the Valuation Rules have to be applied sequentially, i.e. first, Rules 4 and 5 should be invoked in order to determine the assessable value and if Rules 4 and 5 are not applicable or assessable, value cannot be ascertained by applying the said Rules, and then only Rule 6 can be invoked. He would further submit that it is only Rule 6(b)(ii) of the 1975 Valuation Rules which contemplates determining of assessable value on the basis of cost of manufacture, only when the goods are captively consumed by the manufacturer and value of comparable goods manufactured by the assessee or any other assessee are not available.69. Under Section 4(1)(b) of the Act, 1944, any goods which do not fall within the ambit of Section 4(1)(a) i.e. if the ‘normal price’ cannot be ascertained because the goods are not sold or for any other reason, the ‘normal price’ would have to be determined in the prescribed manner i.e. prior to 1st day of July, 2000, in accordance with Rules, 1975 and after 1st day of July 2000, in accordance with Rules, 2000. 70. Rule 2 of the 1975 Valuation Rules provides for definition of certain terms, such as “proper officer”, “value” etc., Rule 3 of the above Rules, provides that the value of any excisable goods, for the purposes of Clause (b) of Sub-Section (1) of Section 4 of the Act be determined in accordance with these Rules. Rule 4 provides that the value of the excisable goods shall be based on the value of such goods by the assessee for delivery at any other time nearest to the time of removal of goods under assessment. Rule 5 provides that when the goods are sold in the circumstances specified in Clause (a) of Sub-Section (1) of Section (4) of the Act except that the price is not the sole consideration, the value of such goods shall be based on the aggregate price and the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee. Rule 6 provides, that, if the value of the excisable goods under assessment cannot be made, then to invoke provisions of Rule 6 of the Rules, wherein certain adjustments requires to be made as provided therein. Rule 7 is in the nature of residuary clause. It provides that if the value of excisable goods cannot be determined under Rule 4, 5 and 6 of the Rules, the adjudging authority shall determine the value of such goods according to the best of his judgment and while doing so, he may have regard to any one or more methods provided under the aforesaid Rules. A bare reading of these rules does not give any indication that the adjudging authority while computing the assessable value of the excisable goods, he had to follow the rules sequentially. The rules only provides for arriving at the assessable value under different contingencies. Again, Rule 7 of the Valuation Rules which provides for the best judgment assessment gives an indication that the assessing authority while quantifying the assessable value under the said Rules, may take the assistance of the methods provided under Rules 4, 5 or 6 of the Valuation Rules. Therefore, contention of the learned counsel that the assessing authority before invoking Rule 7 of the 1975 Valuation Rules, ought to have invoked Rules 4, 5 and 6 of the said Rules cannot be accepted. In our view, since the assessing authority could not do the valuation with the help of the other rules, has resorted to best judgment method and while doing so, has taken the assistance of the report of the ‘Cost Accountant’ who was asked to conduct special audit to ascertain the correct price that requires to be adopted during the relevant period. Therefore, we cannot take exception of the assessable value of the excisable goods quantified by the assessing authority.
### Response:
1
### Explanation:
In the instant cases, the department never accepted the declared value. It is for this reason, provisional assessments were completed instead of accepting declared price by the assessee under Rule 9B of the Rules inter alia holding that during the enquiry, the assessees had admitted that they did not have any basis to arrive at the assessable value but they are selling their goods at ‘lossonly to penetrate the market. Secondly, as we have already noticed that for nearly five years the assessee was selling its cars in the wholesale trade for a ‘lossand therefore, the conditions envisaged under Section 4(1)(a) of the Act, namely; the normal price, ordinarily sold and sole consideration are not satisfied. We further hold that the decision incase (supra) will also not assist the assessees for the reason that the issue that came up for consideration is entirely different from the legal issue raised in these civil appeals. Before we conclude on this issue, we intend to refer to the often quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. We may also note the view expressed by this Court in the case of Sushil Suri vs. Central Bureau of Investigation & Anr. (2011) 5 SCC 708 , wherein this Court has observed,case depends on its own facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at allWe do not intend to overload this judgment by referring to other decisions on this well settled legalour view, since the assessing authority could not do the valuation with the help of the other rules, has resorted to best judgment method and while doing so, has taken the assistance of the report of the ‘Costwho was asked to conduct special audit to ascertain the correct price that requires to be adopted during the relevant period. Therefore, we cannot take exception of the assessable value of the excisable goods quantified by the assessing authority.
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Triveni @ Gaunda Motilal Shah Vs. State of Maharashtra | according to PW-7 Investigating Officer the appellant/accused was arrested and brought before him on 31.1.2009 i.e. after about eight days of the incident. However, that time the clothes were not taken charge of which the appellant/accused was then wearing. However, they were taken charge of on 2.2.2009 and said clothes allegedly were having blood stains. This is in fact a glaring discrepancy in the evidence of the prosecution and which has been over-looked by the trial Court while appreciating this evidence as to recovery of blood stained clothes from the person of the appellant/accused holding this circumstance against him.10. Now coming to the substantive evidence of PW5 Sangita Pawar, according to her she was working as labour in Laxmi Metals Rolling Mill and was knowing the appellant/accused being a co-worker. According to her, one day he told that his sister-in-law would be coming from village and he requested PW-5 to find out a room on rent for her. Accordingly on one day, one woman and two children came to the house of PW-5. That time PW-5 was on duty, hence she remained at the house of PW-5. That time according to PW-5, that woman told that her husband was beating her after consuming liquor. Thereafter the appellant/accused came to her house with money asking for finding a room for the woman. Accordingly, PW-5 found one room in which said woman and children stayed for 2-3 days and thereafter she left the place. Subsequently during the investigation police recorded the statement of PW-5 and accordingly she stated before the Court. During the cross-examination of PW-5, it was brought on record that she knew the name of that woman as Neelu. Apparently the woman was wife of the deceased. As against this evidence of PW-5, according to PW-7 Investigating Officer the name of wife of the deceased was Kamala and he sent one Constable to search said Kamala wife of the deceased and accordingly she was brought from Malegaon. Her statement was recorded. However, it is a factual position that said Kamala, wife of the deceased was not examined. Here again the discrepancy as to real name of said woman and non-examination of said wife of the victim, is again a mitigating circumstance against the case of prosecution and again this aspect has been over-looked by the trial Court while appreciating the case based on circumstantial evidence.11. It is also a factual position apparent from the substantive evidence of PW-7 Investigating Officer that one Ravindra Gupta, brother of the victim, had identified the said dead-body and the said dead body was of Satyanarayan Gupta. As against this, again the same PW-7 in his examination-in-chief further stated, as appearing in para-6 of the notes of evidence, to the following effect :"On postmortem report dead body was shown as unknown. Therefore, by issuing letter I requested Medical Officer to quote his name as "Avdesh Gupta"."12. By pointing out this evidence of PW-7, it is strongly submitted on behalf of the appellant that the identity of the dead body is not established beyond reasonable doubt that it was a dead body of husband of the said Kamala. This is more so in view of absence of examination of said Kamala and also in the absence of examination of one Ravindra Gupta allegedly brother of the victim.13. In view of the above, the entire case of the prosecution only rests on the substantive evidence of PW-2 Mohanlal Jain i.e. the victim, last seen in company of the appellant/accused and the co-accused. Again on this aspect, the time-gap between the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e. PW-4 Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries were ante-mortem in nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according to PW-1 Ashokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot, PW-1 noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according to PW-2 there was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused. | 1[ds]13. In view of the above, the entire case of the prosecution only rests on the substantive evidence ofMohanlal Jain i.e. the victim, last seen in company of the appellant/accused and theAgain on this aspect, thebetween the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e.Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries werein nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according toAshokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot,noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according tothere was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused. | 1 | 3,218 | 466 | ### Instruction:
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according to PW-7 Investigating Officer the appellant/accused was arrested and brought before him on 31.1.2009 i.e. after about eight days of the incident. However, that time the clothes were not taken charge of which the appellant/accused was then wearing. However, they were taken charge of on 2.2.2009 and said clothes allegedly were having blood stains. This is in fact a glaring discrepancy in the evidence of the prosecution and which has been over-looked by the trial Court while appreciating this evidence as to recovery of blood stained clothes from the person of the appellant/accused holding this circumstance against him.10. Now coming to the substantive evidence of PW5 Sangita Pawar, according to her she was working as labour in Laxmi Metals Rolling Mill and was knowing the appellant/accused being a co-worker. According to her, one day he told that his sister-in-law would be coming from village and he requested PW-5 to find out a room on rent for her. Accordingly on one day, one woman and two children came to the house of PW-5. That time PW-5 was on duty, hence she remained at the house of PW-5. That time according to PW-5, that woman told that her husband was beating her after consuming liquor. Thereafter the appellant/accused came to her house with money asking for finding a room for the woman. Accordingly, PW-5 found one room in which said woman and children stayed for 2-3 days and thereafter she left the place. Subsequently during the investigation police recorded the statement of PW-5 and accordingly she stated before the Court. During the cross-examination of PW-5, it was brought on record that she knew the name of that woman as Neelu. Apparently the woman was wife of the deceased. As against this evidence of PW-5, according to PW-7 Investigating Officer the name of wife of the deceased was Kamala and he sent one Constable to search said Kamala wife of the deceased and accordingly she was brought from Malegaon. Her statement was recorded. However, it is a factual position that said Kamala, wife of the deceased was not examined. Here again the discrepancy as to real name of said woman and non-examination of said wife of the victim, is again a mitigating circumstance against the case of prosecution and again this aspect has been over-looked by the trial Court while appreciating the case based on circumstantial evidence.11. It is also a factual position apparent from the substantive evidence of PW-7 Investigating Officer that one Ravindra Gupta, brother of the victim, had identified the said dead-body and the said dead body was of Satyanarayan Gupta. As against this, again the same PW-7 in his examination-in-chief further stated, as appearing in para-6 of the notes of evidence, to the following effect :"On postmortem report dead body was shown as unknown. Therefore, by issuing letter I requested Medical Officer to quote his name as "Avdesh Gupta"."12. By pointing out this evidence of PW-7, it is strongly submitted on behalf of the appellant that the identity of the dead body is not established beyond reasonable doubt that it was a dead body of husband of the said Kamala. This is more so in view of absence of examination of said Kamala and also in the absence of examination of one Ravindra Gupta allegedly brother of the victim.13. In view of the above, the entire case of the prosecution only rests on the substantive evidence of PW-2 Mohanlal Jain i.e. the victim, last seen in company of the appellant/accused and the co-accused. Again on this aspect, the time-gap between the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e. PW-4 Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries were ante-mortem in nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according to PW-1 Ashokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot, PW-1 noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according to PW-2 there was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.
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13. In view of the above, the entire case of the prosecution only rests on the substantive evidence ofMohanlal Jain i.e. the victim, last seen in company of the appellant/accused and theAgain on this aspect, thebetween the circumstance as to last seen and the death of the victim is more than fifteen hours inasmuch as according to the Medical Officer who conducted the postmortem i.e.Dr. Avhishek Kumar the death was due to shock and hemorrhage as a result of multiple injuries sustained and the injuries werein nature and caused by hard and blunt object and time was beyond 12 to 22 hours prior to postmortem. Admittedly, the postmortem was conducted between 11:30 a.m. to 12:30 p.m. on 24.1.2009, so the time of death was within the time span from 2:00 p.m. of 23.1.2009 till twelve hours thereafter. As against this, according toAshokkumar Tiwari at about 8:00 a.m. on 23.1.2009 he was told by some boys that one man was lying on the backside of Libra Company in an injured condition. On reaching the spot,noticed that the said person was already dead. As such, the death was definitely much prior to 8:00 a.m. on 23.1.2009. As such, there is variance in the time of death and also there is no authentic information as to identity of the dead body. In the result, a great care was required to have been taken on the part of the trial Court to scrutinize the circumstance as to last seen together.However, it must be said that the trial Court had failed to appreciate this evidence and has erroneously came to the conclusion as to prosecution proving that standard of evidence required to establish the guilt of the appellant/accused beyond reasonable doubt. In other words, when the entire case of prosecution was based on circumstantial evidence and that also of last seen together and as there was a long drawn gap of more than 15 hours in between the time when allegedly the appellant/accused was seen in the company of the victim and the dead body was found, definitely this circumstance is not sufficient to establish guilt of the accused for the offence of Section 302 IPC charged against him. This is more so when according tothere was another absconding accused Raj present with the accused in the company of the victim and said Raj has not been tried due to his abscondance.14. In view of the above, it must be said that the prosecution has failed to establish the guilt of the appellant/accused beyond reasonable doubt and as such benefit of doubt must go in favour of the appellant/accused.
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Board of Control For Cricket In India Vs. Kph Dream Cricket Private Limited | of Kings XI Punjab;v. As a result of the letter of termination the Respondent would be precluded from participating in the auction for cricketers which is scheduled to take place in January 2011. Players are normally signed up for two year contracts with the option of a one year extension;vi. The Respondent would also not be able to trade players with other franchisees at mutually agreed prices;vii. The Respondent is a representative franchisee for the States of Punjab, Haryana, Himachal Pradesh and Jammu & Kashmir which provides a platform for cricketers of the region to develop their skills;viii. The Respondent has built up a large number of sponsors who have chosen to become part of the brand, Kings XI Punjab. In the year 2010 itself 14 sponsors had signed up with the Respondent, some of them having signed a contract which extends for a period upto three years;ix. The Respondent has been promoting cricket in far off places, in remote areas of Himachal Pradesh and is currently in the process of setting up a cricket academy in conjunction with the Cricket Associations of Punjab and Himachal Pradesh.28. We are of the view that sufficient grounds were made out on behalf of the Respondent for establishing that damages would not provide an adequate remedy and that an interim order staying the termination was warranted. Such an order falls within the contemplation and purview of Section 9. The Arbitrator has power to grant specific performance. The Arbitrator, if appointed again, will decide finally all the issues after taking note of material and submissions. During this period, the Court is empowered to pass a protective order in order to preserve the subject matter of the Arbitration and to safeguard the rights in adjudication before the arbitral tribunal from being frustrated. In view of the nature of the transaction, the conduct of the parties, to avoid irreparable loss, injury and harm to goodwill and reputation, and in the interests of justice as a strong prima facie case is made out, we are inclined to maintain the order passed by the learned Single Judge. We are also of the view that the balance of convenience lies in favour of the Respondent. It was just and convenient to pass an order to protect and preserve the subject matter of the dispute, to avoid further complications in the matter, particularly when the action of an abrupt termination of the contract which had a life coextensive with the duration of IPL is unjust, unfair and illegal. Damages will hence not provide adequate or sufficient recompense. Therefore, clause 21.6 does not affect the power and jurisdiction of the Court under Section 9 to pass such an order, at the interim stage, till the award of the arbitral tribunal. However, this is subject to the conditions set out in the order of the learned Single Judge.29. In Hindustan Petroleum Corpn. Ltd. Sriman Narayan (2002) 5 SCC 760 ), the Supreme Court reiterated the principles which were laid down in Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117 ) for the grant of interlocutory mandatory injunctions. The circumstances which have been enunciated in the judgment of the Supreme Court include that (i) The plaintiff must establish a strong case for trial, a higher standard than a prima facie case normally required for a prohibitory injunction; (ii) The Plaintiff must establish that it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; (iii) The balance of convenience must be in favour of one seeking such relief. We are more than satisfied that the learned Single Judge is justified in coming to the conclusion that these principles are duly fulfilled.30. The judgment of the Supreme Court in Lachoo Mal v. Radhye Shyam (AIR 1971 SC 2213 ) deals with the question as to whether a landlord could waive the exemption benefit available for constructions made after the stipulated date in the U.P Control of Rent and Eviction Act. The Supreme Court laid down that the general principle is that every individual has a right to waive an advantage of a rule made solely for the benefit of the individual unless it can be shown that an agreement in such circumstances is contrary to public policy. The judgment of the Supreme Court would really not advance the case of the Appellant.31. The learned Single Judge while granting an interlocutory injunction, carefully weighed the equities and has made the final relief subject to stringent conditions. These conditions include the requirement that the Respondent furnish a bank guarantee of US $ 18 million to secure the payment of players dues and another bank guarantee in the amount of US $ 3.5 million, both of nationalized banks. In addition, the learned Single Judge has recorded a personal undertaking to guarantee the payment of any amounts that may be found due and payable by any court, tribunal or by any other authority. Having regard to the settled principles enunciated by the Supreme Court in Wander Ltd. v. Antox India P. Ltd. (1990 (Supp) SCC 727), no case has been made out for interference. Before concluding, we must advert to the judgment of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741 ). While it is true that BCCI is not State within the meaning of Article 12 of the Constitution, the Supreme Court has held that nonetheless the Board is bound to follow the doctrines of fairness and good faith in all its activities having regard to the enormity of the power exercised by it. For the reasons which we have indicated, we have come to the conclusion that the termination of the contract was anything but fair. The termination was wholly arbitrary, and was founded on an erroneous factual basis. It therefore deserved the treatment which it has received in the Court of the learned Single Judge. We therefore do not find any reason to interfere. | 0[ds]17. The basis and foundation of the notice of termination is that while in the bid that was submitted by the members of the consortium a representation was held out to BCCI, that the four members consisting of Preity Zinta, Ness Wadia, Mohit Burman and Karan Paul would control the affairs of the franchisee, this was belied when the Respondent was initially constituted. The gravamen of the allegation of BCCI is that when the franchise agreement was entered into on 10 April 2008, none of the members of the consortium was a shareholder of the Respondent. Now from the chart which has been extracted in the earlier part of this judgment it would be abundantly clear that on the date of the franchise agreement the shareholding of the Respondent was held between ACEE which held 9900 shares and Mohit Burman who held 100%. Clause 11.7 of the franchise agreement defines the expression control to mean the direct or indirect power of another person to secure that the affairs of another are conducted in accordance with his wishes. The exercise of both a direct as well as an indirect control is therefore within the contemplation of Clause 11.7. Clause 11.7 also postulates that this control may be exercised by either of three modalities, these being(i) the holding of any shares or the possession of voting power; (ii) by the powers conferred under the Articles of Association of a company and (iii) by virtue of any contractual arrangement. Ex facie, Clause 11.7 is not confined to the exercise of de jure control. Clause 11.7 recognizes that control may be wielded by a broader set of commercial arrangements, sanctified by contract or agreement. The Respondent in its petition under Section 9 specifically set up the plea in paragraph 4.10 that Mohit Burman who was a member of the consortium had identified ACEE which was a family investment company as a company which would initially hold a majority of the shares of the Respondent. The assurance of Mohit Burman to the members of the consortium was that he had full control over ACEE which would act in accordance with the decisions of the members of the consortium which in fact it did. The second statement of the Respondent in its pleadings under Section 9 is that Mohit Burman was always in control and continues to be in control of ACEE, Windy Investments and MB Finmart Pvt. Ltd. (earlier known as Dabur Investment Corporation Ltd.) At this stage what necessitates emphasis is that the control which is postulated by Clause 11.7 is not merely a direct or de jure control but a control that may be indirect as well. Clause 11.7 expressly recognizes that control may be exercised in terms of the holding of shares, the exercise of voting powers, through the Articles of Association or for that matter even by a contractual arrangement.18. There are, in our view, prima facie at this stage atleast seven circumstances which weigh in support of the conclusion of the learned Single Judge that the members of the consortium right from the inception exercised control over the affairs and management of the Respondent. As we have noted earlier, on 10 March 2008 the entire share capital of the Respondent was held by ACEE and by Mohit Burman. The first circumstance is that on 2 February 2008 ACEE had passed a resolution in the following terms :RESOLVED THAT pursuant to the provisions of Section 292 and subject to all other applicable provisions of the Companies Act, 1956 the consent of the Board be and is hereby accorded to authorize Mr. Mohit Burman, Director of the Company, individually to invest the fund of the Company in any Franchisee in Northern India for bidding to BCCI.RESOLVED FURTHER THAT the consent of the Board be and is hereby accorded to incorporate a new Company / Special Purpose Vehicle on request of other promoters to commence the above venture and Mr. Mohit Burman be and is hereby authorized to defray expenses thereon and pay any fees.RESOLVED FURTHER THAT the Board hereby takes note that the promoters of the new Company / Special Purpose Vehicle shall be Ms. Preity Zinta, Mr. Ness Wadia, Mr. Karan Paul, Mr. Mohit Burman and others as per the ratio to be mutually agreed between the promoters. (emphasisThe resolution expressly recognizes(i) the consent of the Board of directors for Mohit Burman individually to invest the funds of the company in any franchisee in Northern India for bidding to BCCI; (ii) the consent of the board for the incorporation of a new company on the request of the other promoters and (iii) that the promoters of a new company would be the four members of the consortium namely Preity Zinta, Ness Wadia, Karan Paul and Mohit Burman. Thepromoters mentioned in the second paragraph are the promoters referred to by name in the third paragraph. On 3 March 2008 a second resolution was passed at a meeting of the Board of ACEE to the following effect :RESOLVED THAT the Board hereby takes note that the bid applied by the company alongwith other promoters to purchase Mohali Franchise (amounting USD 76 million and One US Dollar) has been accepted by BCCI.RESOLVED THAT the consent of the Board be and is hereby accorded to incorporate a new Company in the name of K.P.H. Dream Cricket Pvt. Ltd. on request of the other promoters to commence the above venture, initially with following shareholders and Directors :NAME OF THE SHAREHOLDERS:1. ACEE Enterprises2. Mr. Mohit BurmanNAME OF THE DIRECTORS:1. Mohit Burman2. Ness Wadia20. This resolution specifically took notice of the bid submitted for the Mohali franchise which was accepted by BCCI. More significantly it extended the consent of the Board to incorporate the Respondent on the request of the other promoters and initially with certain shareholders and directors. Significantly, the first directors of the Respondent were Mohit Burman and Ness Wadia who were members of the consortium which had submitted the bid to BCCI for the Mohali franchise. Thus, the first important circumstance is the fact that ACEE was at all material times since the inception cognizant of and had consented to the arrangement whereby Mohit Burman would join in the constitution of the Respondent; that the promoters of the Respondent would be the members of the consortium and initially two members of the consortium would be directors of the Respondent.21. The second circumstance is that a little prior to the incorporation of the Respondent, Form 1A was filed with the Registrar of Companies on 18 February 2008 disclosing the names of the promoters. Form 1A expressly stated that the promoters of the Respondent were Mohit Burman, Ness Wadia, Karan Paul and Preity Zinta, besides ACEE. However, on behalf of the Appellant reliance was sought to be placed on Form 1 filed with the Registrar of Companies on 6 March 2008. All that Form 1 contained was a disclosure that there were two subscribers to the Respondent viz. ACEE and Mohit Burman. Now there is no factual dispute about the position that on the date of the constitution of the Respondent these indeed were the two initial shareholders. Therefore Form 1 really does not advance the case of the Appellant.22. The third circumstance to which a reference must be made is that in January 2008 Preity Zinta, Mohit Burman and Karan Paul brought in an amount of Rs.20 Crores towards payment of the performance deposit which was required to be effected in favour of BCCI. Between 9 March 2008 and 8 April 2008 Ness Wadia brought in an additional amount of Rs.5 Crores as capital contribution. In the ledger accounts of the Respondent, an amount of Rs.9.95 Crores was treated as share application money contributed by the four members of the consortium. Theof the Respondent similarly reflected an amount of Rs.9.95 Crores as having been paid towards share application money. The Respondent in its income tax return for assessment yearfiled in October 2009 also disclosed the share application money of Rs.9.95 Crores. Obviously, these sums of money were brought in by each of the four members of the consortium on the basis and foundation that they would be allotted shares, something that, as we would note shortly hereafter did in fact take place. The fourth important circumstance to which a reference must be made is that the only directors of the Respondent from the inception were members of the consortium. Initially as we have noted, the directors of the Respondent were Mohit Burman and Ness Wadia. On 28 March 2008 Preity Zinta was inducted as an additional director. The fifth circumstance is that monies were raised from the bankers of the Respondent against the furnishing of personal guarantees by the members of the consortium. Sixthly, on 8 May 2008 a fresh allotment of shares took place. At that allotment Preity Zinta and Ness Wadia were allotted each 23.958% of the share capital of the Respondent. Karan Paul was allotted 4.166 %. Altogether the three promoters came to hold 52.08% of the share capital. ACEE and Mohit Burman in turn transferred their shareholding in the Respondent to two companies viz. Dabur Investment Corporation Ltd. (MB Finmart P. ltd.) and Windy Investments Private Ltd. Now the contention of the Respondent is that all these three companies are in fact family investment companies of Mohit Burman. As regards ACEE it has been stated that Mohit Burman held 12.5 % of the shares, his mother held 25% shares, his brother held 12.5% while a cousin held 50%. What is significant is that on 8 May 2008 ACEE issued a fresh allotment of shares to Preity Zinta, Ness Wadia, Karan Paul, the effect of which was that together they would constitute a majority comprising of 52.08%. ACEE thereafter retained a stake only through Windy Investments Private Ltd, a wholly owned subsidiary. ACEE had in other words given up 99.9% of its shareholding in the Respondent for a shareholding of 12.5% through its subsidiary, Windy Investments. This could have been only on the hypothesis that this was done at the behest and bidding of Mohit Burman who was one of the members of the consortium controlling ACEE.23. The entire basis of the letter of termination is erroneous and flawed. The termination of the agreement states that when the Respondent was formed on 10 March 2008, none of the members of the consortium figured as shareholders. The letter then states that in the first instance on 8 May 2008 ACEE and Mohit Burman transferred their shares to Dabur Investment and Windy Investments as a result of which the transferee companies had taken control over the franchisee. This totally ignores the factual position that while on 8 May 2008 a transfer had taken place of the shareholding of ACEE and Mohit Burman in the Respondent, this was accompanied by the allotment of fresh share capital to Preity Zinta, Ness Wadia and Karan Paul, all of them being members of the consortium who together came to hold over 52% of the share capital. Secondly, the termination then proceeds on the basis that on 30 June 2008 further changes took place as a result of which the 100% control over the franchisee exercised by Dabur Investment and Windy Investments came down to only 23%. Ex facie, this part of the notice is equally fallacious. Neither Dabur nor Windy had at any point of time exercised 100% control, or for that matter control over the Respondent within the meaning of Clause 11.7. Moreover, as the chart which has been extracted in the earlier part of the judgment shows, on 30 June 2008 there was a further issue of shares in the same proportion of the existing shareholding of the Respondent. In these circumstances, it is to our mind abundantly clear that the Appellant purported to terminate the contract on a basis which was factually incorrect. At this stage, it would be relevant to note that during the course of the hearing, the Learned Single Judge, in order to test the bonafides of the members of the consortium and of their case that ACEE, Windy Investments and Dabur Investment were companies controlled by Mohit Burman, had enquired as to whether Windy Investments and Dabur Investment would transfer the entire shares held by them aggregating to about 24% in the Respondent in the name of Mohit Burman. The learned Judge recorded that counsel appearing on behalf of the Respondent on taking instructions immediately agreed.24. For these reasons, we are of the view that the learned Single Judge was entirely justified in coming to the conclusion that at all material times right from the inception, control over the affairs and management of the Respondent continued to rest in the members of the consortium. We may also note that Article 31 of the Articles of Association of the Respondent postulates that the Directors shall be entitled to exercise all such powers and to do all such acts and things as the company is authorized to exercise and do. The judgment of the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. (AIR 1986 SC 1370 ) is an authority for the proposition that there are many powers exercisable by the Directors with which the members in general meeting cannot interfere. The most they can do is to dismiss the Directorate and appoint others in their place, or alter the articles so as to restrict the powers of the Directors for the future. This principle of law has been established also by the Court of Appeal in England in John Shaw and Sons (Salford), Ltd. v. Peter Shaw and John Shaw (1935) 2 Kings Bench Division 113) and Automatic SelfCleansing Filter Syndicate Company Ltd. V. Cuninghame (1906) 2 Chancery Division 34). The only directors of the Respondent since the inception are members of the consortium and them alone.Now at the outset, it must be noted that Clause 21.6 postulates that BCCI shall have the right to bring an action before the Courts of Mumbai for injunctive or equitable relief, if it reasonably believes that damages may not be an adequate remedy for a breach by the franchisee of the agreement. The words but not the franchisee are pressed in aid of the submission that the right of the franchisee to move a court for injunctive or equitable relief is excluded. Under Clause 21.2 parties have agreed that if any dispute arises under the agreement which cannot be amicably resolved, parties shall submit their dispute to arbitration. However, by Clause 21.6 BCCI is empowered to bring an action before a Court in Mumbai in order to seek injunctive or equitable relief. Now the belief of BCCI, if it were to bring an action claiming injunctive or other equitable relief, that damages would not be an adequate remedy is by no means conclusive, in the event, that an action is brought before a Court. It is for the Court to determine in the first place as to whether damages would or would not constitute an adequate remedy. Clause 21.6 essentially deals with a situation where there is a breach of the agreement by the franchisee. Now what the argument of the Appellant essentially requires the Court to accept, is that the franchisee is barred by Clause 21.6 from bringing an action under Section 9 of the Arbitration and Conciliation Act 1996 to claim injunctive relief in respect of an unlawful termination of the contract even in a circumstance where damages would not provide an adequate remedy. Whether the damages would or would not provide an adequate remedy is a separate issue altogether. However, in our view, it would be wholly destructive of the underlying principles of Section 28 of the Contract Act to allow a party to assert that the effect of a contractual term is to prohibit access to the Court in a petition under Section 9 of the Arbitration and Conciliation Act 1996 for obtaining suitable injunctive relief even if, damages were not to provide an adequate recompense. The Court would not readily adopt such a construction of Clause 21.6 and indeed if it were to do so, there would be serious questions in regard to validity of Clause 21.6. A construction must therefore be placed on Clause 21.6 which makes business sense. After all, the franchise agreement reflects a business understanding between parties to a commercial document. When the Court construes a commercial document, the effort must be to give business efficacy to a commercial understanding between the parties. We decline to read Clause 21.6 as enabling BCCI to successfully set up the defence that the remedy of injunctive relief under Section 9 is barred even if the franchisee is able to establish that damages would not provide an adequate remedy. Significantly when parties agreed to a consent order in Arbitration Petition 1340 of 2010, they left it open to the Respondent to file an application before the sole arbitrator for interim relief under Sectionare of the view for the reasons indicated earlier that the learned Single Judge was justified in coming to the conclusion that a strong prima facie case was made out by the Respondent for the grant of interlocutory relief. The Respondent in the course of its arbitration petition has set out several circumstances as to why, the franchise agreement needs to be specifically enforced. These circumstances are :i. There exists no standard for ascertaining the actual damage that may be caused by the non performance of the franchise agreement and compensation in money would not afford an adequate relief;ii. The franchise agreement is a perpetual agreement,with the life of the IPL and not one which in its nature is determinable;iii. The subject matter of the franchise agreement is of special value and interest to the Respondent and the rights acquired by the Respondent are not readily available in the market;iv. The Respondent had spent a large amount of effort, time and money in developing and creating the business and the brand of Kings XI Punjab;v. As a result of the letter of termination the Respondent would be precluded from participating in the auction for cricketers which is scheduled to take place in January 2011. Players are normally signed up for two year contracts with the option of a one year extension;vi. The Respondent would also not be able to trade players with other franchisees at mutually agreed prices;vii. The Respondent is a representative franchisee for the States of Punjab, Haryana, Himachal Pradesh and JammuKashmir which provides a platform for cricketers of the region to develop their skills;viii. The Respondent has built up a large number of sponsors who have chosen to become part of the brand, Kings XI Punjab. In the year 2010 itself 14 sponsors had signed up with the Respondent, some of them having signed a contract which extends for a period upto three years;ix. The Respondent has been promoting cricket in far off places, in remote areas of Himachal Pradesh and is currently in the process of setting up a cricket academy in conjunction with the Cricket Associations of Punjab and Himachal Pradesh.28. We are of the view that sufficient grounds were made out on behalf of the Respondent for establishing that damages would not provide an adequate remedy and that an interim order staying the termination was warranted. Such an order falls within the contemplation and purview of Section 9. The Arbitrator has power to grant specific performance. The Arbitrator, if appointed again, will decide finally all the issues after taking note of material and submissions. During this period, the Court is empowered to pass a protective order in order to preserve the subject matter of the Arbitration and to safeguard the rights in adjudication before the arbitral tribunal from being frustrated. In view of the nature of the transaction, the conduct of the parties, to avoid irreparable loss, injury and harm to goodwill and reputation, and in the interests of justice as a strong prima facie case is made out, we are inclined to maintain the order passed by the learned Single Judge. We are also of the view that the balance of convenience lies in favour of the Respondent. It was just and convenient to pass an order to protect and preserve the subject matter of the dispute, to avoid further complications in the matter, particularly when the action of an abrupt termination of the contract which had a life coextensive with the duration of IPL is unjust, unfair and illegal. Damages will hence not provide adequate or sufficient recompense. Therefore, clause 21.6 does not affect the power and jurisdiction of the Court under Section 9 to pass such an order, at the interim stage, till the award of the arbitral tribunal. However, this is subject to the conditions set out in the order of the learned Single Judge.The judgment of the Supreme Court in Lachoo Mal v. Radhye Shyam (AIR 1971 SC 2213 ) deals with the question as to whether a landlord could waive the exemption benefit available for constructions made after the stipulated date in the U.P Control of Rent and Eviction Act. The Supreme Court laid down that the general principle is that every individual has a right to waive an advantage of a rule made solely for the benefit of the individual unless it can be shown that an agreement in such circumstances is contrary to public policy. The judgment of the Supreme Court would really not advance the case of the Appellant.31. The learned Single Judge while granting an interlocutory injunction, carefully weighed the equities and has made the final relief subject to stringent conditions. These conditions include the requirement that the Respondent furnish a bank guarantee of US $ 18 million to secure the payment of players dues and another bank guarantee in the amount of US $ 3.5 million, both of nationalized banks. In addition, the learned Single Judge has recorded a personal undertaking to guarantee the payment of any amounts that may be found due and payable by any court, tribunal or by any other authority. Having regard to the settled principles enunciated by the Supreme Court in Wander Ltd. v. Antox India P. Ltd. (1990 (Supp) SCC 727), no case has been made out for interference. Before concluding, we must advert to the judgment of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741 ). While it is true that BCCI is not State within the meaning of Article 12 of the Constitution, the Supreme Court has held that nonetheless the Board is bound to follow the doctrines of fairness and good faith in all its activities having regard to the enormity of the power exercised by it. For the reasons which we have indicated, we have come to the conclusion that the termination of the contract was anything but fair. The termination was wholly arbitrary, and was founded on an erroneous factual basis. It therefore deserved the treatment which it has received in the Court of the learned Single Judge. We therefore do not find any reason to interfere | 0 | 8,014 | 4,166 | ### Instruction:
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of Kings XI Punjab;v. As a result of the letter of termination the Respondent would be precluded from participating in the auction for cricketers which is scheduled to take place in January 2011. Players are normally signed up for two year contracts with the option of a one year extension;vi. The Respondent would also not be able to trade players with other franchisees at mutually agreed prices;vii. The Respondent is a representative franchisee for the States of Punjab, Haryana, Himachal Pradesh and Jammu & Kashmir which provides a platform for cricketers of the region to develop their skills;viii. The Respondent has built up a large number of sponsors who have chosen to become part of the brand, Kings XI Punjab. In the year 2010 itself 14 sponsors had signed up with the Respondent, some of them having signed a contract which extends for a period upto three years;ix. The Respondent has been promoting cricket in far off places, in remote areas of Himachal Pradesh and is currently in the process of setting up a cricket academy in conjunction with the Cricket Associations of Punjab and Himachal Pradesh.28. We are of the view that sufficient grounds were made out on behalf of the Respondent for establishing that damages would not provide an adequate remedy and that an interim order staying the termination was warranted. Such an order falls within the contemplation and purview of Section 9. The Arbitrator has power to grant specific performance. The Arbitrator, if appointed again, will decide finally all the issues after taking note of material and submissions. During this period, the Court is empowered to pass a protective order in order to preserve the subject matter of the Arbitration and to safeguard the rights in adjudication before the arbitral tribunal from being frustrated. In view of the nature of the transaction, the conduct of the parties, to avoid irreparable loss, injury and harm to goodwill and reputation, and in the interests of justice as a strong prima facie case is made out, we are inclined to maintain the order passed by the learned Single Judge. We are also of the view that the balance of convenience lies in favour of the Respondent. It was just and convenient to pass an order to protect and preserve the subject matter of the dispute, to avoid further complications in the matter, particularly when the action of an abrupt termination of the contract which had a life coextensive with the duration of IPL is unjust, unfair and illegal. Damages will hence not provide adequate or sufficient recompense. Therefore, clause 21.6 does not affect the power and jurisdiction of the Court under Section 9 to pass such an order, at the interim stage, till the award of the arbitral tribunal. However, this is subject to the conditions set out in the order of the learned Single Judge.29. In Hindustan Petroleum Corpn. Ltd. Sriman Narayan (2002) 5 SCC 760 ), the Supreme Court reiterated the principles which were laid down in Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117 ) for the grant of interlocutory mandatory injunctions. The circumstances which have been enunciated in the judgment of the Supreme Court include that (i) The plaintiff must establish a strong case for trial, a higher standard than a prima facie case normally required for a prohibitory injunction; (ii) The Plaintiff must establish that it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; (iii) The balance of convenience must be in favour of one seeking such relief. We are more than satisfied that the learned Single Judge is justified in coming to the conclusion that these principles are duly fulfilled.30. The judgment of the Supreme Court in Lachoo Mal v. Radhye Shyam (AIR 1971 SC 2213 ) deals with the question as to whether a landlord could waive the exemption benefit available for constructions made after the stipulated date in the U.P Control of Rent and Eviction Act. The Supreme Court laid down that the general principle is that every individual has a right to waive an advantage of a rule made solely for the benefit of the individual unless it can be shown that an agreement in such circumstances is contrary to public policy. The judgment of the Supreme Court would really not advance the case of the Appellant.31. The learned Single Judge while granting an interlocutory injunction, carefully weighed the equities and has made the final relief subject to stringent conditions. These conditions include the requirement that the Respondent furnish a bank guarantee of US $ 18 million to secure the payment of players dues and another bank guarantee in the amount of US $ 3.5 million, both of nationalized banks. In addition, the learned Single Judge has recorded a personal undertaking to guarantee the payment of any amounts that may be found due and payable by any court, tribunal or by any other authority. Having regard to the settled principles enunciated by the Supreme Court in Wander Ltd. v. Antox India P. Ltd. (1990 (Supp) SCC 727), no case has been made out for interference. Before concluding, we must advert to the judgment of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741 ). While it is true that BCCI is not State within the meaning of Article 12 of the Constitution, the Supreme Court has held that nonetheless the Board is bound to follow the doctrines of fairness and good faith in all its activities having regard to the enormity of the power exercised by it. For the reasons which we have indicated, we have come to the conclusion that the termination of the contract was anything but fair. The termination was wholly arbitrary, and was founded on an erroneous factual basis. It therefore deserved the treatment which it has received in the Court of the learned Single Judge. We therefore do not find any reason to interfere.
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out by the Respondent for the grant of interlocutory relief. The Respondent in the course of its arbitration petition has set out several circumstances as to why, the franchise agreement needs to be specifically enforced. These circumstances are :i. There exists no standard for ascertaining the actual damage that may be caused by the non performance of the franchise agreement and compensation in money would not afford an adequate relief;ii. The franchise agreement is a perpetual agreement,with the life of the IPL and not one which in its nature is determinable;iii. The subject matter of the franchise agreement is of special value and interest to the Respondent and the rights acquired by the Respondent are not readily available in the market;iv. The Respondent had spent a large amount of effort, time and money in developing and creating the business and the brand of Kings XI Punjab;v. As a result of the letter of termination the Respondent would be precluded from participating in the auction for cricketers which is scheduled to take place in January 2011. Players are normally signed up for two year contracts with the option of a one year extension;vi. The Respondent would also not be able to trade players with other franchisees at mutually agreed prices;vii. The Respondent is a representative franchisee for the States of Punjab, Haryana, Himachal Pradesh and JammuKashmir which provides a platform for cricketers of the region to develop their skills;viii. The Respondent has built up a large number of sponsors who have chosen to become part of the brand, Kings XI Punjab. In the year 2010 itself 14 sponsors had signed up with the Respondent, some of them having signed a contract which extends for a period upto three years;ix. The Respondent has been promoting cricket in far off places, in remote areas of Himachal Pradesh and is currently in the process of setting up a cricket academy in conjunction with the Cricket Associations of Punjab and Himachal Pradesh.28. We are of the view that sufficient grounds were made out on behalf of the Respondent for establishing that damages would not provide an adequate remedy and that an interim order staying the termination was warranted. Such an order falls within the contemplation and purview of Section 9. The Arbitrator has power to grant specific performance. The Arbitrator, if appointed again, will decide finally all the issues after taking note of material and submissions. During this period, the Court is empowered to pass a protective order in order to preserve the subject matter of the Arbitration and to safeguard the rights in adjudication before the arbitral tribunal from being frustrated. In view of the nature of the transaction, the conduct of the parties, to avoid irreparable loss, injury and harm to goodwill and reputation, and in the interests of justice as a strong prima facie case is made out, we are inclined to maintain the order passed by the learned Single Judge. We are also of the view that the balance of convenience lies in favour of the Respondent. It was just and convenient to pass an order to protect and preserve the subject matter of the dispute, to avoid further complications in the matter, particularly when the action of an abrupt termination of the contract which had a life coextensive with the duration of IPL is unjust, unfair and illegal. Damages will hence not provide adequate or sufficient recompense. Therefore, clause 21.6 does not affect the power and jurisdiction of the Court under Section 9 to pass such an order, at the interim stage, till the award of the arbitral tribunal. However, this is subject to the conditions set out in the order of the learned Single Judge.The judgment of the Supreme Court in Lachoo Mal v. Radhye Shyam (AIR 1971 SC 2213 ) deals with the question as to whether a landlord could waive the exemption benefit available for constructions made after the stipulated date in the U.P Control of Rent and Eviction Act. The Supreme Court laid down that the general principle is that every individual has a right to waive an advantage of a rule made solely for the benefit of the individual unless it can be shown that an agreement in such circumstances is contrary to public policy. The judgment of the Supreme Court would really not advance the case of the Appellant.31. The learned Single Judge while granting an interlocutory injunction, carefully weighed the equities and has made the final relief subject to stringent conditions. These conditions include the requirement that the Respondent furnish a bank guarantee of US $ 18 million to secure the payment of players dues and another bank guarantee in the amount of US $ 3.5 million, both of nationalized banks. In addition, the learned Single Judge has recorded a personal undertaking to guarantee the payment of any amounts that may be found due and payable by any court, tribunal or by any other authority. Having regard to the settled principles enunciated by the Supreme Court in Wander Ltd. v. Antox India P. Ltd. (1990 (Supp) SCC 727), no case has been made out for interference. Before concluding, we must advert to the judgment of the Supreme Court in Board of Control for Cricket in India v. Netaji Cricket Club (2005) 4 SCC 741 ). While it is true that BCCI is not State within the meaning of Article 12 of the Constitution, the Supreme Court has held that nonetheless the Board is bound to follow the doctrines of fairness and good faith in all its activities having regard to the enormity of the power exercised by it. For the reasons which we have indicated, we have come to the conclusion that the termination of the contract was anything but fair. The termination was wholly arbitrary, and was founded on an erroneous factual basis. It therefore deserved the treatment which it has received in the Court of the learned Single Judge. We therefore do not find any reason to interfere
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G.D.A. and Ors Vs. Mithilesh Goel | as new goods;(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;(viii) makes to the public a representation in a form that purports to be-(i) a warranty or guarantee of a product or of any goods or services; or(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;(x) gives false or misleading facts disparaging the goods, services or trade of another person.Explanation: For the purposes of Clause (1), a statement that is-(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public,shall be deemed to be a statement made to the public by, and only by the person who had caused the statement to be so expressed, made or contained;(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business and the nature of the advertisement.Explanation.- For the purposes of Clause (2), "bargain price" means-(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or(b) a price that a person who reads, hears, or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;(3) Permits-(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole,(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.(4) Permits the sale or supply of goods intended to be used, or are of a kind likely to be used by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods.(5) Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale, or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.4. It will be noticed that "unfair trade practice" will fall under this Section only when "goods" or "the provision of any services" are involved. In particular, the unfair trade practice alleged and found in favour of the complainant is under Sub-clause (ii) of Sub-section (1) under which a person falsely represents that the services are of a particular standard, quality or grade.5. We find that the alleged arbitrary up-ping of the amount to be paid towards the house, which is an immovable property, cannot possibly be said to be a false representation by the Ghaziabad Development Authority that services are of a particular standard, quality or grade. This is for two reasons. First and the foremost, there is no false representation by the Authority, inasmuch as what was communicated to the complainant was only an estimated cost of the house in question. That estimate was revised later owing to several factors. This itself would show that there is no false representation within Section 36A(1)(ii) of the Act. Secondly, what was given was allotment of a house which is an immovable property, and not services of any kind. This being the case, we are of the view that the impugned order must be set aside as it is outside the jurisdiction of the Commission. | 1[ds]4. It will be noticed that "unfair trade practice" will fall under this Section only when "goods" or "the provision of any services" are involved. In particular, the unfair trade practice alleged and found in favour of the complainant is under Sub-clause (ii) of Sub-section (1) under which a person falsely represents that the services are of a particular standard, quality or grade5. We find that the alleged arbitrary up-ping of the amount to be paid towards the house, which is an immovable property, cannot possibly be said to be a false representation by the Ghaziabad Development Authority that services are of a particular standard, quality or grade. This is for two reasons. First and the foremost, there is no false representation by the Authority, inasmuch as what was communicated to the complainant was only an estimated cost of the house in question. That estimate was revised later owing to several factors. This itself would show that there is no false representation within Section 36A(1)(ii) of the Act. Secondly, what was given was allotment of a house which is an immovable property, and not services of any kind. This being the case, we are of the view that the impugned order must be set aside as it is outside the jurisdiction of the Commission. | 1 | 1,600 | 255 | ### Instruction:
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as new goods;(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;(viii) makes to the public a representation in a form that purports to be-(i) a warranty or guarantee of a product or of any goods or services; or(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been, or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;(x) gives false or misleading facts disparaging the goods, services or trade of another person.Explanation: For the purposes of Clause (1), a statement that is-(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public,shall be deemed to be a statement made to the public by, and only by the person who had caused the statement to be so expressed, made or contained;(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business and the nature of the advertisement.Explanation.- For the purposes of Clause (2), "bargain price" means-(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or(b) a price that a person who reads, hears, or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;(3) Permits-(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole,(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.(4) Permits the sale or supply of goods intended to be used, or are of a kind likely to be used by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods.(5) Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale, or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.4. It will be noticed that "unfair trade practice" will fall under this Section only when "goods" or "the provision of any services" are involved. In particular, the unfair trade practice alleged and found in favour of the complainant is under Sub-clause (ii) of Sub-section (1) under which a person falsely represents that the services are of a particular standard, quality or grade.5. We find that the alleged arbitrary up-ping of the amount to be paid towards the house, which is an immovable property, cannot possibly be said to be a false representation by the Ghaziabad Development Authority that services are of a particular standard, quality or grade. This is for two reasons. First and the foremost, there is no false representation by the Authority, inasmuch as what was communicated to the complainant was only an estimated cost of the house in question. That estimate was revised later owing to several factors. This itself would show that there is no false representation within Section 36A(1)(ii) of the Act. Secondly, what was given was allotment of a house which is an immovable property, and not services of any kind. This being the case, we are of the view that the impugned order must be set aside as it is outside the jurisdiction of the Commission.
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4. It will be noticed that "unfair trade practice" will fall under this Section only when "goods" or "the provision of any services" are involved. In particular, the unfair trade practice alleged and found in favour of the complainant is under Sub-clause (ii) of Sub-section (1) under which a person falsely represents that the services are of a particular standard, quality or grade5. We find that the alleged arbitrary up-ping of the amount to be paid towards the house, which is an immovable property, cannot possibly be said to be a false representation by the Ghaziabad Development Authority that services are of a particular standard, quality or grade. This is for two reasons. First and the foremost, there is no false representation by the Authority, inasmuch as what was communicated to the complainant was only an estimated cost of the house in question. That estimate was revised later owing to several factors. This itself would show that there is no false representation within Section 36A(1)(ii) of the Act. Secondly, what was given was allotment of a house which is an immovable property, and not services of any kind. This being the case, we are of the view that the impugned order must be set aside as it is outside the jurisdiction of the Commission.
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United Bank Of India Vs. Satyawati Tondon | 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." 23. In CCT, Orissa and others v. Indian Explosives Ltd. (2008) 3 SCC 688 , the Court reversed an order passed by the Division Bench of Orissa High Court quashing the show cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 24. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168 , the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paragraphs 29 and 30 of that judgment which contain the views of this Court read as under:- "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law." 25. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another (2010) 4 SCC 772 , the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: "31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellants counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 26. In Modern Industries v. Steel Authority of India Limited (2010) 5 SCC 44 , the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution. 27. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. | 1[ds]15. In view of the law laid down in the aforementioned cases, it must be held that the High Court completely misdirected itself in assuming that the appellant could not have initiated action against respondent No.1 without making efforts for recovery of its dues from the borrowerrespondent No.2.16. The facts of the present case show that even after receipt of notices under Section 13(2) and (4) and order passed under Section 14 of the SARFAESI Act, respondent Nos.1 and 2 did not bother to pay the outstanding dues. Only a paltry amount of Rs.50,000/was paid by respondent No.1 on 29.10.2007. She did give an undertaking to pay the balance amount in installments but did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted on any legally permissible ground and, in our view, the Division Bench of the High Court committed serious error by entertaining the writ petition of respondent No.1.17. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.18. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules ofrestraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. | 1 | 8,414 | 1,047 | ### Instruction:
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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." 23. In CCT, Orissa and others v. Indian Explosives Ltd. (2008) 3 SCC 688 , the Court reversed an order passed by the Division Bench of Orissa High Court quashing the show cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 24. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168 , the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paragraphs 29 and 30 of that judgment which contain the views of this Court read as under:- "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law." 25. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another (2010) 4 SCC 772 , the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: "31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellants counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 26. In Modern Industries v. Steel Authority of India Limited (2010) 5 SCC 44 , the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution. 27. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.
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15. In view of the law laid down in the aforementioned cases, it must be held that the High Court completely misdirected itself in assuming that the appellant could not have initiated action against respondent No.1 without making efforts for recovery of its dues from the borrowerrespondent No.2.16. The facts of the present case show that even after receipt of notices under Section 13(2) and (4) and order passed under Section 14 of the SARFAESI Act, respondent Nos.1 and 2 did not bother to pay the outstanding dues. Only a paltry amount of Rs.50,000/was paid by respondent No.1 on 29.10.2007. She did give an undertaking to pay the balance amount in installments but did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted on any legally permissible ground and, in our view, the Division Bench of the High Court committed serious error by entertaining the writ petition of respondent No.1.17. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.18. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules ofrestraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.
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The Officer In?-Charge, Sub-?Regional Provident Fund Office & Anr Vs. M/s Godavari Garments Limited | person employed by or through a contractor in or in connection with the work of the establishment.? It will be noticed that the terms of the definition are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. We are unable to accept the narrow construction sought by the petitioners that the words ?in connection with? in the definition of ?employee? must be confined to work performed in the factory itself as a part of the total process of the manufacture.…10. In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of the master and servant. The petitioners point out that there is no element of personal service in beedi rolling and that it is open to a home worker to get the work done by one or the other member of his family at home. The element of personal service, it seems to us, is of little significance when the test of control and supervision lies in the right of rejection.?(emphasis supplied) 6.7. The aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of the workmen, Regional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and Ors. 2012 (1) SCALE 422. This Court in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held that: ?9. … It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for the same.? Hence, the provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company7. The Respondent Company placed reliance on this Court?s decision in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., (1992) 1 SCC 441. wherein it was held that: ?14. … In the textual sense ‘supervision? of the principal employer or his agent is on ‘work? at the places envisaged and the word ‘work? can neither he construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all limes and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.? The decision in C.E.S.C. Limited (supra) however, is not applicable to the facts of the present case. In that case, this Court interpreted the meaning of the term ?supervision? as used in the definition of ?employee? Section 2(9) of the Employees? State Insurance Act, 1948. However, the term ?supervision? is nowhere used in the definition of ?employee? under Section 2(f) of the EPF Act. The decision in P.M. Patel (supra) could not be used to interpret the word ?supervision? under the Employees? State Insurance Act, 1948 because the said word has not been used in Section 2(f) of the EPF Act. | 1[ds]6.1. The definition of ?employee? under Section 2(f) of the EPF Act is an inclusive definition, and is widely worded to include any person engaged either directly or indirectly in connection with the work of an establishment.6.2. In the present case, the women workers employed by the Respondent Company were provided all the raw materials, such as the fabric, thread, buttons, etc. from the Respondent – Employer. With this material, the women workers were required to stitch the garments as per the specifications given by the Respondent Company. The women workers could stitch the garments at their homes, and provide them to the Respondent Company. The Respondent Company had the absolute right to reject the finished product i.e. the garments, in case of any defects6.3. The mere fact that the women workers stitched the garments at home, would make no difference. It is the admitted position that the women workers were paid wages directly by the Respondent Company on a perpiece basis for every garment stitched.6.4. The issue in the present case is squarely covered by the decision of this Court in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Ors. (1974) 3 SCC 498 The appellants therein were engaged in the business of producing garments. They employed workers who were provided with the cloth, and were instructed by the appellants how to stitch it. The workers were paid on piece-rate basis. If a worker failed to stitch a garment as per the instructions, the appellants rejected the work, and asked the worker to re-stitch the garment. This Court held that such workers fell within the definition of ?person employed? under Section 2(14) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1956. It was heldOn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldThe aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theCourt in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held… It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for thethe provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondentn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldWe have gone through the record and especially the evidence recorded by the Tribunal. The Tribunal has committed a glaring error apparent on record that whenever payment is made by piece rate, there is no relationship of master and the servant and that such relationship can only be as between principal and principal and therefore, the respondents were independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is the piece rate, If every piece rated workmen is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression ‘workmen? as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workmen was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is a wellrecognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. (1973) IILLJ 495 SC Methew, J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last two decades the emphasis in the field is shifted from and no longer rests exclusively or strongly upon the question of control. It was further observed that a search for a formula in the nature of a single test will not serve the useful purpose, and all factors that have been referred to in the cases on topics, should be considered to tell a contract of service. Approaching the matter from this angle, the Court observed that the employers right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision. So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case. The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellantemployer was untenable and ought to have been overruled and we hereby overrule it.Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this Court is alsoAct.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theRegional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and2012 (1) SCALE 422. | 1 | 3,494 | 1,375 | ### Instruction:
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person employed by or through a contractor in or in connection with the work of the establishment.? It will be noticed that the terms of the definition are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. We are unable to accept the narrow construction sought by the petitioners that the words ?in connection with? in the definition of ?employee? must be confined to work performed in the factory itself as a part of the total process of the manufacture.…10. In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of the master and servant. The petitioners point out that there is no element of personal service in beedi rolling and that it is open to a home worker to get the work done by one or the other member of his family at home. The element of personal service, it seems to us, is of little significance when the test of control and supervision lies in the right of rejection.?(emphasis supplied) 6.7. The aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of the workmen, Regional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and Ors. 2012 (1) SCALE 422. This Court in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held that: ?9. … It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for the same.? Hence, the provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company7. The Respondent Company placed reliance on this Court?s decision in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., (1992) 1 SCC 441. wherein it was held that: ?14. … In the textual sense ‘supervision? of the principal employer or his agent is on ‘work? at the places envisaged and the word ‘work? can neither he construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all limes and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.? The decision in C.E.S.C. Limited (supra) however, is not applicable to the facts of the present case. In that case, this Court interpreted the meaning of the term ?supervision? as used in the definition of ?employee? Section 2(9) of the Employees? State Insurance Act, 1948. However, the term ?supervision? is nowhere used in the definition of ?employee? under Section 2(f) of the EPF Act. The decision in P.M. Patel (supra) could not be used to interpret the word ?supervision? under the Employees? State Insurance Act, 1948 because the said word has not been used in Section 2(f) of the EPF Act.
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a worker failed to stitch a garment as per the instructions, the appellants rejected the work, and asked the worker to re-stitch the garment. This Court held that such workers fell within the definition of ?person employed? under Section 2(14) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1956. It was heldOn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldThe aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theCourt in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held… It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for thethe provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondentn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldWe have gone through the record and especially the evidence recorded by the Tribunal. The Tribunal has committed a glaring error apparent on record that whenever payment is made by piece rate, there is no relationship of master and the servant and that such relationship can only be as between principal and principal and therefore, the respondents were independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is the piece rate, If every piece rated workmen is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression ‘workmen? as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workmen was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is a wellrecognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. (1973) IILLJ 495 SC Methew, J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last two decades the emphasis in the field is shifted from and no longer rests exclusively or strongly upon the question of control. It was further observed that a search for a formula in the nature of a single test will not serve the useful purpose, and all factors that have been referred to in the cases on topics, should be considered to tell a contract of service. Approaching the matter from this angle, the Court observed that the employers right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision. So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case. The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellantemployer was untenable and ought to have been overruled and we hereby overrule it.Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this Court is alsoAct.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theRegional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and2012 (1) SCALE 422.
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Commissioner Of Wealth Tax (Central)Calcutta Vs. M/S. Standard Vacuum Oil Co. Ltd | assessee on the valuation date, including assets required to be included in this net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than,- (i) debts which under S. 6 are not to be taken in into account; and (ii) debts which are secured on, or which have been incurred in relation to, any asset in respect of which wealth-tax in not payable under this Act." Section 2(q) defines valuation date as "in relation to any year for which an assessment is to be made under this Act, means the last day of the previous year as defined in Cl. (11) of S. 2 of the Income-tax Act if an assessment were to be made under that Act for that year". It is not necessary to set out the proviso to this definition. Section 3 is the charging section which reads as follows:"Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule." 4. The question with which we are concerned is whether the amounts directed to be paid by notices of demand dated May 28, 1956 and May 31, 1957, are "debts owed" by the assessee within S. 2(m) on the respective valuation dates. Now the notices of demand were issued under S. 18A(1) of the Income-tax Act. The exact notices of demand which were issued are not on record, but the learned counsel drew out attention to the form of notice prescribed under the Act. Section 18A(1), inter alia, provides that the Income-tax Officer may "by order in writing, require an assessee to pay quarterly to the credit of the Central Government on the 15th day of June, 15th day of September, 15th day of December and 15th day of March in that year, respectively, an amount equal to one-quarter of the income-tax and super-tax payable on so much of such income as is included in his total income of the latest previous year in respect of which he has been assessed." It is necessary to reter to the rate at which he has to calculate the tax. Sub-section (2) of S. 18A enables an assessee to formulate his own estimate of the tax payable by him if he considers that the income is less than on which he has been required to pay tax, but he has to send this revised estimate of the tax payable by him before any one of the dates specified in sub-section (1)(a) and adjust excess or deficiency in respect of any instalment already or in subsequent instalments. It is this provision which Mr. Sastri relies on strongly to show that the demand under S. 18A (1) is not a debt owed, within S. 2(m) of the Wealth Tax Act. He further refers to sub-section (5) which provides for payment of simple interest by the Central Government for any amount paid by the assessee in accordance with the provisions of S. 18A. He says that this shows that it is really the Government which ultimately becomes the debtor and there is no question of any debt being owed by the assessee. He further urges that the word "debt" connotes a definite fixed amount and does not include merely a liability to pay a sum which is not ascertained. 5. In our opinion, the High Court was right in answering the question in favour of the assessee Section 18A (10) provides that if the assessee does not submit a revised estimate under sub-section (2) of S. 18A, and he does not pay on the specified date any instalment of tax that he is required to pay under sub-section (1), he shall be deemed to be an assessee in default in respect of such instalment or instalments, and if he does submit a revised estimate but does not pay an instalment in accordance therewith on the date or dates specified in subsection (1), he shall be deemed to be an assessee in default in respect of such instalments. Under sub-section (11) any sum paid or recovered from the assesee in pursuance of the provision of S. 18A is given credit towards the tax due in respect of the appropriate year. We cannot find any substantial difference between advance tax paid under the provisions of S. 18A and tax due and paid under a demand notice passed after an assessment. The only difference is that if the facts so warrant, the assessee is enabled to pay less than the amount demanded by the Income-tax Officer. But till a new estimate is made by the assessee, the amount is ascertained and there is a statutory liability on the assessee to pay the amount mentioned in the order under S. 18A. We agree with the observations of the Gujarat High Court in Commr. of Wealth Tax v. Raipur Manufacturing Co., Ltd., (1964) 52 ITR 482 at p. 522: (AIR 1964 Guj 154 at p. 174) that a condition subsequent, the fulfilment of which may result in the reduction or even extinction of liability, would not have the effect of converting the liability which attaches under such notice under S. 18A into a contingent liability." In our opinion a debt is owed when an order S. 18A(1) is passed and a notice of demand sent. The amount mentioned in the notice begins to be owed till a new figure is substituted by the action of the assessee. On the valuation dates in the appeals, the assessee had not taken any action under S. 18A(2) and consequently the amounts mentioned in the notices of demand were debts owed within 2(m) of the Wealth Tax Act on the valuation dates. | 0[ds]5. In our opinion, the High Court was right in answering the question in favour of the assessee Section 18A (10) provides that if the assessee does not submit a revised estimate under sub-section (2) of S. 18A, and he does not pay on the specified date any instalment of tax that he is required to pay under sub-section (1), he shall be deemed to be an assessee in default in respect of such instalment or instalments, and if he does submit a revised estimate but does not pay an instalment in accordance therewith on the date or dates specified in subsection (1), he shall be deemed to be an assessee in default in respect of such instalments. Under sub-section (11) any sum paid or recovered from the assesee in pursuance of the provision of S. 18A is given credit towards the tax due in respect of the appropriate year. We cannot find any substantial difference between advance tax paid under the provisions of S. 18A and tax due and paid under a demand notice passed after an assessment. The only difference is that if the facts so warrant, the assessee is enabled to pay less than the amount demanded by the Income-tax Officer. But till a new estimate is made by the assessee, the amount is ascertained and there is a statutory liability on the assessee to pay the amount mentioned in the order under S. 18A. We agree with the observations of the Gujarat High Court in Commr. of Wealth Tax v. Raipur Manufacturing Co., Ltd., (1964) 52 ITR 482 at p. 522: (AIR 1964 Guj 154 at p. 174) that a condition subsequent, the fulfilment of which may result in the reduction or even extinction of liability, would not have the effect of converting the liability which attaches under such notice under S. 18A into a contingent liability." In our opinion a debt is owed when an order S. 18A(1) is passed and a notice of demand sent. The amount mentioned in the notice begins to be owed till a new figure is substituted by the action of the assessee. On the valuation dates in the appeals, the assessee had not taken any action under S. 18A(2) and consequently the amounts mentioned in the notices of demand were debts owed within 2(m) of the Wealth Tax Act on the valuation dates. | 0 | 1,759 | 447 | ### 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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assessee on the valuation date, including assets required to be included in this net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than,- (i) debts which under S. 6 are not to be taken in into account; and (ii) debts which are secured on, or which have been incurred in relation to, any asset in respect of which wealth-tax in not payable under this Act." Section 2(q) defines valuation date as "in relation to any year for which an assessment is to be made under this Act, means the last day of the previous year as defined in Cl. (11) of S. 2 of the Income-tax Act if an assessment were to be made under that Act for that year". It is not necessary to set out the proviso to this definition. Section 3 is the charging section which reads as follows:"Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule." 4. The question with which we are concerned is whether the amounts directed to be paid by notices of demand dated May 28, 1956 and May 31, 1957, are "debts owed" by the assessee within S. 2(m) on the respective valuation dates. Now the notices of demand were issued under S. 18A(1) of the Income-tax Act. The exact notices of demand which were issued are not on record, but the learned counsel drew out attention to the form of notice prescribed under the Act. Section 18A(1), inter alia, provides that the Income-tax Officer may "by order in writing, require an assessee to pay quarterly to the credit of the Central Government on the 15th day of June, 15th day of September, 15th day of December and 15th day of March in that year, respectively, an amount equal to one-quarter of the income-tax and super-tax payable on so much of such income as is included in his total income of the latest previous year in respect of which he has been assessed." It is necessary to reter to the rate at which he has to calculate the tax. Sub-section (2) of S. 18A enables an assessee to formulate his own estimate of the tax payable by him if he considers that the income is less than on which he has been required to pay tax, but he has to send this revised estimate of the tax payable by him before any one of the dates specified in sub-section (1)(a) and adjust excess or deficiency in respect of any instalment already or in subsequent instalments. It is this provision which Mr. Sastri relies on strongly to show that the demand under S. 18A (1) is not a debt owed, within S. 2(m) of the Wealth Tax Act. He further refers to sub-section (5) which provides for payment of simple interest by the Central Government for any amount paid by the assessee in accordance with the provisions of S. 18A. He says that this shows that it is really the Government which ultimately becomes the debtor and there is no question of any debt being owed by the assessee. He further urges that the word "debt" connotes a definite fixed amount and does not include merely a liability to pay a sum which is not ascertained. 5. In our opinion, the High Court was right in answering the question in favour of the assessee Section 18A (10) provides that if the assessee does not submit a revised estimate under sub-section (2) of S. 18A, and he does not pay on the specified date any instalment of tax that he is required to pay under sub-section (1), he shall be deemed to be an assessee in default in respect of such instalment or instalments, and if he does submit a revised estimate but does not pay an instalment in accordance therewith on the date or dates specified in subsection (1), he shall be deemed to be an assessee in default in respect of such instalments. Under sub-section (11) any sum paid or recovered from the assesee in pursuance of the provision of S. 18A is given credit towards the tax due in respect of the appropriate year. We cannot find any substantial difference between advance tax paid under the provisions of S. 18A and tax due and paid under a demand notice passed after an assessment. The only difference is that if the facts so warrant, the assessee is enabled to pay less than the amount demanded by the Income-tax Officer. But till a new estimate is made by the assessee, the amount is ascertained and there is a statutory liability on the assessee to pay the amount mentioned in the order under S. 18A. We agree with the observations of the Gujarat High Court in Commr. of Wealth Tax v. Raipur Manufacturing Co., Ltd., (1964) 52 ITR 482 at p. 522: (AIR 1964 Guj 154 at p. 174) that a condition subsequent, the fulfilment of which may result in the reduction or even extinction of liability, would not have the effect of converting the liability which attaches under such notice under S. 18A into a contingent liability." In our opinion a debt is owed when an order S. 18A(1) is passed and a notice of demand sent. The amount mentioned in the notice begins to be owed till a new figure is substituted by the action of the assessee. On the valuation dates in the appeals, the assessee had not taken any action under S. 18A(2) and consequently the amounts mentioned in the notices of demand were debts owed within 2(m) of the Wealth Tax Act on the valuation dates.
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5. In our opinion, the High Court was right in answering the question in favour of the assessee Section 18A (10) provides that if the assessee does not submit a revised estimate under sub-section (2) of S. 18A, and he does not pay on the specified date any instalment of tax that he is required to pay under sub-section (1), he shall be deemed to be an assessee in default in respect of such instalment or instalments, and if he does submit a revised estimate but does not pay an instalment in accordance therewith on the date or dates specified in subsection (1), he shall be deemed to be an assessee in default in respect of such instalments. Under sub-section (11) any sum paid or recovered from the assesee in pursuance of the provision of S. 18A is given credit towards the tax due in respect of the appropriate year. We cannot find any substantial difference between advance tax paid under the provisions of S. 18A and tax due and paid under a demand notice passed after an assessment. The only difference is that if the facts so warrant, the assessee is enabled to pay less than the amount demanded by the Income-tax Officer. But till a new estimate is made by the assessee, the amount is ascertained and there is a statutory liability on the assessee to pay the amount mentioned in the order under S. 18A. We agree with the observations of the Gujarat High Court in Commr. of Wealth Tax v. Raipur Manufacturing Co., Ltd., (1964) 52 ITR 482 at p. 522: (AIR 1964 Guj 154 at p. 174) that a condition subsequent, the fulfilment of which may result in the reduction or even extinction of liability, would not have the effect of converting the liability which attaches under such notice under S. 18A into a contingent liability." In our opinion a debt is owed when an order S. 18A(1) is passed and a notice of demand sent. The amount mentioned in the notice begins to be owed till a new figure is substituted by the action of the assessee. On the valuation dates in the appeals, the assessee had not taken any action under S. 18A(2) and consequently the amounts mentioned in the notices of demand were debts owed within 2(m) of the Wealth Tax Act on the valuation dates.
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Sharda Prasad Singh Vs. Maharashtra State Road Transport Corporation & Others | The claim in suit for the damage to the property is only Rs, 23,000/- which is much below the risk covered under the insurance policy. However, it was contended by Shri Kudrolli, the learned Counsel for defendant No. 3 the Insurance Company that in view of the provisions of section 96(2) read with section 95(2)(d) of the Motor Vehicles Act, the liability of the Insurance Company is restricted to Rs. 2,000/- only. If this statutory liability is added to the liability to the death or injury namely Rs, 46,200/- then the total liability of the Insurance Company will come to Rs. 48,200/- only. If an amount of Rs. 1,476-49 ps. paid to the injured Sawant is added to it, still the liability will not exceed Rs. 50,000/- and, therefore, the trial Court was wholly right in restricting the liability of the Insurance Company to Rs. 50,000/- only. It is also contended by Shri Khudrolli that the plaintiff had filed the present suit before the Civil Court and not before the Motor Accidents Claims Tribunal. In this view of the matter, the liability of the Insurance Company for the damages to the property of the third party cannot exceed the statutory limit i.e. Rs. 2,000/-. It is not possible for us to accept this contention of Shri Kudrolli. As already observed after the amendment and introduction of section 110A(1)(aa) the owner of the property can also file an application for compensation under section 110(1) of the Act. Admittedly the plaintiff-Corporation was the third party and in that capacity it was claiming compensation for damages to its own property. Such a claim could have been lodged under section 110(1) of the Act. If this is so then the proviso to section 110(1) will apply to such a claim also. Under the proviso to section 110(1) of the Act, the Corporation has exercised its option to prefer the claim before the Civil Court. Therefore, in substance it is a claim covered by the Motor Vehicles Act, though the forum chosen is the Civil Court. From the bare reading of section 110, it is quite clear that if the Motor Accidents Claims Tribunal are not constituted by the Government under Section 110 of the Act, the persons concerned can institute their claim before the Civil Court. In that case it cannot be said that though right exists there is no forum available. Therefore, nothing depends upon the forum chosen. The claim for compensation made towards the damage to the property arose out of the accident to the staff car belonging to the Corporation. Admittedly so far as the third party property is concerned under the Insurance Policy, the risk covered is up to Rs. 50,000/-. Section 96(2) read with section 95(2)(d) only prescribes statutory compensation. It does not follow from that, that it is not open to an insurer to cover the third party property risk in excess of Rs. 2,000/-. There is no bar or embargo for covering the higher risk under the Policy of Insurance. As observed by the Supreme Court in A.I.R. 1977 S.C. 1735, (Pushpabai v. M/s Ranjit Ginning and Pressing Co. (P) Ltd. and another)2, the insurer is always at liberty to take policies covering risks which are not covered by compulsory insurance. Thus the Act Liability is the minimum liability, but there is nothing in the Act, which can prohibit the Insurance Company from expanding limits of its liability by a contract of Insurance. It is well known that whenever higher risk is covered the Insurance Company gets higher or additional premium. Section 96 compels the insurer to satisfy the judgments against the person insured in respect of third party. It places an obligation on the insurer to pay the amount awarded against the owner of the vehicle, subject to certain conditions. The first condition is that there should be a judgment or decree against a person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the Insurance Company is bound to pay the amount decreed. In our view, this position is made amply clear by sub-section (5) of section 95 itself which lays down that , notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under the said section, shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. If the argument advanced by Shri Kudrolli is accepted then the very basis of contract of indemnity will lose its efficacy.10. We are fortified in this view by the Division Bench decision of Gujarat High Court in (United India Fire and General Insurance Co. Ltd. Ahmedabad v. Minaxiben Harischandra Joshi and others)3, A.I.R. 1979, Gujarat, 108, and in (Bomanji Rustomji Ginwala v. Ibrahim Vall Master and others)4, A.I.R. 1982, Gujarat, 112. The Gujarat High Court in United India Fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi has held that it is always open to Company to insure for a higher amount. If the Company insures a vehicle for a higher amount, it always does so for the benefit of the insured. Therefore, if an insurer is held liable to pay the claimants more than the statutory limit prescribed by section 95, the Company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by Punjab and Haryana High Court in (Hans Raj and another v. Sukhdev Singh and another)5, 1982 Accident Claims Journal 435 and by Andhra Pradesh High Court in (Srisallam Devastonam v. Bhavani Premilamma)6, A.I.R. 1983 A.P. 297. 11. In this view of the matter, in the present case the defendant No. 3 Insurance Company is liable to pay the whole of the decretal amount which comes to Rs. 72,176-49 ps. together with interest and the costs. | 1[ds]6. With the assistance of the learned Counsel, appearing for both the sides, we have gone through the entire evidence onin substance the driver of the tanker has taken a different stand, one before the Criminal Court and another before the Civil Court. If his evidence is read and considered with the evidence of the panch witness and the recitals in the panchanama, then it is quite obvious that the witness is not telling the truth. It is no doubt true that there is word against word so far as the actual collision is concerned. However, the version given by Shri Sawant is not only consistent but is also supported by the evidence of panch witness and recitals in the panchanama. In view of this, we are wholly satisfied that the learned Judge of the trial Court was right in accepting the testimony of Shri Sawant and rejecting the evidence of Shri Jose. Since we generally agree with the appreciation of the evidence as well as the finding recorded by the learned Judge of the trial Court in that behalf, it is not necessary to reproduce the whole evidence or the reasons in support of the said finding over again. In our view, the learned Judge of the trial Court was wholly right in holding that the collision took place because of the negligence of the tanker driver and the driver of the car Shri Muley was is no way responsible for the collision. Once this finding is recorded then the argument advanced by Shri Patel that this was a case of contributory negligence cannot be accepted.7. So far as the proof of the claim is concerned Shri Sawant has stated in his deposition about the amount received by him towards the sick leave. P.W. 2 Vijaykumar has state din his evidence that the M.S.R.T.C. has paid Rs. 23,000/to Sanghi Motors Bombay Limited, towards the repair charges. He also has produced on record the bills received from the Sanghi Motors. He has also proved the claim towards idle charges. P.W. 4 Anant Dharap has proved the payment made to the dependants of deceased Shri Shirodhkar. He has given the details of payment including the cheque numbers, etc. He has stated in his deposition that this amount was paid under the provisions of Workmens Compensation Act. The evidence of these witnesses is not seriously challenged in theIn these circumstances, we have no hesitation incoming to the conclusion that thehas proved the claim made in the suit and, therefore, the decree passed by the trial Court in that behalf is whollyis not possible for us to accept this contention of Shri Patel,. We are dealing with a case wherein the plaintiff has filed a suit also for the recovery of the amount paid by it to the dependants of deceased Shri Shirodkar and Shri Muley under the provisions of Workmens Compensation Act. It is also claiming an amount of Rs. 23,000/towards damages to its own property i.e. to the staff car. Therefore, the suit filed by the plaintiff is a composite one. Under section 13 of the Workmens Compensation Act, thewas entitled to recover the amount paid by it to the dependants of deceased Shri Shirodhkar and Shri Muley. It is not disputed that thecould not have made such a claim under section 110(1) of the Motor Vehicles Act. However, in view of the amended provisions of sectioni.e. for more than Rs. 2,000/the plaintiff had an option either to institute the claim before the Motor Accidents Claims Tribunal or to refer it to the Civil Court for adjudication. Once the option is exercised and the claim it referred to the Civil Court then under the said proviso, the Motor Accidents Claims Tribunal has no jurisdiction to entertain any question relating to such claim. The provisions of section110F of theAct will, therefore, not apply to such a claim. We are dealing with a case where the major part of the claim is obviously beyond the jurisdiction of the Motor Accidents Claims Tribunal. While making a claim, which is not within the jurisdiction of the Motor Accidents Claims Tribunal, the plaintiff has also made a claim towards the damages of its own property, which could have been instituted under section 110(1) read with sectionof the Act. However, to that part of the claim, the proviso to section 110(1) squarely applies. It was a claim for compensation in respect of the damage to property exceeding Rs.Therefore, the plaintiff had an option either to institute the said claim before the Motor Accidents Claims Tribunal or to approach the Civil Court for adjudication. The words "refer the claim to the Civil Court," as used in the proviso of section 110(1) cannot be read torn from its context. No reference by the Motor Accidents Claims Tribunal to the Civil Court as such is contemplated by any of the provisions of the Motor Vehicles Act. Therefore, the word refer only means to submit for determination or to file a claim. Under the proviso the plaintiff had an option either to lodge or file a claim before the Motor Accidents Claims Tribunal or before the Civil Court. The plaintiff has chosen to institute the claim before the Civil Court for adjudication and in our opinion rightly. The claim made by the plaintiff in the suit covers the claim for recovery of the amount paid by it to the dependants of the deceased under the provisions of the Workmens Compensation Act. This claim was wholly outside the provisions of section 110(1) of the Act. For proving its claim towards the damage to the property or for the amount paid under the Workmens Compensation Act, the plaintiff was obliged to prove that the accident took place due to the rash and negligent driving of the tanker driver. This issue is common to both the claims, namely the claim made for the recovery of the amount paid under the provisions of Workmens Compensation Act as well as the claim towards the damage to the property. Therefore, plaintiff rightly exercised the option to institute whole of the claim before the Civil Court for adjudication. Since the present case is covered by proviso to section 110(1) of the Act, the suit is not barred by section 110 F of the Act and the trial Court had jurisdiction to entertain and decide the suit.However, we find much substance in the contention raised by Shri Patel that the learned Judge of the trial Court committed an error in restricting the liability of the defendant No. 3, the Insurance Company to Rs. 50,000/only. The amount claimed in the suit towards the compensation paid to the dependants of the two deceased was Rs. 46,200/which was obviously below Rs.Even otherwise, in view of the decision of the Supreme Court in (Motor Owners Company Ltd. v. Jadavji Keshavji Modi and others)1, A.I.R. 1981 Supreme Court, 2059, the limit of compensation of Rs, 50,000/will extend to each of the deceased. It is an admitted position that under the contract of insurance so far as the risk to the third party property is concerned, the same was covered upto Rs.The claim in suit for the damage to the property is only Rs, 23,000/which is much below the risk covered under the insuranceis not possible for us to accept this contention of Shri Kudrolli. As already observed after the amendment and introduction of section 110A(1)(aa) the owner of the property can also file an application for compensation under section 110(1) of the Act. Admittedly thewas the third party and in that capacity it was claiming compensation for damages to its own property. Such a claim could have been lodged under section 110(1) of the Act. If this is so then the proviso to section 110(1) will apply to such a claim also. Under the proviso to section 110(1) of the Act, the Corporation has exercised its option to prefer the claim before the Civil Court. Therefore, in substance it is a claim covered by the Motor Vehicles Act, though the forum chosen is the Civil Court. From the bare reading of section 110, it is quite clear that if the Motor Accidents Claims Tribunal are not constituted by the Government under Section 110 of the Act, the persons concerned can institute their claim before the Civil Court. In that case it cannot be said that though right exists there is no forum available. Therefore, nothing depends upon the forum chosen. The claim for compensation made towards the damage to the property arose out of the accident to the staff car belonging to the Corporation. Admittedly so far as the third party property is concerned under the Insurance Policy, the risk covered is up to Rs.Section 96(2) read with section 95(2)(d) only prescribes statutory compensation. It does not follow from that, that it is not open to an insurer to cover the third party property risk in excess of Rs.There is no bar or embargo for covering the higher risk under the Policy ofthe Act Liability is the minimum liability, but there is nothing in the Act, which can prohibit the Insurance Company from expanding limits of its liability by a contract of Insurance. It is well known that whenever higher risk is covered the Insurance Company gets higher or additional premium. Section 96 compels the insurer to satisfy the judgments against the person insured in respect of third party. It places an obligation on the insurer to pay the amount awarded against the owner of the vehicle, subject to certain conditions. The first condition is that there should be a judgment or decree against a person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the Insurance Company is bound to pay the amount decreed. In our view, this position is made amply clear by(5) of section 95 itself which lays down that , notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under the said section, shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. If the argument advanced by Shri Kudrolli is accepted then the very basis of contract of indemnity will lose its efficacy.10. We are fortified in this view by the Division Bench decision of Gujarat High Court in (United India Fire and General Insurance Co. Ltd. Ahmedabad v. Minaxiben Harischandra Joshi and others)3, A.I.R. 1979, Gujarat, 108, and in (Bomanji Rustomji Ginwala v. Ibrahim Vall Master and others)4, A.I.R. 1982, Gujarat, 112. The Gujarat High Court in United India Fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi has held that it is always open to Company to insure for a higher amount. If the Company insures a vehicle for a higher amount, it always does so for the benefit of the insured. Therefore, if an insurer is held liable to pay the claimants more than the statutory limit prescribed by section 95, the Company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by Punjab and Haryana High Court in (Hans Raj and another v. Sukhdev Singh and another)5, 1982 Accident Claims Journal 435 and by Andhra Pradesh High Court in (Srisallam Devastonam v. Bhavani Premilamma)6, A.I.R. 1983 A.P. 297.In this view of the matter, in the present case the defendant No. 3 Insurance Company is liable to pay the whole of the decretal amount which comes to Rs.ps. together with interest and the costs. | 1 | 4,903 | 2,173 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
The claim in suit for the damage to the property is only Rs, 23,000/- which is much below the risk covered under the insurance policy. However, it was contended by Shri Kudrolli, the learned Counsel for defendant No. 3 the Insurance Company that in view of the provisions of section 96(2) read with section 95(2)(d) of the Motor Vehicles Act, the liability of the Insurance Company is restricted to Rs. 2,000/- only. If this statutory liability is added to the liability to the death or injury namely Rs, 46,200/- then the total liability of the Insurance Company will come to Rs. 48,200/- only. If an amount of Rs. 1,476-49 ps. paid to the injured Sawant is added to it, still the liability will not exceed Rs. 50,000/- and, therefore, the trial Court was wholly right in restricting the liability of the Insurance Company to Rs. 50,000/- only. It is also contended by Shri Khudrolli that the plaintiff had filed the present suit before the Civil Court and not before the Motor Accidents Claims Tribunal. In this view of the matter, the liability of the Insurance Company for the damages to the property of the third party cannot exceed the statutory limit i.e. Rs. 2,000/-. It is not possible for us to accept this contention of Shri Kudrolli. As already observed after the amendment and introduction of section 110A(1)(aa) the owner of the property can also file an application for compensation under section 110(1) of the Act. Admittedly the plaintiff-Corporation was the third party and in that capacity it was claiming compensation for damages to its own property. Such a claim could have been lodged under section 110(1) of the Act. If this is so then the proviso to section 110(1) will apply to such a claim also. Under the proviso to section 110(1) of the Act, the Corporation has exercised its option to prefer the claim before the Civil Court. Therefore, in substance it is a claim covered by the Motor Vehicles Act, though the forum chosen is the Civil Court. From the bare reading of section 110, it is quite clear that if the Motor Accidents Claims Tribunal are not constituted by the Government under Section 110 of the Act, the persons concerned can institute their claim before the Civil Court. In that case it cannot be said that though right exists there is no forum available. Therefore, nothing depends upon the forum chosen. The claim for compensation made towards the damage to the property arose out of the accident to the staff car belonging to the Corporation. Admittedly so far as the third party property is concerned under the Insurance Policy, the risk covered is up to Rs. 50,000/-. Section 96(2) read with section 95(2)(d) only prescribes statutory compensation. It does not follow from that, that it is not open to an insurer to cover the third party property risk in excess of Rs. 2,000/-. There is no bar or embargo for covering the higher risk under the Policy of Insurance. As observed by the Supreme Court in A.I.R. 1977 S.C. 1735, (Pushpabai v. M/s Ranjit Ginning and Pressing Co. (P) Ltd. and another)2, the insurer is always at liberty to take policies covering risks which are not covered by compulsory insurance. Thus the Act Liability is the minimum liability, but there is nothing in the Act, which can prohibit the Insurance Company from expanding limits of its liability by a contract of Insurance. It is well known that whenever higher risk is covered the Insurance Company gets higher or additional premium. Section 96 compels the insurer to satisfy the judgments against the person insured in respect of third party. It places an obligation on the insurer to pay the amount awarded against the owner of the vehicle, subject to certain conditions. The first condition is that there should be a judgment or decree against a person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the Insurance Company is bound to pay the amount decreed. In our view, this position is made amply clear by sub-section (5) of section 95 itself which lays down that , notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under the said section, shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. If the argument advanced by Shri Kudrolli is accepted then the very basis of contract of indemnity will lose its efficacy.10. We are fortified in this view by the Division Bench decision of Gujarat High Court in (United India Fire and General Insurance Co. Ltd. Ahmedabad v. Minaxiben Harischandra Joshi and others)3, A.I.R. 1979, Gujarat, 108, and in (Bomanji Rustomji Ginwala v. Ibrahim Vall Master and others)4, A.I.R. 1982, Gujarat, 112. The Gujarat High Court in United India Fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi has held that it is always open to Company to insure for a higher amount. If the Company insures a vehicle for a higher amount, it always does so for the benefit of the insured. Therefore, if an insurer is held liable to pay the claimants more than the statutory limit prescribed by section 95, the Company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by Punjab and Haryana High Court in (Hans Raj and another v. Sukhdev Singh and another)5, 1982 Accident Claims Journal 435 and by Andhra Pradesh High Court in (Srisallam Devastonam v. Bhavani Premilamma)6, A.I.R. 1983 A.P. 297. 11. In this view of the matter, in the present case the defendant No. 3 Insurance Company is liable to pay the whole of the decretal amount which comes to Rs. 72,176-49 ps. together with interest and the costs.
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1
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to prove that the accident took place due to the rash and negligent driving of the tanker driver. This issue is common to both the claims, namely the claim made for the recovery of the amount paid under the provisions of Workmens Compensation Act as well as the claim towards the damage to the property. Therefore, plaintiff rightly exercised the option to institute whole of the claim before the Civil Court for adjudication. Since the present case is covered by proviso to section 110(1) of the Act, the suit is not barred by section 110 F of the Act and the trial Court had jurisdiction to entertain and decide the suit.However, we find much substance in the contention raised by Shri Patel that the learned Judge of the trial Court committed an error in restricting the liability of the defendant No. 3, the Insurance Company to Rs. 50,000/only. The amount claimed in the suit towards the compensation paid to the dependants of the two deceased was Rs. 46,200/which was obviously below Rs.Even otherwise, in view of the decision of the Supreme Court in (Motor Owners Company Ltd. v. Jadavji Keshavji Modi and others)1, A.I.R. 1981 Supreme Court, 2059, the limit of compensation of Rs, 50,000/will extend to each of the deceased. It is an admitted position that under the contract of insurance so far as the risk to the third party property is concerned, the same was covered upto Rs.The claim in suit for the damage to the property is only Rs, 23,000/which is much below the risk covered under the insuranceis not possible for us to accept this contention of Shri Kudrolli. As already observed after the amendment and introduction of section 110A(1)(aa) the owner of the property can also file an application for compensation under section 110(1) of the Act. Admittedly thewas the third party and in that capacity it was claiming compensation for damages to its own property. Such a claim could have been lodged under section 110(1) of the Act. If this is so then the proviso to section 110(1) will apply to such a claim also. Under the proviso to section 110(1) of the Act, the Corporation has exercised its option to prefer the claim before the Civil Court. Therefore, in substance it is a claim covered by the Motor Vehicles Act, though the forum chosen is the Civil Court. From the bare reading of section 110, it is quite clear that if the Motor Accidents Claims Tribunal are not constituted by the Government under Section 110 of the Act, the persons concerned can institute their claim before the Civil Court. In that case it cannot be said that though right exists there is no forum available. Therefore, nothing depends upon the forum chosen. The claim for compensation made towards the damage to the property arose out of the accident to the staff car belonging to the Corporation. Admittedly so far as the third party property is concerned under the Insurance Policy, the risk covered is up to Rs.Section 96(2) read with section 95(2)(d) only prescribes statutory compensation. It does not follow from that, that it is not open to an insurer to cover the third party property risk in excess of Rs.There is no bar or embargo for covering the higher risk under the Policy ofthe Act Liability is the minimum liability, but there is nothing in the Act, which can prohibit the Insurance Company from expanding limits of its liability by a contract of Insurance. It is well known that whenever higher risk is covered the Insurance Company gets higher or additional premium. Section 96 compels the insurer to satisfy the judgments against the person insured in respect of third party. It places an obligation on the insurer to pay the amount awarded against the owner of the vehicle, subject to certain conditions. The first condition is that there should be a judgment or decree against a person insured. The second condition is that the judgment must be in respect of liability covered by the policy. If these conditions are satisfied, then the Insurance Company is bound to pay the amount decreed. In our view, this position is made amply clear by(5) of section 95 itself which lays down that , notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under the said section, shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons. If the argument advanced by Shri Kudrolli is accepted then the very basis of contract of indemnity will lose its efficacy.10. We are fortified in this view by the Division Bench decision of Gujarat High Court in (United India Fire and General Insurance Co. Ltd. Ahmedabad v. Minaxiben Harischandra Joshi and others)3, A.I.R. 1979, Gujarat, 108, and in (Bomanji Rustomji Ginwala v. Ibrahim Vall Master and others)4, A.I.R. 1982, Gujarat, 112. The Gujarat High Court in United India Fire and General Insurance Co. Ltd. v. Minaxiben Harishchandra Joshi has held that it is always open to Company to insure for a higher amount. If the Company insures a vehicle for a higher amount, it always does so for the benefit of the insured. Therefore, if an insurer is held liable to pay the claimants more than the statutory limit prescribed by section 95, the Company is liable to make good the additional liability within the overall limit of its contractual liability. Similar view is taken by Punjab and Haryana High Court in (Hans Raj and another v. Sukhdev Singh and another)5, 1982 Accident Claims Journal 435 and by Andhra Pradesh High Court in (Srisallam Devastonam v. Bhavani Premilamma)6, A.I.R. 1983 A.P. 297.In this view of the matter, in the present case the defendant No. 3 Insurance Company is liable to pay the whole of the decretal amount which comes to Rs.ps. together with interest and the costs.
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Central India Coalfields Ltd. Calcutta Vs. Ram Bilas Shobnath | where the respondent had to discharge his duties. The tribunal was inclined to hold that the respondent could have been punished under Standing Order No. 37 provided his case fell under Standing Order No. 32. It was on this technical objection that the tribunal refused to approve the dismissal of the respondent. The appellant contends that the tribunal has erred in law in refusing to accord its approval to the respondents dismissal.5. It is common ground that quarters are provided by the appellant to its employees and they are situated on the coal bearing area at a distance of about 200 feet from the pit-mouth according to the appellant and at a distance of 2000 feet according to the respondent. Standing Order No. 29(5) provides that drunkenness, fighting, riotous or disorderly or indecent behaviour constitutes misconduct which entails dismissal. Normally this Standing Order would apply to the behaviour on the premises where the workmen discharge their duties and during the hours of their work. It may also be conceded that if a quarrel takes place between workmen outside working hours and away from the coal premises that would be a private matter which may not fall within Standing Order No. 29(5); but in the special circumstances of this case it is clear that the incident took place in the quarters at a short distance from the coal bearing area and the conduct of the respondent which is proved clearly amounts both to drunkenness as well as riotous, disorderly and indecent behaviour. In fact, as the enquiry officer in substance has found, unless the appellant took some action against the respondent, breach of peace was threatened and that is not a matter which complacence. Besides, if the tribunal thought as it appears to have done that since the incident happened in the companys quarters the management could take action provided the respondents case fell under Standing Order No. 32 read with Standing Order No. 37, it need not have allowed considerations of this character to influence its final decision particularly when the extent of its jurisdiction under S. 33(2)(b) was very limited. This is not a case where any mala fides can be attributed to the appellant or it can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by the appellant against the respondent appears to be a straightforward matter and the tribunal may well have resisted the temptation of examining the validity of the said order in such a technical way. Besides, as we have already indicated, having regard to the special circumstances of this case we are not satisfied that the tribunal was right in holding that Standing Order No. 29(5) was inapplicable.6. It has been urged before us by Mr. Dipak Choudhri, on behalf of the respondent, that the enquiry held against the respondent was improper in that a formal charge-sheet was not served to him; and he also attempted to argue that the dismissal of the respondent is intended to victimise him because he is an active trade union worker. We are not impressed by either of the two arguments. The enquiry proceedings show that the officer told the respondent clearly what the complaint against him was. The complaint was in fact read out to him and, as we have already indicated, the respondents companion admitted the truth of the complaint made in the statement. It does not appear that the respondent wanted to cross-examine any of the parties who had complained against him and that an opportunity was refused to him so to do. It is abundantly clear from the record that in substance the respondent himself admitted all the facts though the pretended that he was too drunk and therefore did not remember what had really happened at the time. Therefore, this is not a case where there is any dispute as to the incident itself, and so the objection that the enquiry was improper cannot be sustained. Besides, it is significant that no such point was raised before the tribunal itself by the respondents representative. It is not possible for us to allow Mr. Choudhri to raise a point of mala fides for the first time in this appeal. That is a question of fact on which no material has been adduced by the respondent either before the enquiry officer or before the tribunal.7. Then Mr. Choudhri contended that the tribunal was justified in not approving the dismissal because the dismissal is an unduly sever punishment in this case. There are two obvious answers to this argument. In an enquiry under S. 33(2)(b) normally it is not open to the tribunal to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute; and what is more important in this case,-the previous conduct of the respondent which the appellants Manager legitimately took into account more than justifies the respondents dismissal. The several occasions on which the respondent had been warned for his misconduct of one kind or another make a formidable reading. On most of the occasions he pleaded guilty, apologised and promised to behave better. Sometimes he put up a plea in defence and asked the appellant what difference did it make to the appellant if he was drunk provided his work was not affected. Even so the proceedings ended with a warning every time; and the last incident which gave rise to the present enquiry showed that the respondent had made a nuisance of himself to his co-workmen who bluntly told the appellant that in case serious action was not taken against the respondent it would be difficult for them to tolerate his misbehaviour which in effect conveyed their determination to teach him a lesson. That would obviously have meant disturbance of the peace. It is difficult to appreciate why the tribunal should have found it difficult to approve the dismissal of the respondent in such a case. | 0[ds]5. It is common ground that quarters are provided by the appellant to its employees and they are situated on the coal bearing area at a distance of about 200 feet from theaccording to the appellant and at a distance of 2000 feet according to the respondent. Standing Order No. 29(5) provides that drunkenness, fighting, riotous or disorderly or indecent behaviour constitutes misconduct which entails dismissal. Normally this Standing Order would apply to the behaviour on the premises where the workmen discharge their duties and during the hours of their work. It may also be conceded that if a quarrel takes place between workmen outside working hours and away from the coal premises that would be a private matter which may not fall within Standing Order No. 29(5); but in the special circumstances of this case it is clear that the incident took place in the quarters at a short distance from the coal bearing area and the conduct of the respondent which is proved clearly amounts both to drunkenness as well as riotous, disorderly and indecent behaviour. In fact, as the enquiry officer in substance has found, unless the appellant took some action against the respondent, breach of peace was threatened and that is not a matter which complacence. Besides, if the tribunal thought as it appears to have done that since the incident happened in the companys quarters the management could take action provided the respondents case fell under Standing Order No. 32 read with Standing Order No. 37, it need not have allowed considerations of this character to influence its final decision particularly when the extent of its jurisdiction under S. 33(2)(b) was very limited. This is not a case where any mala fides can be attributed to the appellant or it can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by the appellant against the respondent appears to be a straightforward matter and the tribunal may well have resisted the temptation of examining the validity of the said order in such a technical way. Besides, as we have already indicated, having regard to the special circumstances of this case we are not satisfied that the tribunal was right in holding that Standing Order No. 29(5) was inapplicable.It has been urged before us by Mr. Dipak Choudhri, on behalf of the respondent, that the enquiry held against the respondent was improper in that a formalwas not served to him; and he also attempted to argue that the dismissal of the respondent is intended to victimise him because he is an active trade union worker.We are not impressed by either of the two arguments. The enquiry proceedings show that the officer told the respondent clearly what the complaint against him was. The complaint was in fact read out to him and, as we have already indicated, the respondents companion admitted the truth of the complaint made in the statement. It does not appear that the respondent wanted toany of the parties who had complained against him and that an opportunity was refused to him so to do. It is abundantly clear from the record that in substance the respondent himself admitted all the facts though the pretended that he was too drunk and therefore did not remember what had really happened at the time. Therefore, this is not a case where there is any dispute as to the incident itself, and so the objection that the enquiry was improper cannot be sustained. Besides, it is significant that no such point was raised before the tribunal itself by the respondents representative. It is not possible for us to allow Mr. Choudhri to raise a point of mala fides for the first time in this appeal. That is a question of fact on which no material has been adduced by the respondent either before the enquiry officer or before the tribunal.7.Then Mr. Choudhri contended that the tribunal was justified in not approving the dismissal because the dismissal is an unduly sever punishment in this case.There are two obvious answers to this argument. In an enquiry under S. 33(2)(b) normally it is not open to the tribunal to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute; and what is more important in thisprevious conduct of the respondent which the appellants Manager legitimately took into account more than justifies the respondents dismissal. The several occasions on which the respondent had been warned for his misconduct of one kind or another make a formidable reading. On most of the occasions he pleaded guilty, apologised and promised to behave better. Sometimes he put up a plea in defence and asked the appellant what difference did it make to the appellant if he was drunk provided his work was not affected. Even so the proceedings ended with a warning every time; and the last incident which gave rise to the present enquiry showed that the respondent had made a nuisance of himself to hiswho bluntly told the appellant that in case serious action was not taken against the respondent it would be difficult for them to tolerate his misbehaviour which in effect conveyed their determination to teach him a lesson. That would obviously have meant disturbance of the peace. It is difficult to appreciate why the tribunal should have found it difficult to approve the dismissal of the respondent in such a case. | 0 | 1,924 | 994 | ### 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:
where the respondent had to discharge his duties. The tribunal was inclined to hold that the respondent could have been punished under Standing Order No. 37 provided his case fell under Standing Order No. 32. It was on this technical objection that the tribunal refused to approve the dismissal of the respondent. The appellant contends that the tribunal has erred in law in refusing to accord its approval to the respondents dismissal.5. It is common ground that quarters are provided by the appellant to its employees and they are situated on the coal bearing area at a distance of about 200 feet from the pit-mouth according to the appellant and at a distance of 2000 feet according to the respondent. Standing Order No. 29(5) provides that drunkenness, fighting, riotous or disorderly or indecent behaviour constitutes misconduct which entails dismissal. Normally this Standing Order would apply to the behaviour on the premises where the workmen discharge their duties and during the hours of their work. It may also be conceded that if a quarrel takes place between workmen outside working hours and away from the coal premises that would be a private matter which may not fall within Standing Order No. 29(5); but in the special circumstances of this case it is clear that the incident took place in the quarters at a short distance from the coal bearing area and the conduct of the respondent which is proved clearly amounts both to drunkenness as well as riotous, disorderly and indecent behaviour. In fact, as the enquiry officer in substance has found, unless the appellant took some action against the respondent, breach of peace was threatened and that is not a matter which complacence. Besides, if the tribunal thought as it appears to have done that since the incident happened in the companys quarters the management could take action provided the respondents case fell under Standing Order No. 32 read with Standing Order No. 37, it need not have allowed considerations of this character to influence its final decision particularly when the extent of its jurisdiction under S. 33(2)(b) was very limited. This is not a case where any mala fides can be attributed to the appellant or it can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by the appellant against the respondent appears to be a straightforward matter and the tribunal may well have resisted the temptation of examining the validity of the said order in such a technical way. Besides, as we have already indicated, having regard to the special circumstances of this case we are not satisfied that the tribunal was right in holding that Standing Order No. 29(5) was inapplicable.6. It has been urged before us by Mr. Dipak Choudhri, on behalf of the respondent, that the enquiry held against the respondent was improper in that a formal charge-sheet was not served to him; and he also attempted to argue that the dismissal of the respondent is intended to victimise him because he is an active trade union worker. We are not impressed by either of the two arguments. The enquiry proceedings show that the officer told the respondent clearly what the complaint against him was. The complaint was in fact read out to him and, as we have already indicated, the respondents companion admitted the truth of the complaint made in the statement. It does not appear that the respondent wanted to cross-examine any of the parties who had complained against him and that an opportunity was refused to him so to do. It is abundantly clear from the record that in substance the respondent himself admitted all the facts though the pretended that he was too drunk and therefore did not remember what had really happened at the time. Therefore, this is not a case where there is any dispute as to the incident itself, and so the objection that the enquiry was improper cannot be sustained. Besides, it is significant that no such point was raised before the tribunal itself by the respondents representative. It is not possible for us to allow Mr. Choudhri to raise a point of mala fides for the first time in this appeal. That is a question of fact on which no material has been adduced by the respondent either before the enquiry officer or before the tribunal.7. Then Mr. Choudhri contended that the tribunal was justified in not approving the dismissal because the dismissal is an unduly sever punishment in this case. There are two obvious answers to this argument. In an enquiry under S. 33(2)(b) normally it is not open to the tribunal to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute; and what is more important in this case,-the previous conduct of the respondent which the appellants Manager legitimately took into account more than justifies the respondents dismissal. The several occasions on which the respondent had been warned for his misconduct of one kind or another make a formidable reading. On most of the occasions he pleaded guilty, apologised and promised to behave better. Sometimes he put up a plea in defence and asked the appellant what difference did it make to the appellant if he was drunk provided his work was not affected. Even so the proceedings ended with a warning every time; and the last incident which gave rise to the present enquiry showed that the respondent had made a nuisance of himself to his co-workmen who bluntly told the appellant that in case serious action was not taken against the respondent it would be difficult for them to tolerate his misbehaviour which in effect conveyed their determination to teach him a lesson. That would obviously have meant disturbance of the peace. It is difficult to appreciate why the tribunal should have found it difficult to approve the dismissal of the respondent in such a case.
### Response:
0
### Explanation:
5. It is common ground that quarters are provided by the appellant to its employees and they are situated on the coal bearing area at a distance of about 200 feet from theaccording to the appellant and at a distance of 2000 feet according to the respondent. Standing Order No. 29(5) provides that drunkenness, fighting, riotous or disorderly or indecent behaviour constitutes misconduct which entails dismissal. Normally this Standing Order would apply to the behaviour on the premises where the workmen discharge their duties and during the hours of their work. It may also be conceded that if a quarrel takes place between workmen outside working hours and away from the coal premises that would be a private matter which may not fall within Standing Order No. 29(5); but in the special circumstances of this case it is clear that the incident took place in the quarters at a short distance from the coal bearing area and the conduct of the respondent which is proved clearly amounts both to drunkenness as well as riotous, disorderly and indecent behaviour. In fact, as the enquiry officer in substance has found, unless the appellant took some action against the respondent, breach of peace was threatened and that is not a matter which complacence. Besides, if the tribunal thought as it appears to have done that since the incident happened in the companys quarters the management could take action provided the respondents case fell under Standing Order No. 32 read with Standing Order No. 37, it need not have allowed considerations of this character to influence its final decision particularly when the extent of its jurisdiction under S. 33(2)(b) was very limited. This is not a case where any mala fides can be attributed to the appellant or it can be said that the dismissal amounts to unfair labour practice. In the circumstances of this case the order of dismissal passed by the appellant against the respondent appears to be a straightforward matter and the tribunal may well have resisted the temptation of examining the validity of the said order in such a technical way. Besides, as we have already indicated, having regard to the special circumstances of this case we are not satisfied that the tribunal was right in holding that Standing Order No. 29(5) was inapplicable.It has been urged before us by Mr. Dipak Choudhri, on behalf of the respondent, that the enquiry held against the respondent was improper in that a formalwas not served to him; and he also attempted to argue that the dismissal of the respondent is intended to victimise him because he is an active trade union worker.We are not impressed by either of the two arguments. The enquiry proceedings show that the officer told the respondent clearly what the complaint against him was. The complaint was in fact read out to him and, as we have already indicated, the respondents companion admitted the truth of the complaint made in the statement. It does not appear that the respondent wanted toany of the parties who had complained against him and that an opportunity was refused to him so to do. It is abundantly clear from the record that in substance the respondent himself admitted all the facts though the pretended that he was too drunk and therefore did not remember what had really happened at the time. Therefore, this is not a case where there is any dispute as to the incident itself, and so the objection that the enquiry was improper cannot be sustained. Besides, it is significant that no such point was raised before the tribunal itself by the respondents representative. It is not possible for us to allow Mr. Choudhri to raise a point of mala fides for the first time in this appeal. That is a question of fact on which no material has been adduced by the respondent either before the enquiry officer or before the tribunal.7.Then Mr. Choudhri contended that the tribunal was justified in not approving the dismissal because the dismissal is an unduly sever punishment in this case.There are two obvious answers to this argument. In an enquiry under S. 33(2)(b) normally it is not open to the tribunal to consider whether the sentence proposed is unduly severe or not. Such a consideration may be relevant in dealing with an industrial dispute; and what is more important in thisprevious conduct of the respondent which the appellants Manager legitimately took into account more than justifies the respondents dismissal. The several occasions on which the respondent had been warned for his misconduct of one kind or another make a formidable reading. On most of the occasions he pleaded guilty, apologised and promised to behave better. Sometimes he put up a plea in defence and asked the appellant what difference did it make to the appellant if he was drunk provided his work was not affected. Even so the proceedings ended with a warning every time; and the last incident which gave rise to the present enquiry showed that the respondent had made a nuisance of himself to hiswho bluntly told the appellant that in case serious action was not taken against the respondent it would be difficult for them to tolerate his misbehaviour which in effect conveyed their determination to teach him a lesson. That would obviously have meant disturbance of the peace. It is difficult to appreciate why the tribunal should have found it difficult to approve the dismissal of the respondent in such a case.
|
Kalya Singh Vs. Genda Lal & Others | 110. (of SCR) - (at p. 1196 of AIR). "The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushing forward his claims but that was inevitable even if no money was spent, but good administration changed the peoples condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different but there was no such evidence."It would thus be noticed that there must be a bargain for votes either directly with the voters or indirectly through someone else. The voter may not be a direct party in the bargain but must be shown to have an indirect interest in it.9. In Abdul Hussains case (Civil Appeal No. 915 of 1974) = (reported in AIR 1975 SC 1612 ) Krishna Iyer J., in his judgment delivered on his and on behalf of Sarkaria J, did not find the fact proved in that case to bring it within the ambit of S. 123 (1) (A) (b). The third learned Judge (A. Alagiriswami J.) did not record any finding to the contrary. Even so while interpreting the scope and ambit of S. 123 (1) of the Act certain observations were made in the majority judgment which were pressed into service by respondent no. 1 while the others were relied on by the appellant. Accepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) AIR 1975 SC 1612 it was said" what the law aims at is a blow on the purchase of the franchise by direct or indirect methods. You may buy influence of important persons which is bad in morality but not yet in law." Another passage (vide page 1996 of the cyclostyled copy) AIR 1975 SC 1612 which occurs in that judgment runs thus: "The crucial point is the nexus between the gratification and the voters, one being the consideration for the other, direct or indirect." The two passages extracted above squarely supported the contention of the appellant. While a few others which are being quoted below were pressed into service by learned counsel for respondent no. 1. The said passages at page 1995 are:"If the candidate pays money to a V.I.P. of the locality to use his good offices and canvass votes for him, it is a borderline case, but if the money is paid as consideration for votes promised to be secured by him using his sway, it is bribery even though indirectly exercised. If the Mulla had been paid the money striking a bargain for getting the votes in his ambit of influence, it is electoral corruption. On the other hand, if it is money received for the purpose of organising effectively the election campaign by hiring workers, going round the places in car, meeting people and persuading them to vote for the candidate, it is proper election expense. In between these two extremes lies the case of a man who just receives a large sum of money, pockets it himself and promises to use his good offices to secure votes. This is a gray area. We are not called upon to pronounce on it in this case......................The touchstone in all these cases of payment of gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. Secondly, whether the services as offered amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate, it being left to the voters not to respond to the persuasion. It is a plain case if a voters to vote paid for his vote, It is direct. It is equally plain if the payment is made to a close relation as inducement for the vote, The same is the case if it is paid to a local chief on the under standing that he will get plead the votes in his pocket borough in consideration for the payment."The third learned Judge in his separate note did not join in the views expressed in the passages just extracted above from the majority decision and said "I consider it, therefore, unnecessary to discuss whether if money is paid or offered as consideration for votes promised to be secured by a person using his influence it is bribery or not. It is a good policy not to discuss in a judgment questions which do not arise out of the facts of the case." The observations of Krishna Iyer J, which were relied on behalf of respondent no. 1 may occasion a debate or dispute if in a given case the facts so warrant. But it will be a futile exercise to do so in this case as the findings recorded against the appellant by the High Court are clearly outside the observations relied on by respondent no. 1. It was not a case where money was paid to respondent no. 3 as consideration for votes promised or as a bargain for getting votes. It was a money paid to him to retire from the contest and to do propaganda and persuade the voters to vote for the appellant. In spite of the propaganda and the appeal of respondent no. 3 the voters were left free not to respond to his persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appellant guilty of corrupt practice within the meaning of S. 123 (1) (A) (b) of the Act. That being so, it is plain that respondent no. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of Section 123 (1) (B) (b). | 1[ds]It is significant to note from sub-clauses (i) and (ii) of clause (A) that post-facto payment of any gratification as a reward will be bribery only if it is paid to the person or the elector mentioned in thesemoney is paid to an elector to vote for a particular candidate undoubtedly it is a direct inducement to him to vote at an election. If money is paid to a third person in which payment of money an elector has got any direct or indirect interest and which induces him to vote at an election in favour of a particular candidate then also the inducement is brought about as a result of the payment of the gratification. But the point of difficulty may arise where any gratification is void by or on behalf of a candidate to a third person for procuring some votes of some electors who may be under his (third persons)are inclined to think that mere payment of any gratification to a third person for securing or procuring some votes in favour of a particular candidate without the establishment of any nexus between the money and the inducement to the voter will not be sufficient to prove that the voter is indirectly induced on account of the payment of gratification to the third person. The dictionary meaning of the word "induce" is to "prevail on, persuade". The gratification must have some connection or reflection, direct or indirect, in persuading the voter to vote or refrain from voting at an election. If the inducement to the voter is not caused by the payment of the gratification to a third person but by the persuasion or influence (not undue influence) of such third person it will not be possible to say that the gratification had any indirect inducement to the voter. Payment of any gratification to any person to work or canvass at an election is outside the ambit of the definition. It will make little difference if the worker or the canvassor on payment of gratification promises or indulges in fall-talk of securing or procuring some votes for a particular candidate. If the inducement to the voter is free from the shade or colour of the gratification paid to the third person, it will not be bribery. If, however, the inducement in a given case is coloured or shaded by the payment of the gratification to a third person then it would be an indirect inducement to the voter himself within the frame of the definition. In other words it is the fact of payment to the third person that must induce the voter. It is not enough that the third person induces the voter. The frame of any definition, more often than not, is capable of being made flexible. But the precision and certainty in law requires that it should not be made loose and kept tight as far as possible.7. On the facts found in this case, respondent No. 3 after having retired from the contest merely canvassed to the voters some of whom may be his so called voters, to vote for the appellant. Distribution of the pamphlet and announcement in the meeting held on the 23rd February, 72 to that end did not transgress the limit and make the act an indirect inducement to the voters to cast vote for the appellant on account of payment of the gratification by him to the thirdwas not a case where money was paid to respondent no. 3 as consideration for votes promised or as a bargain for getting votes. It was a money paid to him to retire from the contest and to do propaganda and persuade the voters to vote for the appellant. In spite of the propaganda and the appeal of respondent no. 3 the voters were left free not to respond to his persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appellant guilty of corrupt practice within the meaning of S. 123 (1) (A) (b) of the Act. That being so, it is plain that respondent no. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of Section 123 (1) (B) (b). | 1 | 3,539 | 779 | ### 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:
110. (of SCR) - (at p. 1196 of AIR). "The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushing forward his claims but that was inevitable even if no money was spent, but good administration changed the peoples condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different but there was no such evidence."It would thus be noticed that there must be a bargain for votes either directly with the voters or indirectly through someone else. The voter may not be a direct party in the bargain but must be shown to have an indirect interest in it.9. In Abdul Hussains case (Civil Appeal No. 915 of 1974) = (reported in AIR 1975 SC 1612 ) Krishna Iyer J., in his judgment delivered on his and on behalf of Sarkaria J, did not find the fact proved in that case to bring it within the ambit of S. 123 (1) (A) (b). The third learned Judge (A. Alagiriswami J.) did not record any finding to the contrary. Even so while interpreting the scope and ambit of S. 123 (1) of the Act certain observations were made in the majority judgment which were pressed into service by respondent no. 1 while the others were relied on by the appellant. Accepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) AIR 1975 SC 1612 it was said" what the law aims at is a blow on the purchase of the franchise by direct or indirect methods. You may buy influence of important persons which is bad in morality but not yet in law." Another passage (vide page 1996 of the cyclostyled copy) AIR 1975 SC 1612 which occurs in that judgment runs thus: "The crucial point is the nexus between the gratification and the voters, one being the consideration for the other, direct or indirect." The two passages extracted above squarely supported the contention of the appellant. While a few others which are being quoted below were pressed into service by learned counsel for respondent no. 1. The said passages at page 1995 are:"If the candidate pays money to a V.I.P. of the locality to use his good offices and canvass votes for him, it is a borderline case, but if the money is paid as consideration for votes promised to be secured by him using his sway, it is bribery even though indirectly exercised. If the Mulla had been paid the money striking a bargain for getting the votes in his ambit of influence, it is electoral corruption. On the other hand, if it is money received for the purpose of organising effectively the election campaign by hiring workers, going round the places in car, meeting people and persuading them to vote for the candidate, it is proper election expense. In between these two extremes lies the case of a man who just receives a large sum of money, pockets it himself and promises to use his good offices to secure votes. This is a gray area. We are not called upon to pronounce on it in this case......................The touchstone in all these cases of payment of gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. Secondly, whether the services as offered amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate, it being left to the voters not to respond to the persuasion. It is a plain case if a voters to vote paid for his vote, It is direct. It is equally plain if the payment is made to a close relation as inducement for the vote, The same is the case if it is paid to a local chief on the under standing that he will get plead the votes in his pocket borough in consideration for the payment."The third learned Judge in his separate note did not join in the views expressed in the passages just extracted above from the majority decision and said "I consider it, therefore, unnecessary to discuss whether if money is paid or offered as consideration for votes promised to be secured by a person using his influence it is bribery or not. It is a good policy not to discuss in a judgment questions which do not arise out of the facts of the case." The observations of Krishna Iyer J, which were relied on behalf of respondent no. 1 may occasion a debate or dispute if in a given case the facts so warrant. But it will be a futile exercise to do so in this case as the findings recorded against the appellant by the High Court are clearly outside the observations relied on by respondent no. 1. It was not a case where money was paid to respondent no. 3 as consideration for votes promised or as a bargain for getting votes. It was a money paid to him to retire from the contest and to do propaganda and persuade the voters to vote for the appellant. In spite of the propaganda and the appeal of respondent no. 3 the voters were left free not to respond to his persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appellant guilty of corrupt practice within the meaning of S. 123 (1) (A) (b) of the Act. That being so, it is plain that respondent no. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of Section 123 (1) (B) (b).
### Response:
1
### Explanation:
It is significant to note from sub-clauses (i) and (ii) of clause (A) that post-facto payment of any gratification as a reward will be bribery only if it is paid to the person or the elector mentioned in thesemoney is paid to an elector to vote for a particular candidate undoubtedly it is a direct inducement to him to vote at an election. If money is paid to a third person in which payment of money an elector has got any direct or indirect interest and which induces him to vote at an election in favour of a particular candidate then also the inducement is brought about as a result of the payment of the gratification. But the point of difficulty may arise where any gratification is void by or on behalf of a candidate to a third person for procuring some votes of some electors who may be under his (third persons)are inclined to think that mere payment of any gratification to a third person for securing or procuring some votes in favour of a particular candidate without the establishment of any nexus between the money and the inducement to the voter will not be sufficient to prove that the voter is indirectly induced on account of the payment of gratification to the third person. The dictionary meaning of the word "induce" is to "prevail on, persuade". The gratification must have some connection or reflection, direct or indirect, in persuading the voter to vote or refrain from voting at an election. If the inducement to the voter is not caused by the payment of the gratification to a third person but by the persuasion or influence (not undue influence) of such third person it will not be possible to say that the gratification had any indirect inducement to the voter. Payment of any gratification to any person to work or canvass at an election is outside the ambit of the definition. It will make little difference if the worker or the canvassor on payment of gratification promises or indulges in fall-talk of securing or procuring some votes for a particular candidate. If the inducement to the voter is free from the shade or colour of the gratification paid to the third person, it will not be bribery. If, however, the inducement in a given case is coloured or shaded by the payment of the gratification to a third person then it would be an indirect inducement to the voter himself within the frame of the definition. In other words it is the fact of payment to the third person that must induce the voter. It is not enough that the third person induces the voter. The frame of any definition, more often than not, is capable of being made flexible. But the precision and certainty in law requires that it should not be made loose and kept tight as far as possible.7. On the facts found in this case, respondent No. 3 after having retired from the contest merely canvassed to the voters some of whom may be his so called voters, to vote for the appellant. Distribution of the pamphlet and announcement in the meeting held on the 23rd February, 72 to that end did not transgress the limit and make the act an indirect inducement to the voters to cast vote for the appellant on account of payment of the gratification by him to the thirdwas not a case where money was paid to respondent no. 3 as consideration for votes promised or as a bargain for getting votes. It was a money paid to him to retire from the contest and to do propaganda and persuade the voters to vote for the appellant. In spite of the propaganda and the appeal of respondent no. 3 the voters were left free not to respond to his persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appellant guilty of corrupt practice within the meaning of S. 123 (1) (A) (b) of the Act. That being so, it is plain that respondent no. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of Section 123 (1) (B) (b).
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STATE OF BIHAR Vs. MEERA TIWARY | the alleged contemners to finalise the family pension payable to the respondent no.1, on the basis of the notional salary payable to the deceased husband of the respondent no.1 on the date of his retirement, the High Court modified the original judgment and order in the writ petition, for violation of which contempt proceedings were initiated. The appellants also contended that, in terms of the provision of Rule 58(a) of the Bihar Service Code, subject to any exception specifically made in those rules and subject to the provisions of clause (b) of Rule 58(a), a government servant is entitled to draw pay and allowances attached to his post w.e.f. the date on which he assumes duty in that post and ceases to draw such pay and allowances as soon as he ceases to discharge those duties. 12. Mr. Vikramjeet Banerjee, ASG submitted that the High Court had clearly erred in law by expanding the scope of the original order in contempt proceedings and also by overlooking Rule 58 as also Rule 76 of the Bihar Service Code. Rule 58 provides that a government servant, after five years of continuous absence from duty, would cease to be in government employment. 13. Significantly, no show cause notice was ever issued to Sh. Amardeo Tiwari, since deceased, during his lifetime alleging that he had not joined the duties pertaining to the post of Assistant Engineer or had remained absent for a continuous period of five years. Continuous absence of five years would most certainly have attracted disciplinary proceedings. There were no disciplinary proceedings. 14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement. 15. After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates. 16. It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post. 17. In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part. 18. As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement. 19. It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post. 20. The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995. 21. Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted. 22. In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do. | 0[ds]14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement.After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates.It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post.In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part.As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement.It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post.The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995.Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted.In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do. | 0 | 2,235 | 790 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the alleged contemners to finalise the family pension payable to the respondent no.1, on the basis of the notional salary payable to the deceased husband of the respondent no.1 on the date of his retirement, the High Court modified the original judgment and order in the writ petition, for violation of which contempt proceedings were initiated. The appellants also contended that, in terms of the provision of Rule 58(a) of the Bihar Service Code, subject to any exception specifically made in those rules and subject to the provisions of clause (b) of Rule 58(a), a government servant is entitled to draw pay and allowances attached to his post w.e.f. the date on which he assumes duty in that post and ceases to draw such pay and allowances as soon as he ceases to discharge those duties. 12. Mr. Vikramjeet Banerjee, ASG submitted that the High Court had clearly erred in law by expanding the scope of the original order in contempt proceedings and also by overlooking Rule 58 as also Rule 76 of the Bihar Service Code. Rule 58 provides that a government servant, after five years of continuous absence from duty, would cease to be in government employment. 13. Significantly, no show cause notice was ever issued to Sh. Amardeo Tiwari, since deceased, during his lifetime alleging that he had not joined the duties pertaining to the post of Assistant Engineer or had remained absent for a continuous period of five years. Continuous absence of five years would most certainly have attracted disciplinary proceedings. There were no disciplinary proceedings. 14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement. 15. After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates. 16. It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post. 17. In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part. 18. As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement. 19. It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post. 20. The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995. 21. Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted. 22. In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do.
### Response:
0
### Explanation:
14. We are unable to accept the argument of the learned ASG that the High Court modified or expanded the scope of the original order in the writ proceedings in contempt. The concerned authorities were directed to fully redress the grievances of the petitioner, and/or in other words, to release the retiral dues of late Sh. Amardeo Tiwari in full. The dues necessarily had to be computed having regard to the salary and allowances pertaining to the post which Sh. Amardeo Tiwari, since deceased, had held at the time of his retirement.After the disposal of the writ petition, in the absence of any disciplinary proceedings or show cause notice or other material, it is not open to the authorities concerned to deny the respondent no.1 the benefits pertaining to the post to which her husband had been promoted, on the purported ground that he had failed to join the post and had allegedly remained absent from duties for a period of 13 years and 10 months. We cannot, but take notice of the fact that there were two orders of promotion, the first ad hoc, and the second, a regular promotion order, as per the list of dates filed by the appellants along with the appeal. The ad hoc promotion has inadvertently and/or erroneously been referred to as substantive promotion in the list of dates.It is preposterous that a second order would have been issued confirming the promotion to the post of Assistant Engineer, if late Amardeo Tiwari had not joined the post pursuant to the earlier order and had remained absent. Significantly, there is not a whisper of the exact date from which late Amardeo Tiwari allegedly stopped attending to his duties and remained absent. It seems quite absurd that a person promoted on ad hoc basis, who had not been attending to his duties should be promoted on regular basis. It is equally difficult to accept that a person who had been attending to his duties would suddenly stop attending to his duties upon his promotion to a higher post.In proceedings for contempt, the High Court is entitled to pass orders for effective enforcement of an order of which violation is alleged. By the order dated 21.9.2004, the High Court directed the authorities to finalise the retiral dues on account of Shri Amardeo Tiwari, since deceased. The High Court directed release of the retiral dues of Shri Amardeo Tiwari, since deceased, in entirety and not in part.As observed above, the authorities concerned did not finalise the dues, but only sanctioned and/or released provisional gratuity and provisional pension and that too on the basis that Shri Amardeo Tiwari, since deceased, had continued to be a Junior Engineer as on the date of his retirement.It was not open to the appellants to circumvent the order passed by the High Court and release provisional pension and gratuity and that too calculated in relation to the salary and emoluments of a lower post.The High Court, in effect and substance, found that the dues on account of Shri Amardeo Tiwari, since deceased, should be computed on the basis of the salary pertaining to the post of Assistant Engineer to which Shri Amardeo Tiwari, since deceased, had admittedly been promoted. Unable to accept the belated plea of the contemner- respondents that Shri Amardeo Tiwari, since deceased, had remained absent, the High Court directed that the family pension be computed taking into account the notional salary payable to an Assistant Engineer on the date of retirement, which was 30.6.1995.Words and/or phrases in a judgment cannot be read as ?Euclid?s Theorems? and in any case not out of context to hold that the High Court modified its earlier order by directing the alleged contemner to take into account the notional salary payable to the respondent no.1?s husband on the date of his retirement. The High Court merely directed the alleged contemner to finalise the dues payable to the respondent no.1 having regard to the salary that should have been payable to her husband on the date of his retirement as Assistant Engineer, the post to which he was admittedly promoted.In our view, the High Court did not modify any earlier order. Nor did the High Court expand the scope of any earlier order. The High Court only effectively enforced its earlier order, which it was entitled in law to do.
|
Common Cause A Registered Society Vs. Union of India | 4 makes it clear that the appointment of Chairperson or a Member of the Lokpal will not become invalid merely because of the reason of any vacancy in the Selection Committee. If, at present, the LOP is not available, surely, the Chairperson and the other two Members of the Selection Committee, namely, the Speaker of the Lok Sabha and the Chief Justice of India or his nominee may proceed to appoint an eminent jurist as a Member of the Selection Committee under Section 4(1)(e) of the Act. We also do not see any legal disability in a truncated Selection Committee to constitute a Search Committee for preparing a panel of persons for consideration for appointment as the Chairperson and Members of the Lokpal and also for such a truncated Selection Committee to make recommendations to the President of India for appointment of the Chairperson and Members of the Lokpal. True, there is no specific provision akin to sub-section (2) of Section 4 of the Act insofar as the constitution of the Search Committee by a truncated Selection Committee is concerned. But the absence of such a provision, by itself, will not invalidate the constitution of the Search Committee by the truncated Selection Committee when the Act specifically "empowers" a truncated Selection Committee to make recommendations for appointment of the Chairperson or Members of the Lokpal. To hold otherwise would be self contradictory. The amendment to Section 4(3), as proposed, would, therefore, be clarificatory and will not amount to an attempt to cure a shortcoming in the Act which is proving to be an inhibition in law to the appointment of the Chairperson/ Members of the Lokpal. The view of the Parliamentary Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/vacancies exists/exist is merely an opinion with which the Executive, in the first instance, has to consider and, thereafter, the legislature has to approve. The said opinion of the Parliamentary Standing Committee would therefore not be sacrosanct. The same, in any case, does not have any material bearing on the validity of the existing provisions of the Act.20. A consideration of the other provisions of the Act in respect of which amendments have been proposed, as indicated in the Chart extracted above, and the views of the Parliamentary Standing Committee in this regard which are available in its report, in our considered view, are attempts at streamlining the working of the Act and in no way constitute legal hindrances or bars to the enforcement of the provisions of the Act as it stands today. In this regard, all that the Court would like to say and observe is that such attempts at achieving better results in the working of any statute is a perpetual and ongoing exercise dictated by the experiences gained on the working of the act. Such attempts cannot halt the operation and execution of the law which the Executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of Section 1(4) of the Act.21. At this stage it may not be out of context to notice the stated objects and reasons for the Legislation which highlights its unique character and importance in the contemporary world."The need to have a legislation for Lokpal has been felt for the quite some time. In its interim report on the `Problems of Redressal of Citizens Grievances, submitted in 1966, the Administrative Reforms Commission, inter alia, recommended the setting up of an institution of Lokpal at the Centre. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Loka Sabha in the past. However, these Bills had lapsed consequent upon the dissolution of the respective Loka Sabha; except in the case of 1985 bill, which was subsequently withdrawn after its introduction.India is committed to pursue the policy of `Zero Tolerance against Corruption. India ratified the United Nations Convention against Corruption by deposit of Instrument of Ratification on the 9th of May, 2011. This Convention imposes a number of obligations, some mandatory, some recommendatory and some optional on the Member States. The Convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalization of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the Convention, with reference to India, have come into force with effect from the 8thof June, 2011. As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country, a more effective mechanism to receive complaints relating to allegations of corruption against public servants, including, Ministers, Members of Parliament, Chief Ministers, Members of Legislative Assemblies, public servants and to inquire into them and take follow up actions. The bodies, namely, Lokpal and Lokayuktas which are being set up for the purpose will be constitutional bodies. This setting up of these bodies will further strengthen the existing legal and institutional mechanism thereby facilitating a more effective implementation of some of the obligations under the aforesaid Convention."22. We, therefore, conclude by quoting Justice Krishna Iyer In Reference, the Special Courts Bill, 1978, AIR 1979 SC 478 : (1979) 1 SCC 380 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out."The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist; despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law does, not what law says; and the moral gap between word and deed menaces peoples faith in life and law. The tragedy, then, is that democracy becomes a casualty." | 1[ds]17. There can be no manner of doubt that the Parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the exclusive domain of the legislature and it is not the province of the Court to express any opinion on the exercise of the legislative prerogative in this regard. The framing of the Amendment Bill; reference of the same to the Parliamentary Standing Committee; the consideration thereof by the said Committee; the report prepared alongwith further steps that are required to be taken and the time frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the Legislature is supreme in the sphere of law making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending will not be justified either. A perception, however, strong of the imminent need of the lawin the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the Court to overstep its jurisdiction. Judicial discipline must caution the Court against such an approach.A consideration of the other provisions of the Act in respect of which amendments have been proposed, as indicated in the Chart extracted above, and the views of the Parliamentary Standing Committee in this regard which are available in its report, in our considered view, are attempts at streamlining the working of the Act and in no way constitute legal hindrances or bars to the enforcement of the provisions of the Act as it stands today. In this regard, all that the Court would like to say and observe is that such attempts at achieving better results in the working of any statute is a perpetual and ongoing exercise dictated by the experiences gained on the working of the act. Such attempts cannot halt the operation and execution of the law which the Executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of Section 1(4) of the Act.21. At this stage it may not be out of context to notice the stated objects and reasons for the Legislation which highlights its unique character and importance in the contemporaryneed to have a legislation for Lokpal has been felt for the quite some time. In its interim report on the `Problems of Redressal of Citizens Grievances, submitted in 1966, the Administrative Reforms Commission, inter alia, recommended the setting up of an institution of Lokpal at the Centre. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Loka Sabha in the past. However, these Bills had lapsed consequent upon the dissolution of the respective Loka Sabha; except in the case of 1985 bill, which was subsequently withdrawn after its introduction.India is committed to pursue the policy of `Zero Tolerance against Corruption. India ratified the United Nations Convention against Corruption by deposit of Instrument of Ratification on the 9th of May, 2011. This Convention imposes a number of obligations, some mandatory, some recommendatory and some optional on the Member States. The Convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalization of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the Convention, with reference to India, have come into force with effect from the 8thof June, 2011. As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country, a more effective mechanism to receive complaints relating to allegations of corruption against public servants, including, Ministers, Members of Parliament, Chief Ministers, Members of Legislative Assemblies, public servants and to inquire into them and take follow up actions. The bodies, namely, Lokpal and Lokayuktas which are being set up for the purpose will be constitutional bodies. This setting up of these bodies will further strengthen the existing legal and institutional mechanism thereby facilitating a more effective implementation of some of the obligations under the aforesaid Convention.We, therefore, conclude by quoting Justice Krishna Iyer In Reference, the Special Courts Bill, 1978, AIR 1979 SC 478 : (1979) 1 SCC 380 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carriedpathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist; despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law does, not what law says; and the moral gap between word and deed menaces peoples faith in life and law. The tragedy, then, is that democracy becomes a | 1 | 5,881 | 999 | ### 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:
4 makes it clear that the appointment of Chairperson or a Member of the Lokpal will not become invalid merely because of the reason of any vacancy in the Selection Committee. If, at present, the LOP is not available, surely, the Chairperson and the other two Members of the Selection Committee, namely, the Speaker of the Lok Sabha and the Chief Justice of India or his nominee may proceed to appoint an eminent jurist as a Member of the Selection Committee under Section 4(1)(e) of the Act. We also do not see any legal disability in a truncated Selection Committee to constitute a Search Committee for preparing a panel of persons for consideration for appointment as the Chairperson and Members of the Lokpal and also for such a truncated Selection Committee to make recommendations to the President of India for appointment of the Chairperson and Members of the Lokpal. True, there is no specific provision akin to sub-section (2) of Section 4 of the Act insofar as the constitution of the Search Committee by a truncated Selection Committee is concerned. But the absence of such a provision, by itself, will not invalidate the constitution of the Search Committee by the truncated Selection Committee when the Act specifically "empowers" a truncated Selection Committee to make recommendations for appointment of the Chairperson or Members of the Lokpal. To hold otherwise would be self contradictory. The amendment to Section 4(3), as proposed, would, therefore, be clarificatory and will not amount to an attempt to cure a shortcoming in the Act which is proving to be an inhibition in law to the appointment of the Chairperson/ Members of the Lokpal. The view of the Parliamentary Standing Committee with regard to the expediency of the Search/Selection Committee taking decisions when vacancy/vacancies exists/exist is merely an opinion with which the Executive, in the first instance, has to consider and, thereafter, the legislature has to approve. The said opinion of the Parliamentary Standing Committee would therefore not be sacrosanct. The same, in any case, does not have any material bearing on the validity of the existing provisions of the Act.20. A consideration of the other provisions of the Act in respect of which amendments have been proposed, as indicated in the Chart extracted above, and the views of the Parliamentary Standing Committee in this regard which are available in its report, in our considered view, are attempts at streamlining the working of the Act and in no way constitute legal hindrances or bars to the enforcement of the provisions of the Act as it stands today. In this regard, all that the Court would like to say and observe is that such attempts at achieving better results in the working of any statute is a perpetual and ongoing exercise dictated by the experiences gained on the working of the act. Such attempts cannot halt the operation and execution of the law which the Executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of Section 1(4) of the Act.21. At this stage it may not be out of context to notice the stated objects and reasons for the Legislation which highlights its unique character and importance in the contemporary world."The need to have a legislation for Lokpal has been felt for the quite some time. In its interim report on the `Problems of Redressal of Citizens Grievances, submitted in 1966, the Administrative Reforms Commission, inter alia, recommended the setting up of an institution of Lokpal at the Centre. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Loka Sabha in the past. However, these Bills had lapsed consequent upon the dissolution of the respective Loka Sabha; except in the case of 1985 bill, which was subsequently withdrawn after its introduction.India is committed to pursue the policy of `Zero Tolerance against Corruption. India ratified the United Nations Convention against Corruption by deposit of Instrument of Ratification on the 9th of May, 2011. This Convention imposes a number of obligations, some mandatory, some recommendatory and some optional on the Member States. The Convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalization of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the Convention, with reference to India, have come into force with effect from the 8thof June, 2011. As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country, a more effective mechanism to receive complaints relating to allegations of corruption against public servants, including, Ministers, Members of Parliament, Chief Ministers, Members of Legislative Assemblies, public servants and to inquire into them and take follow up actions. The bodies, namely, Lokpal and Lokayuktas which are being set up for the purpose will be constitutional bodies. This setting up of these bodies will further strengthen the existing legal and institutional mechanism thereby facilitating a more effective implementation of some of the obligations under the aforesaid Convention."22. We, therefore, conclude by quoting Justice Krishna Iyer In Reference, the Special Courts Bill, 1978, AIR 1979 SC 478 : (1979) 1 SCC 380 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carried out."The pathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist; despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law does, not what law says; and the moral gap between word and deed menaces peoples faith in life and law. The tragedy, then, is that democracy becomes a casualty."
### Response:
1
### Explanation:
17. There can be no manner of doubt that the Parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the exclusive domain of the legislature and it is not the province of the Court to express any opinion on the exercise of the legislative prerogative in this regard. The framing of the Amendment Bill; reference of the same to the Parliamentary Standing Committee; the consideration thereof by the said Committee; the report prepared alongwith further steps that are required to be taken and the time frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the Legislature is supreme in the sphere of law making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending will not be justified either. A perception, however, strong of the imminent need of the lawin the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the Court to overstep its jurisdiction. Judicial discipline must caution the Court against such an approach.A consideration of the other provisions of the Act in respect of which amendments have been proposed, as indicated in the Chart extracted above, and the views of the Parliamentary Standing Committee in this regard which are available in its report, in our considered view, are attempts at streamlining the working of the Act and in no way constitute legal hindrances or bars to the enforcement of the provisions of the Act as it stands today. In this regard, all that the Court would like to say and observe is that such attempts at achieving better results in the working of any statute is a perpetual and ongoing exercise dictated by the experiences gained on the working of the act. Such attempts cannot halt the operation and execution of the law which the Executive in its wisdom has already given effect to and has brought into force by resorting to the provisions of Section 1(4) of the Act.21. At this stage it may not be out of context to notice the stated objects and reasons for the Legislation which highlights its unique character and importance in the contemporaryneed to have a legislation for Lokpal has been felt for the quite some time. In its interim report on the `Problems of Redressal of Citizens Grievances, submitted in 1966, the Administrative Reforms Commission, inter alia, recommended the setting up of an institution of Lokpal at the Centre. To give effect to this recommendation of the Administrative Reforms Commission, eight Bills on Lokpal were introduced in the Loka Sabha in the past. However, these Bills had lapsed consequent upon the dissolution of the respective Loka Sabha; except in the case of 1985 bill, which was subsequently withdrawn after its introduction.India is committed to pursue the policy of `Zero Tolerance against Corruption. India ratified the United Nations Convention against Corruption by deposit of Instrument of Ratification on the 9th of May, 2011. This Convention imposes a number of obligations, some mandatory, some recommendatory and some optional on the Member States. The Convention, inter alia, envisages that State Parties ensure measures in the domestic law for criminalization of offences relating to bribery and put in place an effective mechanism for its enforcement. The obligations of the Convention, with reference to India, have come into force with effect from the 8thof June, 2011. As a policy of Zero tolerance against Corruption, the Bill seeks to establish in the country, a more effective mechanism to receive complaints relating to allegations of corruption against public servants, including, Ministers, Members of Parliament, Chief Ministers, Members of Legislative Assemblies, public servants and to inquire into them and take follow up actions. The bodies, namely, Lokpal and Lokayuktas which are being set up for the purpose will be constitutional bodies. This setting up of these bodies will further strengthen the existing legal and institutional mechanism thereby facilitating a more effective implementation of some of the obligations under the aforesaid Convention.We, therefore, conclude by quoting Justice Krishna Iyer In Reference, the Special Courts Bill, 1978, AIR 1979 SC 478 : (1979) 1 SCC 380 and holding that the Act as it stands today is an eminently workable piece of legislation and there is no justification to keep the enforcement of the Act under suspension till the amendments, as proposed, are carriedpathology of our public law, with its class slant, is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power, now or before, and offering legal access to the informed citizen to complain with immunity does not exist; despite all the bruited umbrage of political performers against peculations and perversions by higher echelons. Law is what law does, not what law says; and the moral gap between word and deed menaces peoples faith in life and law. The tragedy, then, is that democracy becomes a
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M/s. Gujchem Distillers India Limited Vs. State of Gujarat and Another | licensee. Therefore, the supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities." 14. In dealing with Synthetics and Chemicals case ( 1990 (1) SCC 109 : 1989 (S1) SCR 623) the following observations were made : (SCC pp. 147-49, paras 61-63) "Learned Advocates-General for the States of Gujarat and Kerala have also made their submissions, and referred to several decisions and the concept of police power, and contended that imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol. According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor. According to him, it has been accepted by courts all along that the police power of the State enables regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor. Such police power could be exercised as to impose reasonable restrictions as to effectuate the power. He referred to the observations of this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer ( 1954 SCR 873 : 1954 AIR(SC) 220) which quoted the passage from Crowley v. Christensen ((1890) 4 L Ed 620 : 137 US 86). Reference was also made to Har Shankar case (Har Shankar v. Dy. Excise & Taxation Commissioner, 1957 (1) SCC 737) where this Court quoted vol. 38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation. Reliance was also placed on P. N. Kaushal case (P. N. Kaushal v. Union Of India, 1978 (3) SCC 558 ).It was contended that it has been accepted by this Court that the police power is exercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure. It may be valid though it may neither be fee nor a tax in the limited sense of the term. See the observations of this Court in Southern Pharmaceuticals & Chemicals, Trichur v. State of Kerala ( 1981 (4) SCC 391 : 1981 SCC(Tax) 320 : 1981 AIR(SC) 1863). Regarding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the rectified spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol. Such a regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health. The American doctrine of police power is not perhaps applicable as such in India, but powers of the sovereignty to regulate as part of the power of the competent legislature to effectuate its aim are there.It is true that in State of W. B. v. Subodh Gopal Bose ( 1954 SCR 587 , 601-604 : 1954 AIR(SC) 92 : 1954 (1) MLJ 314 ) and Kameshwar Prasad v. State of Bihar ( 1962 (S3) SCR 369 : 1962 AIR(SC) 1166 : 1962 (1) LLJ 294 ) the concept of police power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to constitutional limitations. It was stated that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expression like police power, which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult. It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohibitionWe are of the opinion that we need not detain ourselves on the question whether the States have police power or not. We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol. The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. In this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly." 15. This is an added reasoning to uphold the validity of Section 58-A. 16. Turning to the second argument about the absence of quid pro quo, we need only extract the following from the judgment of the High Court. "Section 58-A of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman the cost of supervision which is primarily necessitated by the manufacturer or businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful. We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58-A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman." * | 0[ds]11. We are relived of the necessity of deciding the correctness of these submissions by a detailed judgment, since identical points were raised in Civil Appeal No. 503 of 1974 (Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. v. State of Gujarat) ( 1992 (2) SCC 42 ) to which one of us (Mohan, J.) was a party. The said civil appeal has been dismissed considering these aspects and upholding the validity of Section 58-A. The said judgment will squarely cover this case as well. We fully concur with the reasons contained therein.In dealing with Synthetics and Chemicals case ( 1990 (1) SCC 109 : 1989 (S1) SCR 623) the following observations were made : (SCC pp. 147-49, parasAdvocates-General for the States of Gujarat and Kerala have also made their submissions, and referred to several decisions and the concept of police power, and contended that imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol. According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor. According to him, it has been accepted by courts all along that the police power of the State enables regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor. Such police power could be exercised as to impose reasonable restrictions as to effectuate the power. He referred to the observations of this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer ( 1954 SCR 873 : 1954 AIR(SC) 220) which quoted the passage from Crowley v. Christensen ((1890) 4 L Ed 620 : 137 US 86). Reference was also made to Har Shankar case (Har Shankar v. Dy. Excise & Taxation Commissioner, 1957 (1) SCC 737) where this Court quoted vol. 38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation. Reliance was also placed on P. N. Kaushal case (P. N. Kaushal v. Union Of India, 1978 (3) SCC 558 ).It was contended that it has been accepted by this Court that the police power is exercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure. It may be valid though it may neither be fee nor a tax in the limited sense of the term. See the observations of this Court in Southern Pharmaceuticals & Chemicals, Trichur v. State of Kerala ( 1981 (4) SCC 391 : 1981 SCC(Tax) 320 : 1981 AIR(SC) 1863). Regarding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the rectified spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol. Such a regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health. The American doctrine of police power is not perhaps applicable as such in India, but powers of the sovereignty to regulate as part of the power of the competent legislature to effectuate its aim areis true that in State of W. B. v. Subodh Gopal Bose ( 1954 SCR 587 , 601-604 : 1954 AIR(SC) 92 : 1954 (1) MLJ 314 ) and Kameshwar Prasad v. State of Bihar ( 1962 (S3) SCR 369 : 1962 AIR(SC) 1166 : 1962 (1) LLJ 294 ) the concept of police power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to constitutional limitations. It was stated that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expression like police power, which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult. It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohibitionWe are of the opinion that we need not detain ourselves on the question whether the States have police power or not. We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol. The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. In this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly.This is an added reasoning to uphold the validity of SectionTurning to the second argument about the absence of quid pro quo, we need only extract the following from the judgment of the High58-A of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman the cost of supervision which is primarily necessitated by the manufacturer or businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful. We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58-A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman." | 0 | 3,402 | 1,163 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
licensee. Therefore, the supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities." 14. In dealing with Synthetics and Chemicals case ( 1990 (1) SCC 109 : 1989 (S1) SCR 623) the following observations were made : (SCC pp. 147-49, paras 61-63) "Learned Advocates-General for the States of Gujarat and Kerala have also made their submissions, and referred to several decisions and the concept of police power, and contended that imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol. According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor. According to him, it has been accepted by courts all along that the police power of the State enables regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor. Such police power could be exercised as to impose reasonable restrictions as to effectuate the power. He referred to the observations of this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer ( 1954 SCR 873 : 1954 AIR(SC) 220) which quoted the passage from Crowley v. Christensen ((1890) 4 L Ed 620 : 137 US 86). Reference was also made to Har Shankar case (Har Shankar v. Dy. Excise & Taxation Commissioner, 1957 (1) SCC 737) where this Court quoted vol. 38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation. Reliance was also placed on P. N. Kaushal case (P. N. Kaushal v. Union Of India, 1978 (3) SCC 558 ).It was contended that it has been accepted by this Court that the police power is exercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure. It may be valid though it may neither be fee nor a tax in the limited sense of the term. See the observations of this Court in Southern Pharmaceuticals & Chemicals, Trichur v. State of Kerala ( 1981 (4) SCC 391 : 1981 SCC(Tax) 320 : 1981 AIR(SC) 1863). Regarding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the rectified spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol. Such a regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health. The American doctrine of police power is not perhaps applicable as such in India, but powers of the sovereignty to regulate as part of the power of the competent legislature to effectuate its aim are there.It is true that in State of W. B. v. Subodh Gopal Bose ( 1954 SCR 587 , 601-604 : 1954 AIR(SC) 92 : 1954 (1) MLJ 314 ) and Kameshwar Prasad v. State of Bihar ( 1962 (S3) SCR 369 : 1962 AIR(SC) 1166 : 1962 (1) LLJ 294 ) the concept of police power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to constitutional limitations. It was stated that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expression like police power, which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult. It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohibitionWe are of the opinion that we need not detain ourselves on the question whether the States have police power or not. We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol. The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. In this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly." 15. This is an added reasoning to uphold the validity of Section 58-A. 16. Turning to the second argument about the absence of quid pro quo, we need only extract the following from the judgment of the High Court. "Section 58-A of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman the cost of supervision which is primarily necessitated by the manufacturer or businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful. We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58-A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman." *
### Response:
0
### Explanation:
us (Mohan, J.) was a party. The said civil appeal has been dismissed considering these aspects and upholding the validity of Section 58-A. The said judgment will squarely cover this case as well. We fully concur with the reasons contained therein.In dealing with Synthetics and Chemicals case ( 1990 (1) SCC 109 : 1989 (S1) SCR 623) the following observations were made : (SCC pp. 147-49, parasAdvocates-General for the States of Gujarat and Kerala have also made their submissions, and referred to several decisions and the concept of police power, and contended that imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol. According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor. According to him, it has been accepted by courts all along that the police power of the State enables regulations to be made regarding manufacture, transport, possession and sale of intoxicating liquor. Such police power could be exercised as to impose reasonable restrictions as to effectuate the power. He referred to the observations of this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner, Ajmer ( 1954 SCR 873 : 1954 AIR(SC) 220) which quoted the passage from Crowley v. Christensen ((1890) 4 L Ed 620 : 137 US 86). Reference was also made to Har Shankar case (Har Shankar v. Dy. Excise & Taxation Commissioner, 1957 (1) SCC 737) where this Court quoted vol. 38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation. Reliance was also placed on P. N. Kaushal case (P. N. Kaushal v. Union Of India, 1978 (3) SCC 558 ).It was contended that it has been accepted by this Court that the police power is exercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure. It may be valid though it may neither be fee nor a tax in the limited sense of the term. See the observations of this Court in Southern Pharmaceuticals & Chemicals, Trichur v. State of Kerala ( 1981 (4) SCC 391 : 1981 SCC(Tax) 320 : 1981 AIR(SC) 1863). Regarding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the rectified spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol. Such a regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health. The American doctrine of police power is not perhaps applicable as such in India, but powers of the sovereignty to regulate as part of the power of the competent legislature to effectuate its aim areis true that in State of W. B. v. Subodh Gopal Bose ( 1954 SCR 587 , 601-604 : 1954 AIR(SC) 92 : 1954 (1) MLJ 314 ) and Kameshwar Prasad v. State of Bihar ( 1962 (S3) SCR 369 : 1962 AIR(SC) 1166 : 1962 (1) LLJ 294 ) the concept of police power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to constitutional limitations. It was stated that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution-makers and the importing of expression like police power, which is a term of variable and indefinite connotation, can only make the task of interpretation more difficult. It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohibitionWe are of the opinion that we need not detain ourselves on the question whether the States have police power or not. We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol. The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. In this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly.This is an added reasoning to uphold the validity of SectionTurning to the second argument about the absence of quid pro quo, we need only extract the following from the judgment of the High58-A of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman the cost of supervision which is primarily necessitated by the manufacturer or businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful. We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58-A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman."
|
M/S CRAFT INTERIORS (P) LTD Vs. THE JOINT COMMISSIONER OF COMMERCIAL TAXES(INTELLIGENCE), BANGALORE | particular type, andii. If separate commercial commodities emerge out of the (goods already taxed earlier), then the said new commercial commodity is liable to sales tax.This is what has been conferred in Rule 6(4)(m)(i) read with Explanation III to Rule 6(4) of which a reference has been made.22. In Vasantham Foundry Vs. Union of India and Others 1995(5) SCC 289, this Court reiterated the Prare Lal Malhotra and Others(supra) principle in para 25 as under:¬"25. Therefore, in our view ?cast iron casting? in its basic or rough form must be held to be ‘cast iron?. But, if thereafter any machining or polishing or any other process is done to the rough cast iron casting to produce things like pipes, manhole covers or bends, these cannot be regarded as ?cast iron casting? in its primary or rough form but products made out of cast iron castings. Such products cannot be regarded as ‘cast iron? and cannot be treated as ?declared goods? under Section 14(iv) of the Central Sales Tax Act. This view is not in conflict with the view taken in the case of Bengal Iron Corpn. [1994 Supp (1) SCC 310: (1993) 90 STC 47 ], but it is in consonance with the decision in that case.?23. The same principle has been recently reiterated in B. Narasamma Vs. Deputy Commissioner of Commercial Taxes, Karnataka and Another 2016(15) SCC 167. In para 18 thereof, the principle of Pyare Lal Malhotra and Others(supra) quoted hereinabove is considered. Rule 6(4)(m)(i) came up for consideration in B. Narasamma(supra) where this Court after noting the said Rule came to the conclusion in para 23 as under:¬?23. On facts in this case, it has been found that the appellant is engaged in works contracts of fabrication and creation of doors, window frames, grills, etc. in which they claimed exemption for iron and steel goods that went into the creation of these items, after which the said doors, window frames, grills, etc. were fitted into buildings and other structures. On facts, therefore, we find that the High Court?s judgment [State of Karnataka v. Anant Engg. Words, 2006 SCC OnLine Kar 840] is correct and does not need to be interfered with inasmuch as the iron and steel goods, after being purchased, are used in the manufacture of other goods, namely, doors, window frames, grills, etc. which in turn are used in the execution of works contracts and are therefore not exempt from tax.?24. What emerges from the scheme of the Act and Rules framed thereunder is that Rule 6(4)(m)(i) purports to grant benefit to the assessee by allowing deductions for the value of goods which have already suffered taxation and which goods substantially retain their original identity while being used in the execution of a works contract. Explanation III to Rule 6(4) clarifies it further by categorically providing that in case the goods are transformed into a different commodity which then is used in the execution of works contract, then the benefit of deduction cannot be availed.25. It is trite law that tax provisions granting exemptions/concessions are required to be strictly construed as recently held by this Court in M/s. Achal Industries Vs. State of Karnataka AIR 2019 SC 1653 .26. In our considered view, there is no variance between Rules 6(4)(m)(i) read with Explanation III and Section 5B of the KST Act, 1957 and what is contended by the appellant in assailing the validity of Rule impugned hereunder is misconceived and without substance.27. The judgment in Media Communications(supra) of which the learned counsel for the appellant has placed heavy reliance is of no assistance for the reason that mere rejection of special leave petitions by this Court at the motion stage would not be considered to be an approval of the view expressed by the High Court of Andhra Pradesh. That apart, para 7 of the judgment in Telangana Steel Industries and Others case(supra) has been noticed by the High Court in Media Communications(supra) and arrived to the conclusion that Telangana Steel Industries and Others(supra) lent support to the reasoning of the High Court.28. Para 7 of the judgment of this Court in Telangana Steel Industries and Others(supra) in fact disseminate the reasoning recorded by the High Court in Media Communications(supra) to invalidate the first and second proviso to Section 5B.?7. The above shows complexity of the concept of a different commercial product coming into existence because of manufacturing process undertaken. It is because of this that we do not propose to decide the controversy at hand, which is whether iron wires are separate commercial goods from wire rods from which they are produced, by trying to answer whether they are one commercial commodity or separate. The point has however arisen for consideration because we are concerned with a single point sales tax, which would not allow taxing of the same commodity again. It is also not in dispute that if the two goods at hand be different commodities, the single point taxing principle would not debar realisation of tax once again from the sale of wires. Shri Tarkunde?s whole emphasis is that goods in question cannot be regarded as two different commercial commodities. Let it be seen why this stand has been take by the learned counsel on behalf of the appellants and whether the same is sound??(emphasis supplied)29. So far as the submissions made by the learned counsel for the appellant on merits in reference to the five impugned notices of provisional assessment served under Section 28(6) is concerned, whether the assessee was eligible under Rule 6(4)(m) (i) is a question of fact which has to be determined in the assessment proceedings and since the provisional assessment has not been finalised due to pendency of the instant proceedings, it may not be advisable for this Court to dilate on the subject issue of the notices served upon the appellant at this stage and leave it open to the appellant to address before the assessing authority in the pending appropriate assessment proceedings, if so advised. | 0[ds]18. From the bare perusal of the provision of the KST Act and KST Rules, 1957 indicated above, it clearly envisages that Section 5B of the KST Act is a charging provision which empowers the State to levy tax on the transfer of property in goods involved in works contract. At the same time Rule 6(4)(m)(i) read with Explanation III to Rule 6(4) of the KST Rules clarifies that the same goods can be taxed only once and cannot be made subject matter of multiple incidence of tax and the goods which have suffered taxation undergoes transformation into a different commodity altogether and is then used in the execution of a works contract, the same being a different commercial commodity is liable to be taxed. The justification which has been tendered by the appellant in reference to five notices impugned in the instant proceedings for the assessment years 1998¬1999 to 2002-2003 is a question of fact to be examined by the assessing authority who has served him the notices.19. We are clear, in our view, that Section 5B of the KST Act and Rule 6(4)(m)(i) of the KST Rules operate in different spheres. Section 5B is a charging provision for levy of sales tax whereas Rule 6(4)(m)(i) is a provision for deduction from tax. Under Section 5B, tax can be levied on transfer of property in the goods whether as goods or in some other form whereas Rule 6(4)(m)(i) provides for a deduction in respect of the goods which have already suffered tax and which are used in the same form. Thus, in our view, it appears to be in clear consonance with the charging provision and does not militate against Section 5B of KST Act, 1957.What emerges from the scheme of the Act and Rules framed thereunder is that Rule 6(4)(m)(i) purports to grant benefit to the assessee by allowing deductions for the value of goods which have already suffered taxation and which goods substantially retain their original identity while being used in the execution of a works contract. Explanation III to Rule 6(4) clarifies it further by categorically providing that in case the goods are transformed into a different commodity which then is used in the execution of works contract, then the benefit of deduction cannot be availed.In our considered view, there is no variance between Rules 6(4)(m)(i) read with Explanation III and Section 5B of the KST Act, 1957 and what is contended by the appellant in assailing the validity of Rule impugned hereunder is misconceived and without substance.27. The judgment in Media Communications(supra) of which the learned counsel for the appellant has placed heavy reliance is of no assistance for the reason that mere rejection of special leave petitions by this Court at the motion stage would not be considered to be an approval of the view expressed by the High Court of Andhra Pradesh. That apart, para 7 of the judgment in Telangana Steel Industries and Others case(supra) has been noticed by the High Court in Media Communications(supra) and arrived to the conclusion that Telangana Steel Industries and Others(supra) lent support to the reasoning of the High Court.So far as the submissions made by the learned counsel for the appellant on merits in reference to the five impugned notices of provisional assessment served under Section 28(6) is concerned, whether the assessee was eligible under Rule 6(4)(m) (i) is a question of fact which has to be determined in the assessment proceedings and since the provisional assessment has not been finalised due to pendency of the instant proceedings, it may not be advisable for this Court to dilate on the subject issue of the notices served upon the appellant at this stage and leave it open to the appellant to address before the assessing authority in the pending appropriate assessment proceedings, if so advised. | 0 | 4,135 | 754 | ### 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:
particular type, andii. If separate commercial commodities emerge out of the (goods already taxed earlier), then the said new commercial commodity is liable to sales tax.This is what has been conferred in Rule 6(4)(m)(i) read with Explanation III to Rule 6(4) of which a reference has been made.22. In Vasantham Foundry Vs. Union of India and Others 1995(5) SCC 289, this Court reiterated the Prare Lal Malhotra and Others(supra) principle in para 25 as under:¬"25. Therefore, in our view ?cast iron casting? in its basic or rough form must be held to be ‘cast iron?. But, if thereafter any machining or polishing or any other process is done to the rough cast iron casting to produce things like pipes, manhole covers or bends, these cannot be regarded as ?cast iron casting? in its primary or rough form but products made out of cast iron castings. Such products cannot be regarded as ‘cast iron? and cannot be treated as ?declared goods? under Section 14(iv) of the Central Sales Tax Act. This view is not in conflict with the view taken in the case of Bengal Iron Corpn. [1994 Supp (1) SCC 310: (1993) 90 STC 47 ], but it is in consonance with the decision in that case.?23. The same principle has been recently reiterated in B. Narasamma Vs. Deputy Commissioner of Commercial Taxes, Karnataka and Another 2016(15) SCC 167. In para 18 thereof, the principle of Pyare Lal Malhotra and Others(supra) quoted hereinabove is considered. Rule 6(4)(m)(i) came up for consideration in B. Narasamma(supra) where this Court after noting the said Rule came to the conclusion in para 23 as under:¬?23. On facts in this case, it has been found that the appellant is engaged in works contracts of fabrication and creation of doors, window frames, grills, etc. in which they claimed exemption for iron and steel goods that went into the creation of these items, after which the said doors, window frames, grills, etc. were fitted into buildings and other structures. On facts, therefore, we find that the High Court?s judgment [State of Karnataka v. Anant Engg. Words, 2006 SCC OnLine Kar 840] is correct and does not need to be interfered with inasmuch as the iron and steel goods, after being purchased, are used in the manufacture of other goods, namely, doors, window frames, grills, etc. which in turn are used in the execution of works contracts and are therefore not exempt from tax.?24. What emerges from the scheme of the Act and Rules framed thereunder is that Rule 6(4)(m)(i) purports to grant benefit to the assessee by allowing deductions for the value of goods which have already suffered taxation and which goods substantially retain their original identity while being used in the execution of a works contract. Explanation III to Rule 6(4) clarifies it further by categorically providing that in case the goods are transformed into a different commodity which then is used in the execution of works contract, then the benefit of deduction cannot be availed.25. It is trite law that tax provisions granting exemptions/concessions are required to be strictly construed as recently held by this Court in M/s. Achal Industries Vs. State of Karnataka AIR 2019 SC 1653 .26. In our considered view, there is no variance between Rules 6(4)(m)(i) read with Explanation III and Section 5B of the KST Act, 1957 and what is contended by the appellant in assailing the validity of Rule impugned hereunder is misconceived and without substance.27. The judgment in Media Communications(supra) of which the learned counsel for the appellant has placed heavy reliance is of no assistance for the reason that mere rejection of special leave petitions by this Court at the motion stage would not be considered to be an approval of the view expressed by the High Court of Andhra Pradesh. That apart, para 7 of the judgment in Telangana Steel Industries and Others case(supra) has been noticed by the High Court in Media Communications(supra) and arrived to the conclusion that Telangana Steel Industries and Others(supra) lent support to the reasoning of the High Court.28. Para 7 of the judgment of this Court in Telangana Steel Industries and Others(supra) in fact disseminate the reasoning recorded by the High Court in Media Communications(supra) to invalidate the first and second proviso to Section 5B.?7. The above shows complexity of the concept of a different commercial product coming into existence because of manufacturing process undertaken. It is because of this that we do not propose to decide the controversy at hand, which is whether iron wires are separate commercial goods from wire rods from which they are produced, by trying to answer whether they are one commercial commodity or separate. The point has however arisen for consideration because we are concerned with a single point sales tax, which would not allow taxing of the same commodity again. It is also not in dispute that if the two goods at hand be different commodities, the single point taxing principle would not debar realisation of tax once again from the sale of wires. Shri Tarkunde?s whole emphasis is that goods in question cannot be regarded as two different commercial commodities. Let it be seen why this stand has been take by the learned counsel on behalf of the appellants and whether the same is sound??(emphasis supplied)29. So far as the submissions made by the learned counsel for the appellant on merits in reference to the five impugned notices of provisional assessment served under Section 28(6) is concerned, whether the assessee was eligible under Rule 6(4)(m) (i) is a question of fact which has to be determined in the assessment proceedings and since the provisional assessment has not been finalised due to pendency of the instant proceedings, it may not be advisable for this Court to dilate on the subject issue of the notices served upon the appellant at this stage and leave it open to the appellant to address before the assessing authority in the pending appropriate assessment proceedings, if so advised.
### Response:
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### Explanation:
18. From the bare perusal of the provision of the KST Act and KST Rules, 1957 indicated above, it clearly envisages that Section 5B of the KST Act is a charging provision which empowers the State to levy tax on the transfer of property in goods involved in works contract. At the same time Rule 6(4)(m)(i) read with Explanation III to Rule 6(4) of the KST Rules clarifies that the same goods can be taxed only once and cannot be made subject matter of multiple incidence of tax and the goods which have suffered taxation undergoes transformation into a different commodity altogether and is then used in the execution of a works contract, the same being a different commercial commodity is liable to be taxed. The justification which has been tendered by the appellant in reference to five notices impugned in the instant proceedings for the assessment years 1998¬1999 to 2002-2003 is a question of fact to be examined by the assessing authority who has served him the notices.19. We are clear, in our view, that Section 5B of the KST Act and Rule 6(4)(m)(i) of the KST Rules operate in different spheres. Section 5B is a charging provision for levy of sales tax whereas Rule 6(4)(m)(i) is a provision for deduction from tax. Under Section 5B, tax can be levied on transfer of property in the goods whether as goods or in some other form whereas Rule 6(4)(m)(i) provides for a deduction in respect of the goods which have already suffered tax and which are used in the same form. Thus, in our view, it appears to be in clear consonance with the charging provision and does not militate against Section 5B of KST Act, 1957.What emerges from the scheme of the Act and Rules framed thereunder is that Rule 6(4)(m)(i) purports to grant benefit to the assessee by allowing deductions for the value of goods which have already suffered taxation and which goods substantially retain their original identity while being used in the execution of a works contract. Explanation III to Rule 6(4) clarifies it further by categorically providing that in case the goods are transformed into a different commodity which then is used in the execution of works contract, then the benefit of deduction cannot be availed.In our considered view, there is no variance between Rules 6(4)(m)(i) read with Explanation III and Section 5B of the KST Act, 1957 and what is contended by the appellant in assailing the validity of Rule impugned hereunder is misconceived and without substance.27. The judgment in Media Communications(supra) of which the learned counsel for the appellant has placed heavy reliance is of no assistance for the reason that mere rejection of special leave petitions by this Court at the motion stage would not be considered to be an approval of the view expressed by the High Court of Andhra Pradesh. That apart, para 7 of the judgment in Telangana Steel Industries and Others case(supra) has been noticed by the High Court in Media Communications(supra) and arrived to the conclusion that Telangana Steel Industries and Others(supra) lent support to the reasoning of the High Court.So far as the submissions made by the learned counsel for the appellant on merits in reference to the five impugned notices of provisional assessment served under Section 28(6) is concerned, whether the assessee was eligible under Rule 6(4)(m) (i) is a question of fact which has to be determined in the assessment proceedings and since the provisional assessment has not been finalised due to pendency of the instant proceedings, it may not be advisable for this Court to dilate on the subject issue of the notices served upon the appellant at this stage and leave it open to the appellant to address before the assessing authority in the pending appropriate assessment proceedings, if so advised.
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R.G Anand Vs. M/S. Delux Films & Ors | costs in this Court only. JASWANT SING H, J.- 26. Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in, a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the course of the judgment prepared by him, we proceeded at the re- quest of the counsel to hear the script of the play "Hum Hindustani which WAS re ad out to us by the plaintiff himself in a dramatic style and to see the film "New Delhi" produced by defendants 1 and 2, the exhibition of which was arranged by the defendants themselves. On a careful comparison of the script of the plaintiffs copyrighted play with the aforesaid film, although one does not fail to discern a few resemblances and similarities between the play and the film, the said resemblances are not material or substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the plaintiffs copyrighted work. In fact, a large majority of material incidents, episodes and situations portrayed by defendants I and 2 in their aforesaid film are substantially different from the plaintiffs protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiffs play. As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breach on the part of the defendants of the plaintiffs copyright and concur with the judgment proposed to be delivered by him.ATHAK, J.-It appears from a comparison of the script of the stage play "Hum Hindustani" and the script of the film "New Delhi" that the authors of the film script have been influenced to a degree by the salient features of the plot set forth in the play script. There can be. little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by the film travels beyond the plot delineated in the play In the play, the theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial community. The plot then extends to the evils of the dowry system, which is a theme independent of provincial parochialism. There are still other themes embraced within the plot of the film. Nonetheless, the question can arise whether there is an infringement of copyright even though the essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fell for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basic of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in the present case had been open in this court, I am not sure that I would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial Court as well as the High Court have concurred in the finding that such similarities as exist between the stage play "Hum Hindustani" and the film "New Delhi" do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not possible to say that the appellants copyright has been infringed. This Court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. 27. | 0[ds]To begin with there is no decided case of this Court on this point. Secondly, at the time when the cause of action arose Parliament had not made any law governing copy-right violations and the courts in the absence of any law by our Parliament relied on the old law passed by the British Parliament, namely, the Copy Right Act of 1911. Section 1 sub- section (2) (d) defines copy-right thus:"(2) For the purposes of this Act, copy-right means the sole right to produce or reproduce the work or any substantial Part thereof in any material form whatsoever to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public. If the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right,(d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means or which the work may be mechanically performed or delivered"Section 2 provides the contingencies where a copy-right could be infringed and runs thus:-"2(1) Copyright in a work shall be deemed to be in fringed by any person who, without the consent of the owner or the copyright , does anything the sole right to do which is by this Act conferred on the owner of the copy right"It is, therefore, clear that the Act of 1911 defines copyright and also indicates the various contingencies where copy-right can not be in fringed. The statute also provides exceptions which would not amount to violation of copyrightThus, the position appears to be that an idea, principle, them e, or subject matter or historical or legendary facts being common property cannot be the subject matter of copyright of a particular person. It is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both are the single but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek-Roman and British mythology or legendary stories like Mer chant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance. elegance and erudition and so novel in character as a result of which the end product be comes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great play-wright. In fact, thoughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of the dramas constitutes a master-piece of English literature. It has been rightly said that "every drama of Shakespeare is an extended metaphor". Thus, the fundamental fact which has to be determined where a charge o f violation of the copyright is made by the. plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and y there. Indeed, if on a perusal of the copyrighted work the defendants work appears to be a transparent rephrasing; or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as t o infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be provedWe would now endeavour to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the dependant by the plaintiff. The learned trial Judge who had also had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different from the play written by the plaintiff. In order to test t he correctness of the finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also seen the film which was screened at C.P.W.D. Auditorium, Mahadev Road, New Delhi. This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the partiesTo begin with, we would like to give a summary of the play Hum Hindustani which is supposed to have been plagiarized by the defendants. The script of the play Ex. P.1 has been placed before us and we have gone through the same.The main theme of the play is provincialism and the prejudice of persons belonging to one State against persons belonging to other States. In the play however the author chooses two families, viz., a Punjabi family and a Madrasi family to show what havoc can be caused by provincial parochialism possessed by the two families. The Punjabi family and the Madrasi family were living as close neighbours having good and cordial relations and are on visiting terms with each other. The Punjabi consists of Dewan Chand, contractor, his wife Krishna, their grown up daughter Chander and son Tinnu aged about 8 or 10 years. The Madrasi family however consists of Subramaniam, Government officials, his wife Minakshi and grown up son Amni and daughter Pitto who is aged about 8 or 10 years. As a result or the close association between the two families it appears that Amni the son of Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi family. When the parents are out Amni and Chander meet and talk. Unfortunately, however, the parents of both Amni and Chander arc extremely adverse to the matrimonial union of Amni and Chander because the two families belong to two different provinces. When they get some scent of the love affair between Amni and Chander the parents of Chander make a serious attempt to find a suitable match for her amongst their own caste namely Punjabis. Similarly, the parents of Amni also try to arrange a match for him amongst Madrasis. For this purpose, the services of a marriage broker named Dhanwantri are enlisted by both the parties without knowing that Dhanwantri was trying to negotiate marriages for both the couples. Later on, when this fact is discovered the relations of the two families become s trained. Amni and Chander also persuade Dhanwantri to assist there in bringing about their marriage by persuading their parents to agree. This gives a chance to Dhanwantri to make a lot of money out of the two couples. Dewan Chand and his wife Krishna in sheer desperation hurriedly arranged the marriage of their daughter Chander to Bansi, a simpleton, son of Murari Lal who is a friend of Dewan Chand. In fact, Dewan Chand is not very impressed with Bansi but in view of the critical situation arising out of the love affair between his daughter and Amni he prefers Bansi to the Madrasi boy. When Chander and Amni come to know of this Chander asked Amni to speak to his parents in a free and frank manner and express his strong desire to marry Chander. Amni who appears to be a cowardly fellow prefers to commit suicide rather than dare to talk out this matter with his parents. Realising that no hope is left for Chander and Amni to go through the marriage ceremony both of them entered into a suicidal pact and wrote letters to their parents indicating their intention to commit suicide because they were not prepared to marry anybody else. Dhanwantri, however, intervenes and persuades Chander and Amni not to commit suicide as according to him they were not destined to die unless they had been actually married. Meanwhile, the parents of Amni and Chander on getting the suicide note mourn the loss of their children and it now dawns upon them that they had committed the saddest mistake of their life in refusing to marry the couple and repent for their act. Just at that time Amni and Chander appear on the scene after having been married to each other. The marriage was performed by Dhanwantri him self. Thus ends the story with the realisation by both the families that provincialism helps nobody. This in short is the story of the play written by the appellant.We might mention that before the play starts the author show some voices reciting various persons proclaiming that they come from different States like the slogan that they belong to a particular state rather than that they belong to IndiaAnalysing therefore the essential features of the play the position is as follows:-1. That the central idea of the play is based on provincialism and parochialism2. The evils of provincialism are illustrated by the cordial relations of the two families being married because of an apprehended marriage tie which according to both the families was not possible where they belonged to different States3. That the Madrasi boy Amni is a coward and in spite of his profound love for Chander he doe s not muster sufficient courage to talk the matter out with his parents4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention5. It was only after the letters are perused by the parents that they realise the horror of parochialism and arc repentant for having acted so foolishly6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends wellAs the play was read to us by the appellant we find that it was very exquisitely presented and the plot was developed with great skill. It must be noted however that the author in writing out the play has concentration only on one aspect of provincialism namely whether the re can be a marriage between the persons belonging to one State with those belonging to other States. This is the only aspect of provincialism which has been stressed in the play. The play does not touch any other aspect nor does it contain anything to throw light on the evils of society or that of dowry etc. We have mentioned these acts particularly because the film revolves around not only the aspect of marriage but other aspects also which are given the same importance as the problem of marriage.We shall now give the summary of the film. The script of which is Ex. D-2. The film starts showing Anand a young graduate from Punjab who comes to New Delhi for a course in Radio Engineering. At the Railway Station Anand meets a Madrasi girl Janaki and due to some misunderstanding an altercation between the two takes place, as a result of which Janaki feels that Anand was trying to tease her. Thereafter Anand comes and stays in a Sarai opposite the Railway Station , but he is allowed to stay there only for three days after which he was expected to find accommodation elsewhere. Thereafter Anand runs from house to house trying to get some accommodation but is sadly disappointed because wherever he goes he finds t hat in every case the landlord is not prepared to give the house to any person who does not belong to his province. We might mention here that this is one of the very important aspect of provincialism which pervades through the entire film, vi z., that so parochial are the landlords that they were not even prepared to let out their houses or rooms to any person coming from outside their State. This particular aspect is completely absent from the story revealed in the play written by the appellant. One Kumaraswamya South Indian attendant at the Sarai comes to the rescue of Anand and suggests to him that he should attire as a South Indian and then go to any South Indian landlord to get the house. Thereafter Anand disguised as a South Indian approaches one Iyer for giving him accommodation and Iyer is only too glad to accommodate Anand on the ground that Anand is also a South Indian. Anand then meets Subramaniam father of Janaki the girl with whom he had all altercation at the station. The film then proceeds involving several sequences of the meeting between Anand and Janaki, Murli Dhar the Principal of a Dancing School takes Anand is his student and there he is introduced to Janaki who is a Professor of Dance and Music in that Institute. Janaki then discovers that Anand is a good singer and is slowly and gradually attracted towards him. Janaki invited him to her house for the celebration of Pongal festival and Anand goes there as usual attired as South Indian to witness the dance performance of Janaki. He also comes to know that Janakis father Subramaniam does not hold any good opinion about the Punjabis. Thereafter Anand leaves the place after making an appointment with Janaki to meet near Rashtrapati Bhawan the following day. When Anand returns to his house he comes to know that his father Daulat Ram had been transferred to New Delhi and was expected at any moment. Daulat Ram was posted as Manager in the same commercial company in which Subramaniam was employed ill a subordinate position. Anand receives his parents and his grown up sister Nikki at the railway station and takes them to his house. He also brings Kumaraswamy, the attendant, at the Sarai to his own house as a cook. Thereafter Anand goes out on the pretext of taking his sister Nikki around the city. When they reach the Red Fort he meets Ashok Banerjee, a young Bengali painter whom he had met earlier in connection with the search for accommodation of the house but was refused accommodation because Anand did not happen to be a Bengali. Ashok Banerjee is impressed by Nikki and requests her to allow him to make Nikkis portrait. Leaving his sister there Anand meets Janaki and both of t hem come to the Red Fort. When Anand and Janaki meet Nikki and Ashok, Anannd in order to conceal his real identity tells Janaki that Nikki is the daughter of his fathers friend, which naturally angers Nikki hut later Anand apologies to her and explains that he did not want Janaki or her father lo know that he was not a Madrasi and thus upset the love affair between Anand and Janaki. Subramaniam, father of Janaki takes a fancy for Anand and asks Janaki to invite Anands father to the house so that he could negotiate Janakis marriage with Anand. This puts Anand in a most awkward position In order to save the situation Anand hits upon an idea by introducing his cook Kumaraswamy to Subramaniam as his father. Just at that time Daulat Ram happens to pass through Subramaniams house and is called in by Subramaniam, but the situation is saved by Kumaraswamy feigning illness as a result of which he is taken to a room where he hides his face in a blanket. Anand leaves the house and returns with a false beard posing as a doctor. Similarly, Ashok and Nikki get attached to each other and Ashok receives a telegram from his father summoning him to Calcutta. Before he leaves Ashok frankly declares his love to Nikki and gets her consent to marry him. The love affair of Nikki however is not in the knowledge of her parents. Murli Dhar, Principal of the Institution of Dance and Music arranges a performance in which the principal role is played by Anand and Janaki. Up to this time neither Janaki nor her father Subramaniam had ever known the real identity of Anand but both of them had taken him to be a South Indian. We might like to add that here the picture makes a complete departure from the story contained in the play where both the parents of the couple knew the identity of each other. Before the performance starts Anand tries to disclose his identity to Janaki but is unable to do so because Janaki is in a hurry. The performance is applauded by The audience which includes Subramaniam, Daulat Ram and Kumaraswamy. In the theater hall where the performance is staged Kumaraswamy is given a prominent place as he is taken to be the father of Anand. Daulat Ram resents this fact because Kumaraswamy was his servant. After the performance Murli Dhar introduces Subramaniam Janakis father to the audience. Murli Dhar then calls Kumaraswamy and introduces him to the audience as the father of Anand. This infuriates Daulat Ram who comes to the stage and gives a thrashing to Kumarswamy. It is at this stage that the entire truth is revealed and both Subramaniam and Janaki come to know that Anand was not a South Indian hut a Punjabi and his father was Daulat Ram. Daulat Ram also does not like the relations of his son with Janaki because he thinks that if the son marries outside the caste that will create difficulties for the marriage of his daughter Nikki Subramaniam then starts negotiation for Janakis marriage with a South Indian boy. Anand goes to Janaki and asks her to delay the negotiations for about a month or two till Nikkis marriage is over after which he would marry Janaki.Janaki feels completely let down and when she goes home she is given a serious rebuke by her father. In utter frustration Janaki decides to commit suicide and leaves suicide note. She proceeds to Jamuna river. Before she is able to jump into the river she is saved by Sadhu Ram, a Punjabi Ghee Merchant, and a friend of Subramaniam Sadhu Ram scoffs at the peoples preference for provincialism and their lack of appreciation of intrinsic human values. He takes Janaki to his own house and tells Daulat Ram that she is her niece and on that basis negotiates for the marriage of Janaki with Anand. Daulat Ram accepts the proposal because Janaki appears as a Punjabi girl on receiving the suicide note Subramaniam feels extremely sorry and realises his mistake. In the meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very intimate terms with Nikki Daulat Ram gets furious and turns out Ashok from his house. Thereafter Daulat Ram arranges the marriage of his daughter Nikki with the son of one Girdhari Lal. After the marriage party comes to the house of Daulat Ram, Girdhari Lal insists upon Rs. 15, 000 as dowry from Daulat Ram. Daulat Ram does not have such a large sum of money and implores Girdhari Lal not to insist and to save his honour but Girdhari Lal is adamant. Daulat Ram tries to enlist the support of his caste men but no one is prepared to oblige him. At this juncture Ashok Banerjee appears on the scene and offers his mothers jewellery to Daulat Ram to be given in dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram. This act of Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram, who stops Nikkis marriage with Girdhari Lals son and turns them out along with the men of his brotherhood. Daulat Ram declares his happiness that he has found a bigger brotherhood, namely, the Indian brotherhood and asks Ashok to marry Nikki at the same marriage Pandal. At that time Sadhu Ram requests Daulat Ram that Mohini who is none other than Janaki should also be married to Anand. Sadhu Ram discloses the true identity of Janaki and then Daulat Ram realises his short- sightendness and welcomes the idea of the marriage of Anand with Janaki. Subramaniam who is present there feels extremely happy and blesses the proposed marriage. Ashok and Nikki as also Anand and Janaki are then married and thus the film ends.Analysing the story of the film it would appear that it protrays three main themes: (1) Two aspects of provincialism viz. the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiff/appellant. A close perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the story and it is very difficult to divorce one from the other with out affecting the beauty and the continuity of the script of the film. Further, it would appear that the treatment of the story of the fills in many respects different from the story contained in the playIn the course of the argument also our attention was Drawn to a comparative compilation of the similarities in the film and the play. The learned trial Judge after considering the similarities was of the opinion that the similarities are on trivial points and do not have the effect of making the film a substantial and material imitation of the play. Moreover apart from the fact that the similarities and coincidences mentioned above are rather insignificant as pointed out by the trial Judge and the High Court, in our opinion, they are clearly explainable by and referable to the central idea, namely, evils of provincialism and parochialism which is common to both the play and the film. Nothing therefore turns upon the similarities categorised by the plaintiff (in para 9 of the plaint), in the peculiar Facts and circumstances of this caseAfter having gone through the script of the play and the film we are inclined to agree with the opinion of the Courts below. We have already pointed out that mere similarities by themselves are not sufficient to raise in inference of colourable imitation on the other hand, there are quite a number of dissimilarities also, for(ii) Similarly, in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance performance of Janaki and Anand is staged that the identity of the two ( families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play(iii)In the film there is no suicidal pact between the lovers but only a suicide note is left by Janaki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effectFurthermore, while in the play Amni and Chander get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janaki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janakis real identity is disclosed and Subramaniam also finds out that his daughter is alive(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families, but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat) The film depicts the evil of caste ridden society and exposes the hollowness of such a society when, in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play(vi) The film depicts another. important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial parts of the storyThe effect of the dissimilarities pointed out above clearly go to show that they tar outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play, is hardly of any significance because the name of a particular person cannot be the subject matter of copyright because these are common namesAfter careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiffThis is undoubtedly so because defendant No. 2 admits in his evidence that he had come to Delhi and the entire play was narrated to him by the plaintiff. There is however a serious controversy on the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged. The plaintiff, however, seems to suggest that defendant No. 2 was undoubtedly Attracted by the play and it was on the basis of this play that he decided to make the film. However, there is no reliable evidence to show that defendant No. 2 at any time expressed his intention to film the play written by the plaintiff. There can be no doubt that defendant No. 2 was aware of the story contained in the play and a part of the film was undoubtedly 6 to some extent inspired by the play written by the plaintiff. But the definite case of defendant No. 2 also is that he was in search of story based on provincialism and the play written by the plaintiff may have provided the opportunity for defendant No. 2 to produce his film though with a different story, different theme, different characterisation and different climaxes.Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to b e a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject matter of copyright. Thus, the present case does not fulfill the conditions laid down for holding that the defendants have made a colourable imitation of the playOn a close and careful comparison of the play and the picture but for the central idea (provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti- climax. pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the playApart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct.The result is that the appeal fails and is accordingly dismissed. But in the circumstances there will be no order as to costs in this Court only. | 0 | 17,538 | 5,834 | ### Instruction:
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costs in this Court only. JASWANT SING H, J.- 26. Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in, a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the course of the judgment prepared by him, we proceeded at the re- quest of the counsel to hear the script of the play "Hum Hindustani which WAS re ad out to us by the plaintiff himself in a dramatic style and to see the film "New Delhi" produced by defendants 1 and 2, the exhibition of which was arranged by the defendants themselves. On a careful comparison of the script of the plaintiffs copyrighted play with the aforesaid film, although one does not fail to discern a few resemblances and similarities between the play and the film, the said resemblances are not material or substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the plaintiffs copyrighted work. In fact, a large majority of material incidents, episodes and situations portrayed by defendants I and 2 in their aforesaid film are substantially different from the plaintiffs protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiffs play. As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breach on the part of the defendants of the plaintiffs copyright and concur with the judgment proposed to be delivered by him.ATHAK, J.-It appears from a comparison of the script of the stage play "Hum Hindustani" and the script of the film "New Delhi" that the authors of the film script have been influenced to a degree by the salient features of the plot set forth in the play script. There can be. little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by the film travels beyond the plot delineated in the play In the play, the theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial community. The plot then extends to the evils of the dowry system, which is a theme independent of provincial parochialism. There are still other themes embraced within the plot of the film. Nonetheless, the question can arise whether there is an infringement of copyright even though the essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fell for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basic of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in the present case had been open in this court, I am not sure that I would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial Court as well as the High Court have concurred in the finding that such similarities as exist between the stage play "Hum Hindustani" and the film "New Delhi" do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not possible to say that the appellants copyright has been infringed. This Court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. 27.
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allow Janaki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janakis real identity is disclosed and Subramaniam also finds out that his daughter is alive(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families, but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat) The film depicts the evil of caste ridden society and exposes the hollowness of such a society when, in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play(vi) The film depicts another. important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial parts of the storyThe effect of the dissimilarities pointed out above clearly go to show that they tar outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play, is hardly of any significance because the name of a particular person cannot be the subject matter of copyright because these are common namesAfter careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiffThis is undoubtedly so because defendant No. 2 admits in his evidence that he had come to Delhi and the entire play was narrated to him by the plaintiff. There is however a serious controversy on the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged. The plaintiff, however, seems to suggest that defendant No. 2 was undoubtedly Attracted by the play and it was on the basis of this play that he decided to make the film. However, there is no reliable evidence to show that defendant No. 2 at any time expressed his intention to film the play written by the plaintiff. There can be no doubt that defendant No. 2 was aware of the story contained in the play and a part of the film was undoubtedly 6 to some extent inspired by the play written by the plaintiff. But the definite case of defendant No. 2 also is that he was in search of story based on provincialism and the play written by the plaintiff may have provided the opportunity for defendant No. 2 to produce his film though with a different story, different theme, different characterisation and different climaxes.Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to b e a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject matter of copyright. Thus, the present case does not fulfill the conditions laid down for holding that the defendants have made a colourable imitation of the playOn a close and careful comparison of the play and the picture but for the central idea (provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti- climax. pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the playApart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct.The result is that the appeal fails and is accordingly dismissed. But in the circumstances there will be no order as to costs in this Court only.
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Karthi @ Karthick Vs. State Rep By Insp.Of Police, Tamil Nadu | Poomari (PW1). In the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) by promising to marry her. On the strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. Therefore, in the facts and circumstances of this case, it is not possible for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused-appellant Karthick with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused. 15. The second contention advanced at the hands of the learned counsel for the appellant was, that the accused-appellant Karthick had not given any promise to the prosecutrix Poomari (PW1), that he would marry her. From all the reasons referred to by us, while dealing with the first contention advanced by learned counsel for the appellant, it is not possible for us to accept the instant contention as well. However, in addition to the factual position referred to while dealing with the first contention, there is something further that needs to be recorded. It is necessary to notice, that in the first instance when the prosecutrix Poomari (PW1) disclosed the matter of deception and sexual intercourse to her family, the matter was taken to the village elders. Four village elders have appeared before the Trial Court and recorded their statements. Each one of them affirmed, that they had required the accused-appellant Karthick to agree to marry the prosecutrix Poomari (PW1) on account of his physical relationship with her. Only on denial to accede to their request, on their suggestion, the matter was reported to the police. The instant aspect of the matter fully demolishes the projection made by the accused-appellant Karthick, while recording of his statement under Section 313 of the Code of Criminal Procedure. During his aforesaid statement, he had expressly alleged, that it was for the purpose of forcing the accused-appellant to shell out an exorbitant sum of money to the prosecutrix Poomari (PW1) and her family members, that the instant accusation had been levelled against him. Actually from the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), it clearly emerges that the intention of the prosecutrix Poomari (PW1) and her brother Manikannan (PW2), as also her father, Muthukaruppa Thevar (PW4) was, that he should marry her. The desire of the family, that the accused-appellant should marry the prosecutrix was based on the undisputed factual position, that Karthick had had sexual intercourse with Poomari repeatedly. No such suggestion was shown to have been made to the concerned prosecution witnesses. This was only an afterthought. It is, therefore, not possible for us to accept the plea canvassed at the hands of the learned counsel for the appellant, that the accused appellant had not made any promise to the prosecutrix Poomari (PW1), that he would marry her. 16. The last contention advanced at the hands of the learned counsel for the appellant was, that the first occurrence of sexual intercourse commenced six months prior to the date when the complaint was made to the Police (on 10.10.2003). It was, therefore, the contention of the learned counsel for the appellant, that same should be treated as an afterthought. It was pointed out, that the registration of a case by the prosecutrix Poomari (PW1) was no more than a scheme to falsely accuse and harm the accused-appellant. It was submitted, that even a day’s delay in registering a complaint has vital repercussions. It was also pointed out, that delay in the instant case, had obvitated any positive finding on the basis of a medical examination of the prosecutrix Poomari (PW1). It is, therefore, the vehement contention of the learned counsel for the appellant, that delay in registering the complaint with the police in the facts and circumstances of this case, should be accepted as sufficient to infuse a sense of doubt in the prosecution story. 17. Having examined the contention advanced at the hands of the learned counsel for the appellant, we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. 18. No other submission, besides those noticed hereinabove, was advanced at the hands of the learned counsel for the appellant. | 0[ds]we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. | 0 | 4,513 | 328 | ### Instruction:
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Poomari (PW1). In the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) by promising to marry her. On the strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. Therefore, in the facts and circumstances of this case, it is not possible for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused-appellant Karthick with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused. 15. The second contention advanced at the hands of the learned counsel for the appellant was, that the accused-appellant Karthick had not given any promise to the prosecutrix Poomari (PW1), that he would marry her. From all the reasons referred to by us, while dealing with the first contention advanced by learned counsel for the appellant, it is not possible for us to accept the instant contention as well. However, in addition to the factual position referred to while dealing with the first contention, there is something further that needs to be recorded. It is necessary to notice, that in the first instance when the prosecutrix Poomari (PW1) disclosed the matter of deception and sexual intercourse to her family, the matter was taken to the village elders. Four village elders have appeared before the Trial Court and recorded their statements. Each one of them affirmed, that they had required the accused-appellant Karthick to agree to marry the prosecutrix Poomari (PW1) on account of his physical relationship with her. Only on denial to accede to their request, on their suggestion, the matter was reported to the police. The instant aspect of the matter fully demolishes the projection made by the accused-appellant Karthick, while recording of his statement under Section 313 of the Code of Criminal Procedure. During his aforesaid statement, he had expressly alleged, that it was for the purpose of forcing the accused-appellant to shell out an exorbitant sum of money to the prosecutrix Poomari (PW1) and her family members, that the instant accusation had been levelled against him. Actually from the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), it clearly emerges that the intention of the prosecutrix Poomari (PW1) and her brother Manikannan (PW2), as also her father, Muthukaruppa Thevar (PW4) was, that he should marry her. The desire of the family, that the accused-appellant should marry the prosecutrix was based on the undisputed factual position, that Karthick had had sexual intercourse with Poomari repeatedly. No such suggestion was shown to have been made to the concerned prosecution witnesses. This was only an afterthought. It is, therefore, not possible for us to accept the plea canvassed at the hands of the learned counsel for the appellant, that the accused appellant had not made any promise to the prosecutrix Poomari (PW1), that he would marry her. 16. The last contention advanced at the hands of the learned counsel for the appellant was, that the first occurrence of sexual intercourse commenced six months prior to the date when the complaint was made to the Police (on 10.10.2003). It was, therefore, the contention of the learned counsel for the appellant, that same should be treated as an afterthought. It was pointed out, that the registration of a case by the prosecutrix Poomari (PW1) was no more than a scheme to falsely accuse and harm the accused-appellant. It was submitted, that even a day’s delay in registering a complaint has vital repercussions. It was also pointed out, that delay in the instant case, had obvitated any positive finding on the basis of a medical examination of the prosecutrix Poomari (PW1). It is, therefore, the vehement contention of the learned counsel for the appellant, that delay in registering the complaint with the police in the facts and circumstances of this case, should be accepted as sufficient to infuse a sense of doubt in the prosecution story. 17. Having examined the contention advanced at the hands of the learned counsel for the appellant, we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. 18. No other submission, besides those noticed hereinabove, was advanced at the hands of the learned counsel for the appellant.
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we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report.
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Indrasen Jain Vs. Rameshwardas | make all retired teachers of private schools Government servants. Therefore, in our view the respondent has failed to establish that he is a retired Government servant falling within the definition of landlord contained in Section 23J of the Act.8. The High Court failed to notice the statement of the respondent referred to above. Further the High Court proceeded on the assumption that the tenant had not contested the point and that no such plea was taken by him in his written statement. Both the assumptions were incorrect. The approach of the High Court appears to be totally contrary to record. The Rent Control Authority held that the respondent does not fall within the definition of landlord contained in section 23J of the Act. The Authority noted the admission of the respondent-landlord that teachers working in non-governmental institutions were also getting pension. It was on this account that the Authority felt that Ex.P1. the pension-slip was not sufficient to prove that the respondent was a Government servant. The teachers working in non-governmental educational institutions are not Government servants. The Authority further noted that the best proof of the fact that he is a retired Government servant would have been his appointment order or the deputation order. The judgment of the High Court erroneously records that the tenant had not seriously contested that the landlord was a retired Government servant. The High Court judgment is based on a wrong hypothesis that no such plea was taken in the written statement by the tenant. At two places i.e. paras 16 and 25 of the written statement, the tenant has denied that the landlord was a retired Government servant. This renders the finding of the High Court in this behalf as perverse.9. According to the High Court asking for the appointment order or the deputation order or the retirement order by the Rent Control Authority was arbitrary and extravagant". The High Court called the approach of the Authority in this behalf perverse. In our view, record shows that there is perversity in the approach of the High Court. The High Court observations are wholly uncalled for. The Rent Control Authority rightly observed about the need for production of appointment order or deputation order to prove the point. The High Courts finding is contrary to the record as well as contrary to law and as such cannot be sustained. We hold that the respondent landlord has failed to establish that he is a retired Government servant. Consequently, he does not fall within the meaning of landlord given in Section 23J of the Act. Therefore, he could not maintain a petition under Section 23A(b) of the Act. The eviction petition filed by respondent is liable to be dismissed on this ground alone.10. Even on the question of bonafide requirement of the suit premises, the respondent in our view has no case. In this connection, first aspect worth noting is that the respondent retired from service on 30th November, 1994. He purchased the suit property on 7th December, 1999. More than one year after the alleged purchase of the suit property, he issued a notice of eviction on 1st February, 2001 and ultimately filed an eviction petition on the ground of personal requirement for doing business in the shop on 24th May, 2001. If at all the respondent for purposes of keeping himself occupied or by way of supplementing his income after his retirement, needed to do a business, he would have felt such a need soon after his retirement in the year 1994. The suit property was purchased on 7th December, 1999, i.e. about five years after retirement. Even after 1999, if the respondent thought of starting some business of his own and purchased a shop for that purpose, he would have purchased a vacant shop rather than going in for a tenanted premises. This shows that even in 1999 he had no intention or desire to start a business. Then even after purchase of the property he waited for more than a year and issued a notice in February, 2001 and instituted eviction petition in the end of May, 2001, that is nearly 1½ years after the purchase of the property. This entire sequence of events does not show any bonafides on the part of the respondent in setting up a case of bonafide requirement of suit premises. There is nothing to show how suddenly a need for doing business arose for the respondent in the year 2001. The Rent Control Authority in view of these facts doubted the bonafides of the respondent-landlord regarding requirement of the suit property for doing the business therein. The entire discussion in the judgment of the Authority on the question of bonafide need seems to suggest that the Authority was not satisfied with the case of landlord regarding bonafide need. However, in the concluding line on this issue the Authority observed that the applicant bonafide needs the suit shop for starting the business of books and stationery.". This conclusion of the Authority does not fit in with the discussion or reasoning on the point contained in the judgment of the Authority. The Authority noted several reasons which showed that there was no bonafide requirement of respondent. The High Court simply endorsed the conclusion of the Authority on the point without going into the question on its own. In our view, the respondent has not been able to make out a case for bonafide need of the suit premises. His claim for the suit premises is malafide.11. We have expressed our view on the issue of bonafide requirement since the learned counsel for the parties had spent considerable time over it. In view of our decision on the first issue about the respondent not being a retired Government servant and therefore not entitled to file a petition for eviction under Chapter IIIA of the Act, the eviction petition is not maintainable and is liable to be dismissed on this ground alone. There is no need to discuss the other issues. | 0[ds]4. The eviction petition was contested by the appellant on various grounds. Relationship of landlord and tenant between the parties was denied. It was also denied that the respondent was owner of the suit premises. According to the appellant, the transaction of sale was a sham and fictitious transaction. There was no proof of payment of sale consideration. The person from whom the property was allegedly purchased by respondent was his relation and the purpose of the transaction was to save the property from the creditors of the previous owner. The tenant also denied the alleged bonafide need of the respondent with respect to the suit premises. It was denied that the respondent was a retired Government servant. Further a plea was raised that the tenanted premises comprised a shop of the size of 20.8 feet X 10.5 feet and a smallof the size of 6 feet X 8 feet. The sale deed relied upon by the respondent to establish ownership of the suit property showed that the respondent had purchased only the shop of the size 20.8 feet X 10.5 feet and not theTherefore, the respondent could not seek eviction of the tenant from a part of the demised premises. This amounted to splitting up the tenanted premises which was not permissible under therespondent failed to produce either of them. The pension slip Ex. P1 is not sufficient to hold that respondent is a retired Government servant, particularly in view of respondents admission in his cross examination that teachers of private government aided schools receive pension after retirement. Mere receipt of pension does not make all retired teachers of private schools Government servants. Therefore, in our view the respondent has failed to establish that he is a retired Government servant falling within the definition of landlord contained in Section 23J of the Act.8. The High Court failed to notice the statement of the respondent referred to above. Further the High Court proceeded on the assumption that the tenant had not contested the point and that no such plea was taken by him in his written statement. Both the assumptions were incorrect. The approach of the High Court appears to be totally contrary to record. The Rent Control Authority held that the respondent does not fall within the definition of landlord contained in section 23J of the Act. The Authority noted the admission of thethat teachers working ininstitutions were also getting pension. It was on this account that the Authority felt that Ex.P1. thewas not sufficient to prove that the respondent was a Government servant. The teachers working ineducational institutions are not Government servants. The Authority further noted that the best proof of the fact that he is a retired Government servant would have been his appointment order or the deputation order. The judgment of the High Court erroneously records that the tenant had not seriously contested that the landlord was a retired Government servant. The High Court judgment is based on a wrong hypothesis that no such plea was taken in the written statement by the tenant. At two places i.e. paras 16 and 25 of the written statement, the tenant has denied that the landlord was a retired Government servant. This renders the finding of the High Court in this behalf as perverse.9. According to the High Court asking for the appointment order or the deputation order or the retirement order by the Rent Control Authority was arbitrary and extravagant". The High Court called the approach of the Authority in this behalf perverse. In our view, record shows that there is perversity in the approach of the High Court. The High Court observations are wholly uncalled for. The Rent Control Authority rightly observed about the need for production of appointment order or deputation order to prove the point. The High Courts finding is contrary to the record as well as contrary to law and as such cannot be sustained. We hold that the respondent landlord has failed to establish that he is a retired Government servant. Consequently, he does not fall within the meaning of landlord given in Section 23J of the Act. Therefore, he could not maintain a petition under Section 23A(b) of the Act. The eviction petition filed by respondent is liable to be dismissed on this ground alone.10. Even on the question of bonafide requirement of the suit premises, the respondent in our view has no case. In this connection, first aspect worth noting is that the respondent retired from service on 30th November, 1994. He purchased the suit property on 7th December, 1999. More than one year after the alleged purchase of the suit property, he issued a notice of eviction on 1st February, 2001 and ultimately filed an eviction petition on the ground of personal requirement for doing business in the shop on 24th May, 2001. If at all the respondent for purposes of keeping himself occupied or by way of supplementing his income after his retirement, needed to do a business, he would have felt such a need soon after his retirement in the year 1994. The suit property was purchased on 7th December, 1999, i.e. about five years after retirement. Even after 1999, if the respondent thought of starting some business of his own and purchased a shop for that purpose, he would have purchased a vacant shop rather than going in for a tenanted premises. This shows that even in 1999 he had no intention or desire to start a business. Then even after purchase of the property he waited for more than a year and issued a notice in February, 2001 and instituted eviction petition in the end of May, 2001, that is nearly 1½ years after the purchase of the property. This entire sequence of events does not show any bonafides on the part of the respondent in setting up a case of bonafide requirement of suit premises. There is nothing to show how suddenly a need for doing business arose for the respondent in the year 2001. The Rent Control Authority in view of these facts doubted the bonafides of theregarding requirement of the suit property for doing the business therein. The entire discussion in the judgment of the Authority on the question of bonafide need seems to suggest that the Authority was not satisfied with the case of landlord regarding bonafide need. However, in the concluding line on this issue the Authority observed that the applicant bonafide needs the suit shop for starting the business of books and stationery.". This conclusion of the Authority does not fit in with the discussion or reasoning on the point contained in the judgment of the Authority. The Authority noted several reasons which showed that there was no bonafide requirement of respondent. The High Court simply endorsed the conclusion of the Authority on the point without going into the question on its own. In our view, the respondent has not been able to make out a case for bonafide need of the suit premises. His claim for the suit premises is malafide.11. We have expressed our view on the issue of bonafide requirement since the learned counsel for the parties had spent considerable time over it. In view of our decision on the first issue about the respondent not being a retired Government servant and therefore not entitled to file a petition for eviction under Chapter IIIA of the Act, the eviction petition is not maintainable and is liable to be dismissed on this ground alone. There is no need to discuss the other issues. | 0 | 3,144 | 1,356 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
make all retired teachers of private schools Government servants. Therefore, in our view the respondent has failed to establish that he is a retired Government servant falling within the definition of landlord contained in Section 23J of the Act.8. The High Court failed to notice the statement of the respondent referred to above. Further the High Court proceeded on the assumption that the tenant had not contested the point and that no such plea was taken by him in his written statement. Both the assumptions were incorrect. The approach of the High Court appears to be totally contrary to record. The Rent Control Authority held that the respondent does not fall within the definition of landlord contained in section 23J of the Act. The Authority noted the admission of the respondent-landlord that teachers working in non-governmental institutions were also getting pension. It was on this account that the Authority felt that Ex.P1. the pension-slip was not sufficient to prove that the respondent was a Government servant. The teachers working in non-governmental educational institutions are not Government servants. The Authority further noted that the best proof of the fact that he is a retired Government servant would have been his appointment order or the deputation order. The judgment of the High Court erroneously records that the tenant had not seriously contested that the landlord was a retired Government servant. The High Court judgment is based on a wrong hypothesis that no such plea was taken in the written statement by the tenant. At two places i.e. paras 16 and 25 of the written statement, the tenant has denied that the landlord was a retired Government servant. This renders the finding of the High Court in this behalf as perverse.9. According to the High Court asking for the appointment order or the deputation order or the retirement order by the Rent Control Authority was arbitrary and extravagant". The High Court called the approach of the Authority in this behalf perverse. In our view, record shows that there is perversity in the approach of the High Court. The High Court observations are wholly uncalled for. The Rent Control Authority rightly observed about the need for production of appointment order or deputation order to prove the point. The High Courts finding is contrary to the record as well as contrary to law and as such cannot be sustained. We hold that the respondent landlord has failed to establish that he is a retired Government servant. Consequently, he does not fall within the meaning of landlord given in Section 23J of the Act. Therefore, he could not maintain a petition under Section 23A(b) of the Act. The eviction petition filed by respondent is liable to be dismissed on this ground alone.10. Even on the question of bonafide requirement of the suit premises, the respondent in our view has no case. In this connection, first aspect worth noting is that the respondent retired from service on 30th November, 1994. He purchased the suit property on 7th December, 1999. More than one year after the alleged purchase of the suit property, he issued a notice of eviction on 1st February, 2001 and ultimately filed an eviction petition on the ground of personal requirement for doing business in the shop on 24th May, 2001. If at all the respondent for purposes of keeping himself occupied or by way of supplementing his income after his retirement, needed to do a business, he would have felt such a need soon after his retirement in the year 1994. The suit property was purchased on 7th December, 1999, i.e. about five years after retirement. Even after 1999, if the respondent thought of starting some business of his own and purchased a shop for that purpose, he would have purchased a vacant shop rather than going in for a tenanted premises. This shows that even in 1999 he had no intention or desire to start a business. Then even after purchase of the property he waited for more than a year and issued a notice in February, 2001 and instituted eviction petition in the end of May, 2001, that is nearly 1½ years after the purchase of the property. This entire sequence of events does not show any bonafides on the part of the respondent in setting up a case of bonafide requirement of suit premises. There is nothing to show how suddenly a need for doing business arose for the respondent in the year 2001. The Rent Control Authority in view of these facts doubted the bonafides of the respondent-landlord regarding requirement of the suit property for doing the business therein. The entire discussion in the judgment of the Authority on the question of bonafide need seems to suggest that the Authority was not satisfied with the case of landlord regarding bonafide need. However, in the concluding line on this issue the Authority observed that the applicant bonafide needs the suit shop for starting the business of books and stationery.". This conclusion of the Authority does not fit in with the discussion or reasoning on the point contained in the judgment of the Authority. The Authority noted several reasons which showed that there was no bonafide requirement of respondent. The High Court simply endorsed the conclusion of the Authority on the point without going into the question on its own. In our view, the respondent has not been able to make out a case for bonafide need of the suit premises. His claim for the suit premises is malafide.11. We have expressed our view on the issue of bonafide requirement since the learned counsel for the parties had spent considerable time over it. In view of our decision on the first issue about the respondent not being a retired Government servant and therefore not entitled to file a petition for eviction under Chapter IIIA of the Act, the eviction petition is not maintainable and is liable to be dismissed on this ground alone. There is no need to discuss the other issues.
### Response:
0
### Explanation:
receive pension after retirement. Mere receipt of pension does not make all retired teachers of private schools Government servants. Therefore, in our view the respondent has failed to establish that he is a retired Government servant falling within the definition of landlord contained in Section 23J of the Act.8. The High Court failed to notice the statement of the respondent referred to above. Further the High Court proceeded on the assumption that the tenant had not contested the point and that no such plea was taken by him in his written statement. Both the assumptions were incorrect. The approach of the High Court appears to be totally contrary to record. The Rent Control Authority held that the respondent does not fall within the definition of landlord contained in section 23J of the Act. The Authority noted the admission of thethat teachers working ininstitutions were also getting pension. It was on this account that the Authority felt that Ex.P1. thewas not sufficient to prove that the respondent was a Government servant. The teachers working ineducational institutions are not Government servants. The Authority further noted that the best proof of the fact that he is a retired Government servant would have been his appointment order or the deputation order. The judgment of the High Court erroneously records that the tenant had not seriously contested that the landlord was a retired Government servant. The High Court judgment is based on a wrong hypothesis that no such plea was taken in the written statement by the tenant. At two places i.e. paras 16 and 25 of the written statement, the tenant has denied that the landlord was a retired Government servant. This renders the finding of the High Court in this behalf as perverse.9. According to the High Court asking for the appointment order or the deputation order or the retirement order by the Rent Control Authority was arbitrary and extravagant". The High Court called the approach of the Authority in this behalf perverse. In our view, record shows that there is perversity in the approach of the High Court. The High Court observations are wholly uncalled for. The Rent Control Authority rightly observed about the need for production of appointment order or deputation order to prove the point. The High Courts finding is contrary to the record as well as contrary to law and as such cannot be sustained. We hold that the respondent landlord has failed to establish that he is a retired Government servant. Consequently, he does not fall within the meaning of landlord given in Section 23J of the Act. Therefore, he could not maintain a petition under Section 23A(b) of the Act. The eviction petition filed by respondent is liable to be dismissed on this ground alone.10. Even on the question of bonafide requirement of the suit premises, the respondent in our view has no case. In this connection, first aspect worth noting is that the respondent retired from service on 30th November, 1994. He purchased the suit property on 7th December, 1999. More than one year after the alleged purchase of the suit property, he issued a notice of eviction on 1st February, 2001 and ultimately filed an eviction petition on the ground of personal requirement for doing business in the shop on 24th May, 2001. If at all the respondent for purposes of keeping himself occupied or by way of supplementing his income after his retirement, needed to do a business, he would have felt such a need soon after his retirement in the year 1994. The suit property was purchased on 7th December, 1999, i.e. about five years after retirement. Even after 1999, if the respondent thought of starting some business of his own and purchased a shop for that purpose, he would have purchased a vacant shop rather than going in for a tenanted premises. This shows that even in 1999 he had no intention or desire to start a business. Then even after purchase of the property he waited for more than a year and issued a notice in February, 2001 and instituted eviction petition in the end of May, 2001, that is nearly 1½ years after the purchase of the property. This entire sequence of events does not show any bonafides on the part of the respondent in setting up a case of bonafide requirement of suit premises. There is nothing to show how suddenly a need for doing business arose for the respondent in the year 2001. The Rent Control Authority in view of these facts doubted the bonafides of theregarding requirement of the suit property for doing the business therein. The entire discussion in the judgment of the Authority on the question of bonafide need seems to suggest that the Authority was not satisfied with the case of landlord regarding bonafide need. However, in the concluding line on this issue the Authority observed that the applicant bonafide needs the suit shop for starting the business of books and stationery.". This conclusion of the Authority does not fit in with the discussion or reasoning on the point contained in the judgment of the Authority. The Authority noted several reasons which showed that there was no bonafide requirement of respondent. The High Court simply endorsed the conclusion of the Authority on the point without going into the question on its own. In our view, the respondent has not been able to make out a case for bonafide need of the suit premises. His claim for the suit premises is malafide.11. We have expressed our view on the issue of bonafide requirement since the learned counsel for the parties had spent considerable time over it. In view of our decision on the first issue about the respondent not being a retired Government servant and therefore not entitled to file a petition for eviction under Chapter IIIA of the Act, the eviction petition is not maintainable and is liable to be dismissed on this ground alone. There is no need to discuss the other issues.
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Abdul Rahiman Khan Vs. Sadasiva Tripathi | Engineer. 8. In February 1966 the appellant requested cancellation of the contract. The Executive Engineer was willing to accept the offer of cancellation and made an endorsement in that behalf, but nothing was done thereafter. Harihar Bisoi was apparently asked to take up the work "at the current schedule of rates", but even thereafter the contract with the appellant was not treated as cancelled. 9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact, that the Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement. 10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution. In Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) Bose J., in dealing with a case of disqualification under the Representation of the People Act 1951, resulting from a contract with the State which is not executed in the form and manner prescribed by Art. 299, observed:"It, may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. * * * * * We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been sued on them by reason of Article 299 (1)." Undoubtedly for breach of the terms of a contract not executed in the manner prescribed by Article 299 (1) a suit for relief in a civil court will not lie, but on that account it cannot be said that a contract for execution of works undertaken by a person though not executed in manner prescribed by Article 299, but which is treated by both the parties thereto as binding will not operate as a disqualification. In a recent judgment of this Court in Laliteshwar Prasad Sahi v. Bateshwar Prasad, (1966) 2 SCR 63 = (AIR 1966 SC 580 ), this Court held that where an agreement for execution of work had been entered into between the State Government and a private person by correspondence and the State Government has ratified the agreement and has treated the relation between the parties as contractual and has accepted liability arising under the terms of the agreement as if it were a pending contract, a disqualification under the relevant provisions of the Representation of the People Act results. 11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned. 12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature. | 0[ds]9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact, that the Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature. | 0 | 3,066 | 657 | ### 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:
Engineer. 8. In February 1966 the appellant requested cancellation of the contract. The Executive Engineer was willing to accept the offer of cancellation and made an endorsement in that behalf, but nothing was done thereafter. Harihar Bisoi was apparently asked to take up the work "at the current schedule of rates", but even thereafter the contract with the appellant was not treated as cancelled. 9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact, that the Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement. 10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution. In Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 SCR 817 = (AIR 1954 SC 236 ) Bose J., in dealing with a case of disqualification under the Representation of the People Act 1951, resulting from a contract with the State which is not executed in the form and manner prescribed by Art. 299, observed:"It, may be that Government will not be bound by the contract in that case, but that is a very different thing from saying that the contracts as such are void and of no effect. It only means that the principal cannot be sued; but we take it there would be nothing to prevent ratification, especially if that was for the benefit of Government. * * * * * We accordingly hold that the contracts in question here are not void simply because the Union Government could not have been sued on them by reason of Article 299 (1)." Undoubtedly for breach of the terms of a contract not executed in the manner prescribed by Article 299 (1) a suit for relief in a civil court will not lie, but on that account it cannot be said that a contract for execution of works undertaken by a person though not executed in manner prescribed by Article 299, but which is treated by both the parties thereto as binding will not operate as a disqualification. In a recent judgment of this Court in Laliteshwar Prasad Sahi v. Bateshwar Prasad, (1966) 2 SCR 63 = (AIR 1966 SC 580 ), this Court held that where an agreement for execution of work had been entered into between the State Government and a private person by correspondence and the State Government has ratified the agreement and has treated the relation between the parties as contractual and has accepted liability arising under the terms of the agreement as if it were a pending contract, a disqualification under the relevant provisions of the Representation of the People Act results. 11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned. 12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature.
### Response:
0
### Explanation:
9. It is true that by virtue of the Explanation to S. 9-A of the Representation of the People Act, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact, that the Government has not performed its part of the contract either wholly or in part. In the present case the contract was not wholly performed by the appellant, and unless he had completed the contract or showed that there was determination by mutual assent of the contract, the appellant cannot claim that there was no subsisting contract at the date of the filing of the nomination paper. By letter written by the appellant on July 22, 1966, Ext. C, the appellant made a request for extension of time by six months to enable him to complete the work and by his letter Ext. D dated December 20, 1966 he requested the Superintending Engineer not to cancel the contract or call for new tenders. This conduct of the appellant clearly suggests that he did not treat the contract as cancelled, nor is there any clear evidence to show that the authorities had treated the contract as cancelled. The High Court was, therefore, right in holding that the case did not fall within the explanation to S. 9-A of the Representation of the People Act and there was no evidence of determination of the contract by mutual agreement10. Counsel for the appellant contended that the contract for execution of works was between the State and the appellant and Art. 299 of the Constitution applied thereto, and since the contract was not shown to be executed in the name of the Governor, and by an authority competent to execute the contract on behalf of the Governor, the disqualification under S. 9-A did not apply. By Cl. (1) of Article 299 all contracts made in the exercise of the executive power of the State must be expressed to be made by the Governor of the State, and all such contracts made in the exercise of that power must be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise. It is true that agreements were executed by the Executive Engineer in Form K-2 but no final contracts were executed in Form F-2. The appellant proceeded on the footing that there was a binding contract under which he had undertaken the work of construction for the State, and the State allowed work and had offered to pay him for the work done at the rates set out in Form K-2. The appellant could not by virtue of Art. 299 sue in a civil court on the agreement in Form K-2 for compensation for breach of contract. But we are unable to hold that the appellant was not disqualified under S. 9-A of the Representation of the People Act merely because the contracts were not enforceable against the State because of Art. 299 (1) of the Constitution11. As already pointed out, the appellant had commenced execution of the work but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was it abandoned12.The contract resulting from the acceptance of his tender though not enforceable by suit against the State Government, because it did not comply with Article 299, must still be regarded as disqualifying the appellant under the Representation of the People Act from standing as a candidate for election to the State Legislature.
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State Of Gujarat Vs. Saurashtra Cement & Chemical Industries | production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Section 15C. 7. Crucial question for consideration before us is whether it is a case of expansion of an existing unit? The case of expansion of an industrial undertaking would qualify for exemption under Section 15C of the Income Tax Act while in view of clause (ii)(c) of Explanation 1 contained in the Bombay Electricity Duty Act, 1958, an expansion of existing business undertaking would not qualify for exemption from electricity duty. Para 18 of the judgment in Textile Machinery Corporation (supra) throws considerable light on the controversy before us. Para 18 reads as below: 18. The assessee continues to be the same for the purpose of assessment. It has its existing business already liable to tax. It produced in the two concerned undertakings commodities different from those which he has been manufacturing or producing in its existing business. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Section 15C. Sub-section (6) of the section also points to the same effect, namely, production of articles. The answer, in every particular case depends upon the peculiar facts and conditions of the new industrial undertaking on account of which the assessee claims exemption under Section 15C. No hard and fast rule can be laid down. Trade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments. There is great scope for expansion of trade and industry. The fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under Section 15C. Every new creation in business is some kind of expansion and advancement. The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. No particular decision in one case can lay down an inexorable test to determine whether a given case comes under Section 15C or not. In order that the new undertaking can be said to be not formed out of the already existing business, there must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit. An undertaking is formed out of the existing business if the physical identity with the old unit is preserved. This has not happened here in the case of the two undertakings which are separate and distinct. 8. It will be seen from the facts on record in the present case that the so called new unit/undertaking is not totally independent of the assets of the existing unit. Admittedly certain assets to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. was necessary to complete the manufacturing process in the new unit, the new unit is not totally independent nor it is able to complete the process of manufacture of cement on its own as a viable unit. The new units is dependent on the existing assets. A physical identity with the old unit is preserved. In view of the exception carved out in the definition of new industrial unit contained in the Act, it cannot be said that the respondent is entitled to exemption from electricity duty. 9. To appreciate the exception contained in Explanation 1 to clause (ii)(c) of Section 3(2)(vii)(b), it is necessary to understand the meaning of the word expansion. The word expansion is a noun derived from the word expand, which is a verb. The word expand means to become greater or bigger in size, to spread out. As per the New Shorter Oxford English Dictionary, the word expand means 1.v.t. spread or stretch (a thing) out 2. Become extended; spread out, unfold. 3.v.t. Give full expansion to 4.v.t. Widen the boundaries of, increase the area, scope etc. of; enlarge, dilate 5.v.t. Become greater in area, bulk, capacity etc; become larger; increase the scope of ones activity or the scale or operations of something; take in or go into a new area of activity. 10. This meaning is to be applied to the facts on record. The respondent company when it initially started had a production capacity of 660 metric tonnes which was subsequently increased to 1000 metric tonnes. In 1969-70 by setting up the alleged new unit, production capacity of the company more than doubled. But as already seen this unit is not self contained. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further respondent was having two kilns and third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. Once it is held to be a case of expansion, the claim for exemption from electricity duty, set up by the respondent, completely falls to the ground. In the facts and circumstances of the case we are clearly of the view that the respondent is not entitled to exemption from electricity duty. The High Court failed to apply the real test which emerges from the judgment of this Court in Textile Machinery Corporation (supra) which was affirmed in a subsequent decision in Bajaj Tempo Ltd. Bombay vs. Commission of Income Tax, Bombay City-III, Bombay (1992 (3) SCC 78 ). | 1[ds]8. It will be seen from the facts on record in the present case that the so called new unit/undertaking is not totally independent of the assets of the existing unit. Admittedly certain assets to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. was necessary to complete the manufacturing process in the new unit, the new unit is not totally independent nor it is able to complete the process of manufacture of cement on its own as a viable unit. The new units is dependent on the existing assets. A physical identity with the old unit is preserved. In view of the exception carved out in the definition of new industrial unit contained in the Act, it cannot be said that the respondent is entitled to exemption from electricity dutyThe respondent company when it initially started had a production capacity of 660 metric tonnes which was subsequently increased to 1000 metric tonnes. In 1969-70 by setting up the alleged new unit, production capacity of the company more than doubled. But as already seen this unit is not self contained. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further respondent was having two kilns and third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. Once it is held to be a case of expansion, the claim for exemption from electricity duty, set up by the respondent, completely falls to the ground. In the facts and circumstances of the case we are clearly of the view that the respondent is not entitled to exemption from electricity duty | 1 | 2,945 | 358 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Section 15C. 7. Crucial question for consideration before us is whether it is a case of expansion of an existing unit? The case of expansion of an industrial undertaking would qualify for exemption under Section 15C of the Income Tax Act while in view of clause (ii)(c) of Explanation 1 contained in the Bombay Electricity Duty Act, 1958, an expansion of existing business undertaking would not qualify for exemption from electricity duty. Para 18 of the judgment in Textile Machinery Corporation (supra) throws considerable light on the controversy before us. Para 18 reads as below: 18. The assessee continues to be the same for the purpose of assessment. It has its existing business already liable to tax. It produced in the two concerned undertakings commodities different from those which he has been manufacturing or producing in its existing business. Manufacture or production of articles yielding additional profit attributable to the new outlay of capital in a separate and distinct unit is the heart of the matter, to earn benefit from the exemption of tax liability under Section 15C. Sub-section (6) of the section also points to the same effect, namely, production of articles. The answer, in every particular case depends upon the peculiar facts and conditions of the new industrial undertaking on account of which the assessee claims exemption under Section 15C. No hard and fast rule can be laid down. Trade and industry do not run in earmarked channels and particularly so in view of manifold scientific and technological developments. There is great scope for expansion of trade and industry. The fact that an assessee by establishment of a new industrial undertaking expands his existing business, which he certainly does, would not, on that score, deprive him of the benefit under Section 15C. Every new creation in business is some kind of expansion and advancement. The true test is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is all the same a new and identifiable undertaking separate and distinct from the existing business. No particular decision in one case can lay down an inexorable test to determine whether a given case comes under Section 15C or not. In order that the new undertaking can be said to be not formed out of the already existing business, there must be a new emergence of a physically separate industrial unit which may exist on its own as a viable unit. An undertaking is formed out of the existing business if the physical identity with the old unit is preserved. This has not happened here in the case of the two undertakings which are separate and distinct. 8. It will be seen from the facts on record in the present case that the so called new unit/undertaking is not totally independent of the assets of the existing unit. Admittedly certain assets to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. was necessary to complete the manufacturing process in the new unit, the new unit is not totally independent nor it is able to complete the process of manufacture of cement on its own as a viable unit. The new units is dependent on the existing assets. A physical identity with the old unit is preserved. In view of the exception carved out in the definition of new industrial unit contained in the Act, it cannot be said that the respondent is entitled to exemption from electricity duty. 9. To appreciate the exception contained in Explanation 1 to clause (ii)(c) of Section 3(2)(vii)(b), it is necessary to understand the meaning of the word expansion. The word expansion is a noun derived from the word expand, which is a verb. The word expand means to become greater or bigger in size, to spread out. As per the New Shorter Oxford English Dictionary, the word expand means 1.v.t. spread or stretch (a thing) out 2. Become extended; spread out, unfold. 3.v.t. Give full expansion to 4.v.t. Widen the boundaries of, increase the area, scope etc. of; enlarge, dilate 5.v.t. Become greater in area, bulk, capacity etc; become larger; increase the scope of ones activity or the scale or operations of something; take in or go into a new area of activity. 10. This meaning is to be applied to the facts on record. The respondent company when it initially started had a production capacity of 660 metric tonnes which was subsequently increased to 1000 metric tonnes. In 1969-70 by setting up the alleged new unit, production capacity of the company more than doubled. But as already seen this unit is not self contained. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further respondent was having two kilns and third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. Once it is held to be a case of expansion, the claim for exemption from electricity duty, set up by the respondent, completely falls to the ground. In the facts and circumstances of the case we are clearly of the view that the respondent is not entitled to exemption from electricity duty. The High Court failed to apply the real test which emerges from the judgment of this Court in Textile Machinery Corporation (supra) which was affirmed in a subsequent decision in Bajaj Tempo Ltd. Bombay vs. Commission of Income Tax, Bombay City-III, Bombay (1992 (3) SCC 78 ).
### Response:
1
### Explanation:
8. It will be seen from the facts on record in the present case that the so called new unit/undertaking is not totally independent of the assets of the existing unit. Admittedly certain assets to which reference has already been made, are being utilized in the manufacturing activity carried on by the new unit. It cannot be said that the new unit is completely independent or that the new unit could do without the assets of the existing unit. If use of the old plant and machinery etc. was necessary to complete the manufacturing process in the new unit, the new unit is not totally independent nor it is able to complete the process of manufacture of cement on its own as a viable unit. The new units is dependent on the existing assets. A physical identity with the old unit is preserved. In view of the exception carved out in the definition of new industrial unit contained in the Act, it cannot be said that the respondent is entitled to exemption from electricity dutyThe respondent company when it initially started had a production capacity of 660 metric tonnes which was subsequently increased to 1000 metric tonnes. In 1969-70 by setting up the alleged new unit, production capacity of the company more than doubled. But as already seen this unit is not self contained. It is not an independently viable unit. It is dependent on various items of plant and machinery and mills of the existing unit. Further respondent was having two kilns and third is added. This leads to the inevitable conclusion that the new unit is an expansion of an existing undertaking in the State. Once it is held to be a case of expansion, the claim for exemption from electricity duty, set up by the respondent, completely falls to the ground. In the facts and circumstances of the case we are clearly of the view that the respondent is not entitled to exemption from electricity duty
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Usha Rajkhowa Vs. M/S Paramout Industries | the High Court in the award. The High Court then referred to the evidence of PW-3 and referred to the same sentence by PW-3. It is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous. 10. We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves, have seen the evidence of PW-3. In the Examination-in-Chief, the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the Car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny the suggestion thrown at him that the accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the following words:- "It is not a fact that accident took place because of fault of Maruti Car." 11. As if all this was not sufficient, he then in his Cross-Examination at the instance of Oriental Insurance Company Ltd., asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now, the following factors are clear from this evidence:- 1. The truck was coming in high speed.2. It was the truck, which hit the Car and not vice versa.3. The Maruti Car was going on its own side. 12. It seems that the Tribunal, as well as, the High Court had chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference by PW-3. 13. Under such circumstances, applying the doctrine of res ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the Car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place. 14. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC 455. That was also a case of collusion in between a Car and a truck. It was observed in Para 8:- "The question of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." 15. This Court further relied on an observation of High Court of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73) ALJR 403 to the following effect:- "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 16. Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment. 17. | 1[ds]In spite of our minute scrutiny of the award, we have not been able to even find a mention of words "contributory negligence" in the award passed by the Tribunal. There is, in fact, no finding given by the Tribunal as regards the contributory negligence. The subject is discussed in paragraphs 10 and 11, where we do not find any specific finding to the effect that Maruti Car was guilty of the contributory negligence. It is only because the amount of compensation is restricted to the 50% of the assessed amount that we have to infer that the Tribunal had given a finding of contributory negligence. Even at the cost of repetition, we may say that the words "contributory negligence" nowhere appear in the award passed by the Tribunal. There is only one stray statement in the award, concerning the evidence ofMadhuriya Rajkhowa to the effect that he failed to state which of the vehicles was actually at fault. On this backdrop, when we see the impugned judgment, very interestingly, the judgment mentions in paragraphthe present case at hand, the learned Tribunal has held that the accident took place due to contributory negligence of the driver of the truck and the Marutiare afraid, such sentence is not to be found in the award of the Tribunal. We do not know, as to where has this finding been found by the High Court in the award. The High Court then referred to the evidence ofand referred to the same sentence byIt is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous.We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves, have seen the evidence ofef, the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the Car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny the suggestion thrown at him that the accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the followingis not a fact that accident took place because of fault of Marutiif all this was not sufficient, he then in hisat the instance of Oriental Insurance Company Ltd., asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now, the following factors are clear from thisThe truck was coming in high speed.2. It was the truck, which hit the Car and not vice versa.3. The Maruti Car was going on its ownseems that the Tribunal, as well as, the High Court had chosen to go by the inference drawn byor at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference bysuch circumstances, applying the doctrine of res ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the Car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place.The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC 455. That was also a case of collusion in between a Car and a truck. It was observed in Paraquestion of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his ownCourt further relied on an observation of High Court of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73) ALJR 403 to the followingfinding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person orthese principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment. | 1 | 2,679 | 1,300 | ### Instruction:
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the High Court in the award. The High Court then referred to the evidence of PW-3 and referred to the same sentence by PW-3. It is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous. 10. We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves, have seen the evidence of PW-3. In the Examination-in-Chief, the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the Car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny the suggestion thrown at him that the accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the following words:- "It is not a fact that accident took place because of fault of Maruti Car." 11. As if all this was not sufficient, he then in his Cross-Examination at the instance of Oriental Insurance Company Ltd., asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now, the following factors are clear from this evidence:- 1. The truck was coming in high speed.2. It was the truck, which hit the Car and not vice versa.3. The Maruti Car was going on its own side. 12. It seems that the Tribunal, as well as, the High Court had chosen to go by the inference drawn by PW-3 or at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference by PW-3. 13. Under such circumstances, applying the doctrine of res ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the Car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place. 14. The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC 455. That was also a case of collusion in between a Car and a truck. It was observed in Para 8:- "The question of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." 15. This Court further relied on an observation of High Court of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73) ALJR 403 to the following effect:- "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." 16. Keeping these principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment. 17.
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learned Tribunal has held that the accident took place due to contributory negligence of the driver of the truck and the Marutiare afraid, such sentence is not to be found in the award of the Tribunal. We do not know, as to where has this finding been found by the High Court in the award. The High Court then referred to the evidence ofand referred to the same sentence byIt is on the basis of this stray sentence that the High Court chose to confirm the finding of the Tribunal (which is not to be found) regarding the contributory negligence. Such appreciation is clearly erroneous.We must say that the criticism by the Learned Counsel for the appellants that the High Court, as well as, the Tribunal have not applied their mind to the matter, is quite justified. We, ourselves, have seen the evidence ofef, the witness very specifically asserted that the truck was coming from the opposite direction in a high speed from Jorhat side and it hit the Car, as a result of which Shri Jadhav Rajkhowa and Shri Dhiren Hazarika died, while he had received injuries. He was undoubtedly right in saying that he could not say clearly as to which vehicle was at fault, however, he was quick to deny the suggestion thrown at him that the accident took place because of the fault of Maruti Car. He has very specifically denied that suggestion in the followingis not a fact that accident took place because of fault of Marutiif all this was not sufficient, he then in hisat the instance of Oriental Insurance Company Ltd., asserted that Maruti Car was going on its own side (when the truck hit the Maruti Car). Now, the following factors are clear from thisThe truck was coming in high speed.2. It was the truck, which hit the Car and not vice versa.3. The Maruti Car was going on its ownseems that the Tribunal, as well as, the High Court had chosen to go by the inference drawn byor at any rate, his inability to fix the liability. It is not the judgment of the witness, which is decisive in the matter. In fact, the Tribunal, as well as, the High Court should have framed their own opinion, instead of going by the judgment or as the case may be, inference bysuch circumstances, applying the doctrine of res ipsa loquitor, it is clear that it was because of the negligence on the part of the truck that the accident took place. After all the hit given by the truck was so powerful that two persons in the Car died on the spot, while the third escaped with serious injuries. When we see the award of the Tribunal, as also the appellate judgment, they are astonishingly silent on these aspects. We are, therefore, convinced that there was no question of any contributory negligence on the part of the driver of the Maruti Car and it was solely because of the negligence on the part of the truck that the accident took place.The question of contributory negligence on the part of the driver in case of collision was considered by this Court in Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak and Ors. reported in 2002 (6) SCC 455. That was also a case of collusion in between a Car and a truck. It was observed in Paraquestion of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as `negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence", it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his ownCourt further relied on an observation of High Court of Australia in Astley Vs. Austrust Ltd. reported in 1999 (73) ALJR 403 to the followingfinding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owed may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases, the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person orthese principles in mind, we find that there was absolutely no evidence to suggest that there was any failure on the part of the Car driver to take any particular care or that he had breached his duty in any manner. Such breach on his part had to be proved by Insurance Company as it was its burden and for that, the Panchanama of the spot, showing tyre marks caused by brakes, the Panchanama of the damaged car and the truck could have been brought on record. The Insurance Company has obviously failed to discharge its burden. We, therefore, respectfully follow the above mentioned judgment.
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Hyderabad Chemical And Pharmaceuticalworks Ltd. Etc Vs. State Of Andhra Pradesh And Ors | by the pharmaceutical laboratories. Now the work done by a pharmaceutical laboratory is to manufacture medicinal preparations. Rule 36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory concernedThe supervisory staff which has to be paid for under R. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of S. 21 of the Act and R. 143 of the 1956 Rules, and the proviso to S. 21 cannot be availed of by the State.7. This brings us to the alternative argument on behalf of the State, namely, that in any case the rule still remains good because it is meant to carry out the general purpose of the Hyderabad Abkari Act, namely to see that unauthorised sale of alcohol is not made for human consumption by the laboratory to which it is supplied for purposes of manufacture of medicinal preparations. Therefore it is said that the rule is good inasmuch as it is concerned with the enforcement of the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act. We are of opinion that there is no force in this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in R. 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that alcohol supplied is used for the purpose for which it is supplied and it not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture. That however will make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugs generally.8. What we have said above is borne out if we look at the 1956 Rules. Rule 20 provides that in case of manufacture in bond (and we are concerned in the present appeals with such manufacture) alcohol on which duty has not been paid shall be used under excise supervision. Rule 42 provides that "it shall be open to the Excise Commissioner to determine the size of the supervisory staff in consultation with the licensee." It is clear therefore that under the 1956 Rules supervisory staff is attached to bonded manufactories which manufacture medicinal preparations. This is also the purpose of R. 36. Further R. 141 provides that "the licencee of a bonded manufactory or warehouse shall, where so required by the Excise Commissioner, provide the officer and the staff posted to the manufactory or bonded warehouse with suitable lodgings conveniently situated to the factory or bonded warehouse premises at a rent not exceeding 10 per cent of the pay of each officer so accommodated. If for any reason the licencee is not able to provide such accommodation he shall provide suitable accommodation to the satisfaction of the Excise Commissioner near the manufactory or bonded warehouse recovering only 10 per cent of the pay of the occupant". Then R. 45 provides that "the officer-in-charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purpose."It is clear therefore from these rules that the supervisory staff is attached to a bounded manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is not diverted to any other use. We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is not misused, R. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act is carried out. As the 1956-Rules show it is the duty of the supervisory staff attached to a bonded manufactory to see that the manufacture is properly made and the alcohol supplied is not diverted to any use except that of the manufacture of the preparation. This being the purpose of the 1956 Rules, the levy under R. 36 of 1345-F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to the alcohol and intoxicating drugs is not violated.9. There is no doubt that the filed covered by R. 36 of the 1345F-Rules is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and intoxicating drugs. We may add that the Act on the 1956-Rules make no provision for any such charge as is provided in R. 36 of 1345-F Rules, the intention being that the duty under the Act will cover all expenses for enforcing it. The fact that members of the supervisory staff are the servants of the respondent makes no difference because they function under the Act and the rules framed thereunder and not under the Hyderabad Act. We are therefore of opinion that reading S. 21 of the Act and R. 143 of the Rules framed thereunder, R. 36 of 1345-F Rules must be held to have been repealed and it is not saved by the proviso to S. 21. | 1[ds]It is not in dispute that the Act came into force from April 1, 1957 and is a law made otherwise by Parliament within the meaning of Art. 277, and therefore duties and other charges levied by the State in connection with medicinal preparations could no longer be levied by it. Further the Act specifically provides in S. 21 that "if, immediately before the commencement of this Act, there is in force in any State any law corresponding to this Act, that law is hereby repealed". It is true that the Hyderabad Abkari Act was a general law which was concerned with liquor and intoxicating drugs generally; it thus applied to alcohol also (treating it as liquor) used for manufacturing medicinal preparations. The effect of S. 21, therefore, is that so far as the Hyderabad Abkari Act applied to the use of alcohol, treating it to be liquor, in the manufacture of medicinal and toilet preparations, the Hyderabad Abkari Act must be deemed to have been repealed to that extent only by S.are of opinion that there is no force in this contention. Rules were framed under the Act in 1956 and came into force along with the Act. Rule 143 of these Rules provides that all rules made under any law corresponding to the Act in force in any State are hereby repealed except as respects things done or omitted to be done before such repeal. Consequently all rules framed for the purpose of the manufacture of medicinal preparations came to an end in view of R. 143 of 1956 Rules. Therefore, R. 36 of 1345-F rules, which appears in the Medicinal Preparations and Spirituous Rules must be held to be no longer good law so far as it applies to medicinal preparations. That is one reason why we consider that R. 36 must be held to have been repealed after the coming into force of the Act and the Rules framed thereunder.The proviso to S. 21 on which reliance has been placed cannot change the position in view of the new Rules framed in 1956 with respect to medicinal preparations. As soon as the new Rules came into force the old rules must fall and there is a specific provision in the new Rules (namely R. 143) which says that all rules made under any law corresponding to the Act are hereby36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory concernedThe supervisory staff which has to be paid for under R. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of S. 21 of the Act and R. 143 of the 1956 Rules, and the proviso to S. 21 cannot be availed of by theare of opinion that there is no force in this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in R. 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that alcohol supplied is used for the purpose for which it is supplied and it not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture. That however will make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugsis clear therefore from these rules that the supervisory staff is attached to a bounded manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is not diverted to any other use. We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is not misused, R. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act is carried out. As the 1956-Rules show it is the duty of the supervisory staff attached to a bonded manufactory to see that the manufacture is properly made and the alcohol supplied is not diverted to any use except that of the manufacture of the preparation. This being the purpose of the 1956 Rules, the levy under R. 36 of 1345-F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to the alcohol and intoxicating drugs is not violated.9. There is no doubt that the filed covered by R. 36 of the 1345F-Rules is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and intoxicating drugs. We may add that the Act on the 1956-Rules make no provision for any such charge as is provided in R. 36 of 1345-F Rules, the intention being that the duty under the Act will cover all expenses for enforcing it. The fact that members of the supervisory staff are the servants of the respondent makes no difference because they function under the Act and the rules framed thereunder and not under the Hyderabad Act. We are therefore of opinion that reading S. 21 of the Act and R. 143 of the Rules framed thereunder, R. 36 of 1345-F Rules must be held to have been repealed and it is not saved by the proviso to S. 21. | 1 | 2,588 | 1,080 | ### Instruction:
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by the pharmaceutical laboratories. Now the work done by a pharmaceutical laboratory is to manufacture medicinal preparations. Rule 36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory concernedThe supervisory staff which has to be paid for under R. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of S. 21 of the Act and R. 143 of the 1956 Rules, and the proviso to S. 21 cannot be availed of by the State.7. This brings us to the alternative argument on behalf of the State, namely, that in any case the rule still remains good because it is meant to carry out the general purpose of the Hyderabad Abkari Act, namely to see that unauthorised sale of alcohol is not made for human consumption by the laboratory to which it is supplied for purposes of manufacture of medicinal preparations. Therefore it is said that the rule is good inasmuch as it is concerned with the enforcement of the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act. We are of opinion that there is no force in this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in R. 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that alcohol supplied is used for the purpose for which it is supplied and it not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture. That however will make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugs generally.8. What we have said above is borne out if we look at the 1956 Rules. Rule 20 provides that in case of manufacture in bond (and we are concerned in the present appeals with such manufacture) alcohol on which duty has not been paid shall be used under excise supervision. Rule 42 provides that "it shall be open to the Excise Commissioner to determine the size of the supervisory staff in consultation with the licensee." It is clear therefore that under the 1956 Rules supervisory staff is attached to bonded manufactories which manufacture medicinal preparations. This is also the purpose of R. 36. Further R. 141 provides that "the licencee of a bonded manufactory or warehouse shall, where so required by the Excise Commissioner, provide the officer and the staff posted to the manufactory or bonded warehouse with suitable lodgings conveniently situated to the factory or bonded warehouse premises at a rent not exceeding 10 per cent of the pay of each officer so accommodated. If for any reason the licencee is not able to provide such accommodation he shall provide suitable accommodation to the satisfaction of the Excise Commissioner near the manufactory or bonded warehouse recovering only 10 per cent of the pay of the occupant". Then R. 45 provides that "the officer-in-charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purpose."It is clear therefore from these rules that the supervisory staff is attached to a bounded manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is not diverted to any other use. We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is not misused, R. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act is carried out. As the 1956-Rules show it is the duty of the supervisory staff attached to a bonded manufactory to see that the manufacture is properly made and the alcohol supplied is not diverted to any use except that of the manufacture of the preparation. This being the purpose of the 1956 Rules, the levy under R. 36 of 1345-F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to the alcohol and intoxicating drugs is not violated.9. There is no doubt that the filed covered by R. 36 of the 1345F-Rules is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and intoxicating drugs. We may add that the Act on the 1956-Rules make no provision for any such charge as is provided in R. 36 of 1345-F Rules, the intention being that the duty under the Act will cover all expenses for enforcing it. The fact that members of the supervisory staff are the servants of the respondent makes no difference because they function under the Act and the rules framed thereunder and not under the Hyderabad Act. We are therefore of opinion that reading S. 21 of the Act and R. 143 of the Rules framed thereunder, R. 36 of 1345-F Rules must be held to have been repealed and it is not saved by the proviso to S. 21.
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law made otherwise by Parliament within the meaning of Art. 277, and therefore duties and other charges levied by the State in connection with medicinal preparations could no longer be levied by it. Further the Act specifically provides in S. 21 that "if, immediately before the commencement of this Act, there is in force in any State any law corresponding to this Act, that law is hereby repealed". It is true that the Hyderabad Abkari Act was a general law which was concerned with liquor and intoxicating drugs generally; it thus applied to alcohol also (treating it as liquor) used for manufacturing medicinal preparations. The effect of S. 21, therefore, is that so far as the Hyderabad Abkari Act applied to the use of alcohol, treating it to be liquor, in the manufacture of medicinal and toilet preparations, the Hyderabad Abkari Act must be deemed to have been repealed to that extent only by S.are of opinion that there is no force in this contention. Rules were framed under the Act in 1956 and came into force along with the Act. Rule 143 of these Rules provides that all rules made under any law corresponding to the Act in force in any State are hereby repealed except as respects things done or omitted to be done before such repeal. Consequently all rules framed for the purpose of the manufacture of medicinal preparations came to an end in view of R. 143 of 1956 Rules. Therefore, R. 36 of 1345-F rules, which appears in the Medicinal Preparations and Spirituous Rules must be held to be no longer good law so far as it applies to medicinal preparations. That is one reason why we consider that R. 36 must be held to have been repealed after the coming into force of the Act and the Rules framed thereunder.The proviso to S. 21 on which reliance has been placed cannot change the position in view of the new Rules framed in 1956 with respect to medicinal preparations. As soon as the new Rules came into force the old rules must fall and there is a specific provision in the new Rules (namely R. 143) which says that all rules made under any law corresponding to the Act are hereby36 therefore provides that expenses of the establishment for the supervision of the work of medicinal preparations manufactured by pharmaceutical laboratories have to be paid by the laboratory concernedThe supervisory staff which has to be paid for under R. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of S. 21 of the Act and R. 143 of the 1956 Rules, and the proviso to S. 21 cannot be availed of by theare of opinion that there is no force in this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in R. 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that alcohol supplied is used for the purpose for which it is supplied and it not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture. That however will make the rule good under the Hyderabad Abkari Act, which deals with alcohol and intoxicating drugsis clear therefore from these rules that the supervisory staff is attached to a bounded manufactory for the purpose of supervision to see that the manufacture is carried on properly and also to see that alcohol issued for the purpose of manufacture is not diverted to any other use. We cannot therefore accept the argument that simply because the supervisory staff has got to see that alcohol supplied, assuming it to be liquor, is not misused, R. 36 is still good law because its purpose is to see that the general law relating to alcohol and intoxicating drugs contained in the Hyderabad Abkari Act is carried out. As the 1956-Rules show it is the duty of the supervisory staff attached to a bonded manufactory to see that the manufacture is properly made and the alcohol supplied is not diverted to any use except that of the manufacture of the preparation. This being the purpose of the 1956 Rules, the levy under R. 36 of 1345-F cannot be justified on the ground that under that rule the supervisory staff has to see that the general law relating to the alcohol and intoxicating drugs is not violated.9. There is no doubt that the filed covered by R. 36 of the 1345F-Rules is completely covered by the Rules framed under the Act and therefore R. 36 can no longer be justified as good under the general law relating to alcohol and intoxicating drugs. We may add that the Act on the 1956-Rules make no provision for any such charge as is provided in R. 36 of 1345-F Rules, the intention being that the duty under the Act will cover all expenses for enforcing it. The fact that members of the supervisory staff are the servants of the respondent makes no difference because they function under the Act and the rules framed thereunder and not under the Hyderabad Act. We are therefore of opinion that reading S. 21 of the Act and R. 143 of the Rules framed thereunder, R. 36 of 1345-F Rules must be held to have been repealed and it is not saved by the proviso to S. 21.
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Keki Hormusji Gharda & Others Vs. Mehervan Rustom Irani & Another | by the first respondent that accused Nos. 1 to 5 were managing the affairs of the Company and had instigated accused No. 6 to construct the road must be viewed. 11. It is one thing to say that the Company had asked the accused No. 6 to make construction but only because the accused Nos. 1 to 5 were its Directors, the same, in our opinion, would not be sufficient to fasten any criminal liability on them for commission of an offence under Section 341 of the IPC or otherwise. `Wrongful restraint has been defined under Section 339 of the IPC in the following words: "339. Wrongful restraing - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.Exception.- The obstruction of a private way over land or water which a person in good-faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this Section." The essential ingredients of the aforementioned provision are: (1) Accused obstructs voluntarily; (2) The victim is prevented from proceeding in any direction; (3) Such victim has every right to proceed in that direction. 12. Section 341 of the IPC provides that whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. The word `voluntary is significant. It connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction. 13. Appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents. We have noticed hereinbefore that despite of said road being under construction, the first respondent went to the Police Station thrice. He, therefore, was not obstructed from going to Police Station. In fact, a firm action had been taken by the authorities. The workers were asked not to do any work on the road. We, therefore, fail to appreciate that how, in a situation of this nature, the Managing Director and the Directors of the Company as also the Architect can be said to have committed an offence under Section 341 of the IPC.14. Indian Penal Code, save and except some matters does not contemplate any vicarious liability on the part a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices.15. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & ors. (1998) 5 SCC 749 , this Court held as under: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 16. Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the Complaint Petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the Court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of the Code of Criminal Procedure. Indisputably, there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. The High Court furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein.17. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed. | 1[ds]13. Appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents. We have noticed hereinbefore that despite of said road being under construction, the first respondent went to the Police Station thrice. He, therefore, was not obstructed from going to Police Station. In fact, a firm action had been taken by the authorities. The workers were asked not to do any work on the road. We, therefore, fail to appreciate that how, in a situation of this nature, the Managing Director and the Directors of the Company as also the Architect can be said to have committed an offence under Section 341 of the IPC.14. Indian Penal Code, save and except some matters does not contemplate any vicarious liability on the part a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices.15. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & ors. (1998) 5 SCC 749 , this Court held asSummoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the Complaint Petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the Court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of the Code of Criminal Procedure. Indisputably, there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. The High Court furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein.17. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed. | 1 | 2,435 | 763 | ### 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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by the first respondent that accused Nos. 1 to 5 were managing the affairs of the Company and had instigated accused No. 6 to construct the road must be viewed. 11. It is one thing to say that the Company had asked the accused No. 6 to make construction but only because the accused Nos. 1 to 5 were its Directors, the same, in our opinion, would not be sufficient to fasten any criminal liability on them for commission of an offence under Section 341 of the IPC or otherwise. `Wrongful restraint has been defined under Section 339 of the IPC in the following words: "339. Wrongful restraing - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.Exception.- The obstruction of a private way over land or water which a person in good-faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this Section." The essential ingredients of the aforementioned provision are: (1) Accused obstructs voluntarily; (2) The victim is prevented from proceeding in any direction; (3) Such victim has every right to proceed in that direction. 12. Section 341 of the IPC provides that whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. The word `voluntary is significant. It connotes that obstruction should be direct. The obstructions must be a restriction on the normal movement of a person. It should be a physical one. They should have common intention to cause obstruction. 13. Appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents. We have noticed hereinbefore that despite of said road being under construction, the first respondent went to the Police Station thrice. He, therefore, was not obstructed from going to Police Station. In fact, a firm action had been taken by the authorities. The workers were asked not to do any work on the road. We, therefore, fail to appreciate that how, in a situation of this nature, the Managing Director and the Directors of the Company as also the Architect can be said to have committed an offence under Section 341 of the IPC.14. Indian Penal Code, save and except some matters does not contemplate any vicarious liability on the part a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices.15. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & ors. (1998) 5 SCC 749 , this Court held as under: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." 16. Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the Complaint Petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the Court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of the Code of Criminal Procedure. Indisputably, there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. The High Court furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein.17. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed.
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13. Appellants herein were not at the site. They did not carry out any work. No overt act or physical obstruction on their part has been attributed. Only because legal proceedings were pending between the Company and the Bombay Municipal Corporation and/or with the first respondent herein, the same would not by itself mean that appellants were in any way concerned with commission of a criminal offence of causing obstructions to the first respondent and his parents. We have noticed hereinbefore that despite of said road being under construction, the first respondent went to the Police Station thrice. He, therefore, was not obstructed from going to Police Station. In fact, a firm action had been taken by the authorities. The workers were asked not to do any work on the road. We, therefore, fail to appreciate that how, in a situation of this nature, the Managing Director and the Directors of the Company as also the Architect can be said to have committed an offence under Section 341 of the IPC.14. Indian Penal Code, save and except some matters does not contemplate any vicarious liability on the part a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices.15. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company.In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & ors. (1998) 5 SCC 749 , this Court held asSummoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the Complaint Petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the Court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of the Code of Criminal Procedure. Indisputably, there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the Complaint Petition even assuming to be correct were trivial in nature. The High Court furthermore has failed to take into consideration the fact that in the first information report no allegation in regard to acts of common intention or common object on the part of the appellants was made out. Appellants were not named as accused therein.17. It is, therefore, really difficult to appreciate as to on what basis the Complaint Petition was filed.
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ANIL KUMAR Vs. UNION OF INDIA | was revisited. The circular, insofar as it is relevant, reads thus: 2. The whole issue has been deliberated upon at length in the full board meeting and it has been decided that no cognizance by way of offering employment to displaced persons should be given wherein only a strip of land (viz., for construction of a line) has been acquired but the same can be considered in Group D posts only wherein large area, house or substantial livelihood has been taken away/snapped in the process. 3. It has further been decided by the board that past cases where recruitments are already in process or where any commitment has been given to provide employment by the competent authority, such recruitment process should be finalised and employment provided in Group D posts only to eligible persons. 13. In the Writ Petition which the petitioner filed before the High Court, the prayer for mandamus was specifically based on the Railway Board Circular dated 19 April 2006. The relevant averments in the writ petition reads thus; 9. That it is submitted that the Collector, Bhojpur, Ara vide Memo No. 211 dated 07.06.2008 sent a list of persons whose house was demolished with recommendation for employment and the list finds place the name of Lalan Pandey. The Executive Engineer, Cons., E.C. Railway, Ara has written a letter dated 08.08.2008 to Dy. Chief Engineer, Con./E.C. Railway/Danapur mentioning therein that Lalan Pandey is a completely displaced person due to construction of new line and his livelihood has suffered due to displacement. It was requested for consideration of the Petitioners case for job in Railways in terms of Railway Boards letter dated 19.04.2006. 14. The response of the Railways to the above averment contained no denial of the averments contained in paragraph 9. Paragraph 10 of the response reads as follows:- 10. That with regard to statement made in paragraph 9 of the writ petition it is stated that the same is a matter of records, hence there is no comments. 15. The learned Single Judge rejected the writ petition, observing that a claim for appointment in service, apart from an entitlement to compensation for the acquisition of land, is by way of an exception. The High Court also held that the policy circular could not be applied since the acquisition in question was made prior to 2006. 16. The Letters Patent Appeal was rejected by the Division Bench relying upon the statement of the counsel for the Railways that employment had not been provided even in a single case for acquisition of land for the Ara Sasaram Railway project. 17. Learned counsel for the appellant has, while assailing these findings submitted that the acquisition was in year 2006 and the case of the appellant is squarely governed by the policy circular. It was urged before this Court that the grounds which weighed with the authorities in rejecting the representation are contained in the speaking order dated 20 February 2013 of the General Manager of the East Central Railway which was passed in pursuance of the direction of the High Court. It was urged that the policy circular, contrary to what is stated in the order, would encompass the case of the appellant since the entirety of the house belonging to the appellant had been demolished. Hence the fact that only a strip of land was involved would not disentitle the appellant for the grant of relief. 18. On the other hand, Ms. Vibha Dutta Makhija, learned senior counsel appearing on behalf of the respondents submitted that the policy circular dated 1 January 1983 as well as the subsequent policy circular dated 19 April 2006 must be read together. It was urged that as a matter of fact, para 3 of the policy circular dated 19 April 2006 stipulated that past cases where recruitments were already in process and where commitment had been given to provide employment should be finalised and employment be provided in Group D posts only to the eligible persons. In the circumstances, it was urged that the appellant was not entitled to the benefit of the policy circular. 19. The policy circular dated 1 January 1983 was specifically adverted to in the subsequent circular dated 19 April 2006. The subsequent circular stipulates that the Railway Board had decided that the policy to offer employment to displaced persons should not cover displaced persons where only a strip of land had been acquired. At the same time, it stipulated that the claim can be considered for appointment against a Group D post where a large area, house or substantial livelihood has been taken away/snapped in the process . The case of the appellant fell within the ambit of paragraph 2 of the circular dated 19 April 2006. In rejecting the application of the appellant, the ground which weighed with the Railway Authorities was that only a strip of land belonging to the appellant had been acquired. This is not a correct reading of the circular. The circular contemplates that when a large area, house or substantial livelihood have been taken away, the case for providing alternative employment in a Group D post would be considered. Those phrases are disjunctive. The entire house of the appellant was demolished. It was stated that there was no specific guideline from the Railway authorities to provide a job in lieu of acquisition of land in Ara-Sasaram project. This was not a valid ground to reject the claim, once there was a general policy circular dated 19 April 2006 which held the field. 20. In the counter affidavit that was filed before the High Court, an additional ground was sought to be urged namely that it was only if an exception is granted by the Ministry of Railways that the application would be considered for appointment in accordance with the prevailing norms. There is no justification for this submission since it would result in the exercise of a pick and choose approach, contrary to the policy circular dated 19 April 2006. | 0[ds]19. The policy circular dated 1 January 1983 was specifically adverted to in the subsequent circular dated 19 April 2006. The subsequent circular stipulates that the Railway Board had decided that the policy to offer employment to displaced persons should not cover displaced persons where only a strip of land had been acquired. At the same time, it stipulated that the claim can be considered for appointment against a Group D post where a large area, house or substantial livelihood has been taken away/snapped in the process . The case of the appellant fell within the ambit of paragraph 2 of the circular dated 19 April 2006. In rejecting the application of the appellant, the ground which weighed with the Railway Authorities was that only a strip of land belonging to the appellant had been acquired. This is not a correct reading of the circular. The circular contemplates that when a large area, house or substantial livelihood have been taken away, the case for providing alternative employment in a Group D post would be considered. Those phrases are disjunctive. The entire house of the appellant was demolished. It was stated that there was no specific guideline from the Railway authorities to provide a job in lieu of acquisition of land in Ara-Sasaram project. This was not a valid ground to reject the claim, once there was a general policy circular dated 19 April 2006 which held the field20. In the counter affidavit that was filed before the High Court, an additional ground was sought to be urged namely that it was only if an exception is granted by the Ministry of Railways that the application would be considered for appointment in accordance with the prevailing norms. There is no justification for this submission since it would result in the exercise of a pick and choose approach, contrary to the policy circular dated 19 April 2006. | 0 | 2,246 | 340 | ### 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:
was revisited. The circular, insofar as it is relevant, reads thus: 2. The whole issue has been deliberated upon at length in the full board meeting and it has been decided that no cognizance by way of offering employment to displaced persons should be given wherein only a strip of land (viz., for construction of a line) has been acquired but the same can be considered in Group D posts only wherein large area, house or substantial livelihood has been taken away/snapped in the process. 3. It has further been decided by the board that past cases where recruitments are already in process or where any commitment has been given to provide employment by the competent authority, such recruitment process should be finalised and employment provided in Group D posts only to eligible persons. 13. In the Writ Petition which the petitioner filed before the High Court, the prayer for mandamus was specifically based on the Railway Board Circular dated 19 April 2006. The relevant averments in the writ petition reads thus; 9. That it is submitted that the Collector, Bhojpur, Ara vide Memo No. 211 dated 07.06.2008 sent a list of persons whose house was demolished with recommendation for employment and the list finds place the name of Lalan Pandey. The Executive Engineer, Cons., E.C. Railway, Ara has written a letter dated 08.08.2008 to Dy. Chief Engineer, Con./E.C. Railway/Danapur mentioning therein that Lalan Pandey is a completely displaced person due to construction of new line and his livelihood has suffered due to displacement. It was requested for consideration of the Petitioners case for job in Railways in terms of Railway Boards letter dated 19.04.2006. 14. The response of the Railways to the above averment contained no denial of the averments contained in paragraph 9. Paragraph 10 of the response reads as follows:- 10. That with regard to statement made in paragraph 9 of the writ petition it is stated that the same is a matter of records, hence there is no comments. 15. The learned Single Judge rejected the writ petition, observing that a claim for appointment in service, apart from an entitlement to compensation for the acquisition of land, is by way of an exception. The High Court also held that the policy circular could not be applied since the acquisition in question was made prior to 2006. 16. The Letters Patent Appeal was rejected by the Division Bench relying upon the statement of the counsel for the Railways that employment had not been provided even in a single case for acquisition of land for the Ara Sasaram Railway project. 17. Learned counsel for the appellant has, while assailing these findings submitted that the acquisition was in year 2006 and the case of the appellant is squarely governed by the policy circular. It was urged before this Court that the grounds which weighed with the authorities in rejecting the representation are contained in the speaking order dated 20 February 2013 of the General Manager of the East Central Railway which was passed in pursuance of the direction of the High Court. It was urged that the policy circular, contrary to what is stated in the order, would encompass the case of the appellant since the entirety of the house belonging to the appellant had been demolished. Hence the fact that only a strip of land was involved would not disentitle the appellant for the grant of relief. 18. On the other hand, Ms. Vibha Dutta Makhija, learned senior counsel appearing on behalf of the respondents submitted that the policy circular dated 1 January 1983 as well as the subsequent policy circular dated 19 April 2006 must be read together. It was urged that as a matter of fact, para 3 of the policy circular dated 19 April 2006 stipulated that past cases where recruitments were already in process and where commitment had been given to provide employment should be finalised and employment be provided in Group D posts only to the eligible persons. In the circumstances, it was urged that the appellant was not entitled to the benefit of the policy circular. 19. The policy circular dated 1 January 1983 was specifically adverted to in the subsequent circular dated 19 April 2006. The subsequent circular stipulates that the Railway Board had decided that the policy to offer employment to displaced persons should not cover displaced persons where only a strip of land had been acquired. At the same time, it stipulated that the claim can be considered for appointment against a Group D post where a large area, house or substantial livelihood has been taken away/snapped in the process . The case of the appellant fell within the ambit of paragraph 2 of the circular dated 19 April 2006. In rejecting the application of the appellant, the ground which weighed with the Railway Authorities was that only a strip of land belonging to the appellant had been acquired. This is not a correct reading of the circular. The circular contemplates that when a large area, house or substantial livelihood have been taken away, the case for providing alternative employment in a Group D post would be considered. Those phrases are disjunctive. The entire house of the appellant was demolished. It was stated that there was no specific guideline from the Railway authorities to provide a job in lieu of acquisition of land in Ara-Sasaram project. This was not a valid ground to reject the claim, once there was a general policy circular dated 19 April 2006 which held the field. 20. In the counter affidavit that was filed before the High Court, an additional ground was sought to be urged namely that it was only if an exception is granted by the Ministry of Railways that the application would be considered for appointment in accordance with the prevailing norms. There is no justification for this submission since it would result in the exercise of a pick and choose approach, contrary to the policy circular dated 19 April 2006.
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0
### Explanation:
19. The policy circular dated 1 January 1983 was specifically adverted to in the subsequent circular dated 19 April 2006. The subsequent circular stipulates that the Railway Board had decided that the policy to offer employment to displaced persons should not cover displaced persons where only a strip of land had been acquired. At the same time, it stipulated that the claim can be considered for appointment against a Group D post where a large area, house or substantial livelihood has been taken away/snapped in the process . The case of the appellant fell within the ambit of paragraph 2 of the circular dated 19 April 2006. In rejecting the application of the appellant, the ground which weighed with the Railway Authorities was that only a strip of land belonging to the appellant had been acquired. This is not a correct reading of the circular. The circular contemplates that when a large area, house or substantial livelihood have been taken away, the case for providing alternative employment in a Group D post would be considered. Those phrases are disjunctive. The entire house of the appellant was demolished. It was stated that there was no specific guideline from the Railway authorities to provide a job in lieu of acquisition of land in Ara-Sasaram project. This was not a valid ground to reject the claim, once there was a general policy circular dated 19 April 2006 which held the field20. In the counter affidavit that was filed before the High Court, an additional ground was sought to be urged namely that it was only if an exception is granted by the Ministry of Railways that the application would be considered for appointment in accordance with the prevailing norms. There is no justification for this submission since it would result in the exercise of a pick and choose approach, contrary to the policy circular dated 19 April 2006.
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Commissioner Of Wealth Tax, Gujarat Atahmedabad Vs. Mrs. Arundhati Balkrishna | of Wealth Tax Calcutta, (1966) 59 ITR 230 (Cal) a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot share of the net income of the wakf property is an asset within the meaning of the Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax. Therein the Court repelled the contention that the right in question was an annuity. This decision was approved by the Court in Civil Appeals Nos. 2129-2132 of 1968 decided on August 20, 1969 and the same is binding on us. A similar view was taken by another Bench of the Calcutta High Court in Commr. of Wealth Tax v. Mrs. Dorothy, Martin, (1968) 69 ITR 586 (Cal). In that case under the will of the assessees father the assesse was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund. The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under Section 16 (3) of the Wealth Tax Act, 1957. That order was confirmed by the Assistant Appellate Commissioner but the Tribunal in appeal excluded the same in the computation of the net wealth of the assesse. On a reference made to the High Court, it was held that on a construction of the various clauses in the will, the assesse was entitled to an aliquot share in the general income of the residuary trust fund and not a fixed sum payable periodically as "annuity" and, therefore, the value of her share was an asset to be included in computing his net wealth. These decisions in our view correctly lay down the legal position. In this view it is not necessary to consider whether the income receivable by the assessee under those deeds either wholly or in part is capable of being commuted into a lump sum grant.16. For the reasons mentioned above we agree with the High Court that payments to be made to the assessee under the three trust deeds cannot be considered as annuities and hence she is not entitled to the benefit of Section 2 (e) (iv).17. This takes us to the question whether the High Court was right in its view that the value of the assessees jewellery should not be taken into consideration in determining her net wealth. The Tribunal has taken the view and the High Court has agreed with that view that the jewellery in question is articles intended for the personal use of the assessee. As mentioned earlier those jewels were valued at Rs. 80,000/-; out of that amount Wealth Tax Officer deducted Rs. 25,000/- under Section 5 (1) (viii), the assessee claims that in view of Section 5 (1) (viii), the value of those jewels cannot be included in the computation of her net wealth. Section 5 (l) (viii) reads :"5. (l) Wealth-tax shall not be payable by the assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee -* * * * * *(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee."18. There is no dispute that the jewels in question were intended for the personal use of the assessee but it is said on behalf of the revenue that Section 5 (1) (viii) does not apply to jewels as those articles are specifically provided for under Section 5 (l) (xv).On the other hand it is urged an behalf of the assessee that Section 5 (l) (xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or ether jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas Section 5 (1) (viii) takes in only such jewellery as are intended for personal use of the assessee. We think the contention advanced on behalf of the assessee is the correct one. It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes. That being so jewellery intended for the personal use of the assessee comes within the scope of Section 5 (1) (viii). But the jewellery mentioned in Section 5 (1) (xv) need not be articles intended for personal use of the assessee. That provision deals with jewellery in general. The two provisions deal with different classes of jewellery. That is made further clear by Section 5 (1) (xiii) which says that wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within Clause (xii) and not intended for sale but not including jewellery. If the contention that the jewellery is exclusively dealt by Section 5 (1) (xv) is correct then there was no occasion for the legislature to refer to jewellery in Section 5 (l) (xiii). From an analysis of the various provisions in Section 5, it appears to us that therein there are four provisions dealing with jewellery viz, (l) jewellery intended for personal use of the assessee - Section 5 (l) (viii); (2) jewellery that is heirloom - Section 5 (l) (xiii); (3) jewellery in the possession of any ruler - Section 5 (1) (xiv) and (4) jewellery in general - Section 5 (l) (xv). Under Section 5 (1) (xv) as it stood at the relevant time every assessee was entitled to deduct a sum of Rs. 25,000 from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under Section 5 (1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee. | 0[ds]15. On an analysis of the relevant clauses in three trust deeds, it is clear the assesse was given thereunder a share of the income arising from the funds settled on trust. Under those deeds she is not entitled to any fixed sum of money. Therefore it is not possible to hold that the payments that she is entitled to receive under those deeds are annuities. She has undoubtedly a life interest in those funds. In Ahmed G. H. Ariff v. Commr. of Wealth Tax Calcutta, (1966) 59 ITR 230 (Cal) a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot share of the net income of the wakf property is an asset within the meaning ofthe Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax. Therein the Court repelled the contention that the right in question was an annuity. This decision was approved by the Court in Civil Appeals Nos. 2129-2132 of 1968 decided on August 20, 1969 and the same is binding on us. A similar view was taken by another Bench of the Calcutta High Court in Commr. of Wealth Tax v. Mrs. Dorothy, Martin, (1968) 69 ITR 586 (Cal). In that case under the will of the assessees father the assesse was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund. The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under Section 16 (3) ofThere is no dispute that the jewels in question were intended for the personal use of the assessee but it is said on behalf of the revenue that Section 5 (1) (viii) does not apply to jewels as those articles are specifically provided for under Section 5 (l) (xv).On the other hand it is urged an behalf of the assessee that Section 5 (l) (xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or ether jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas Section 5 (1) (viii) takes in only such jewellery as are intended for personal use of the assessee. We think the contention advanced on behalf of the assessee is the correct one. It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes. That being so jewellery intended for the personal use of the assessee comes within the scope of Section 5 (1) (viii). But the jewellery mentioned in Section 5 (1) (xv) need not be articles intended for personal use of the assessee. That provision deals with jewellery in general. The two provisions deal with different classes of jewellery. That is made further clear by Section 5 (1) (xiii) which says that wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within Clause (xii) and not intended for sale but not including jewellery. If the contention that the jewellery is exclusively dealt by Section 5 (1) (xv) is correct then there was no occasion for the legislature to refer to jewellery in Section 5 (l) (xiii). From an analysis of the various provisions in Section 5, it appears to us that therein there are four provisions dealing with jewellery viz, (l) jewellery intended for personal use of the assessee - Section 5 (l) (viii); (2) jewellery that is heirloom - Section 5 (l) (xiii); (3) jewellery in the possession of any ruler - Section 5 (1) (xiv) and (4) jewellery in general - Section 5 (l) (xv). Under Section 5 (1) (xv) as it stood at the relevant time every assessee was entitled to deduct a sum of Rs. 25,000 from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under Section 5 (1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee. | 0 | 3,269 | 843 | ### 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:
of Wealth Tax Calcutta, (1966) 59 ITR 230 (Cal) a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot share of the net income of the wakf property is an asset within the meaning of the Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax. Therein the Court repelled the contention that the right in question was an annuity. This decision was approved by the Court in Civil Appeals Nos. 2129-2132 of 1968 decided on August 20, 1969 and the same is binding on us. A similar view was taken by another Bench of the Calcutta High Court in Commr. of Wealth Tax v. Mrs. Dorothy, Martin, (1968) 69 ITR 586 (Cal). In that case under the will of the assessees father the assesse was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund. The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under Section 16 (3) of the Wealth Tax Act, 1957. That order was confirmed by the Assistant Appellate Commissioner but the Tribunal in appeal excluded the same in the computation of the net wealth of the assesse. On a reference made to the High Court, it was held that on a construction of the various clauses in the will, the assesse was entitled to an aliquot share in the general income of the residuary trust fund and not a fixed sum payable periodically as "annuity" and, therefore, the value of her share was an asset to be included in computing his net wealth. These decisions in our view correctly lay down the legal position. In this view it is not necessary to consider whether the income receivable by the assessee under those deeds either wholly or in part is capable of being commuted into a lump sum grant.16. For the reasons mentioned above we agree with the High Court that payments to be made to the assessee under the three trust deeds cannot be considered as annuities and hence she is not entitled to the benefit of Section 2 (e) (iv).17. This takes us to the question whether the High Court was right in its view that the value of the assessees jewellery should not be taken into consideration in determining her net wealth. The Tribunal has taken the view and the High Court has agreed with that view that the jewellery in question is articles intended for the personal use of the assessee. As mentioned earlier those jewels were valued at Rs. 80,000/-; out of that amount Wealth Tax Officer deducted Rs. 25,000/- under Section 5 (1) (viii), the assessee claims that in view of Section 5 (1) (viii), the value of those jewels cannot be included in the computation of her net wealth. Section 5 (l) (viii) reads :"5. (l) Wealth-tax shall not be payable by the assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee -* * * * * *(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee."18. There is no dispute that the jewels in question were intended for the personal use of the assessee but it is said on behalf of the revenue that Section 5 (1) (viii) does not apply to jewels as those articles are specifically provided for under Section 5 (l) (xv).On the other hand it is urged an behalf of the assessee that Section 5 (l) (xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or ether jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas Section 5 (1) (viii) takes in only such jewellery as are intended for personal use of the assessee. We think the contention advanced on behalf of the assessee is the correct one. It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes. That being so jewellery intended for the personal use of the assessee comes within the scope of Section 5 (1) (viii). But the jewellery mentioned in Section 5 (1) (xv) need not be articles intended for personal use of the assessee. That provision deals with jewellery in general. The two provisions deal with different classes of jewellery. That is made further clear by Section 5 (1) (xiii) which says that wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within Clause (xii) and not intended for sale but not including jewellery. If the contention that the jewellery is exclusively dealt by Section 5 (1) (xv) is correct then there was no occasion for the legislature to refer to jewellery in Section 5 (l) (xiii). From an analysis of the various provisions in Section 5, it appears to us that therein there are four provisions dealing with jewellery viz, (l) jewellery intended for personal use of the assessee - Section 5 (l) (viii); (2) jewellery that is heirloom - Section 5 (l) (xiii); (3) jewellery in the possession of any ruler - Section 5 (1) (xiv) and (4) jewellery in general - Section 5 (l) (xv). Under Section 5 (1) (xv) as it stood at the relevant time every assessee was entitled to deduct a sum of Rs. 25,000 from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under Section 5 (1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee.
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15. On an analysis of the relevant clauses in three trust deeds, it is clear the assesse was given thereunder a share of the income arising from the funds settled on trust. Under those deeds she is not entitled to any fixed sum of money. Therefore it is not possible to hold that the payments that she is entitled to receive under those deeds are annuities. She has undoubtedly a life interest in those funds. In Ahmed G. H. Ariff v. Commr. of Wealth Tax Calcutta, (1966) 59 ITR 230 (Cal) a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot share of the net income of the wakf property is an asset within the meaning ofthe Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax. Therein the Court repelled the contention that the right in question was an annuity. This decision was approved by the Court in Civil Appeals Nos. 2129-2132 of 1968 decided on August 20, 1969 and the same is binding on us. A similar view was taken by another Bench of the Calcutta High Court in Commr. of Wealth Tax v. Mrs. Dorothy, Martin, (1968) 69 ITR 586 (Cal). In that case under the will of the assessees father the assesse was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund. The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under Section 16 (3) ofThere is no dispute that the jewels in question were intended for the personal use of the assessee but it is said on behalf of the revenue that Section 5 (1) (viii) does not apply to jewels as those articles are specifically provided for under Section 5 (l) (xv).On the other hand it is urged an behalf of the assessee that Section 5 (l) (xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or ether jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas Section 5 (1) (viii) takes in only such jewellery as are intended for personal use of the assessee. We think the contention advanced on behalf of the assessee is the correct one. It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes. That being so jewellery intended for the personal use of the assessee comes within the scope of Section 5 (1) (viii). But the jewellery mentioned in Section 5 (1) (xv) need not be articles intended for personal use of the assessee. That provision deals with jewellery in general. The two provisions deal with different classes of jewellery. That is made further clear by Section 5 (1) (xiii) which says that wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within Clause (xii) and not intended for sale but not including jewellery. If the contention that the jewellery is exclusively dealt by Section 5 (1) (xv) is correct then there was no occasion for the legislature to refer to jewellery in Section 5 (l) (xiii). From an analysis of the various provisions in Section 5, it appears to us that therein there are four provisions dealing with jewellery viz, (l) jewellery intended for personal use of the assessee - Section 5 (l) (viii); (2) jewellery that is heirloom - Section 5 (l) (xiii); (3) jewellery in the possession of any ruler - Section 5 (1) (xiv) and (4) jewellery in general - Section 5 (l) (xv). Under Section 5 (1) (xv) as it stood at the relevant time every assessee was entitled to deduct a sum of Rs. 25,000 from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under Section 5 (1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee.
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State of Madras Vs. Kannepalli Chinna Venkata Chalamaya Sastri | counsel for the parties. It is urged on behalf of the appellant that the High Court was wrong in holding that where the reduction is such that the previous net income is reduced below 25 per centum there would be an unreasonable restriction on the right to hold property, merely because of this circumstance. It is said that the fixation of this percentage at 25 per centum is more or less arbitrary. In any case it means that where a landholder had been successful enough previously to practice rack-renting as an art and to increase the rents of his tentants unconscionably, be would get protection because in such a case it was likely that the reduction would be drastic and may even result in the reduced net income being less than 25 per centum of the previous net income. On the other hand in the case of a landholder who was a humane person and did not increase his rents unconscionably, the reduction of rents on the basis of the same rate which might be used in the case of the former landholder who was a rock-renter may not be hit because in his case the reduction may not be below 25 per centum. So it is urged that if the reasonableness is to depend upon by how much the previous net income is reduced after the reduction it will always work in favour of a landholder who was a rack-renter even though the basis of reduction may be on the same rates in the ease of a rack- renting landholder and in the case of a humane landholder. Therefore, it is urged that if the reduction is reasonable in the case of a humane landholder because it is brought into line with the prevailing rates of rent in the neighbouring areas under the ryotwari settlement, there is no reason why such reduction should not continue to be reasonable in the case of the other landholder. The fact that in one case the reduction may not be below 25 per centum while in the other case it may go below 25 per centum will make no difference to the reasonableness of the reduction, for in either case the basis of the reduction is the same. We are of opinion that there is force in this argument and it must be accepted, what we have to see is whether the Act when it provides for reduction of rent proceeds on a reasonable basis i.e. whether the reduction of rent to the level of the prevailing rent for the same class of land the neighbouring areas where ryotwari settlement prevails is reasonable. This in our opinion is a reasonable basis on, which the rent in estates covered by the Madras Estates Land Act can be reduced. Once this basis is accepted as reasonable, we fail to see how the ratio between what the landholder was getting before the reduction and what he gets after the reduction will make what is per se reasonable into an unreasonable restriction. Theoretically it may be possible to say that the reduction may be so much that nothing may be left to the landholder. This is what the respondent tried to make out in his writ petition, for his case therein was that the rents were so far reduced in his case that instead of getting an income of Rs. 3,875 he would be getting no income at all and would be actually suffering a net loss of Rs. 655 by his holding the estate after reduction of rents. This of course has been found by the High Court to be incorrect and in actual fact the landholder is left, with a net income of Rs. 457 and odd after the reduction in rent. Therefore, except for the theoretical possibility where the landholder may be left with nothing on reduction of rents, it cannot be said from the mere fact that in some cases the ratio of net income falls after reduction of rent as compared to the net income before reduction below 25 per centum that the restriction; imposed by the Act are unreasonable. Actually we feel that there cannot possibly be any case where after the reduction there will be nothing left to the landholder. We cannot therefore agree with the High Court that simply because in a particular case the net income after reduction falls below 25 per centum of the net income before reduction the notification which results in such a position is an unreasonable restriction on the right of the landholder to hold his estate. As we have said already, the ratio by which the net income will fall after reduction will depend upon whether the landholder whose rents are being reduced was a rack-renter or a humane person; in the case of a rack-renter the fall may be heavier while in the case of a humane person the fall may be less. But if the basis on which the reduction is made is the same in both cases and is reasonable, we see no reason for holding that a notification which may in a given case result in a fall of the net income which is even below 25 per centum of the previous net income would necessarily be bad as an unreasonable restriction on the right of the llandholder to hold his estate It is important in this connection to remember that the rent allowed to the respondent compares favourably with the highest rent payable by the ryotwari tenants in the locality. Therefore, the basis on which rents are being reduced under the Act. being good and reasonable the result of such reduction would not make the notification in a particular case bad except where that theoretical case is reached where there is no income left to the landholder after reduction, which in our opinion is impossible. We therefore allow the appeal and setting aside the order of the High Court dismiss the writ petition with costs throughout. Appeal allowed. | 0[ds](6) After this opinion of the Full Bench, the matter was again placed before a Division Bench for final decision. At that stage it seems that the point that the village in dispute was not an estate was given up and the only point urged was that the reduction was so drastic as to amount to an unreasonable restriction on the fundamental right to hold property under Art. 19(1)(f). The learned Advocate General placed before the Bench the effect of the reduction based on the notification of 27/06/1950. It was found that prior to the reduction the net income of the respondent was Rs. 3,867, and after the reduction his net income was reduction to Rs.It is urged by the learnedthat the respondent was getting the rent at the highest rate prevalent in the ryotwari areas of the district and that it could not be said that the reduction of rates of rent to the level of the highest ryotwari rate was an unreasonable restriction on the right of the respondent to hold property. The Bench, however, observed that though ordinarily the reduction of rates of real to the ryotwari level might be reasonable there might be circumstances in a particular case to hold that the reduction was so drastic that it would be an unreasonable restriction. It was observed that the State might reduce the rent to such a level after deducting the legal charges and the cost of collection fixed on an arbitrary basis that there might be nothing left to the landholder. In such a case in the name of regulation of rents and collection thereof the State took away the grain and gave the took to the landholder. The Bench then added that though it was easy to state the principle it was difficult to apply it to the facts of each case. It then went on to consider the circumstances under which it could be held that reduction was so drastic that the landholder was substantially deprived of his income, and was of opinion that having regard to the object of the Act, if the income of the landholder after reduction of rents did not fall below 25 per centum of his previous income it could be held that the reduction was not an unreasonable restriction on the right to hold property enshrined in Art. 19(1)(f). As in this case, however, the income of the respondent fell far below 25 per centtum of the income which he was getting before the reduction, the Bench held that the notification was bad. Thereupon the State Government asked for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.(7) So far as the constitutionality of the Act is concerned, there was no serious challenge to it by the respondent. If one refers to the main provisions of the Act relating to reduction of rents which we have already set out above, it will appear that the object of the Act was to put a check onin estates as defined in the Madras Estates Land Act. As such agricultural tenants formed a considerable group of cultivators in the State, it was thought necessary to ameliorate their condition. The Act was therefore enacted under the powers conferred on the Provincial Legislature under Item 21, of List II of Schedule VII to the Government of India Act dealing with land. It provided for reduction of rent to the level at which the rents prevailed in the neighbouring area where there was ryotwari settlement. In these circumstances it cannot possibly be said that the reduction of the prevailing rents to the ryotwari level was an unreasonable restriction on the right of the landholder of an estate to hold property under Art. 19 (1) (f). We must therefore hold that the Act is constitutional and lays down reasonable restrictions on the right of the landholder to hold his estate.(8) The attack based on reading the term "acquisition" in S. 299 of the Government of India Act, 1935 in the wide sense of any interference with property even when the title thereto does not pass to the State, which as the point debated before the Full Bench is no longer a live issue since the matter is concluded against the respondent by the decision of this Court inSharma v. State of Bihar, AIR 1961 SC 1684 .(9) This brings us to the main point that has been argued before us by counsel for the parties. It is urged on behalf of the appellant that the High Court was wrong in holding that where the reduction is such that the previous net income is reduced below 25 per centum there would be an unreasonable restriction on the right to hold property, merely because of this circumstance. It is said that the fixation of this percentage at 25 per centum is more or less arbitrary. In any case it means that where a landholder had been successful enough previously to practiceas an art and to increase the rents of his tentants unconscionably, be would get protection because in such a case it was likely that the reduction would be drastic and may even result in the reduced net income being less than 25 per centum of the previous net income. On the other hand in the case of a landholder who was a humane person and did not increase his rents unconscionably, the reduction of rents on the basis of the same rate which might be used in the case of the former landholder who was amay not be hit because in his case the reduction may not be below 25 per centum. So it is urged that if the reasonableness is to depend upon by how much the previous net income is reduced after the reduction it will always work in favour of a landholder who was aeven though the basis of reduction may be on the same rates in the ease of a rackrenting landholder and in the case of a humane landholder. Therefore, it is urged that if the reduction is reasonable in the case of a humane landholder because it is brought into line with the prevailing rates of rent in the neighbouring areas under the ryotwari settlement, there is no reason why such reduction should not continue to be reasonable in the case of the other landholder. The fact that in one case the reduction may not be below 25 per centum while in the other case it may go below 25 per centum will make no difference to the reasonableness of the reduction, for in either case the basis of the reduction is the same. We are of opinion that there is force in this argument and it must be accepted, what we have to see is whether the Act when it provides for reduction of rent proceeds on a reasonable basis i.e. whether the reduction of rent to the level of the prevailing rent for the same class of land the neighbouring areas where ryotwari settlement prevails is reasonable. This in our opinion is a reasonable basis on, which the rent in estates covered by the Madras Estates Land Act can be reduced. Once this basis is accepted as reasonable, we fail to see how the ratio between what the landholder was getting before the reduction and what he gets after the reduction will make what is per se reasonable into an unreasonable restriction. Theoretically it may be possible to say that the reduction may be so much that nothing may be left to the landholder. This is what the respondent tried to make out in his writ petition, for his case therein was that the rents were so far reduced in his case that instead of getting an income of Rs. 3,875 he would be getting no income at all and would be actually suffering a net loss of Rs. 655 by his holding the estate after reduction of rents. This of course has been found by the High Court to be incorrect and in actual fact the landholder is left, with a net income of Rs. 457 and odd after the reduction in rent. Therefore, except for the theoretical possibility where the landholder may be left with nothing on reduction of rents, it cannot be said from the mere fact that in some cases the ratio of net income falls after reduction of rent as compared to the net income before reduction below 25 per centum that the restriction; imposed by the Act are unreasonable. Actually we feel that there cannot possibly be any case where after the reduction there will be nothing left to the landholder. We cannot therefore agree with the High Court that simply because in a particular case the net income after reduction falls below 25 per centum of the net income before reduction the notification which results in such a position is an unreasonable restriction on the right of the landholder to hold his estate. As we have said already, the ratio by which the net income will fall after reduction will depend upon whether the landholder whose rents are being reduced was aor a humane person; in the case of athe fall may be heavier while in the case of a humane person the fall may be less. But if the basis on which the reduction is made is the same in both cases and is reasonable, we see no reason for holding that a notification which may in a given case result in a fall of the net income which is even below 25 per centum of the previous net income would necessarily be bad as an unreasonable restriction on the right of the llandholder to hold his estate It is important in this connection to remember that the rent allowed to the respondent compares favourably with the highest rent payable by the ryotwari tenants in the locality. Therefore, the basis on which rents are being reduced under the Act. being good and reasonable the result of such reduction would not make the notification in a particular case bad except where that theoretical case is reached where there is no income left to the landholder after reduction, which in our opinion is impossible. We therefore allow the appeal and setting aside the order of the High Court dismiss the writ petition with costs throughout. Appeal allowed. | 0 | 3,589 | 1,860 | ### 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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counsel for the parties. It is urged on behalf of the appellant that the High Court was wrong in holding that where the reduction is such that the previous net income is reduced below 25 per centum there would be an unreasonable restriction on the right to hold property, merely because of this circumstance. It is said that the fixation of this percentage at 25 per centum is more or less arbitrary. In any case it means that where a landholder had been successful enough previously to practice rack-renting as an art and to increase the rents of his tentants unconscionably, be would get protection because in such a case it was likely that the reduction would be drastic and may even result in the reduced net income being less than 25 per centum of the previous net income. On the other hand in the case of a landholder who was a humane person and did not increase his rents unconscionably, the reduction of rents on the basis of the same rate which might be used in the case of the former landholder who was a rock-renter may not be hit because in his case the reduction may not be below 25 per centum. So it is urged that if the reasonableness is to depend upon by how much the previous net income is reduced after the reduction it will always work in favour of a landholder who was a rack-renter even though the basis of reduction may be on the same rates in the ease of a rack- renting landholder and in the case of a humane landholder. Therefore, it is urged that if the reduction is reasonable in the case of a humane landholder because it is brought into line with the prevailing rates of rent in the neighbouring areas under the ryotwari settlement, there is no reason why such reduction should not continue to be reasonable in the case of the other landholder. The fact that in one case the reduction may not be below 25 per centum while in the other case it may go below 25 per centum will make no difference to the reasonableness of the reduction, for in either case the basis of the reduction is the same. We are of opinion that there is force in this argument and it must be accepted, what we have to see is whether the Act when it provides for reduction of rent proceeds on a reasonable basis i.e. whether the reduction of rent to the level of the prevailing rent for the same class of land the neighbouring areas where ryotwari settlement prevails is reasonable. This in our opinion is a reasonable basis on, which the rent in estates covered by the Madras Estates Land Act can be reduced. Once this basis is accepted as reasonable, we fail to see how the ratio between what the landholder was getting before the reduction and what he gets after the reduction will make what is per se reasonable into an unreasonable restriction. Theoretically it may be possible to say that the reduction may be so much that nothing may be left to the landholder. This is what the respondent tried to make out in his writ petition, for his case therein was that the rents were so far reduced in his case that instead of getting an income of Rs. 3,875 he would be getting no income at all and would be actually suffering a net loss of Rs. 655 by his holding the estate after reduction of rents. This of course has been found by the High Court to be incorrect and in actual fact the landholder is left, with a net income of Rs. 457 and odd after the reduction in rent. Therefore, except for the theoretical possibility where the landholder may be left with nothing on reduction of rents, it cannot be said from the mere fact that in some cases the ratio of net income falls after reduction of rent as compared to the net income before reduction below 25 per centum that the restriction; imposed by the Act are unreasonable. Actually we feel that there cannot possibly be any case where after the reduction there will be nothing left to the landholder. We cannot therefore agree with the High Court that simply because in a particular case the net income after reduction falls below 25 per centum of the net income before reduction the notification which results in such a position is an unreasonable restriction on the right of the landholder to hold his estate. As we have said already, the ratio by which the net income will fall after reduction will depend upon whether the landholder whose rents are being reduced was a rack-renter or a humane person; in the case of a rack-renter the fall may be heavier while in the case of a humane person the fall may be less. But if the basis on which the reduction is made is the same in both cases and is reasonable, we see no reason for holding that a notification which may in a given case result in a fall of the net income which is even below 25 per centum of the previous net income would necessarily be bad as an unreasonable restriction on the right of the llandholder to hold his estate It is important in this connection to remember that the rent allowed to the respondent compares favourably with the highest rent payable by the ryotwari tenants in the locality. Therefore, the basis on which rents are being reduced under the Act. being good and reasonable the result of such reduction would not make the notification in a particular case bad except where that theoretical case is reached where there is no income left to the landholder after reduction, which in our opinion is impossible. We therefore allow the appeal and setting aside the order of the High Court dismiss the writ petition with costs throughout. Appeal allowed.
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to the main point that has been argued before us by counsel for the parties. It is urged on behalf of the appellant that the High Court was wrong in holding that where the reduction is such that the previous net income is reduced below 25 per centum there would be an unreasonable restriction on the right to hold property, merely because of this circumstance. It is said that the fixation of this percentage at 25 per centum is more or less arbitrary. In any case it means that where a landholder had been successful enough previously to practiceas an art and to increase the rents of his tentants unconscionably, be would get protection because in such a case it was likely that the reduction would be drastic and may even result in the reduced net income being less than 25 per centum of the previous net income. On the other hand in the case of a landholder who was a humane person and did not increase his rents unconscionably, the reduction of rents on the basis of the same rate which might be used in the case of the former landholder who was amay not be hit because in his case the reduction may not be below 25 per centum. So it is urged that if the reasonableness is to depend upon by how much the previous net income is reduced after the reduction it will always work in favour of a landholder who was aeven though the basis of reduction may be on the same rates in the ease of a rackrenting landholder and in the case of a humane landholder. Therefore, it is urged that if the reduction is reasonable in the case of a humane landholder because it is brought into line with the prevailing rates of rent in the neighbouring areas under the ryotwari settlement, there is no reason why such reduction should not continue to be reasonable in the case of the other landholder. The fact that in one case the reduction may not be below 25 per centum while in the other case it may go below 25 per centum will make no difference to the reasonableness of the reduction, for in either case the basis of the reduction is the same. We are of opinion that there is force in this argument and it must be accepted, what we have to see is whether the Act when it provides for reduction of rent proceeds on a reasonable basis i.e. whether the reduction of rent to the level of the prevailing rent for the same class of land the neighbouring areas where ryotwari settlement prevails is reasonable. This in our opinion is a reasonable basis on, which the rent in estates covered by the Madras Estates Land Act can be reduced. Once this basis is accepted as reasonable, we fail to see how the ratio between what the landholder was getting before the reduction and what he gets after the reduction will make what is per se reasonable into an unreasonable restriction. Theoretically it may be possible to say that the reduction may be so much that nothing may be left to the landholder. This is what the respondent tried to make out in his writ petition, for his case therein was that the rents were so far reduced in his case that instead of getting an income of Rs. 3,875 he would be getting no income at all and would be actually suffering a net loss of Rs. 655 by his holding the estate after reduction of rents. This of course has been found by the High Court to be incorrect and in actual fact the landholder is left, with a net income of Rs. 457 and odd after the reduction in rent. Therefore, except for the theoretical possibility where the landholder may be left with nothing on reduction of rents, it cannot be said from the mere fact that in some cases the ratio of net income falls after reduction of rent as compared to the net income before reduction below 25 per centum that the restriction; imposed by the Act are unreasonable. Actually we feel that there cannot possibly be any case where after the reduction there will be nothing left to the landholder. We cannot therefore agree with the High Court that simply because in a particular case the net income after reduction falls below 25 per centum of the net income before reduction the notification which results in such a position is an unreasonable restriction on the right of the landholder to hold his estate. As we have said already, the ratio by which the net income will fall after reduction will depend upon whether the landholder whose rents are being reduced was aor a humane person; in the case of athe fall may be heavier while in the case of a humane person the fall may be less. But if the basis on which the reduction is made is the same in both cases and is reasonable, we see no reason for holding that a notification which may in a given case result in a fall of the net income which is even below 25 per centum of the previous net income would necessarily be bad as an unreasonable restriction on the right of the llandholder to hold his estate It is important in this connection to remember that the rent allowed to the respondent compares favourably with the highest rent payable by the ryotwari tenants in the locality. Therefore, the basis on which rents are being reduced under the Act. being good and reasonable the result of such reduction would not make the notification in a particular case bad except where that theoretical case is reached where there is no income left to the landholder after reduction, which in our opinion is impossible. We therefore allow the appeal and setting aside the order of the High Court dismiss the writ petition with costs throughout. Appeal allowed.
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M/S. Ballarpur Industries Limited Vs. Commissioner of Income Tax, Vidarbha, Nagpur | for the reason that the said decision was not dealing with the impact of Section 72A of the Income Tax Act on the provision of Section 32(2) or 43(6) of the said Act. The requirements of Section 32(2) read with Section 43(6) of the Income Tax Act, which permit the amalgamating Company to claim its unabsorbed depreciation, get eclipsed by the provision of Section 72(A)(1)(c) of the said Act, which has been given overriding effect and the power to put such restrictions is conferred upon BIFR under Section 32(2) of SICA. In the present case, this power has been exercised by BIFR, putting a cap of Rs.75,00,000/- with an object not only to see that there is a revival of sick industry but also to provide capital incentive to amalgamated company to claim unabsorbed loss of the amalgamating company.13. The object and purpose of introducing Section 72A under the Income Tax Act is considered by the Division Bench of Delhi High Court in its judgment in the case of IEL Ltd. v. Union of India & Ors., reported in (1992) 195 ITR 0232. The relevant portion of this judgment in para 10 is reproduced below:10. ... While examining the application under s. 72A, the purpose and intent of insertion of the section has to be kept in view. Sec. 72A was enacted with a view to provide an incentive to robust companies to take over and amalgamate with the companies which would otherwise become a burden on the economy. It is no doubt true that when a declaration under s. 72A is granted, the amalgamated company does receive benefits, inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. But this is precisely the incentive which is given to the healthy companies and, we feel, that the legislative intent of giving such incentive should not ordinarily be set at naught. The Specified Authority and the Central Government should take an overall view of the matter and come to a pragmatic and practical conclusion as to whether the conditions specified in s. 72A are satisfied or not. We may here note that where the provisions of s. 72A are not misused, there is further safeguard which are provided in s. 72A of the Act. Once a declaration under s. 72A has been accorded, then before getting the benefit under that provision, the amalgamated company has to fulfill the conditions specified in subs. (2) of s. 72A. One of the important conditions stipulated in subs. (2) of s. 72A is obtaining of a certificate from the Specified Authority to the effect that adequate steps had been taken by the amalgamated company for the rehabilitation or revival of business of the amalgamating company. In other words, the benefit of s. 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. The revival of a sick unit or positive efforts in this behalf are the preconditions to the benefits under s. 72A being availed of. We, therefore, feel that an application under s. 72A should be considered most sympathetically from a businessmans point of view. If a company has become commercially insolvent or is likely to become commercially insolvent, then every effort should be made to prevent such a situation from arising and if an amalgamation takes place and conditions under subs. (1) of s. 72A are satisfied, then we see no reason as to why a declaration should not be accorded.14. The Division Bench of Delhi High Court has held in the aforesaid decision that once the declaration is granted under Section 72A of the Income Tax Act, the amalgamated company thus received the benefit inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. Upon fulfillment of the conditions specified in subsection (2) of Section 72A, it holds that the benefit of Section 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. This decision supports the view which we have taken.15. We put a specific question to Shri Bhattad, the learned counsel appearing for the Department, as to whether the assessee would be entitled to such claim of unabsorbed depreciation in the absence of the provision of Section 72 of the Income Tax Act, and his answer is in the affirmative. We also put a specific question to Shri Dewani, the learned counsel appearing for the assessee, as to whether the assessee would be entitled to claim the unabsorbed loss of Rs.1,41,40,464/- of the amalgamating company during the Assessment Year 1992-93 in the absence of the provision of Section 72A of the Income Tax Act, and his answer is in the negative.16. Thus, the undisputed position is that in the absence of the provisions of Section 72A of the Income Tax Act, the assessee would be entitled to written down value of Rs.1,23,55,847/- of the assets of the amalgamating company for the Assessment Year 1992-93 and consequently to claim the depreciation of Rs.27,09,294/-. In the absence of the provision of Section 72A of the Income Tax Act, the assessee would not be entitled to claim unabsorbed loss of Rs.1,41,40,464/- of the amalgamating company for the Assessment Year 1992-93. The assessee exercised the discretion of exhausting the business loss first, as a result of which, the claim for depreciation of Rs.3,52,290/- only remained admissible.17. Taking overall view as aforestated, we hold that the Income Tax Appellate Tribunal did not commit an error in confirming the disallowance of depreciation amounting to Rs.27,09,294/- in respect of the assets of M/s. Modern Stramit (I) Ltd., a Company amalgamated with the appellant-Company, in terms of the order dated 6-5-1992 passed by BIFR. The question of law at serial No.(IV) is answered accordingly. The other questions of law do not survive. | 0[ds]12. In our view, the Tribunal and the authorities below have rightly held that the decision of this Court in Hindustan Petroleum Corporation Ltd., cited supra, is not applicable in the present case, for the reason that the said decision was not dealing with the impact of Section 72A of the Income Tax Act on the provision of Section 32(2) or 43(6) of the said Act. The requirements of Section 32(2) read with Section 43(6) of the Income Tax Act, which permit the amalgamating Company to claim its unabsorbed depreciation, get eclipsed by the provision of Section 72(A)(1)(c) of the said Act, which has been given overriding effect and the power to put such restrictions is conferred upon BIFR under Section 32(2) of SICA. In the present case, this power has been exercised by BIFR, putting a cap of Rs.75,00,000/with an object not only to see that there is a revival of sick industry but also to provide capital incentive to amalgamated company to claim unabsorbed loss of the amalgamating company.The Division Bench of Delhi High Court has held in the aforesaid decision that once the declaration is granted under Section 72A of the Income Tax Act, the amalgamated company thus received the benefit inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. Upon fulfillment of the conditions specified in subsection (2) of Section 72A, it holds that the benefit of Section 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. This decision supports the view which we have taken.15. We put a specific question to Shri Bhattad, the learned counsel appearing for the Department, as to whether the assessee would be entitled to such claim of unabsorbed depreciation in the absence of the provision of Section 72 of the Income Tax Act, and his answer is in the affirmative. We also put a specific question to Shri Dewani, the learned counsel appearing for the assessee, as to whether the assessee would be entitled to claim the unabsorbed loss of Rs.1,41,40,464/of the amalgamating company during the Assessment Yearin the absence of the provision of Section 72A of the Income Tax Act, and his answer is in the negative.16. Thus, the undisputed position is that in the absence of the provisions of Section 72A of the Income Tax Act, the assessee would be entitled to written down value of Rs.1,23,55,847/of the assets of the amalgamating companyfor the Assessment3 and consequently to claim the depreciation of Rs.In the absence of the provision of Section 72A of the Income Tax Act, the assessee would not be entitled to claim unabsorbed loss of Rs.1,41,40,464/of the amalgamating companyfor the Assessment. The assessee exercised the discretion of exhausting the business loss first, as a result of which, the claim for depreciation of Rs.3,52,290/only remained admissible.17. Taking overall view as aforestated, we hold that the Income Tax Appellate Tribunal did not commit an error in confirming the disallowance of depreciation amounting to Rs.27,09,294/in respect of the assets of M/s. Modern Stramit (I) Ltd., a Company amalgamated with thein terms of the order dated651992 passed byBIFR. The question of law at serial No.(IV) is answered accordingly. The other questions of law do not survive. | 0 | 2,878 | 630 | ### 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 the reason that the said decision was not dealing with the impact of Section 72A of the Income Tax Act on the provision of Section 32(2) or 43(6) of the said Act. The requirements of Section 32(2) read with Section 43(6) of the Income Tax Act, which permit the amalgamating Company to claim its unabsorbed depreciation, get eclipsed by the provision of Section 72(A)(1)(c) of the said Act, which has been given overriding effect and the power to put such restrictions is conferred upon BIFR under Section 32(2) of SICA. In the present case, this power has been exercised by BIFR, putting a cap of Rs.75,00,000/- with an object not only to see that there is a revival of sick industry but also to provide capital incentive to amalgamated company to claim unabsorbed loss of the amalgamating company.13. The object and purpose of introducing Section 72A under the Income Tax Act is considered by the Division Bench of Delhi High Court in its judgment in the case of IEL Ltd. v. Union of India & Ors., reported in (1992) 195 ITR 0232. The relevant portion of this judgment in para 10 is reproduced below:10. ... While examining the application under s. 72A, the purpose and intent of insertion of the section has to be kept in view. Sec. 72A was enacted with a view to provide an incentive to robust companies to take over and amalgamate with the companies which would otherwise become a burden on the economy. It is no doubt true that when a declaration under s. 72A is granted, the amalgamated company does receive benefits, inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. But this is precisely the incentive which is given to the healthy companies and, we feel, that the legislative intent of giving such incentive should not ordinarily be set at naught. The Specified Authority and the Central Government should take an overall view of the matter and come to a pragmatic and practical conclusion as to whether the conditions specified in s. 72A are satisfied or not. We may here note that where the provisions of s. 72A are not misused, there is further safeguard which are provided in s. 72A of the Act. Once a declaration under s. 72A has been accorded, then before getting the benefit under that provision, the amalgamated company has to fulfill the conditions specified in subs. (2) of s. 72A. One of the important conditions stipulated in subs. (2) of s. 72A is obtaining of a certificate from the Specified Authority to the effect that adequate steps had been taken by the amalgamated company for the rehabilitation or revival of business of the amalgamating company. In other words, the benefit of s. 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. The revival of a sick unit or positive efforts in this behalf are the preconditions to the benefits under s. 72A being availed of. We, therefore, feel that an application under s. 72A should be considered most sympathetically from a businessmans point of view. If a company has become commercially insolvent or is likely to become commercially insolvent, then every effort should be made to prevent such a situation from arising and if an amalgamation takes place and conditions under subs. (1) of s. 72A are satisfied, then we see no reason as to why a declaration should not be accorded.14. The Division Bench of Delhi High Court has held in the aforesaid decision that once the declaration is granted under Section 72A of the Income Tax Act, the amalgamated company thus received the benefit inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. Upon fulfillment of the conditions specified in subsection (2) of Section 72A, it holds that the benefit of Section 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. This decision supports the view which we have taken.15. We put a specific question to Shri Bhattad, the learned counsel appearing for the Department, as to whether the assessee would be entitled to such claim of unabsorbed depreciation in the absence of the provision of Section 72 of the Income Tax Act, and his answer is in the affirmative. We also put a specific question to Shri Dewani, the learned counsel appearing for the assessee, as to whether the assessee would be entitled to claim the unabsorbed loss of Rs.1,41,40,464/- of the amalgamating company during the Assessment Year 1992-93 in the absence of the provision of Section 72A of the Income Tax Act, and his answer is in the negative.16. Thus, the undisputed position is that in the absence of the provisions of Section 72A of the Income Tax Act, the assessee would be entitled to written down value of Rs.1,23,55,847/- of the assets of the amalgamating company for the Assessment Year 1992-93 and consequently to claim the depreciation of Rs.27,09,294/-. In the absence of the provision of Section 72A of the Income Tax Act, the assessee would not be entitled to claim unabsorbed loss of Rs.1,41,40,464/- of the amalgamating company for the Assessment Year 1992-93. The assessee exercised the discretion of exhausting the business loss first, as a result of which, the claim for depreciation of Rs.3,52,290/- only remained admissible.17. Taking overall view as aforestated, we hold that the Income Tax Appellate Tribunal did not commit an error in confirming the disallowance of depreciation amounting to Rs.27,09,294/- in respect of the assets of M/s. Modern Stramit (I) Ltd., a Company amalgamated with the appellant-Company, in terms of the order dated 6-5-1992 passed by BIFR. The question of law at serial No.(IV) is answered accordingly. The other questions of law do not survive.
### Response:
0
### Explanation:
12. In our view, the Tribunal and the authorities below have rightly held that the decision of this Court in Hindustan Petroleum Corporation Ltd., cited supra, is not applicable in the present case, for the reason that the said decision was not dealing with the impact of Section 72A of the Income Tax Act on the provision of Section 32(2) or 43(6) of the said Act. The requirements of Section 32(2) read with Section 43(6) of the Income Tax Act, which permit the amalgamating Company to claim its unabsorbed depreciation, get eclipsed by the provision of Section 72(A)(1)(c) of the said Act, which has been given overriding effect and the power to put such restrictions is conferred upon BIFR under Section 32(2) of SICA. In the present case, this power has been exercised by BIFR, putting a cap of Rs.75,00,000/with an object not only to see that there is a revival of sick industry but also to provide capital incentive to amalgamated company to claim unabsorbed loss of the amalgamating company.The Division Bench of Delhi High Court has held in the aforesaid decision that once the declaration is granted under Section 72A of the Income Tax Act, the amalgamated company thus received the benefit inasmuch as it is able to take advantage of the unabsorbed depreciation and accumulated losses. Upon fulfillment of the conditions specified in subsection (2) of Section 72A, it holds that the benefit of Section 72A will not be obtained if the sole idea of amalgamating was not the revival of the amalgamating company but was only to take benefit of the carry forward losses and unabsorbed depreciation. This decision supports the view which we have taken.15. We put a specific question to Shri Bhattad, the learned counsel appearing for the Department, as to whether the assessee would be entitled to such claim of unabsorbed depreciation in the absence of the provision of Section 72 of the Income Tax Act, and his answer is in the affirmative. We also put a specific question to Shri Dewani, the learned counsel appearing for the assessee, as to whether the assessee would be entitled to claim the unabsorbed loss of Rs.1,41,40,464/of the amalgamating company during the Assessment Yearin the absence of the provision of Section 72A of the Income Tax Act, and his answer is in the negative.16. Thus, the undisputed position is that in the absence of the provisions of Section 72A of the Income Tax Act, the assessee would be entitled to written down value of Rs.1,23,55,847/of the assets of the amalgamating companyfor the Assessment3 and consequently to claim the depreciation of Rs.In the absence of the provision of Section 72A of the Income Tax Act, the assessee would not be entitled to claim unabsorbed loss of Rs.1,41,40,464/of the amalgamating companyfor the Assessment. The assessee exercised the discretion of exhausting the business loss first, as a result of which, the claim for depreciation of Rs.3,52,290/only remained admissible.17. Taking overall view as aforestated, we hold that the Income Tax Appellate Tribunal did not commit an error in confirming the disallowance of depreciation amounting to Rs.27,09,294/in respect of the assets of M/s. Modern Stramit (I) Ltd., a Company amalgamated with thein terms of the order dated651992 passed byBIFR. The question of law at serial No.(IV) is answered accordingly. The other questions of law do not survive.
|
Prahlad Vs. State of Rajasthan | that the genital organs of the deceased were healthy and no marks of any injury were present on the private parts of the deceased. Signs of sperm ejaculation were also not found on the external skin near the genital organs of the deceased. No injury was present on the head of the deceased. The doctor further deposed that when forcible sexual intercourse is committed upon a tender girl, there is a possibility of her vagina getting ruptured and bleeding from her genitals. There is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned. 12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle). 13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record. There is every probability that the accused can be reformed and rehabilitated. In this context, the observations made by this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684. , is reproduced as follows: ?209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. ?We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.? Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law?s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.? 14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC. | 1[ds]4. The present case rests on circumstantial evidence. The evidence of PWs 1, 2, 3 and 4 clearly prove that the mother of the deceased was treating the accused as her own brother, and on the eve of Rakhi festival, she even used to tie Rakhi on the hand of the accused. Hence, the child of the informant was treating the accused as a maternal uncle and this fact was also known to all the villagers because the accused used to visit the residence of the informant as one of their relatives. All the family members of the informant trusted the accused. Since the deceased was treating the accused as her uncle, she did not have any reason to disbelieve or doubt the offer made to go with him for getting the chocolates6. From the evidence of PWs 2 and 4 as well as the evidence of the informant PW1, it is clear that the accused was treated as a family member of the informant and that the minor victim believed that the accused is her Mama (uncle) due to the trust her family had upon the accused, because of which, the victim went along with the accused when she was offered the chocolates and toffee. The evidence also supports the case of the prosecution fully in respect of the last seen circumstance7. PW5, Sattu is a shopkeeper from whom the accused purchased the chocolates, biscuit and miraz. The evidence of PW7, Shyam Lal also supports the evidence of PW5 relating to the purchase of chocolates and miraz from the shop. PW9, Dashrath also supports the evidence of the prosecution, more particularly the evidence of PW19. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused10. We find that there is ample material against the accused to convict him for the offence under Section 302 IPC. All the circumstances relied upon by the prosecution stand proved so as to complete the chain of circumstances in respect of the offence under Section 302 of the IPC. The Trial Court and the High Court are, on facts, justified in convicting the accused for the offence under Section 302 of the IPC. However, we are unable to find reliable material against the accused for the offences under Section 3 and 4 of the POCSO ActThere is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle)13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC. | 1 | 2,596 | 1,167 | ### 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 the genital organs of the deceased were healthy and no marks of any injury were present on the private parts of the deceased. Signs of sperm ejaculation were also not found on the external skin near the genital organs of the deceased. No injury was present on the head of the deceased. The doctor further deposed that when forcible sexual intercourse is committed upon a tender girl, there is a possibility of her vagina getting ruptured and bleeding from her genitals. There is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned. 12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle). 13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record. There is every probability that the accused can be reformed and rehabilitated. In this context, the observations made by this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684. , is reproduced as follows: ?209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. ?We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.? Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law?s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.? 14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC.
### Response:
1
### Explanation:
maternal uncle and this fact was also known to all the villagers because the accused used to visit the residence of the informant as one of their relatives. All the family members of the informant trusted the accused. Since the deceased was treating the accused as her uncle, she did not have any reason to disbelieve or doubt the offer made to go with him for getting the chocolates6. From the evidence of PWs 2 and 4 as well as the evidence of the informant PW1, it is clear that the accused was treated as a family member of the informant and that the minor victim believed that the accused is her Mama (uncle) due to the trust her family had upon the accused, because of which, the victim went along with the accused when she was offered the chocolates and toffee. The evidence also supports the case of the prosecution fully in respect of the last seen circumstance7. PW5, Sattu is a shopkeeper from whom the accused purchased the chocolates, biscuit and miraz. The evidence of PW7, Shyam Lal also supports the evidence of PW5 relating to the purchase of chocolates and miraz from the shop. PW9, Dashrath also supports the evidence of the prosecution, more particularly the evidence of PW19. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused10. We find that there is ample material against the accused to convict him for the offence under Section 302 IPC. All the circumstances relied upon by the prosecution stand proved so as to complete the chain of circumstances in respect of the offence under Section 302 of the IPC. The Trial Court and the High Court are, on facts, justified in convicting the accused for the offence under Section 302 of the IPC. However, we are unable to find reliable material against the accused for the offences under Section 3 and 4 of the POCSO ActThere is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle)13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC.
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Allahabad Bank Vs. M/S. Divya International L.I.C. & Others | defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.17.6 If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.14. The Apex Court in, State Bank of Hyderabad Vs. Rabo Bank (2015) 10 SCC 521 )in paragraph 17 and 18 has recorded as under, while granting unconditional leave to defend:17. An analysis of the above principles makes it clear that in cases where the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiffs claim. Only in the cases where the defence set up is illusory or sham or practically moonshine, is the plaintiff entitled to leave to sign judgment.18. Insofar as the question of maintainability of the suit in question under Order 37 CPC is concerned, this Court has in Neebha Kapoori v. Jayantilal Khandwala (2008) 3 SCC 770 : (2008) 1 SCC (Civ) 929)observed that where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The court before passing a decree is entitled to take into consideration the consequences therefor. The courts dealing with summary trials should act very carefully taking note of the interests of both the parties. Merely on the ground that the defendant may resort to prolonged litigation by putting forth untenable and frivolous defences, grant of leave to defend cannot be declined. At the same time, the court must ensure that the defendant raises a real issue and not a sham one. The court cannot reject the defence on the ground of implausibility or inconsistency. Before recording a finding of granting leave to defend, the Court should assess the facts and come to the conclusion that if the facts alleged by the defendant in the affidavit are established, there would be a good or even a plausible defence on those facts.15. In the case in hand, we are inclined to interfere with the order passed by the learned single Judge dated 13 January 2003, by accepting the case and submissions of the Appellant and the grounds so raised, which are undisputed on the findings and the facts so referred in the respective documents, which are part of the record.16. This undisputed position on record itself makes the defence plausible and raises various issues, which required due trial. The learned Single Judge failed even to decide the issue of jurisdiction by giving specific reason to the defence so raised in the background of the disputes and differences between the parties and its partners.17. The law of guarantee though cleared, but it is also necessary for the concerned Bank to verify and confirm the beneficiary and the amount to be paid in whose account and in whose instance, specifically in the background of disputes between the partners of the firm/company in question. The Banks are under obligation to verify the terms and conditions of the Bank Guarantee, if everything is same or not as per the terms. The issue and/or conflict, if any, based upon the correspondences entered into and/or referred and/or addressed by the parties to the Bank showing the reasons for not invoking the bank guarantee and/or same be cancelled and specifically when the concerned objector (Defendant No.3) was partner of the original Plaintiffs. The doubts, therefore, so raised by the Bank and asked for the clarification, in no way can be stated to be intentional and/or in breach of terms and conditions. It is clear that both the parties are under obligation to fulfill and complied with the formalities as per the terms. Any change and/or circumstances other than the terms and conditions, if cropped up, as happened in the matter, the Banks action of not invoking the bank guarantee in case in hand and raising the defence, in no way, should be stated to be sham and bogus and/or intentional to deny the claim flowing from the bank guarantee. The undertaking given by Defendant No.1, Appellant to make the payment to Plaintiff No.1 in the facts and circumstances for the reasons so recorded above and specifically, reference to communication dated 12 January 2000, 25 December 1999, 21 December 1999, 23 December 1999 and Bank Guarantee dated 4 March 1999, including the Dubai Court of first instance order dissolving the company, goes to the root therefore, impugned order dated 13 January 2003 required to be interfered with. We are doing accordingly. The defence and issues so raised by the Appellant-original Defendant No.1, are not sham and bogus and/or intent to delay the payment. The substantial defence and triable issues are raised, which cannot be decided in such fashion, except in due trial.18. Resultantly, the Appellant is entitled to an unconditional leave to defend the Suit. The Appellant-original Defendant to file written statement within thirty days from the date of receipt of copy of this order. The Summons for Judgment is disposed of accordingly.19. Pursuant to the order passed by this Court on furnishing the Bank Guarantee, Respondent Nos. 1 to 3 decree-holders, permitted to withdraw the amount by order dated 26 September 2006. However, in view of the above observations and the reasons so given, we are inclined to interfere with the impugned judgment and decree. The amount, therefore, so withdrawn by Respondent Nos. 1 to 3, required to be re-deposited in the Court within six weeks with interest at the bank rate as of today. The liberty is granted to the Appellant to apply for appropriate order on this issue, including withdrawal of the amount from the Court account, if deposited. | 1[ds]15. In the case in hand, we are inclined to interfere with the order passed by the learned single Judge dated 13 January 2003, by accepting the case and submissions of the Appellant and the grounds so raised, which are undisputed on the findings and the facts so referred in the respective documents, which are part of the record.16. This undisputed position on record itself makes the defence plausible and raises various issues, which required due trial. The learned Single Judge failed even to decide the issue of jurisdiction by giving specific reason to the defence so raised in the background of the disputes and differences between the parties and its partners.17. The law of guarantee though cleared, but it is also necessary for the concerned Bank to verify and confirm the beneficiary and the amount to be paid in whose account and in whose instance, specifically in the background of disputes between the partners of the firm/company in question. The Banks are under obligation to verify the terms and conditions of the Bank Guarantee, if everything is same or not as per the terms. The issue and/or conflict, if any, based upon the correspondences entered into and/or referred and/or addressed by the parties to the Bank showing the reasons for not invoking the bank guarantee and/or same be cancelled and specifically when the concerned objector (Defendant No.3) was partner of the original Plaintiffs. The doubts, therefore, so raised by the Bank and asked for the clarification, in no way can be stated to be intentional and/or in breach of terms and conditions. It is clear that both the parties are under obligation to fulfill and complied with the formalities as per the terms. Any change and/or circumstances other than the terms and conditions, if cropped up, as happened in the matter, the Banks action of not invoking the bank guarantee in case in hand and raising the defence, in no way, should be stated to be sham and bogus and/or intentional to deny the claim flowing from the bank guarantee. The undertaking given by Defendant No.1, Appellant to make the payment to Plaintiff No.1 in the facts and circumstances for the reasons so recorded above and specifically, reference to communication dated 12 January 2000, 25 December 1999, 21 December 1999, 23 December 1999 and Bank Guarantee dated 4 March 1999, including the Dubai Court of first instance order dissolving the company, goes to the root therefore, impugned order dated 13 January 2003 required to be interfered with. We are doing accordingly. The defence and issues so raised by theDefendant No.1, are not sham and bogus and/or intent to delay the payment. The substantial defence and triable issues are raised, which cannot be decided in such fashion, except in due trial.18. Resultantly, the Appellant is entitled to an unconditional leave to defend the Suit. TheDefendant to file written statement within thirty days from the date of receipt of copy of this order. The Summons for Judgment is disposed of accordingly.19. Pursuant to the order passed by this Court on furnishing the Bank Guarantee, Respondent Nos. 1 to 3permitted to withdraw the amount by order dated 26 September 2006. However, in view of the above observations and the reasons so given, we are inclined to interfere with the impugned judgment and decree. The amount, therefore, so withdrawn by Respondent Nos. 1 to 3, required to bein the Court within six weeks with interest at the bank rate as of today. The liberty is granted to the Appellant to apply for appropriate order on this issue, including withdrawal of the amount from the Court account, if deposited. | 1 | 4,987 | 673 | ### 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:
defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.17.6 If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.14. The Apex Court in, State Bank of Hyderabad Vs. Rabo Bank (2015) 10 SCC 521 )in paragraph 17 and 18 has recorded as under, while granting unconditional leave to defend:17. An analysis of the above principles makes it clear that in cases where the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiffs claim. Only in the cases where the defence set up is illusory or sham or practically moonshine, is the plaintiff entitled to leave to sign judgment.18. Insofar as the question of maintainability of the suit in question under Order 37 CPC is concerned, this Court has in Neebha Kapoori v. Jayantilal Khandwala (2008) 3 SCC 770 : (2008) 1 SCC (Civ) 929)observed that where the applicability of Order 37 itself is in question, grant of leave to defend may be permissible. The court before passing a decree is entitled to take into consideration the consequences therefor. The courts dealing with summary trials should act very carefully taking note of the interests of both the parties. Merely on the ground that the defendant may resort to prolonged litigation by putting forth untenable and frivolous defences, grant of leave to defend cannot be declined. At the same time, the court must ensure that the defendant raises a real issue and not a sham one. The court cannot reject the defence on the ground of implausibility or inconsistency. Before recording a finding of granting leave to defend, the Court should assess the facts and come to the conclusion that if the facts alleged by the defendant in the affidavit are established, there would be a good or even a plausible defence on those facts.15. In the case in hand, we are inclined to interfere with the order passed by the learned single Judge dated 13 January 2003, by accepting the case and submissions of the Appellant and the grounds so raised, which are undisputed on the findings and the facts so referred in the respective documents, which are part of the record.16. This undisputed position on record itself makes the defence plausible and raises various issues, which required due trial. The learned Single Judge failed even to decide the issue of jurisdiction by giving specific reason to the defence so raised in the background of the disputes and differences between the parties and its partners.17. The law of guarantee though cleared, but it is also necessary for the concerned Bank to verify and confirm the beneficiary and the amount to be paid in whose account and in whose instance, specifically in the background of disputes between the partners of the firm/company in question. The Banks are under obligation to verify the terms and conditions of the Bank Guarantee, if everything is same or not as per the terms. The issue and/or conflict, if any, based upon the correspondences entered into and/or referred and/or addressed by the parties to the Bank showing the reasons for not invoking the bank guarantee and/or same be cancelled and specifically when the concerned objector (Defendant No.3) was partner of the original Plaintiffs. The doubts, therefore, so raised by the Bank and asked for the clarification, in no way can be stated to be intentional and/or in breach of terms and conditions. It is clear that both the parties are under obligation to fulfill and complied with the formalities as per the terms. Any change and/or circumstances other than the terms and conditions, if cropped up, as happened in the matter, the Banks action of not invoking the bank guarantee in case in hand and raising the defence, in no way, should be stated to be sham and bogus and/or intentional to deny the claim flowing from the bank guarantee. The undertaking given by Defendant No.1, Appellant to make the payment to Plaintiff No.1 in the facts and circumstances for the reasons so recorded above and specifically, reference to communication dated 12 January 2000, 25 December 1999, 21 December 1999, 23 December 1999 and Bank Guarantee dated 4 March 1999, including the Dubai Court of first instance order dissolving the company, goes to the root therefore, impugned order dated 13 January 2003 required to be interfered with. We are doing accordingly. The defence and issues so raised by the Appellant-original Defendant No.1, are not sham and bogus and/or intent to delay the payment. The substantial defence and triable issues are raised, which cannot be decided in such fashion, except in due trial.18. Resultantly, the Appellant is entitled to an unconditional leave to defend the Suit. The Appellant-original Defendant to file written statement within thirty days from the date of receipt of copy of this order. The Summons for Judgment is disposed of accordingly.19. Pursuant to the order passed by this Court on furnishing the Bank Guarantee, Respondent Nos. 1 to 3 decree-holders, permitted to withdraw the amount by order dated 26 September 2006. However, in view of the above observations and the reasons so given, we are inclined to interfere with the impugned judgment and decree. The amount, therefore, so withdrawn by Respondent Nos. 1 to 3, required to be re-deposited in the Court within six weeks with interest at the bank rate as of today. The liberty is granted to the Appellant to apply for appropriate order on this issue, including withdrawal of the amount from the Court account, if deposited.
### Response:
1
### Explanation:
15. In the case in hand, we are inclined to interfere with the order passed by the learned single Judge dated 13 January 2003, by accepting the case and submissions of the Appellant and the grounds so raised, which are undisputed on the findings and the facts so referred in the respective documents, which are part of the record.16. This undisputed position on record itself makes the defence plausible and raises various issues, which required due trial. The learned Single Judge failed even to decide the issue of jurisdiction by giving specific reason to the defence so raised in the background of the disputes and differences between the parties and its partners.17. The law of guarantee though cleared, but it is also necessary for the concerned Bank to verify and confirm the beneficiary and the amount to be paid in whose account and in whose instance, specifically in the background of disputes between the partners of the firm/company in question. The Banks are under obligation to verify the terms and conditions of the Bank Guarantee, if everything is same or not as per the terms. The issue and/or conflict, if any, based upon the correspondences entered into and/or referred and/or addressed by the parties to the Bank showing the reasons for not invoking the bank guarantee and/or same be cancelled and specifically when the concerned objector (Defendant No.3) was partner of the original Plaintiffs. The doubts, therefore, so raised by the Bank and asked for the clarification, in no way can be stated to be intentional and/or in breach of terms and conditions. It is clear that both the parties are under obligation to fulfill and complied with the formalities as per the terms. Any change and/or circumstances other than the terms and conditions, if cropped up, as happened in the matter, the Banks action of not invoking the bank guarantee in case in hand and raising the defence, in no way, should be stated to be sham and bogus and/or intentional to deny the claim flowing from the bank guarantee. The undertaking given by Defendant No.1, Appellant to make the payment to Plaintiff No.1 in the facts and circumstances for the reasons so recorded above and specifically, reference to communication dated 12 January 2000, 25 December 1999, 21 December 1999, 23 December 1999 and Bank Guarantee dated 4 March 1999, including the Dubai Court of first instance order dissolving the company, goes to the root therefore, impugned order dated 13 January 2003 required to be interfered with. We are doing accordingly. The defence and issues so raised by theDefendant No.1, are not sham and bogus and/or intent to delay the payment. The substantial defence and triable issues are raised, which cannot be decided in such fashion, except in due trial.18. Resultantly, the Appellant is entitled to an unconditional leave to defend the Suit. TheDefendant to file written statement within thirty days from the date of receipt of copy of this order. The Summons for Judgment is disposed of accordingly.19. Pursuant to the order passed by this Court on furnishing the Bank Guarantee, Respondent Nos. 1 to 3permitted to withdraw the amount by order dated 26 September 2006. However, in view of the above observations and the reasons so given, we are inclined to interfere with the impugned judgment and decree. The amount, therefore, so withdrawn by Respondent Nos. 1 to 3, required to bein the Court within six weeks with interest at the bank rate as of today. The liberty is granted to the Appellant to apply for appropriate order on this issue, including withdrawal of the amount from the Court account, if deposited.
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Karam Chand Thapar and Brothers Private Limited Vs. Commissioner of Income Tax (Central), Calcutta | HEGDE J.1. Civil Appeal No. 1126 of 1971 by special leave arises from the decision of the High Court of Calcutta in a reference under section 66(1) of the Indian Income-tax Act, 1922-hereinafter referred to as " the Act ". The assessment year with which we are concerned in this appeal is 1955-56, the previous year ending on March 31, 1955 The facts as found by the Tribunal are as follows2. During the relevant previous year the assessee sold 2, 500 shares of M/s. Karam Chand Thapar & Sons Ltd. which had been purchased by them in three lots : 1, 100 shares on 20th May, 1941, 1, 300 shares on 17th September, 1941, and 100 on 31st March, 1950. The total price paid for those shares was Rs. 2, 54, 592. The entire block of the said shares was sold to M/s. Mugneeram Bangur & Co. on March 4, 1945, for a sum of Rs. 1, 50, 000. The assessee thereby suffered a loss of Rs. 1, 04, 592. It claimed that the loss was a trading loss. The Income-tax Officer did not accept the assessees claim. He opined that the transaction in question was not a genuine transaction and further even if it is a genuine transaction the loss incurred is a capital loss. In appeal the Appellate Assistant Commissioner did not agree with all the findings reached by the Income-tax Officer. He came to the conclusion that the sale transaction was genuine but the loss incurred was a capital loss. On a further appeal the Tribunal agreed with the Appellate Assistant Commissioners conclusion that the loss in question was a capital loss. Hence, it did not go into the question whether the transaction was a genuine one. It assumed that it was genuine. It found the following facts :(1) 2, 400 shares were purchased in the year 1941 ;(2) They were the shares of a company managed by the assessee(3) All these shares were sold on March 4, 1955 ;(4) These shares were shown in the account books of the assessee as investment shares ;(5) They were also shown in the balance-sheet as investments ; and(6) They were not sold when the prices of those shares were high3. On the basis of these findings it reached the conclusion that the loss incurred is a capital loss as those shares were purchased as investment sharesWhether a particular loss is a capital loss or a revenue loss is a mixed question of law and fact. It is difficult to lay down cut and dried principles for deciding that question. It depends upon the facts and circumstances of each case. Generally speaking, the decision on that question depends on the inference to be drawn from the facts found by the Tribunal. All that we have to see is whether the inference drawn by the Tribunal on the facts found by it is a reasonable inference.As seen earlier, one of the circumstances on which the Tribunal mainly relied is that those shares were purchased in the year 1941 but they were sold only in the year 1955. The Tribunal has also noted that, though at some stages these shares could have been sold at a much higher price than for which they were sold, the assessee did not choose to sell those shares. 4. Locking up of shares for about 14 years must be held to be an unusual feature if those shares were the trading assets of the assessee. That circumstance is more consistent with the fact that those shares were investment shares. No explanation was offered for not dealing with those shares for about 14 years. It is least likely that a trader would retain his shares purchased by him in 1941 till 1955 though he had occasions to sell the same at a higher price earlier. It may be noted that, though, according to the assessee, the price of those shares was Rs. 50 per share in the year 1950, yet the assessee purchased 100 shares in 1950 at Rs. 75 per share. This is again indication that the assessee was not acquiring those shares as a trading activity. We fail to see why the shares of M/s. Karam Chand Thapar and Sons should have gone down in value in the years 1952-53, 1953-54 and 1954-55 when that company was making substantial profits. This circumstance remains unexplained. The Tribunal also relied on the circumstance that the assessee was showing these shares as investment shares in its books as well as in the balance-sheet. It is true that that circumstance by itself is not a conclusive circumstance. It cannot be denied that that is a relevant circumstance on which the Tribunal could have relied for drawing the inference it did. The explanation that it had to do so because of the provisions of the company law is unfoundedIn our opinion, on the facts found by it, the Tribunal was justified in drawing the inference that the loss in question was a capital loss. That is also the view taken by the High Court5. In the result, Civil Appeal No. 1126 of 1971 is dismissed with costs. Now, coming to Civil Appeal No. 1747 of 1968, we revoke the certificate granted by the High Court as it is not supported by any reason. There is no need to send the case back to the High Court in view of our decision in Civil Appeal No. 1126 of 1971, in which we dealt with that very case. | 0[ds]Whether a particular loss is a capital loss or a revenue loss is a mixed question of law and fact. It is difficult to lay down cut and dried principles for deciding that question. It depends upon the facts and circumstances of each case. Generally speaking, the decision on that question depends on the inference to be drawn from the facts found by the Tribunal. All that we have to see is whether the inference drawn by the Tribunal on the facts found by it is a reasonableseen earlier, one of the circumstances on which the Tribunal mainly relied is that those shares were purchased in the year 1941 but they were sold only in the year 1955. The Tribunal has also noted that, though at some stages these shares could have been sold at a much higher price than for which they were sold, the assessee did not choose to sell thoseup of shares for about 14 years must be held to be an unusual feature if those shares were the trading assets of the assessee. That circumstance is more consistent with the fact that those shares were investment shares. No explanation was offered for not dealing with those shares for about 14 years. It is least likely that a trader would retain his shares purchased by him in 1941 till 1955 though he had occasions to sell the same at a higher price earlier. It may be noted that, though, according to the assessee, the price of those shares was Rs. 50 per share in the year 1950, yet the assessee purchased 100 shares in 1950 at Rs. 75 per share. This is again indication that the assessee was not acquiring those shares as a trading activity. We fail to see why the shares of M/s. Karam Chand Thapar and Sons should have gone down in value in the years55 when that company was making substantial profits. This circumstance remains unexplained. The Tribunal also relied on the circumstance that the assessee was showing these shares as investment shares in its books as well as in theIt is true that that circumstance by itself is not a conclusive circumstance. It cannot be denied that that is a relevant circumstance on which the Tribunal could have relied for drawing the inference it did. The explanation that it had to do so because of the provisions of the company law is unfoundedIn our opinion, on the facts found by it, the Tribunal was justified in drawing the inference that the loss in question was a capital loss. That is also the view taken by the Highthe result, Civil Appeal No. 1126 of 1971 is dismissed with costs. Now, coming to Civil Appeal No. 1747 of 1968, we revoke the certificate granted by the High Court as it is not supported by any reason. There is no need to send the case back to the High Court in view of our decision in Civil Appeal No. 1126 of 1971, in which we dealt with that very case. | 0 | 1,026 | 549 | ### 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:
HEGDE J.1. Civil Appeal No. 1126 of 1971 by special leave arises from the decision of the High Court of Calcutta in a reference under section 66(1) of the Indian Income-tax Act, 1922-hereinafter referred to as " the Act ". The assessment year with which we are concerned in this appeal is 1955-56, the previous year ending on March 31, 1955 The facts as found by the Tribunal are as follows2. During the relevant previous year the assessee sold 2, 500 shares of M/s. Karam Chand Thapar & Sons Ltd. which had been purchased by them in three lots : 1, 100 shares on 20th May, 1941, 1, 300 shares on 17th September, 1941, and 100 on 31st March, 1950. The total price paid for those shares was Rs. 2, 54, 592. The entire block of the said shares was sold to M/s. Mugneeram Bangur & Co. on March 4, 1945, for a sum of Rs. 1, 50, 000. The assessee thereby suffered a loss of Rs. 1, 04, 592. It claimed that the loss was a trading loss. The Income-tax Officer did not accept the assessees claim. He opined that the transaction in question was not a genuine transaction and further even if it is a genuine transaction the loss incurred is a capital loss. In appeal the Appellate Assistant Commissioner did not agree with all the findings reached by the Income-tax Officer. He came to the conclusion that the sale transaction was genuine but the loss incurred was a capital loss. On a further appeal the Tribunal agreed with the Appellate Assistant Commissioners conclusion that the loss in question was a capital loss. Hence, it did not go into the question whether the transaction was a genuine one. It assumed that it was genuine. It found the following facts :(1) 2, 400 shares were purchased in the year 1941 ;(2) They were the shares of a company managed by the assessee(3) All these shares were sold on March 4, 1955 ;(4) These shares were shown in the account books of the assessee as investment shares ;(5) They were also shown in the balance-sheet as investments ; and(6) They were not sold when the prices of those shares were high3. On the basis of these findings it reached the conclusion that the loss incurred is a capital loss as those shares were purchased as investment sharesWhether a particular loss is a capital loss or a revenue loss is a mixed question of law and fact. It is difficult to lay down cut and dried principles for deciding that question. It depends upon the facts and circumstances of each case. Generally speaking, the decision on that question depends on the inference to be drawn from the facts found by the Tribunal. All that we have to see is whether the inference drawn by the Tribunal on the facts found by it is a reasonable inference.As seen earlier, one of the circumstances on which the Tribunal mainly relied is that those shares were purchased in the year 1941 but they were sold only in the year 1955. The Tribunal has also noted that, though at some stages these shares could have been sold at a much higher price than for which they were sold, the assessee did not choose to sell those shares. 4. Locking up of shares for about 14 years must be held to be an unusual feature if those shares were the trading assets of the assessee. That circumstance is more consistent with the fact that those shares were investment shares. No explanation was offered for not dealing with those shares for about 14 years. It is least likely that a trader would retain his shares purchased by him in 1941 till 1955 though he had occasions to sell the same at a higher price earlier. It may be noted that, though, according to the assessee, the price of those shares was Rs. 50 per share in the year 1950, yet the assessee purchased 100 shares in 1950 at Rs. 75 per share. This is again indication that the assessee was not acquiring those shares as a trading activity. We fail to see why the shares of M/s. Karam Chand Thapar and Sons should have gone down in value in the years 1952-53, 1953-54 and 1954-55 when that company was making substantial profits. This circumstance remains unexplained. The Tribunal also relied on the circumstance that the assessee was showing these shares as investment shares in its books as well as in the balance-sheet. It is true that that circumstance by itself is not a conclusive circumstance. It cannot be denied that that is a relevant circumstance on which the Tribunal could have relied for drawing the inference it did. The explanation that it had to do so because of the provisions of the company law is unfoundedIn our opinion, on the facts found by it, the Tribunal was justified in drawing the inference that the loss in question was a capital loss. That is also the view taken by the High Court5. In the result, Civil Appeal No. 1126 of 1971 is dismissed with costs. Now, coming to Civil Appeal No. 1747 of 1968, we revoke the certificate granted by the High Court as it is not supported by any reason. There is no need to send the case back to the High Court in view of our decision in Civil Appeal No. 1126 of 1971, in which we dealt with that very case.
### Response:
0
### Explanation:
Whether a particular loss is a capital loss or a revenue loss is a mixed question of law and fact. It is difficult to lay down cut and dried principles for deciding that question. It depends upon the facts and circumstances of each case. Generally speaking, the decision on that question depends on the inference to be drawn from the facts found by the Tribunal. All that we have to see is whether the inference drawn by the Tribunal on the facts found by it is a reasonableseen earlier, one of the circumstances on which the Tribunal mainly relied is that those shares were purchased in the year 1941 but they were sold only in the year 1955. The Tribunal has also noted that, though at some stages these shares could have been sold at a much higher price than for which they were sold, the assessee did not choose to sell thoseup of shares for about 14 years must be held to be an unusual feature if those shares were the trading assets of the assessee. That circumstance is more consistent with the fact that those shares were investment shares. No explanation was offered for not dealing with those shares for about 14 years. It is least likely that a trader would retain his shares purchased by him in 1941 till 1955 though he had occasions to sell the same at a higher price earlier. It may be noted that, though, according to the assessee, the price of those shares was Rs. 50 per share in the year 1950, yet the assessee purchased 100 shares in 1950 at Rs. 75 per share. This is again indication that the assessee was not acquiring those shares as a trading activity. We fail to see why the shares of M/s. Karam Chand Thapar and Sons should have gone down in value in the years55 when that company was making substantial profits. This circumstance remains unexplained. The Tribunal also relied on the circumstance that the assessee was showing these shares as investment shares in its books as well as in theIt is true that that circumstance by itself is not a conclusive circumstance. It cannot be denied that that is a relevant circumstance on which the Tribunal could have relied for drawing the inference it did. The explanation that it had to do so because of the provisions of the company law is unfoundedIn our opinion, on the facts found by it, the Tribunal was justified in drawing the inference that the loss in question was a capital loss. That is also the view taken by the Highthe result, Civil Appeal No. 1126 of 1971 is dismissed with costs. Now, coming to Civil Appeal No. 1747 of 1968, we revoke the certificate granted by the High Court as it is not supported by any reason. There is no need to send the case back to the High Court in view of our decision in Civil Appeal No. 1126 of 1971, in which we dealt with that very case.
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Clariant International Ltd. Vs. Securities & Exchange Board Of India | required to exercise its jurisdiction in terms of Section 14A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a Tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by the Parliament in the Amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law". 81. The court noticed the celebrate book on "Judicial Reviewe of Administrative Law" by H.W.R. Wade and C.F. Forsyth and held: "The rule as regard deference to expert bodies applies only in respect of a reviewing court and not to an expert tribunal. It may not be the function of a court exercising power of judicial review to act as a super-model as has been stated in Administrative Law by Bernard Schwartz, 3rd edition in para 10.1 at page 625; but the same would not be a case where an expert tribunal has been constituted only with a view to determine the correctness of an order passed by another expert body. The remedy under Section 14 of the Act is not a supervisory one. TDSATs jurisdiction is not akin to a court issuing a writ of certiorari. The tribunal although is not a court, it has all the trappings of a Court. Its functions are judicial. 82. In Jurisdiction and Illegality by Amnon Rubinstein a judicial power in contrast to the reviewing power is stated thus: "A judicial power, on the other hand, denotes a process in which ascertainable legal rules are applied and which, therefore, is subject to an objectively correct solution. But that, as will be seen, does not mean that the repository of such a power is under an enforceable duty to arrive at that solution. The legal rules applied are capable of various interpretations and the repository of power, using his own reasoning faculties, may deviate from that solution which the law regards as the objectively correct one." The regulatory bodies exercise wide jurisdiction. They lay down the law. They may prosecute. They may punish. Intrinsically, they act like an internal audit. They may fix the price, they may fix the area of operation and so on and so forth. While doing so, they may, as in the present case, interfere with the existing rights of the licensees". 83. In West Bengal Regulatory Commission vs. CESC Ltd. [(2002) 8 SCC 715] , a Bench of this Court, (in which one of us Santosh Hegde, J. was a member), observed: "...From s.4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. Without meaning any disrespect to the judges of the High Court, we think neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, we recommend that the appellate power against an order of the state commission under the 1998 Act should be conferred either on the Central Electricity Regulation Commission or on a similar body. We notice that under the Telecom Regulatory Authority of India Act 1997 in chapter IV, a similar provision is made for an appeal to a special appellate tribunal and thereafter a further appeal to the Supreme Court on questions of law only. We think a similar appellate provisions may be considered to make the relief of appeal more effective." 84. The provisions of the 1992 Act and the Regulations framed thereunder squarely apply to the observations made by this Court in West Bengal Electricity Regulation Commission (supra). 85. We may furthermore notice that in Part XI of the Electricity Act, 2003, an expert appellate tribunal for electricity in the light of the observations made by this Court has been constituted. Dividend: Effect of 86. In view of our findings aforementioned, we are of the opinion that while calculating the amount of interest, the amount of dividend paid to the shareholders should be excluded. The shareholders who by reason of default on the part of acquirer have been deprived of interest payable on the difference of the offer price and market price would be entitled to interest as discretion to pay interest being not penal in nature, they cannot make double gains. The Tribunal, in our opinion, has committed an error in holding that the dividend being a participatory benefit available to a shareholder and being distinct from interest, the same should not be taken into consideration. The regulation fixes a benchmark as regard rate of interest. If any amount has been received by the shareholders by keeping the shares till a public offer was made, the amounts so received by him by way of dividend should be set off. We would reiterate that the shareholders did not have any right to get interest and in effect and substance they were only to be compensated for the loss of interest and nothing more. On the same analogy, if they had received some gains by holding the shares fairly for a long period of five years, the amount of dividend cannot be permitted to be retained by them. The amount of dividend should, thus, be adjusted towards the interest payable to them. Conclusion: | 1[ds]25. A direction in terms of Regulation 44 which was in the interest of securities market indisputably would have caused civil or evil consequences on the defaulters. Clause (i) of Regulation 44, however, does not provide for any penal consequence. It provides for only a civil consequence. By reason of the said provision, the power of the Board to issue directions is sought to be restricted to pay the amount consideration together with interest at the rate not less than the interest payable by banks on fixed deposits. Both the Board and the Tribunal have proceeded on the basis that the interest is to be paid with a view to recompense the shareholders and not by way of penalty or damages. Such a direction, therefore, was for the purpose of protecting the interest of investors and not "in the interest of the securities market". The transactions in the market are not thereby affected one way or the other. The Board, as noticed hereinbefore, has a discretion in the matter and, thus, it may or may not issue such a direction. The shareholders do not have any say in the matter. As a necessary concomitant, they have no legal right.26. The Board further having a discretionary jurisdiction must exercise the same strictly in accordance with law and judiciously. Such discretion must be a sound exercise in law. The discretionary jurisdiction, it isalthough may be of wide amplitude as the expressions "as it deems fit" has been used but in view of the fact that civil consequence would ensue by reason thereof, the same must be exercised fairly and bona fide. The discretion so exercised is subject to appeal as also judicial review, and, thus, must also answer the test of reasonableness.The statutory changes brought about must be noticed by the court keeping in view the fact that the nature of jurisdiction by the board has been changed. The mischief rule also in this case should be applied. Furthermore while construing such provisions, the courts must take into consideration the provisions of the law as had been interpreted by courts priore statutory changes brought about must be noticed by the court keeping in view the fact that the nature of jurisdiction by the board has been changed. The mischief rule also in this case should be applied. Furthermore while construing such provisions, the courts must take into consideration the provisions of the law as had been interpreted by courts priorSo far as the contention regarding the applicability of dynamics of the market or its being a volatile one is concerned, the same, in our opinion, has nothing to do with rate of interest inasmuch both the Board and the Tribunal proceeded on the basis that the shareholders are to be compensated by way of interest for delayed payment. In that view of the matter, the relevance of rate of interest payable for the period it is payable and the persons who are entitled to be compensated were required to be determined. Rate of interest should be a reasonable one as the same became payable for the delay in making the payment, subject of course to the statutory provision contained in the Regulations. As noticed hereinbefore, the discretion of the BoardTribunal had been curtailed. There is a change even in relation to the nature of discretion of the Board. The Board and the Tribunal, thus, failed to apply the correct principles of law in determining the rate of interest payable in this case. To whom interest isTo become a shareholder, a person has to fulfill two conditions, namely, he must agree in writing to become a member of a company and whose name should be entered in its register of members. The members holding equity share capital of company and whose names are entered as beneficial owner in the records of the depository shall be deemed to be the members of the concerned company.In view of our findings aforementioned, we are of the opinion that while calculating the amount of interest, the amount of dividend paid to the shareholders should be excluded. The shareholders who by reason of default on the part of acquirer have been deprived of interest payable on the difference of the offer price and market price would be entitled to interest as discretion to pay interest being not penal in nature, they cannot make double gains. The Tribunal, in our opinion, has committed an error in holding that the dividend being a participatory benefit available to a shareholder and being distinct from interest, the same should not be taken into consideration. The regulation fixes a benchmark as regard rate of interest. If any amount has been received by the shareholders by keeping the shares till a public offer was made, the amounts so received by him by way of dividend should be set off. We would reiterate that the shareholders did not have any right to get interest and in effect and substance they were only to be compensated for the loss of interest and nothing more. On the same analogy, if they had received some gains by holding the shares fairly for a long period of five years, the amount of dividend cannot be permitted to be retained by them. The amount of dividend should, thus, be adjusted towards the interest payable to them. | 1 | 10,824 | 970 | ### 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:
required to exercise its jurisdiction in terms of Section 14A of the Act. TDSAT itself is an expert body and its jurisdiction is wide having regard to sub-section (7) of Section 14A thereof. Its jurisdiction extends to examining the legality, propriety or correctness of a direction/order or decision of the authority in terms of sub-section (2) of Section 14 as also the dispute made in an application under sub-section (1) thereof. The approach of the learned TDSAT, being on the premise that its jurisdiction is limited or akin to the power of judicial review is, therefore, wholly unsustainable. The extent of jurisdiction of a court or a Tribunal depends upon the relevant statute. TDSAT is a creature of a statute. Its jurisdiction is also conferred by a statute. The purpose of creation of TDSAT has expressly been stated by the Parliament in the Amending Act of 2000. TDSAT, thus, failed to take into consideration the amplitude of its jurisdiction and thus misdirected itself in law". 81. The court noticed the celebrate book on "Judicial Reviewe of Administrative Law" by H.W.R. Wade and C.F. Forsyth and held: "The rule as regard deference to expert bodies applies only in respect of a reviewing court and not to an expert tribunal. It may not be the function of a court exercising power of judicial review to act as a super-model as has been stated in Administrative Law by Bernard Schwartz, 3rd edition in para 10.1 at page 625; but the same would not be a case where an expert tribunal has been constituted only with a view to determine the correctness of an order passed by another expert body. The remedy under Section 14 of the Act is not a supervisory one. TDSATs jurisdiction is not akin to a court issuing a writ of certiorari. The tribunal although is not a court, it has all the trappings of a Court. Its functions are judicial. 82. In Jurisdiction and Illegality by Amnon Rubinstein a judicial power in contrast to the reviewing power is stated thus: "A judicial power, on the other hand, denotes a process in which ascertainable legal rules are applied and which, therefore, is subject to an objectively correct solution. But that, as will be seen, does not mean that the repository of such a power is under an enforceable duty to arrive at that solution. The legal rules applied are capable of various interpretations and the repository of power, using his own reasoning faculties, may deviate from that solution which the law regards as the objectively correct one." The regulatory bodies exercise wide jurisdiction. They lay down the law. They may prosecute. They may punish. Intrinsically, they act like an internal audit. They may fix the price, they may fix the area of operation and so on and so forth. While doing so, they may, as in the present case, interfere with the existing rights of the licensees". 83. In West Bengal Regulatory Commission vs. CESC Ltd. [(2002) 8 SCC 715] , a Bench of this Court, (in which one of us Santosh Hegde, J. was a member), observed: "...From s.4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. Without meaning any disrespect to the judges of the High Court, we think neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, we recommend that the appellate power against an order of the state commission under the 1998 Act should be conferred either on the Central Electricity Regulation Commission or on a similar body. We notice that under the Telecom Regulatory Authority of India Act 1997 in chapter IV, a similar provision is made for an appeal to a special appellate tribunal and thereafter a further appeal to the Supreme Court on questions of law only. We think a similar appellate provisions may be considered to make the relief of appeal more effective." 84. The provisions of the 1992 Act and the Regulations framed thereunder squarely apply to the observations made by this Court in West Bengal Electricity Regulation Commission (supra). 85. We may furthermore notice that in Part XI of the Electricity Act, 2003, an expert appellate tribunal for electricity in the light of the observations made by this Court has been constituted. Dividend: Effect of 86. In view of our findings aforementioned, we are of the opinion that while calculating the amount of interest, the amount of dividend paid to the shareholders should be excluded. The shareholders who by reason of default on the part of acquirer have been deprived of interest payable on the difference of the offer price and market price would be entitled to interest as discretion to pay interest being not penal in nature, they cannot make double gains. The Tribunal, in our opinion, has committed an error in holding that the dividend being a participatory benefit available to a shareholder and being distinct from interest, the same should not be taken into consideration. The regulation fixes a benchmark as regard rate of interest. If any amount has been received by the shareholders by keeping the shares till a public offer was made, the amounts so received by him by way of dividend should be set off. We would reiterate that the shareholders did not have any right to get interest and in effect and substance they were only to be compensated for the loss of interest and nothing more. On the same analogy, if they had received some gains by holding the shares fairly for a long period of five years, the amount of dividend cannot be permitted to be retained by them. The amount of dividend should, thus, be adjusted towards the interest payable to them. Conclusion:
### Response:
1
### Explanation:
25. A direction in terms of Regulation 44 which was in the interest of securities market indisputably would have caused civil or evil consequences on the defaulters. Clause (i) of Regulation 44, however, does not provide for any penal consequence. It provides for only a civil consequence. By reason of the said provision, the power of the Board to issue directions is sought to be restricted to pay the amount consideration together with interest at the rate not less than the interest payable by banks on fixed deposits. Both the Board and the Tribunal have proceeded on the basis that the interest is to be paid with a view to recompense the shareholders and not by way of penalty or damages. Such a direction, therefore, was for the purpose of protecting the interest of investors and not "in the interest of the securities market". The transactions in the market are not thereby affected one way or the other. The Board, as noticed hereinbefore, has a discretion in the matter and, thus, it may or may not issue such a direction. The shareholders do not have any say in the matter. As a necessary concomitant, they have no legal right.26. The Board further having a discretionary jurisdiction must exercise the same strictly in accordance with law and judiciously. Such discretion must be a sound exercise in law. The discretionary jurisdiction, it isalthough may be of wide amplitude as the expressions "as it deems fit" has been used but in view of the fact that civil consequence would ensue by reason thereof, the same must be exercised fairly and bona fide. The discretion so exercised is subject to appeal as also judicial review, and, thus, must also answer the test of reasonableness.The statutory changes brought about must be noticed by the court keeping in view the fact that the nature of jurisdiction by the board has been changed. The mischief rule also in this case should be applied. Furthermore while construing such provisions, the courts must take into consideration the provisions of the law as had been interpreted by courts priore statutory changes brought about must be noticed by the court keeping in view the fact that the nature of jurisdiction by the board has been changed. The mischief rule also in this case should be applied. Furthermore while construing such provisions, the courts must take into consideration the provisions of the law as had been interpreted by courts priorSo far as the contention regarding the applicability of dynamics of the market or its being a volatile one is concerned, the same, in our opinion, has nothing to do with rate of interest inasmuch both the Board and the Tribunal proceeded on the basis that the shareholders are to be compensated by way of interest for delayed payment. In that view of the matter, the relevance of rate of interest payable for the period it is payable and the persons who are entitled to be compensated were required to be determined. Rate of interest should be a reasonable one as the same became payable for the delay in making the payment, subject of course to the statutory provision contained in the Regulations. As noticed hereinbefore, the discretion of the BoardTribunal had been curtailed. There is a change even in relation to the nature of discretion of the Board. The Board and the Tribunal, thus, failed to apply the correct principles of law in determining the rate of interest payable in this case. To whom interest isTo become a shareholder, a person has to fulfill two conditions, namely, he must agree in writing to become a member of a company and whose name should be entered in its register of members. The members holding equity share capital of company and whose names are entered as beneficial owner in the records of the depository shall be deemed to be the members of the concerned company.In view of our findings aforementioned, we are of the opinion that while calculating the amount of interest, the amount of dividend paid to the shareholders should be excluded. The shareholders who by reason of default on the part of acquirer have been deprived of interest payable on the difference of the offer price and market price would be entitled to interest as discretion to pay interest being not penal in nature, they cannot make double gains. The Tribunal, in our opinion, has committed an error in holding that the dividend being a participatory benefit available to a shareholder and being distinct from interest, the same should not be taken into consideration. The regulation fixes a benchmark as regard rate of interest. If any amount has been received by the shareholders by keeping the shares till a public offer was made, the amounts so received by him by way of dividend should be set off. We would reiterate that the shareholders did not have any right to get interest and in effect and substance they were only to be compensated for the loss of interest and nothing more. On the same analogy, if they had received some gains by holding the shares fairly for a long period of five years, the amount of dividend cannot be permitted to be retained by them. The amount of dividend should, thus, be adjusted towards the interest payable to them.
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President/Secretary, J.K. Synthetics Mazdoor Union and Ors Vs. Arfat Petrochemicals Pvt. Ltd. and Ors | of no notice being issued for the earlier meeting dated 05.05.2008. The First Respondent informed the BIFR that it is not a sick company and no directions can therefore be issued to it. The BIFR held that the First Respondent was not right in contending that it does not fall within the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ?the Act??) and need not implement the orders issued by the Board. The BIFR directed the IDBI to carry out an inspection of the Kota units and to submit a report. There was a direction to maintain status quo in respect of the material/assets at the factory site of the Kota Units till further orders. There was also a stay on transfer/alienation of land or assets of the company without the permission of the Board. The orders dated 05.05.2008 and 30.06.2008 of the BIFR were assailed by the First and Second Respondents before the AAIFR. The AAIFR by its order dated 11.12.2008 dismissed the Appeals filed by the First Respondent and directed the BIFR to re-examine the exact position relating to the payment of dues to the workmen. The BIFR was also directed to continue the monitoring of the Scheme and review the efforts made by the First Respondent towards revival of the Kota units. The contention of the First Respondent that the BIFR has no jurisdiction over a company which is not a sick company was rejected. It is relevant to refer to the findings of the AAIFR in favour of the Second Respondent in paragraphs 38, 39 and 40 of the said order. In the said paragraphs the AAIFR held that it is only the First Respondent who would be responsible for the payment of the dues to the workmen. While holding that the Second Respondent is not liable to make any payment, the AAIFR allowed the Appeal of the Second Respondent by setting aside the directions issued by the BIFR to the Second Respondent.8. Aggrieved by the order dated 11.12.2008 of the AAIFR, the First Respondent filed a Writ Petition in the Rajasthan High Court. The High Court allowed the Writ Petition by holding that the BIFR and the AAIFR do not have jurisdiction to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. Being aggrieved by the said judgment of the High Court, the Labour Unions filed Civil Appeal No. 8597 and 8598 of 2010. Civil Appeal No. 8599 of 2010 is filed by JK Synthetics Limited aggrieved by the judgment in so far as it set aside the findings in its favour which were not challenged in the Writ Petition. 9. The only point that falls for consideration in these Appeals is regarding the scope of Section 22 A of the Act. Section 22 A is as follows: ?22 A. Direction not to dispose of assets: -The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets—(a) during the period of preparation or consideration of the scheme under section 18; and(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.? 10. ?Sick industrial company? is defined in Section 3 (1) (o) which is as under: ?(o) "sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.Explanation: - For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;? 11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held as follows: ?It runs counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).? 12. Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions. | 0[ds]11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held asruns counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions. | 0 | 2,218 | 304 | ### Instruction:
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of no notice being issued for the earlier meeting dated 05.05.2008. The First Respondent informed the BIFR that it is not a sick company and no directions can therefore be issued to it. The BIFR held that the First Respondent was not right in contending that it does not fall within the purview of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as ?the Act??) and need not implement the orders issued by the Board. The BIFR directed the IDBI to carry out an inspection of the Kota units and to submit a report. There was a direction to maintain status quo in respect of the material/assets at the factory site of the Kota Units till further orders. There was also a stay on transfer/alienation of land or assets of the company without the permission of the Board. The orders dated 05.05.2008 and 30.06.2008 of the BIFR were assailed by the First and Second Respondents before the AAIFR. The AAIFR by its order dated 11.12.2008 dismissed the Appeals filed by the First Respondent and directed the BIFR to re-examine the exact position relating to the payment of dues to the workmen. The BIFR was also directed to continue the monitoring of the Scheme and review the efforts made by the First Respondent towards revival of the Kota units. The contention of the First Respondent that the BIFR has no jurisdiction over a company which is not a sick company was rejected. It is relevant to refer to the findings of the AAIFR in favour of the Second Respondent in paragraphs 38, 39 and 40 of the said order. In the said paragraphs the AAIFR held that it is only the First Respondent who would be responsible for the payment of the dues to the workmen. While holding that the Second Respondent is not liable to make any payment, the AAIFR allowed the Appeal of the Second Respondent by setting aside the directions issued by the BIFR to the Second Respondent.8. Aggrieved by the order dated 11.12.2008 of the AAIFR, the First Respondent filed a Writ Petition in the Rajasthan High Court. The High Court allowed the Writ Petition by holding that the BIFR and the AAIFR do not have jurisdiction to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. Being aggrieved by the said judgment of the High Court, the Labour Unions filed Civil Appeal No. 8597 and 8598 of 2010. Civil Appeal No. 8599 of 2010 is filed by JK Synthetics Limited aggrieved by the judgment in so far as it set aside the findings in its favour which were not challenged in the Writ Petition. 9. The only point that falls for consideration in these Appeals is regarding the scope of Section 22 A of the Act. Section 22 A is as follows: ?22 A. Direction not to dispose of assets: -The Board may, if it is of opinion that any direction is necessary in the interest of the sick industrial company or creditors or shareholders or in the public interest, by order in writing direct the sick industrial company not to dispose of, except with the consent of the Board, any of its assets—(a) during the period of preparation or consideration of the scheme under section 18; and(b) during the period beginning with the recording of opinion by the Board for winding up of the company under sub-section (1) of section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court.? 10. ?Sick industrial company? is defined in Section 3 (1) (o) which is as under: ?(o) "sick industrial company" means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth.Explanation: - For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993, registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;? 11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held as follows: ?It runs counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).? 12. Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
### Response:
0
### Explanation:
11. It is clear from a plain reading of Section 22 A of the Act that the Board can issue a direction not to dispose of assets only to a sick industrial company. There is no dispute that the First Respondent is not a sick industrial company and that it purchased the assets from a sick industrial company in accordance with the Sanctioned Scheme. The BIFR was not correct in passing an order of status quo and directing the First Respondent not to alienate/transfer the assets by its orders dated 05.05.2008 and 30.06.2008. We agree with the findings of the High Court in the impugned judgment that the BIFR does not have competence to issue directions to a company which is not a sick industrial company under Section 22 A of the Act. We are fortified in this view by a judgment of this Court in U.P . State Sugar Corporation Ltd. v. U.P. State Sugar Corporation Karamchari Association and Anr. reported in (1995) 4 SCC 276 wherein it was held asruns counter to the express terms of Section 22 A of the Act which confers a limited power on the Board to pass an order prohibiting a sick industrial company from disposing of its assets only during the period specified in Clause (a) and (b).Several contentions have been raised by both sides during the course of hearing of these Appeals which we have not adverted to as they are not relevant for adjudication of the dispute in these appeals. We express no opinion on the jurisdiction of BIFR under other provisions of the Act. It is open to the BIFR to review the implementation of the Sanctioned Scheme and pass suitable directions.
|
N. Lakshmana Rao & Ors. Etc Vs. State Of Karnataka & Ors. Etc | are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.22. The form of option is contract. This exercise of option is itself the contract. The option is to be absorbed or not to be absorbed. The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein are the conditions of service of the State of Mysore.23. In B. S. Vadera v. Union of India (1968) 3 SCR 575 = (AIR 1969 SC l18) this Court held that if an appropriate legislature has passed ) an Act under Article 309 the Rules framed under the proviso to Article 309 would have effect subject to that Act. In the absence of any Act of the appropriate legislature the Rules made by the President or such person as he may direct, are to have full effect.24. There is legislative power under Entry 41, List II to legislate for State public services. There is no fetter on the legislative power to legislate with regard to service or with regard to any other matter mentioned in the Legislative List. In Gurdev Singh Sidhu v. State of Punjab (1964) 7 SCR 587 = (AIR 1964 SC 1585 ) this Court stated that there were two exceptions to the protection afforded by Article 311. One is where a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which is reasonably fixed. The other is where a public servant is compulsorily retired under the Rules which prescribe the normal age of superannuation and provide reasonably long period of qualified service after which compulsory retirement could be valid. It is only when a rule is framed prescribing a proper age of superannuation and another rule is framed giving power to the State to retire permanent public servant compulsorily at the end of 10 years of his service that this Court has apprehended such cases to be not within the protection of Article 31l.25. The question of retirement age was considered by this Court in Bishun Narain Misra v. State of Uttar Pradesh, (1965),1 SCR 693 = (AIR 1965 SC 1567 ). The State Government in that case raised the age of superannuation from 55 to 58 years and again reduced the age to 55 years. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation. When the rule only deals with the age of superannuation and the Government servant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of the service amounts to removal within the meaning of Article 311.26. It, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed under Article 309. There is no constitutional limitation to reduce the age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination.27. The teachers of primary schools contended that their terms of service were continued by Mysore Compulsory Primary Education Act, 1969, and, therefore, their age of retirement could not be altered by rules made by the Governor under Article 309. The 1969 Act provided in Section 14 transfer of primary schools managed by the municipal councils and panchayats in the Madras area and Bellary District before the appointed day. Teachers of those schools became employees of the State Government. The crucial words in S. 14 (b) of the 1969 Act on which the teachers relied are these: "All primary school teachers . . . . . shall, until other provision is made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". The words "other provision is made" were construed by the teachers to mean an act of legislature.28. The provision contained in Section 14 (b) of the 1969 Act is a temporary and transitional provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor has co-equal power. The power of the Governor is co-extensive with the legislative power, (See B. S. Vaderas case. (1968) 3 SCR 575 (supra) at page 583) = (AIR 1969 SC l18 at p. 123).29. Section 14 (b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Art. 309 does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules.The power under the proviso is co-extensive with the power under the main part. (See B. S. Vaderas case, (1968) 3 SCR 575 (supra) at pp. 585-586) = (AIR 1969 SC 118 at pp. 124-125). | 0[ds]22. The form of option is contract. This exercise of option is itself the contract. The option is to be absorbed or not to be absorbed. The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein are the conditions of service of the State of Mysore.23. In B. S. Vadera v. Union of India (1968) 3 SCR 575 = (AIR 1969 SC l18) this Court held that if an appropriate legislature has passed ) an Act under Article 309 the Rules framed under the proviso to Article 309 would have effect subject to that Act. In the absence of any Act of the appropriate legislature the Rules made by the President or such person as he may direct, are to have fullof those schools became employees of the State Government. The crucial words in S. 14 (b) of the 1969 Act on which the teachers relied are these: "All primary school teachers . . . . . shall, until other provision is made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". The words "other provision is made" were construed by the teachers to mean an act of legislature.28. The provision contained in Section 14 (b) of the 1969 Act is a temporary and transitional provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor haspower. The power of the Governor iswith the legislative power, (See B. S. Vaderas case. (1968) 3 SCR 575 (supra) at page 583) = (AIR 1969 SC l18 at p. 123).29. Section 14 (b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Art. 309 does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules.The power under the proviso iswith the power under the main part. (See B. S. Vaderas case, (1968) 3 SCR 575 (supra) at pp.It, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed under Article 309. There is no constitutional limitation to reduce the age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination. | 0 | 3,059 | 659 | ### 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:
are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.22. The form of option is contract. This exercise of option is itself the contract. The option is to be absorbed or not to be absorbed. The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein are the conditions of service of the State of Mysore.23. In B. S. Vadera v. Union of India (1968) 3 SCR 575 = (AIR 1969 SC l18) this Court held that if an appropriate legislature has passed ) an Act under Article 309 the Rules framed under the proviso to Article 309 would have effect subject to that Act. In the absence of any Act of the appropriate legislature the Rules made by the President or such person as he may direct, are to have full effect.24. There is legislative power under Entry 41, List II to legislate for State public services. There is no fetter on the legislative power to legislate with regard to service or with regard to any other matter mentioned in the Legislative List. In Gurdev Singh Sidhu v. State of Punjab (1964) 7 SCR 587 = (AIR 1964 SC 1585 ) this Court stated that there were two exceptions to the protection afforded by Article 311. One is where a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which is reasonably fixed. The other is where a public servant is compulsorily retired under the Rules which prescribe the normal age of superannuation and provide reasonably long period of qualified service after which compulsory retirement could be valid. It is only when a rule is framed prescribing a proper age of superannuation and another rule is framed giving power to the State to retire permanent public servant compulsorily at the end of 10 years of his service that this Court has apprehended such cases to be not within the protection of Article 31l.25. The question of retirement age was considered by this Court in Bishun Narain Misra v. State of Uttar Pradesh, (1965),1 SCR 693 = (AIR 1965 SC 1567 ). The State Government in that case raised the age of superannuation from 55 to 58 years and again reduced the age to 55 years. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation. When the rule only deals with the age of superannuation and the Government servant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of the service amounts to removal within the meaning of Article 311.26. It, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed under Article 309. There is no constitutional limitation to reduce the age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination.27. The teachers of primary schools contended that their terms of service were continued by Mysore Compulsory Primary Education Act, 1969, and, therefore, their age of retirement could not be altered by rules made by the Governor under Article 309. The 1969 Act provided in Section 14 transfer of primary schools managed by the municipal councils and panchayats in the Madras area and Bellary District before the appointed day. Teachers of those schools became employees of the State Government. The crucial words in S. 14 (b) of the 1969 Act on which the teachers relied are these: "All primary school teachers . . . . . shall, until other provision is made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". The words "other provision is made" were construed by the teachers to mean an act of legislature.28. The provision contained in Section 14 (b) of the 1969 Act is a temporary and transitional provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor has co-equal power. The power of the Governor is co-extensive with the legislative power, (See B. S. Vaderas case. (1968) 3 SCR 575 (supra) at page 583) = (AIR 1969 SC l18 at p. 123).29. Section 14 (b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Art. 309 does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules.The power under the proviso is co-extensive with the power under the main part. (See B. S. Vaderas case, (1968) 3 SCR 575 (supra) at pp. 585-586) = (AIR 1969 SC 118 at pp. 124-125).
### Response:
0
### Explanation:
22. The form of option is contract. This exercise of option is itself the contract. The option is to be absorbed or not to be absorbed. The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option to be absorbed. The conditions of service referred to therein are the conditions of service of the State of Mysore.23. In B. S. Vadera v. Union of India (1968) 3 SCR 575 = (AIR 1969 SC l18) this Court held that if an appropriate legislature has passed ) an Act under Article 309 the Rules framed under the proviso to Article 309 would have effect subject to that Act. In the absence of any Act of the appropriate legislature the Rules made by the President or such person as he may direct, are to have fullof those schools became employees of the State Government. The crucial words in S. 14 (b) of the 1969 Act on which the teachers relied are these: "All primary school teachers . . . . . shall, until other provision is made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". The words "other provision is made" were construed by the teachers to mean an act of legislature.28. The provision contained in Section 14 (b) of the 1969 Act is a temporary and transitional provision which continues until other provision is made. The Legislature does not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which can be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor haspower. The power of the Governor iswith the legislative power, (See B. S. Vaderas case. (1968) 3 SCR 575 (supra) at page 583) = (AIR 1969 SC l18 at p. 123).29. Section 14 (b) of the 1969 Act is not a law regulating recruitment and conditions of service under Article 309. Assuming it is, Art. 309 does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislature to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules.The power under the proviso iswith the power under the main part. (See B. S. Vaderas case, (1968) 3 SCR 575 (supra) at pp.It, therefore, follows that teachers who exercised the form of option were subject to change in the conditions of service under Rules framed under Article 309. There is no constitutional limitation to reduce the age of retirement. A Government servant enjoys the status of a Government servant. He cannot be removed and his services cannot be terminated except in accordance with the provisions of the Constitution. Fixing an age of retirement does not amount to removal or termination.
|
COMMISSIONER OF INCOME TAX Vs. M/S RASHTRADOOT (HUF) | of search operations carried in their premises. The matter, out of the block assessment proceedings, reached to the Income Tax Appellate Tribunal at the instance of the respondent against the order of the assessing authorities.5. The Tribunal (ITAT), however, decided the various issues arising in the case in favour of the respondent(assessee) by allowing the respondents appeal, which gave rise to filing of the appeal by the Revenue before the High Court under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”).6. The High Court by impugned judgment dismissed the Revenues appeal, which gave rise to filing of this appeal by way of special leave by the Revenue in this Court.7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law8. The need to remand the case to the High Court has arisen for the reason that on perusal of the impugned order, we find that the High Court has set out the facts in paragraph 2 and the submissions of the counsel for the parties in paragraphs 3 to 9. In paragraph 10, the High Court mentioned the names of the counsel who argued the case and then in paragraphs 12 and 13, the High Court states as under :“12. The Tribunal while considering the judgment on 24.05.2001 did not consider the amendments envisaged by the legislature, therefore, under Section 260¬A when we are considering substantial law, we have to consider whether the Tribunal has committed an error.13. In view of the above, the issue is answered in favour of the assessee and against the department. The view taken by this Court in a case of Relaxo Foorwear(supra) will apply in the present case and the view taken by the Tribunal is liable to be confirmed and the same is confirmed.”9. A perusal of the aforementioned two concluding paragraphs would go to show that the High Court has neither discussed and nor assigned any reason in support of its conclusion for the dismissal of the appeal.10. Indeed, the observation made in paragraph 13 that "In view of the above" does not lead us anywhere because, as mentioned above, in the paragraphs 1 to 12 no reasons are mentioned except the facts and the submissions.11. That apart, we find that the High Court committed another error. The High Court while deciding the appeal heard the learned counsel for the parties, yet did not frame any substantial question of law arising in the case.12. Section 260A of the Act is akin to Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) with addition of sub¬ sections (6)(a),6(b) and (7) of Section 260A of the Act13. The High Court has jurisdiction to dismiss the appeal filed under Section 260A of the Act on the ground that it does not involve any substantial question of law. Such dismissal is considered as a dismissal of the appeal in limine, i.e., dismissal without issuing any notice of appeal to the respondent and without hearing the respondent.14. The High Court has also the jurisdiction to dismiss the appeal by answering the question(s) framed on merits or by dismissing the appeal on the ground that the question(s) though framed but such question(s) does/do not arise in the appeal. The High Court, though may not have framed any particular question at the time of admitting the appeal along with other question, yet it has the jurisdiction to frame additional question at a later stage before final hearing of the appeal by assigning reasons as provided in proviso to Section 260A(4) and Section 260A(5) of the Act and lastly, the HighCourt has jurisdiction to allow the appeal but this the High Court can do only after framing the substantial question(s) of law and hearing the respondent by answering the question(s) framed in appellant’s favour.15. However, in this case, we find that the High Court did not dismiss the appeal in limine but dismissed it after hearing both the parties. In such a situation, the High Court should have framed the question(s) and answered them by assigning the reasons accordingly one way or the other by exercising powers under sub-sections (4) and (5) of Section 260A of the Act.16. As mentioned above, in the absence of any discussion or/and the reasoning/ground as to why the order of ITAT does not suffer from any illegality and why the grounds of Revenue are not acceptable and why the appeal does not involve any substantial question(s) of law or though framed cannot be answered in Revenue’s favour, the impugned order suffers from jurisdictional errors and, therefore, legally unsustainable for want of compliance of the requirements of sub-sections (4) and (5) of Section 260A of the Act.17. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion.18. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.19. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See¬ State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129 , Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222 , State of U.P. vs. Battan & Ors., (2001) 10 SCC 607 , Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 ). | 1[ds]8. The need to remand the case to the High Court has arisen for the reason that on perusal of the impugned order, we find that the High Court has set out the facts in paragraph 2 and the submissions of the counsel for the parties in paragraphs 3 to 9.A perusal of the aforementioned two concluding paragraphs would go to show that the High Court has neither discussed and nor assigned any reason in support of its conclusion for the dismissal of the appeal.10. Indeed, the observation made in paragraph 13 that "In view of the above" does not lead us anywhere because, as mentioned above, in the paragraphs 1 to 12 no reasons are mentioned except the facts and the submissions.11. That apart, we find that the High Court committed another error. The High Court while deciding the appeal heard the learned counsel for the parties, yet did not frame any substantial question of law arising in the case.The High Court has jurisdiction to dismiss the appeal filed under Section 260A of the Act on the ground that it does not involve any substantial question of law. Such dismissal is considered as a dismissal of the appeal in limine, i.e., dismissal without issuing any notice of appeal to the respondent and without hearing the respondent.14. The High Court has also the jurisdiction to dismiss the appeal by answering the question(s) framed on merits or by dismissing the appeal on the ground that the question(s) though framed but such question(s) does/do not arise in the appeal. The High Court, though may not have framed any particular question at the time of admitting the appeal along with other question, yet it has the jurisdiction to frame additional question at a later stage before final hearing of the appeal by assigning reasons as provided in proviso to Section 260A(4) and Section 260A(5) of the Act and lastly, the HighCourt has jurisdiction to allow the appeal but this the High Court can do only after framing the substantial question(s) of law and hearing the respondent by answering the question(s) framed infavour.15. However, in this case, we find that the High Court did not dismiss the appeal in limine but dismissed it after hearing both the parties. In such a situation, the High Court should have framed the question(s) and answered them by assigning the reasons accordingly one way or the other by exercising powers under sub-sections (4) and (5) of Section 260A of the Act.16. As mentioned above, in the absence of any discussion or/and the reasoning/ground as to why the order of ITAT does not suffer from any illegality and why the grounds of Revenue are not acceptable and why the appeal does not involve any substantial question(s) of law or though framed cannot be answered infavour, the impugned order suffers from jurisdictional errors and, therefore, legally unsustainable for want of compliance of the requirements of sub-sections (4) and (5) of Section 260A of the Act.17. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion.18. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.19. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See¬ State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129 , Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222 , State of U.P. vs. Battan & Ors., (2001) 10 SCC 607 , Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 ). | 1 | 1,354 | 790 | ### 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:
of search operations carried in their premises. The matter, out of the block assessment proceedings, reached to the Income Tax Appellate Tribunal at the instance of the respondent against the order of the assessing authorities.5. The Tribunal (ITAT), however, decided the various issues arising in the case in favour of the respondent(assessee) by allowing the respondents appeal, which gave rise to filing of the appeal by the Revenue before the High Court under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”).6. The High Court by impugned judgment dismissed the Revenues appeal, which gave rise to filing of this appeal by way of special leave by the Revenue in this Court.7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the High Court for deciding the appeal afresh on merits in accordance with law8. The need to remand the case to the High Court has arisen for the reason that on perusal of the impugned order, we find that the High Court has set out the facts in paragraph 2 and the submissions of the counsel for the parties in paragraphs 3 to 9. In paragraph 10, the High Court mentioned the names of the counsel who argued the case and then in paragraphs 12 and 13, the High Court states as under :“12. The Tribunal while considering the judgment on 24.05.2001 did not consider the amendments envisaged by the legislature, therefore, under Section 260¬A when we are considering substantial law, we have to consider whether the Tribunal has committed an error.13. In view of the above, the issue is answered in favour of the assessee and against the department. The view taken by this Court in a case of Relaxo Foorwear(supra) will apply in the present case and the view taken by the Tribunal is liable to be confirmed and the same is confirmed.”9. A perusal of the aforementioned two concluding paragraphs would go to show that the High Court has neither discussed and nor assigned any reason in support of its conclusion for the dismissal of the appeal.10. Indeed, the observation made in paragraph 13 that "In view of the above" does not lead us anywhere because, as mentioned above, in the paragraphs 1 to 12 no reasons are mentioned except the facts and the submissions.11. That apart, we find that the High Court committed another error. The High Court while deciding the appeal heard the learned counsel for the parties, yet did not frame any substantial question of law arising in the case.12. Section 260A of the Act is akin to Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) with addition of sub¬ sections (6)(a),6(b) and (7) of Section 260A of the Act13. The High Court has jurisdiction to dismiss the appeal filed under Section 260A of the Act on the ground that it does not involve any substantial question of law. Such dismissal is considered as a dismissal of the appeal in limine, i.e., dismissal without issuing any notice of appeal to the respondent and without hearing the respondent.14. The High Court has also the jurisdiction to dismiss the appeal by answering the question(s) framed on merits or by dismissing the appeal on the ground that the question(s) though framed but such question(s) does/do not arise in the appeal. The High Court, though may not have framed any particular question at the time of admitting the appeal along with other question, yet it has the jurisdiction to frame additional question at a later stage before final hearing of the appeal by assigning reasons as provided in proviso to Section 260A(4) and Section 260A(5) of the Act and lastly, the HighCourt has jurisdiction to allow the appeal but this the High Court can do only after framing the substantial question(s) of law and hearing the respondent by answering the question(s) framed in appellant’s favour.15. However, in this case, we find that the High Court did not dismiss the appeal in limine but dismissed it after hearing both the parties. In such a situation, the High Court should have framed the question(s) and answered them by assigning the reasons accordingly one way or the other by exercising powers under sub-sections (4) and (5) of Section 260A of the Act.16. As mentioned above, in the absence of any discussion or/and the reasoning/ground as to why the order of ITAT does not suffer from any illegality and why the grounds of Revenue are not acceptable and why the appeal does not involve any substantial question(s) of law or though framed cannot be answered in Revenue’s favour, the impugned order suffers from jurisdictional errors and, therefore, legally unsustainable for want of compliance of the requirements of sub-sections (4) and (5) of Section 260A of the Act.17. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion.18. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.19. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See¬ State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129 , Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222 , State of U.P. vs. Battan & Ors., (2001) 10 SCC 607 , Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 ).
### Response:
1
### Explanation:
8. The need to remand the case to the High Court has arisen for the reason that on perusal of the impugned order, we find that the High Court has set out the facts in paragraph 2 and the submissions of the counsel for the parties in paragraphs 3 to 9.A perusal of the aforementioned two concluding paragraphs would go to show that the High Court has neither discussed and nor assigned any reason in support of its conclusion for the dismissal of the appeal.10. Indeed, the observation made in paragraph 13 that "In view of the above" does not lead us anywhere because, as mentioned above, in the paragraphs 1 to 12 no reasons are mentioned except the facts and the submissions.11. That apart, we find that the High Court committed another error. The High Court while deciding the appeal heard the learned counsel for the parties, yet did not frame any substantial question of law arising in the case.The High Court has jurisdiction to dismiss the appeal filed under Section 260A of the Act on the ground that it does not involve any substantial question of law. Such dismissal is considered as a dismissal of the appeal in limine, i.e., dismissal without issuing any notice of appeal to the respondent and without hearing the respondent.14. The High Court has also the jurisdiction to dismiss the appeal by answering the question(s) framed on merits or by dismissing the appeal on the ground that the question(s) though framed but such question(s) does/do not arise in the appeal. The High Court, though may not have framed any particular question at the time of admitting the appeal along with other question, yet it has the jurisdiction to frame additional question at a later stage before final hearing of the appeal by assigning reasons as provided in proviso to Section 260A(4) and Section 260A(5) of the Act and lastly, the HighCourt has jurisdiction to allow the appeal but this the High Court can do only after framing the substantial question(s) of law and hearing the respondent by answering the question(s) framed infavour.15. However, in this case, we find that the High Court did not dismiss the appeal in limine but dismissed it after hearing both the parties. In such a situation, the High Court should have framed the question(s) and answered them by assigning the reasons accordingly one way or the other by exercising powers under sub-sections (4) and (5) of Section 260A of the Act.16. As mentioned above, in the absence of any discussion or/and the reasoning/ground as to why the order of ITAT does not suffer from any illegality and why the grounds of Revenue are not acceptable and why the appeal does not involve any substantial question(s) of law or though framed cannot be answered infavour, the impugned order suffers from jurisdictional errors and, therefore, legally unsustainable for want of compliance of the requirements of sub-sections (4) and (5) of Section 260A of the Act.17. This Court has consistently laid emphasis that every order/judgment, which decides the lis between the parties, must contain the reason(s)/ground(s) for arriving at a particular conclusion.18. Indeed, what is decisive for deciding the case is not the conclusion alone but the reason(s)/ground(s) assigned in support of such conclusion, which results in reaching to such conclusion.19. In order to decide as to whether the impugned order is legally sustainable or not, the Appellate Court is entitled to know as to what impelled the Court below to pass such order in favour of one party and against the aggrieved party. We find that this requirement is missing in the impugned order of this case and hence the interference is called for. (See¬ State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129 , Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222 , State of U.P. vs. Battan & Ors., (2001) 10 SCC 607 , Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 ).
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Kalishanker Das And Another Vs. Dhirendra Nath Patra And Others | the consent expressed by Mohini who figured as a co-executant of the security bond. It cannot bind the actual reversioner in any way.Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi v. Manokarnika, 35 Ind App 1 (PC) (C), that as the present appellants are the sons of Ram Narayan the admission made by their father would bind them as well. It is true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learned counsel. The concluding words in the judgment stands as follows :"The appellants who claim through Matadin Singh and Bijnath Singh must be held bound by the consent of their fathers".But the true import of this passage was discussed by the Privy Council in their later pronouncement in AIR 1918 (PC) 196 at pp. 200, 201 (B), and it was held that the words referred to above should not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons. This proposition, their Lordship observed, was opposed both to principle and authority, it being a settled doctrine of Hindu Law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through anyone who went before him. As the sons of Ram Narayan claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them. This contention of the appellant must therefore fail.9. The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and he cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.10. In our opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchase for value without notice. From very early times the Hindu widows estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate : vide--- Collector of Masulipatam v. Cavaly Vencata, 8 Moo Ind App 529 (PC) (D). For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity, the transferee gets only the widows estate which is not even an indefesible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re-marriage, adoption, etc. If an alience from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought, about by the mismanagement of the limited owner herself. Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alience after making bona fide enquiries satisfied himself as best as could that such necessity existed, then as the Privy Council pointed out in --- Hunooman Pershad v. Mt. Babooee Mundraj, 6 Moo Ind App 393 (PC) (E), that actual existence of a legal necessity is not a condition precedent to the validity of the sale. The position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist.11. On this point the finding recorded by the High Court is as follows :"In the present case, there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alience satisfied herself that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed. There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity. Whatever enquiries the appellants may have made would be of no avail to them when the alienation is not binding on the whole estate but only on the womans estate of Rashmoni".12. In our opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice. | 0[ds]The contention, though somewhat plausible at first sight, seem to us to wholly without substance. In the first place the money borrowed by Mohini or deposited by him in court did not and could not benefit Haripadas estate at all. As was found, on investigation of accounts, under orders of the High Court later on, nothing at all was due to the receiver by the estate of Haripada or Mohini. On the other hand, both the brothers were entitled to get a fairly large sum of money from the receiver. The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage, his only objects being to get to properties in his own hands. It may be, that it was not possible to know the actual state of affairs with regard to the receivers accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate. This might furnish some excuse or explanation for Mohinis borrowing money on the 28th January 1911 but that could not make the act of Rashmoni in executing the security bond, seven months after that event, an act of prudent management on her part dictated either by legal necessity or consideration of benefit to the estate of her deceased son.In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to be deposited in court. The recital in the security bond that the rest of the money was spent by Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false. It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose. But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed. Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own responsibility. The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money of Mohini had benefited the estate of Haripada. The High Court has rightly pointed out the Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at thatour opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a non-existent property in the mortgage bond. Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of maternal affection to save her son from a real or imaginary danger. But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder. In our opinion the view taken by the courts below is quite proper and as a concurrent finding of fact it should not be disturbed by thisdo no think that there could be any serious controversy about the law on this point.This alienation here was by way of mortgage and so no question of surrender could possibly arise. Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction. Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagor had act therein after proper and bona fide enquiry and has satisfied himself as to the existence of suchBut this presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bona fide enquiry by the mortgagee. There is no doubt that both the courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that presumption that arose by reason of the then reversioners giving consent to the transaction was rebutted by the facts transpiring inis true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learnedour opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchase for value withoutThe position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity didour opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice. | 0 | 5,367 | 1,108 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the consent expressed by Mohini who figured as a co-executant of the security bond. It cannot bind the actual reversioner in any way.Mr. Chatterjee attempted to put forward an argument on the authority of certain observations in the case of Bajrangi v. Manokarnika, 35 Ind App 1 (PC) (C), that as the present appellants are the sons of Ram Narayan the admission made by their father would bind them as well. It is true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learned counsel. The concluding words in the judgment stands as follows :"The appellants who claim through Matadin Singh and Bijnath Singh must be held bound by the consent of their fathers".But the true import of this passage was discussed by the Privy Council in their later pronouncement in AIR 1918 (PC) 196 at pp. 200, 201 (B), and it was held that the words referred to above should not be construed to lay down the proposition that such consent on the part of the father would operate proprio vigore and would be binding on the sons. This proposition, their Lordship observed, was opposed both to principle and authority, it being a settled doctrine of Hindu Law that nobody has a vested right so long as the widow is alive and the eventual reversioner does not claim through anyone who went before him. As the sons of Ram Narayan claim as heirs of Haripada and not of their father, the admissions, if any, made by the latter could not in any way bind them. This contention of the appellant must therefore fail.9. The third and the last contention raised by Mr. Chatterjee is that in any event his client is a stranger who has bona fide purchased the property for good consideration after making due enquiries and on proper legal advice and he cannot therefore be affected by any infirmity of title by reason of the absence of legal necessity.10. In our opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchase for value without notice. From very early times the Hindu widows estate has been described as qualified proprietorship with powers of alienation only when there is justifying necessity, and the restrictions on the powers of alienation are inseparable from her estate : vide--- Collector of Masulipatam v. Cavaly Vencata, 8 Moo Ind App 529 (PC) (D). For legal necessity she can convey to another an absolute title to the property vested in her. If there is no legal necessity, the transferee gets only the widows estate which is not even an indefesible life estate for it can come to an end not merely on her death but on the happening of other contingencies like re-marriage, adoption, etc. If an alience from a Hindu widow succeeds in establishing that there was legal necessity for transfer, he is completely protected and it is immaterial that the necessity was brought, about by the mismanagement of the limited owner herself. Even if there is no necessity in fact, but it is proved that there was representation of necessity and the alience after making bona fide enquiries satisfied himself as best as could that such necessity existed, then as the Privy Council pointed out in --- Hunooman Pershad v. Mt. Babooee Mundraj, 6 Moo Ind App 393 (PC) (E), that actual existence of a legal necessity is not a condition precedent to the validity of the sale. The position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity did exist.11. On this point the finding recorded by the High Court is as follows :"In the present case, there is no scope for an argument that there was such representation of legal necessity or that on bona fide enquiry the alience satisfied herself that there was such a necessity, for as I have already pointed out the security bond itself states that it was in consideration of states that it was in consideration of benefits already received and with a view to induce Suhasini to forbear from proceeding against Mohini, that the bond was being executed. There is no representation in the bond that the alienation was made with a view to securing any benefit to the estate or to avert any danger to the estate or for the purpose of any other legal necessity. Whatever enquiries the appellants may have made would be of no avail to them when the alienation is not binding on the whole estate but only on the womans estate of Rashmoni".12. In our opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice.
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receiver by the estate of Haripada or Mohini. On the other hand, both the brothers were entitled to get a fairly large sum of money from the receiver. The trial Judge found that there was no urgent necessity to borrow money for releasing the estate and in fact it was Mohini who acted in hot haste to execute the mortgage, his only objects being to get to properties in his own hands. It may be, that it was not possible to know the actual state of affairs with regard to the receivers accounts and consequently it might well have been thought prudent to borrow money to ward off what was considered to be a danger to the estate. This might furnish some excuse or explanation for Mohinis borrowing money on the 28th January 1911 but that could not make the act of Rashmoni in executing the security bond, seven months after that event, an act of prudent management on her part dictated either by legal necessity or consideration of benefit to the estate of her deceased son.In the first place it is to be noted that the total amount borrowed by Mohini was Rs. 30,000 out of which Rs. 20,950 only were required to be deposited in court. The recital in the security bond that the rest of the money was spent by Mohini to pay off certain debts of Rashmoni herself and also to meet the litigation and household expenses of both of them has been held by the Subordinate Judge to be false. It has been found on facts that Rashmoni had no occasion to incur any debts either for litigation expenses or for any other purpose. But the most important thing that would require consideration is the state of things actually existing at the time when the security bond was executed. Even if the release of the estate was considered to be desirable, that had been already accomplished by Mohini who borrowed money on his own responsibility. The utmost that could be said was that Rashmoni was bound to reimburse Mohini to the extent that the deposit of money of Mohini had benefited the estate of Haripada. The High Court has rightly pointed out the Rashmoni did not execute the bond to raise any money to pay off her share of the deposit and in fact no necessity for raising money for that purpose at all existed at thatour opinion the only object of executing the security bond was to protect Mohini who was threatened with legal proceedings by his creditor for having included a non-existent property in the mortgage bond. Rashmoni certainly acted at the instance of and for the benefit of Mohini and she might have been actuated by a feeling of maternal affection to save her son from a real or imaginary danger. But by no stretch of imagination could it be regarded as a prudent act on the part of a Hindu female heir which was necessary for the protection of the estate of the last male holder. In our opinion the view taken by the courts below is quite proper and as a concurrent finding of fact it should not be disturbed by thisdo no think that there could be any serious controversy about the law on this point.This alienation here was by way of mortgage and so no question of surrender could possibly arise. Mohini being the immediate reversioner who joined in the execution of the security bond must be deemed to have consented to the transaction. Such consent may raise a presumption that the transaction was for legal necessity or that the mortgagor had act therein after proper and bona fide enquiry and has satisfied himself as to the existence of suchBut this presumption is rebuttable and it is open to the actual reversioner to establish that there was in fact no legal necessity and there has been no proper and bona fide enquiry by the mortgagee. There is no doubt that both the courts below have proceeded on a correct view of law and both have come to the conclusion upon a consideration of the evidence in the case that presumption that arose by reason of the then reversioners giving consent to the transaction was rebutted by the facts transpiring inis true that there is a passage at the end of the judgment in Manokarnikas case (C) which lends some apparent support to the contention of the learnedour opinion the contention formulated in this form really involves a misconception of the legal position of an alience of a Hindu widows property. The interest of a Hindu widow in the properties inherited by her bears no analogy or resemblance to what may be described as an equitable estate in English law and which cannot be followed in the hands of a bona fide purchase for value withoutThe position therefore is that if there is no necessity in fact or if the alience could not prove that he made bona fide enquiries and was satisfied about its existence, the transfer is undoubtedly not void but the transferee would get only the widows estate in the property which does not affect in any way the interest of the reversioner. In this case the alienation was by way of mortgage. The finding of both the courts below is that there was no legal necessity which justified the execution of the security bond. The mortgagee also could not prove that there was representation of legal necessity and that she satisfied herself by bona fide enquiries that such necessity didour opinion the view taken by the High Court is quite proper. On this finding the security bond could operate only on the widows estate of Rashmoni and it was the interest alone which passed to the purchaser at the mortgage sale. The subsequent transferee could not claim to have acquired any higher right than what his predecessor had and it is immaterial whether he bona fide paid the purchase money or took proper legal advice.
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Madamanchi Ramappa & Anr Vs. Muthalur Bojjappa | comment was made by him in respect of the cist receipts on which both the courts of fact had acted. In his opinion, the said documents were also not genuine and could not be accepted as reliable. He then referred to the fact that the appellants had offered security in proceedings between the respondent and his judgment debtor Boya Krishnappa, and held that the said conduct destroyed the appellants case; and he also relied on the fact that the lease-deeds produced by the appellants had been disbelieved and that also weakened their case. It is on these considerations that the learned Judge set aside the concurrent findings recorded by the courts below, allowed the second appeal preferred by the respondent and directed that the appellants suit should be dismissed with costs throughout. It is the validity of this decree which is challenged before us by the appellants and the principal ground on which the challenge rests is that in reversing concurrent findings of fact recorded by the courts below, the learned Judge has clearly contravened the provisions of S. 100 of the Code.10. The question about the limits of the powers conferred on the High Court in dealing with second appeals has been considered by High Courts in India and by the Privy Council on several occasions. One of the earliest pronouncements of the Privy Council on this point is to be found in the case of Mst. Durga Chowdhrain, 17 Ind App 122 (PC). In the case of Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 at p. 59 this Court had occasion to refer to the said decision of the Privy Council and it was constrained to observe that"notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, C. P. C., some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in litigation and confusion in the mind of the litigant public."On this ground, this Court set aside the second appellate decision which had been brought before it by the appellants.11. In K. Ramchandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 this Court had occasion to revert to the same subject once again. The true legal position in regard to the powers of the second appellate Court under Section 100 was once more examined and it was pointed out that the learned Judges of the High Courts should bear in mind the caution and warning pronounced by the Privy Council in the case of Mst. Durga Chowdhrain, 17 Ind App 122 (PC) and should not interfere with findings of fact.12. It appears that the decision of this Court in Deity Pattabhiramaswamy AIR 1959 SC 57 was in fact cited before the learned single Judge, but he was inclined to take the view that some aspects of the provisions contained in Section 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the Courts below in the present appeal. According to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact recorded by the District Judge not only where the said conclusions are based on no evidence but also where the said conclusions are based on evidence which the High Court considers insufficient to support them.In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidences is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of fads and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can e stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Sec. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. | 1[ds]2. It appears that the decision of this Court in Deity Pattabhiramaswamy AIR 1959 SC 57 was in fact cited before the learned single Judge, but he was inclined to take the view that some aspects of the provisions contained in Section 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the Courts below in the present appeal. According to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact recorded by the District Judge not only where the said conclusions are based on no evidence but also where the said conclusions are based on evidence which the High Court considers insufficient to support them.In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidences is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of fads and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can e stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Sec. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid. | 1 | 3,517 | 578 | ### 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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comment was made by him in respect of the cist receipts on which both the courts of fact had acted. In his opinion, the said documents were also not genuine and could not be accepted as reliable. He then referred to the fact that the appellants had offered security in proceedings between the respondent and his judgment debtor Boya Krishnappa, and held that the said conduct destroyed the appellants case; and he also relied on the fact that the lease-deeds produced by the appellants had been disbelieved and that also weakened their case. It is on these considerations that the learned Judge set aside the concurrent findings recorded by the courts below, allowed the second appeal preferred by the respondent and directed that the appellants suit should be dismissed with costs throughout. It is the validity of this decree which is challenged before us by the appellants and the principal ground on which the challenge rests is that in reversing concurrent findings of fact recorded by the courts below, the learned Judge has clearly contravened the provisions of S. 100 of the Code.10. The question about the limits of the powers conferred on the High Court in dealing with second appeals has been considered by High Courts in India and by the Privy Council on several occasions. One of the earliest pronouncements of the Privy Council on this point is to be found in the case of Mst. Durga Chowdhrain, 17 Ind App 122 (PC). In the case of Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 at p. 59 this Court had occasion to refer to the said decision of the Privy Council and it was constrained to observe that"notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100, C. P. C., some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in litigation and confusion in the mind of the litigant public."On this ground, this Court set aside the second appellate decision which had been brought before it by the appellants.11. In K. Ramchandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 this Court had occasion to revert to the same subject once again. The true legal position in regard to the powers of the second appellate Court under Section 100 was once more examined and it was pointed out that the learned Judges of the High Courts should bear in mind the caution and warning pronounced by the Privy Council in the case of Mst. Durga Chowdhrain, 17 Ind App 122 (PC) and should not interfere with findings of fact.12. It appears that the decision of this Court in Deity Pattabhiramaswamy AIR 1959 SC 57 was in fact cited before the learned single Judge, but he was inclined to take the view that some aspects of the provisions contained in Section 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the Courts below in the present appeal. According to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact recorded by the District Judge not only where the said conclusions are based on no evidence but also where the said conclusions are based on evidence which the High Court considers insufficient to support them.In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidences is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of fads and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can e stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Sec. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.
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2. It appears that the decision of this Court in Deity Pattabhiramaswamy AIR 1959 SC 57 was in fact cited before the learned single Judge, but he was inclined to take the view that some aspects of the provisions contained in Section 100 of the Code had not been duly considered by this Court and so, he thought that it was open to him to interfere with the conclusions of the Courts below in the present appeal. According to the learned Judge, it is open to the second appellate Court to interfere with the conclusions of fact recorded by the District Judge not only where the said conclusions are based on no evidence but also where the said conclusions are based on evidence which the High Court considers insufficient to support them.In other words, the learned Judge seems to think that the adequacy or sufficiency of evidence to sustain a conclusion of fact is a matter of law which can be effectively raised in a second appeal. In our opinion, this is clearly a misconception of the true legal position. The admissibility of evidences is no doubt a point of law, but once it is shown that the evidence on which Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the findings recorded by the Courts of fact to contend before the High Court in second appeal that the said evidence is not sufficient to justify the findings of fact in question. It has been always recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of fads and cannot be agitated in a second appeal. Sometimes, this position is expressed by saying that like all questions of fact, sufficiency or adequacy of evidence in support of a case is also left to the jury for its verdict. This position has always been accepted without dissent and it can e stated without any doubt that it enunciates what can be properly characterised as an elementary proposition. Therefore whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by Sec. 100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.
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South Bihar Sugar Mills Ltd., Etc Vs. Union Of India & Ors | transformation that a new and different article must emerge having a distinctive name, character or use. The duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning is that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market.That it would be such an article which would attract the Act was brought out in Union of India v. Delhi Cloth and General Mills Ltd., 1963 Supp (1) SCR 586 = (AIR 1963 SC 791 ). The contention there was that in the course of manufacture of vanaspati, a vegetable product from groundnut and til oil, the respondents brought into existence at an intermediate stage of manufacturing refined oil which fell within the description of "vegetable nonessential oil, all sorts," in Item 23 of the First Schedule. The contention would seem to assume that the goods subjected to duty must be goods known as such in the market. The contention was that the respondents, after they bought raw oil with all its impurities, manufactured, by application of certain processes of refinement, refined oil which was the same as refined oil available in the market and that it was "refined oil" which became after further processes the ultimate vegetable product. It was argued that the fact that the vegetable product was the ultimate product and was chargeable to duty did not alter the position that at an earlier stage, the respondents manufactured "refined oil" as known to the market and that the fact that they did not put this "refined oil" in the market but used it to produce the finished product did not affect their liability. This Court held that if a new substance was brought into existence from raw materials and that substance was the same as "refined oil" as known to the market it would be subject to duty. The question, therefore, was the substance sought to be charged "refined oil" known to the market? The affidavits showed that deodorization was necessary before the product could be called "refined oil". It was not in dispute that that process was employed after hydrogenation and not at the stage when what was called "refined oil" came into existence at an intermediate stage. No evidence was produced by the Union of refined oil being brought to the market without deodorization. It was held that raw oil purchased by the respondents for the purpose of manufacturing vanaspati did not become at any stage "refined oil" as known to the consumers and the commercial community. 14. The affidavits filed in the instant cases and the scientific works referred to above show that the mixture of gases produced from the kiln is known both in trade and in science as kiln gas and not as carbon dioxide. The Revenue has not produced any affidavit of persons dealing in carbon dioxide to show that kiln gas is known to the market as carbon dioxide. The aforesaid affidavits show that carbon dioxide known to and brought in the market for being bought and sold for its diverse uses is carbon dioxide compress, liquified or solidified as Item 14-H describes it. The analogy given by the leaned Attorney-General of a manufacturer of cotton cloth also producing at an intermediate stage cotton yarn and such cotton yarn being liable to excise duty would not help the Revenue as cotton yarn obtained by such a manufacturer is known as such in the commercial community and brought to the market for being bought and sold. That cannot be said of kiln gas. If kiln gas were to be offered in discharge of a contract to supply carbon dioxide it would certainly be rejected on the ground that it is not carbon dioxide but is kiln gas. It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these cases is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. Compressed carbon dioxide is understood generally as carbon dioxide compressed in cylinders with pressure ranging from 1,000 to 1,800 lbs. per sq. inch. The mere fact that at one stage or the other kiln gas is pressed at 40 to 45 lbs. per sq. inch by a pump or otherwise cannot mean that it is compressed carbon dioxide.At the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these concerns is not actually sold would not make any difference if what they generate and use in their manufacturing processes is carbon dioxide. The fact that the gas so generated has carbon dioxide below 98 percent and does not conform to the specifications of the Indian Standard Institution also would not matter for the gas may be substandard, provided what is produced is carbon dioxide. 15. In our view, the gas generated by these concerns is kiln gas and not carbon dioxide as known to the trade, i. e., to those who deal in it or who use it. The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.In this view it is not necessary for us to consider certain other. Contentions raised by the appellants and the petitioners in the writ petition. 16. In t | 1[ds]As the Revenue argued these concerns undoubtedly require carbon dioxide in the processes employed by them while manufacturing sugar and soda ash and to meet their requirement they have set up lime kilns by which they produce kiln gas which includes carbon dioxide to the extent of about 30 to 35 per cent, which they in fact use after compressing it through a pump or otherwise, at one stage or the other in their manufacturing processes. Nonetheless, it is possible to say that the lime kilns set up for the aforesaid purpose produce carbon dioxide and even if it be so, that at one stage or the other, through the pump or otherwise, the carbon dioxide so produced becomes compressed carbon dioxide as envisaged by the legislature when it decided to introduce Item 14-H in the First Schedule ? It cannot be gainsaid that by burning limestone with coke in the kiln the manufacturer actually produces kiln gas of which one of the constituents undoubtedly is carbon dioxide and which he utilises while producing his ultimate excisable goods. But if it is possible to say that what he produces is carbon dioxide during the process which Mr. Palkhiwala termed as an integrated and continuous manufacturing process or separately as the Revenue insisted, it is equally possible to say that the combustion of limestone with coke results in the manufacture of nitrogen, whose content in the kiln gas is about 53 per cent. As the text-books produced before us and the affidavits show, the correct picture is that what is produced is kiln gas which consists of several gases, viz., carbon dioxide, carbon monoxide, oxygen and nitrogen, the last one being in a larger quantity than carbon dioxide. The mixture of gases so generated is known as kiln gas in the trade, i. e. to those who manufacture sugar and soda ash. The affidavits of concerns which use carbon dioxide definitely assert that kiln gas is never known in the market as carbon dioxide nor is it a marketable article in the sense that it is loose and is not transportable nor is it brought to the market for being bought and sold unless carbon dioxide is extracted out of it. Such extraction requires an elaborate plant. After extraction it would have to be compressed in cylinders of certain specifications or liquified or solidified before it can become a marketable articleIt is true as the Revenue contended that the gas produced through the kiln can be made marketable in the sense that it can be sold in the very same condition in which it is produced to concerns interested in the carbonation process through, for example, pipes But, apart from such a method of disposal being uneconomic and hardly likely to be employed by the trade, though it is possible in theory, what would be transported is that which is produced through the kiln, viz., the kiln gas containing among other things a certain quantity of carbon dioxide. As one of the text-books points out, carbonation process is employed by manufacturers of sugar because it is one of the cheapest method to ensure production of sugar of standard quality. The fact is that in employing carbonation process the manufacturer who requires carbon dioxide produces kiln gas and as that mixture of gases contains carbon dioxide he pumps through a pipe that mixture of gases and not carbon dioxide alone extracted from it. Therefore, in truth and in fact what he uses is the kiln gas produced by him in the lime kiln. Even assuming that this gas is compressed either through a narrow pipe what is compressed is the kiln gas and it is that kiln gas containing no doubt a certain percentage of carbon dioxide which is inducted in the sugarcane juice far refining. The same must also be said of the solvay process used in the production of soda ash though in that case the percentage of carbon dioxide is larger than in the case of refining sugarcane juiceThe affidavits filed in the instant cases and the scientific works referred to above show that the mixture of gases produced from the kiln is known both in trade and in science as kiln gas and not as carbon dioxide. The Revenue has not produced any affidavit of persons dealing in carbon dioxide to show that kiln gas is known to the market as carbon dioxide. The aforesaid affidavits show that carbon dioxide known to and brought in the market for being bought and sold for its diverse uses is carbon dioxide compress, liquified or solidified as Item 14-H describes it. The analogy given by the leaned Attorney-General of a manufacturer of cotton cloth also producing at an intermediate stage cotton yarn and such cotton yarn being liable to excise duty would not help the Revenue as cotton yarn obtained by such a manufacturer is known as such in the commercial community and brought to the market for being bought and sold. That cannot be said of kiln gas. If kiln gas were to be offered in discharge of a contract to supply carbon dioxide it would certainly be rejected on the ground that it is not carbon dioxide but is kiln gas. It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these cases is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. Compressed carbon dioxide is understood generally as carbon dioxide compressed in cylinders with pressure ranging from 1,000 to 1,800 lbs. per sq. inch. The mere fact that at one stage or the other kiln gas is pressed at 40 to 45 lbs. per sq. inch by a pump or otherwise cannot mean that it is compressed carbon dioxide.At the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these concerns is not actually sold would not make any difference if what they generate and use in their manufacturing processes is carbon dioxide. The fact that the gas so generated has carbon dioxide below 98 percent and does not conform to thespecificationsof theIndian Standard Institution also would not matter for the gas may be substandard, provided what is produced is carbon dioxide16. Inour view, the gas generated by these concerns is kiln gas and not carbon dioxide as known to the trade, i. e., to those who deal in it or who use it. The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.In this view it is not necessary for us to consider certain other. Contentions raised by the appellants and the petitioners in the writ petition. | 1 | 5,156 | 1,287 | ### 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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transformation that a new and different article must emerge having a distinctive name, character or use. The duty is levied on goods. As the Act does not define goods, the legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning is that to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market.That it would be such an article which would attract the Act was brought out in Union of India v. Delhi Cloth and General Mills Ltd., 1963 Supp (1) SCR 586 = (AIR 1963 SC 791 ). The contention there was that in the course of manufacture of vanaspati, a vegetable product from groundnut and til oil, the respondents brought into existence at an intermediate stage of manufacturing refined oil which fell within the description of "vegetable nonessential oil, all sorts," in Item 23 of the First Schedule. The contention would seem to assume that the goods subjected to duty must be goods known as such in the market. The contention was that the respondents, after they bought raw oil with all its impurities, manufactured, by application of certain processes of refinement, refined oil which was the same as refined oil available in the market and that it was "refined oil" which became after further processes the ultimate vegetable product. It was argued that the fact that the vegetable product was the ultimate product and was chargeable to duty did not alter the position that at an earlier stage, the respondents manufactured "refined oil" as known to the market and that the fact that they did not put this "refined oil" in the market but used it to produce the finished product did not affect their liability. This Court held that if a new substance was brought into existence from raw materials and that substance was the same as "refined oil" as known to the market it would be subject to duty. The question, therefore, was the substance sought to be charged "refined oil" known to the market? The affidavits showed that deodorization was necessary before the product could be called "refined oil". It was not in dispute that that process was employed after hydrogenation and not at the stage when what was called "refined oil" came into existence at an intermediate stage. No evidence was produced by the Union of refined oil being brought to the market without deodorization. It was held that raw oil purchased by the respondents for the purpose of manufacturing vanaspati did not become at any stage "refined oil" as known to the consumers and the commercial community. 14. The affidavits filed in the instant cases and the scientific works referred to above show that the mixture of gases produced from the kiln is known both in trade and in science as kiln gas and not as carbon dioxide. The Revenue has not produced any affidavit of persons dealing in carbon dioxide to show that kiln gas is known to the market as carbon dioxide. The aforesaid affidavits show that carbon dioxide known to and brought in the market for being bought and sold for its diverse uses is carbon dioxide compress, liquified or solidified as Item 14-H describes it. The analogy given by the leaned Attorney-General of a manufacturer of cotton cloth also producing at an intermediate stage cotton yarn and such cotton yarn being liable to excise duty would not help the Revenue as cotton yarn obtained by such a manufacturer is known as such in the commercial community and brought to the market for being bought and sold. That cannot be said of kiln gas. If kiln gas were to be offered in discharge of a contract to supply carbon dioxide it would certainly be rejected on the ground that it is not carbon dioxide but is kiln gas. It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these cases is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. Compressed carbon dioxide is understood generally as carbon dioxide compressed in cylinders with pressure ranging from 1,000 to 1,800 lbs. per sq. inch. The mere fact that at one stage or the other kiln gas is pressed at 40 to 45 lbs. per sq. inch by a pump or otherwise cannot mean that it is compressed carbon dioxide.At the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these concerns is not actually sold would not make any difference if what they generate and use in their manufacturing processes is carbon dioxide. The fact that the gas so generated has carbon dioxide below 98 percent and does not conform to the specifications of the Indian Standard Institution also would not matter for the gas may be substandard, provided what is produced is carbon dioxide. 15. In our view, the gas generated by these concerns is kiln gas and not carbon dioxide as known to the trade, i. e., to those who deal in it or who use it. The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.In this view it is not necessary for us to consider certain other. Contentions raised by the appellants and the petitioners in the writ petition. 16. In t
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equally possible to say that the combustion of limestone with coke results in the manufacture of nitrogen, whose content in the kiln gas is about 53 per cent. As the text-books produced before us and the affidavits show, the correct picture is that what is produced is kiln gas which consists of several gases, viz., carbon dioxide, carbon monoxide, oxygen and nitrogen, the last one being in a larger quantity than carbon dioxide. The mixture of gases so generated is known as kiln gas in the trade, i. e. to those who manufacture sugar and soda ash. The affidavits of concerns which use carbon dioxide definitely assert that kiln gas is never known in the market as carbon dioxide nor is it a marketable article in the sense that it is loose and is not transportable nor is it brought to the market for being bought and sold unless carbon dioxide is extracted out of it. Such extraction requires an elaborate plant. After extraction it would have to be compressed in cylinders of certain specifications or liquified or solidified before it can become a marketable articleIt is true as the Revenue contended that the gas produced through the kiln can be made marketable in the sense that it can be sold in the very same condition in which it is produced to concerns interested in the carbonation process through, for example, pipes But, apart from such a method of disposal being uneconomic and hardly likely to be employed by the trade, though it is possible in theory, what would be transported is that which is produced through the kiln, viz., the kiln gas containing among other things a certain quantity of carbon dioxide. As one of the text-books points out, carbonation process is employed by manufacturers of sugar because it is one of the cheapest method to ensure production of sugar of standard quality. The fact is that in employing carbonation process the manufacturer who requires carbon dioxide produces kiln gas and as that mixture of gases contains carbon dioxide he pumps through a pipe that mixture of gases and not carbon dioxide alone extracted from it. Therefore, in truth and in fact what he uses is the kiln gas produced by him in the lime kiln. Even assuming that this gas is compressed either through a narrow pipe what is compressed is the kiln gas and it is that kiln gas containing no doubt a certain percentage of carbon dioxide which is inducted in the sugarcane juice far refining. The same must also be said of the solvay process used in the production of soda ash though in that case the percentage of carbon dioxide is larger than in the case of refining sugarcane juiceThe affidavits filed in the instant cases and the scientific works referred to above show that the mixture of gases produced from the kiln is known both in trade and in science as kiln gas and not as carbon dioxide. The Revenue has not produced any affidavit of persons dealing in carbon dioxide to show that kiln gas is known to the market as carbon dioxide. The aforesaid affidavits show that carbon dioxide known to and brought in the market for being bought and sold for its diverse uses is carbon dioxide compress, liquified or solidified as Item 14-H describes it. The analogy given by the leaned Attorney-General of a manufacturer of cotton cloth also producing at an intermediate stage cotton yarn and such cotton yarn being liable to excise duty would not help the Revenue as cotton yarn obtained by such a manufacturer is known as such in the commercial community and brought to the market for being bought and sold. That cannot be said of kiln gas. If kiln gas were to be offered in discharge of a contract to supply carbon dioxide it would certainly be rejected on the ground that it is not carbon dioxide but is kiln gas. It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these cases is admittedly never liquified nor solidified and is therefore neither liquified nor solidified carbon dioxide assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. Compressed carbon dioxide is understood generally as carbon dioxide compressed in cylinders with pressure ranging from 1,000 to 1,800 lbs. per sq. inch. The mere fact that at one stage or the other kiln gas is pressed at 40 to 45 lbs. per sq. inch by a pump or otherwise cannot mean that it is compressed carbon dioxide.At the same time the duty being on manufacture and not on sale the mere fact that kiln gas generated by these concerns is not actually sold would not make any difference if what they generate and use in their manufacturing processes is carbon dioxide. The fact that the gas so generated has carbon dioxide below 98 percent and does not conform to thespecificationsof theIndian Standard Institution also would not matter for the gas may be substandard, provided what is produced is carbon dioxide16. Inour view, the gas generated by these concerns is kiln gas and not carbon dioxide as known to the trade, i. e., to those who deal in it or who use it. The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule.In this view it is not necessary for us to consider certain other. Contentions raised by the appellants and the petitioners in the writ petition.
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COMMISSIONER OF INCOME TAX (TDS), KANPUR Vs. CANARA BANK | of "establishment" uses the term "a corporation established by or under an Act", the emphasis should be on the word "established" in addition to the words "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a Central Act"? 22. The difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of the State Bank of India Act, 1955 provides that a bank to be called State Bank of India shall be constituted to carry on the business of banking. Section 3 of the Life Insurance Corporation Act, 1956 provides that. 3. Establishment and incorporation of Life Insurance Corporation of India.--(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". 25. This Court has also referred to provisions of The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under the Act. It is useful to refer to definition of financial corporation as contained in Section 2(b) which is to the following effect: "2(b) Financial Corporation means a Financial Corporation established Under Section 3 and includes a Joint Financial Corporation established Under Section 3A" 26. Section 3 deals with establishment of State Financial Corporation which provides as follows: "3. Establishment of State Financial Corporations.: (1) The State Government may, by notification in the Official Gazette, establish a Financial Corporation for the State under such name as may be specified in the notification. (2) The Financial Corporation shall be a body corporate by the name notified Under Sub-section (1), having perpetual succession and a common seal, with power, subject to the provisions of this Act, to [acquire, hold and dispose of] property and shall by the said name sue and be sued." 27. This Court clearly in above case, Dalco Engineering (supra) has held that such Financial Corporations are established by an Act or under an Act. In paragraph No. 23 of the judgment following has been held: "23. We may next refer to The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under that Act. Section 3 of that Act relates to establishment of State Financial Corporations and provides that "the State Government may, by notification in the Official Gazette, establish a financial corporation for the State under such name as may be specified in the notification" and such financial corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a Central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a non-statutory corporation incorporated or registered under the Companies Act." 28. Now, we revert back to the provisions of 1976, Act. The very preamble of that Act reads "an Act to provide for the Constitution of an Authority for the development of certain areas in the State into industrial and urban township and for masses connected through with". 29. Thus, the Act itself provides for constitution of an authority. Section 2(b) of the 1976 Act defines Authority as authority constituted Under Section 3 of the Act. Section 3 which is very relevant for the present case is as follows: "3. (1) The State Government may, by notification, constitute for the purposes of this Act, An authority to be called (Name of the area) Industrial Development Authority, for any industrial development area. (2) The Authority shall be a body corporate. (3) The Authority shall consist of the following: "CHART" (4) The headquarters of the Authority shall be at such place as may be notified by the State Government. (5) The procedure for the conduct of the meetings for the Authority shall be such as may be prescribed. (6) No act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in or defect in the constitution of the Authority." 30. When we compare the provisions of Section 3 of 1976 Act with those of The State Financial Corporations Act, 1951, it is clear that the establishment of Corporation in both the enactments is by a notification by State Government. In the present case, notification has been issued in exercise of power of Section 3, the Authority has been constituted. It is useful to extract paragraph No. 2 of the Notification dated 12.04.1976: "2. The Governor is hereby further pleased, in exercise of the powers Under Section 3 of the said Act, to constitute, in respect of the above-mentioned Industrial Development Area, for the purposes of the said Act, an Authority to be called the New Okhla Industrial Development Authority, consisting of the following, namely, "CHART". 31. This Court having already laid down in Dalco Engineering (supra) that establishment of various financial corporations under State Financial Corporation Act, 1951 is establishment of a Corporation by an Act or under an Act. We are of the view that the above ratio fully covers the present case and we have no doubt that the Authority have been established by the 1976 Act and it is clearly covered by the Notification dated 22.10.1970. It is further relevant to note that composition of the Authority is statutorily provided by Section 3 of 1976 Act itself, hence, there is no denying that Authority has been constituted by Act itself. | 0[ds]It is also not contended before us that Authority is not a statutory corporation. What is contended before us is that Authority having not been established by a Central, State or Provincial Act is not covered by Notification dated 22.10.1970 hence, not eligible for the benefit. The provision of Section 194A and the notification issued by Central Government under 194A(3)(iii)(f) falls for consideration. We may beneficially notice a principle of statutory interpretation which needs to be applied while interpreting the above provisions of IT Act,One more principle which was reiterated by this Court in above Constitution Bench judgment is that Corporations which are instrumentalities of the Government are subject to the limitation as contained in the Constitution. The Corporations which were under consideration in the above case, namely, Life Insurance Corporation of India, Oil and Natural Gas Commission, Industrial Finance Corporation were held to be constituted within the meaning of Article 12 of the Constitution. Two categories of Corporations have been noticed i.e. statutory corporations andcorporations. Whereas, the statutory corporations owe their existence from "by or under" statute,bodies and corporations are not created by or under statute rather are governed by a statute.Again in S.S. Dhanoa (supra), this Court had occasion to consider a Registered Society which was a body/corporate. The question was as to whether the State Body/corporate is a Corporation within the meaning of Clause Twelfth of Section 21 of the Indian Penal Code (Indian Penal Code). This Court again held that expression Corporation means a Corporation created by the legislature. In paragraph No. 7 following was.........In our opinion, the expression corporation must, in the context, mean a corporation created by the legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.Further noticing the distinction between Corporation established by or under Act or body created by or under Act, following was held in paragraph No.There is a distinction between a corporation established by or under an Act and a body incorporated under an Act. The distinction was brought out by this Court in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi. It was observed: [SCC p. 435: SCC (L&S) p. 115, paracompany incorporated under the Companies Act is not created by the Companies Act but comes into existence in accordance with the provisions of theis thus adistinction between a body created by a statute and a body which, after coming into existence, is governed in accordance with the provisions of a statute..........Another judgment which had occasion to consider the expression established by or under the Act is a judgment of this Court in Dalco Engineering Private Limited v. Satish Prabhakar Padhye and Ors. (2010) 4 SCC 378 . The Court had occasion to examine the provision of Section 2k, of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, specifically expression "establishment" means a Corporation established by or under Central, Provincial or State Act. This Court held that the phrase established by or under the Act is a standard term used in several enactments to denote a statutory corporation established or brought into existence by or under the statute. On Company it was held that the company is not established under the Companies Act and an incorporated company does not "owe" its existence to the Companies Act. In paragraph No. 20 following has been laidA "company" is not "established" under the Companies Act. An incorporated company does not "owe" its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a memorandum of association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a "company" is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company Law Tribunal and the National Company Law Appellate Tribunal, and these two statutory authorities owe their existence to the Companies Act.This Court further elaborating the expression held that when the expression used is "established by or under the Act", the emphasize should be on the word "established" in addition to the words "by or under". It is useful to refer to what has been said in paragraph Nos. 21 and 22 of the judgment which is to the followingWhere the definition of "establishment" uses the term "a corporation established by or under an Act", the emphasis should be on the word "established" in addition to the words "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a CentralThe difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of the State Bank of India Act, 1955 provides that a bank to be called State Bank of India shall be constituted to carry on the business of banking. Section 3 of the Life Insurance Corporation Act, 1956 provides that.Establishment and incorporation of Life Insurance Corporation ofWith effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act".This Court has also referred to provisions of The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under the Act. It is useful to refer to definition of financial corporation as contained in Section 2(b) which is to the followingFinancial Corporation means a Financial Corporation established Under Section 3 and includes a Joint Financial Corporation established Under SectionSection 3 deals with establishment of State Financial Corporation which provides asEstablishment of State Financial Corporations.: (1) The State Government may, by notification in the Official Gazette, establish a Financial Corporation for the State under such name as may be specified in theThe Financial Corporation shall be a body corporate by the name notified Under(1), having perpetual succession and a common seal, with power, subject to the provisions of this Act, to [acquire, hold and dispose of] property and shall by the said name sue and be sued.This Court clearly in above case, Dalco Engineering (supra) has held that such Financial Corporations are established by an Act or under an Act. In paragraph No. 23 of the judgment following has beenWe may next refer to The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under that Act. Section 3 of that Act relates to establishment of State Financial Corporations and provides that "the State Government may, by notification in the Official Gazette, establish a financial corporation for the State under such name as may be specified in the notification" and such financial corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a Central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from acorporation incorporated or registered under the Companies Act.Now, we revert back to the provisions of 1976, Act. The very preamble of that Act reads "an Act to provide for the Constitution of an Authority for the development of certain areas in the State into industrial and urban township and for masses connected through with".Thus, the Act itself provides for constitution of an authority. Section 2(b) of the 1976 Act defines Authority as authority constituted Under Section 3 of the Act. Section 3 which is very relevant for the present case is as(1) The State Government may, by notification, constitute for the purposes of this Act, An authority to be called (Name of the area) Industrial Development Authority, for any industrial developmentThe Authority shall be a bodyThe Authority shall consist of theThe headquarters of the Authority shall be at such place as may be notified by the StateThe procedure for the conduct of the meetings for the Authority shall be such as may beNo act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in or defect in the constitution of the Authority.When we compare the provisions of Section 3 of 1976 Act with those of The State Financial Corporations Act, 1951, it is clear that the establishment of Corporation in both the enactments is by a notification by State Government. In the present case, notification has been issued in exercise of power of Section 3, the Authority has been constituted. It is useful to extract paragraph No. 2 of the Notification dated 12.04.The Governor is hereby further pleased, in exercise of the powers Under Section 3 of the said Act, to constitute, in respect of theThis Court having already laid down in Dalco Engineering (supra) that establishment of various financial corporations under State Financial Corporation Act, 1951 is establishment of a Corporation by an Act or under an Act. We are of the view that the above ratio fully covers the present case and we have no doubt that the Authority have been established by the 1976 Act and it is clearly covered by the Notification dated 22.10.1970. It is further relevant to note that composition of the Authority is statutorily provided by Section 3 of 1976 Act itself, hence, there is no denying that Authority has been constituted by Act itself. | 0 | 6,749 | 1,899 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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of "establishment" uses the term "a corporation established by or under an Act", the emphasis should be on the word "established" in addition to the words "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a Central Act"? 22. The difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of the State Bank of India Act, 1955 provides that a bank to be called State Bank of India shall be constituted to carry on the business of banking. Section 3 of the Life Insurance Corporation Act, 1956 provides that. 3. Establishment and incorporation of Life Insurance Corporation of India.--(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act". 25. This Court has also referred to provisions of The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under the Act. It is useful to refer to definition of financial corporation as contained in Section 2(b) which is to the following effect: "2(b) Financial Corporation means a Financial Corporation established Under Section 3 and includes a Joint Financial Corporation established Under Section 3A" 26. Section 3 deals with establishment of State Financial Corporation which provides as follows: "3. Establishment of State Financial Corporations.: (1) The State Government may, by notification in the Official Gazette, establish a Financial Corporation for the State under such name as may be specified in the notification. (2) The Financial Corporation shall be a body corporate by the name notified Under Sub-section (1), having perpetual succession and a common seal, with power, subject to the provisions of this Act, to [acquire, hold and dispose of] property and shall by the said name sue and be sued." 27. This Court clearly in above case, Dalco Engineering (supra) has held that such Financial Corporations are established by an Act or under an Act. In paragraph No. 23 of the judgment following has been held: "23. We may next refer to The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under that Act. Section 3 of that Act relates to establishment of State Financial Corporations and provides that "the State Government may, by notification in the Official Gazette, establish a financial corporation for the State under such name as may be specified in the notification" and such financial corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a Central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from a non-statutory corporation incorporated or registered under the Companies Act." 28. Now, we revert back to the provisions of 1976, Act. The very preamble of that Act reads "an Act to provide for the Constitution of an Authority for the development of certain areas in the State into industrial and urban township and for masses connected through with". 29. Thus, the Act itself provides for constitution of an authority. Section 2(b) of the 1976 Act defines Authority as authority constituted Under Section 3 of the Act. Section 3 which is very relevant for the present case is as follows: "3. (1) The State Government may, by notification, constitute for the purposes of this Act, An authority to be called (Name of the area) Industrial Development Authority, for any industrial development area. (2) The Authority shall be a body corporate. (3) The Authority shall consist of the following: "CHART" (4) The headquarters of the Authority shall be at such place as may be notified by the State Government. (5) The procedure for the conduct of the meetings for the Authority shall be such as may be prescribed. (6) No act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in or defect in the constitution of the Authority." 30. When we compare the provisions of Section 3 of 1976 Act with those of The State Financial Corporations Act, 1951, it is clear that the establishment of Corporation in both the enactments is by a notification by State Government. In the present case, notification has been issued in exercise of power of Section 3, the Authority has been constituted. It is useful to extract paragraph No. 2 of the Notification dated 12.04.1976: "2. The Governor is hereby further pleased, in exercise of the powers Under Section 3 of the said Act, to constitute, in respect of the above-mentioned Industrial Development Area, for the purposes of the said Act, an Authority to be called the New Okhla Industrial Development Authority, consisting of the following, namely, "CHART". 31. This Court having already laid down in Dalco Engineering (supra) that establishment of various financial corporations under State Financial Corporation Act, 1951 is establishment of a Corporation by an Act or under an Act. We are of the view that the above ratio fully covers the present case and we have no doubt that the Authority have been established by the 1976 Act and it is clearly covered by the Notification dated 22.10.1970. It is further relevant to note that composition of the Authority is statutorily provided by Section 3 of 1976 Act itself, hence, there is no denying that Authority has been constituted by Act itself.
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Act itself establishes the National Company Law Tribunal and the National Company Law Appellate Tribunal, and these two statutory authorities owe their existence to the Companies Act.This Court further elaborating the expression held that when the expression used is "established by or under the Act", the emphasize should be on the word "established" in addition to the words "by or under". It is useful to refer to what has been said in paragraph Nos. 21 and 22 of the judgment which is to the followingWhere the definition of "establishment" uses the term "a corporation established by or under an Act", the emphasis should be on the word "established" in addition to the words "by or under". The word "established" refers to coming into existence by virtue of an enactment. It does not refer to a company, which, when it comes into existence, is governed in accordance with the provisions of the Companies Act. But then, what is the difference between "established by a Central Act" and "established under a CentralThe difference is best explained by some illustrations. A corporation is established by an Act, where the Act itself establishes the corporation. For example, Section 3 of the State Bank of India Act, 1955 provides that a bank to be called State Bank of India shall be constituted to carry on the business of banking. Section 3 of the Life Insurance Corporation Act, 1956 provides that.Establishment and incorporation of Life Insurance Corporation ofWith effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Corporation called the Life Insurance Corporation of India. State Bank of India and Life Insurance Corporation of India are two examples of corporations established by "a Central Act".This Court has also referred to provisions of The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under the Act. It is useful to refer to definition of financial corporation as contained in Section 2(b) which is to the followingFinancial Corporation means a Financial Corporation established Under Section 3 and includes a Joint Financial Corporation established Under SectionSection 3 deals with establishment of State Financial Corporation which provides asEstablishment of State Financial Corporations.: (1) The State Government may, by notification in the Official Gazette, establish a Financial Corporation for the State under such name as may be specified in theThe Financial Corporation shall be a body corporate by the name notified Under(1), having perpetual succession and a common seal, with power, subject to the provisions of this Act, to [acquire, hold and dispose of] property and shall by the said name sue and be sued.This Court clearly in above case, Dalco Engineering (supra) has held that such Financial Corporations are established by an Act or under an Act. In paragraph No. 23 of the judgment following has beenWe may next refer to The State Financial Corporations Act, 1951 which provides for establishment of various financial corporations under that Act. Section 3 of that Act relates to establishment of State Financial Corporations and provides that "the State Government may, by notification in the Official Gazette, establish a financial corporation for the State under such name as may be specified in the notification" and such financial corporation shall be a body corporate by the name notified. Thus, a State Financial Corporation is established under a Central Act. Therefore, when the words "by and under an Act" are preceded by the words "established", it is clear that the reference is to a corporation established, that it is brought into existence, by an Act or under an Act. In short, the term refers to a statutory corporation as contrasted from acorporation incorporated or registered under the Companies Act.Now, we revert back to the provisions of 1976, Act. The very preamble of that Act reads "an Act to provide for the Constitution of an Authority for the development of certain areas in the State into industrial and urban township and for masses connected through with".Thus, the Act itself provides for constitution of an authority. Section 2(b) of the 1976 Act defines Authority as authority constituted Under Section 3 of the Act. Section 3 which is very relevant for the present case is as(1) The State Government may, by notification, constitute for the purposes of this Act, An authority to be called (Name of the area) Industrial Development Authority, for any industrial developmentThe Authority shall be a bodyThe Authority shall consist of theThe headquarters of the Authority shall be at such place as may be notified by the StateThe procedure for the conduct of the meetings for the Authority shall be such as may beNo act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in or defect in the constitution of the Authority.When we compare the provisions of Section 3 of 1976 Act with those of The State Financial Corporations Act, 1951, it is clear that the establishment of Corporation in both the enactments is by a notification by State Government. In the present case, notification has been issued in exercise of power of Section 3, the Authority has been constituted. It is useful to extract paragraph No. 2 of the Notification dated 12.04.The Governor is hereby further pleased, in exercise of the powers Under Section 3 of the said Act, to constitute, in respect of theThis Court having already laid down in Dalco Engineering (supra) that establishment of various financial corporations under State Financial Corporation Act, 1951 is establishment of a Corporation by an Act or under an Act. We are of the view that the above ratio fully covers the present case and we have no doubt that the Authority have been established by the 1976 Act and it is clearly covered by the Notification dated 22.10.1970. It is further relevant to note that composition of the Authority is statutorily provided by Section 3 of 1976 Act itself, hence, there is no denying that Authority has been constituted by Act itself.
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State of Madhya Pradesh Vs. Yakinuddin | agreements entered into by the outgoing proprietors.8. It would thus appear that in view of the two later decisions of this Court, the High Court was in error in granting any relief to the respondents. But it has been contended on behalf of the respondents that certain aspects of the controversy had not been brought to the notice of the Court on the previous occasion, and that the respondents were entitled to the benefit of S. 6 of the Act. It was contended that the respondents rights were not in the nature of mere licences, but were in the nature of profits a prendre, which were saved to them in view of the provisions of S. 6.9. In our opinion, there is no substance in the contention raised on behalf of the respondents. Under S. 3 of the Act, from the date of the notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in S. 4, which runs into several clauses and sub-sections. Section 4 (1) (a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the notification under S. 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall . . . ensue, namely, (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees ..shall cease and be vested in the State for the purposes of the State tree of all encumbrances . . ," (We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of cl. (a) of S. 4 (1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrub jungle, forest, etc., ceased on the vesting of the estate in the State.10. But it was contended on behalf of the respondents that S. 6 (1) saves their rights from the operation of S. 4 (1) (a), because, it is argued, S. 4 (1) (a) is subject to the provisions of S. 6 (1). Section 6 (1) runs as follows:"6 (1) Except as provided in sub-section (2), the transfer of any right in the property which is liable to vest in the State under this Act made by the proprietor at any time after the 16th March 1950 shall, as from the date of vesting, be void."In our opinion, there is no substance in this contention. Section 6 refers to those transactions of transfer of any right which is liable to vest in the State as being void. It does not lay down that a transfer made before 16th March 1950, shall be binding upon the State. The transfers which have been saved by S. 6 (1) from being void may be recognised by the State for which the transferee may be entitled to claim some compensation in accordance with the provisions of the Act. But S. 6 does not save that interest from being vested in the State as a result of the notification under S. 3, read with S. 4 (1) (a). The scheme of the Act is that it provides for the acquisition by the State of all interests in the estate of the proprietor himself or of an intermediary, except the tiller of the soil. This it does by vesting all proprietary rights in the State, of whatever grade, by issuing the notification under S. 3, vesting it in the State for the purposes of the State free from all encumbrances. Section 4 lays down in great detail the rights which become extinguished on the vesting of the estate as aforesaid. What is saved to the proprietor or any other person claiming through him is set out in S. 5, cls. (a) to (h), on such terms and conditions as may be determined by the State. Hence any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within S. 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under S. 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in S. 8 and the succeeding sections. The respondents have not been able to show that their interests come under any of the clauses aforesaid of S. 5.11. A great deal of argument was advanced on behalf of the respondents showing the distinction between a bare licence and a licence coupled with grant or profits a prendre. But, in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of S. 5. | 1[ds]9. In our opinion, there is no substance in the contention raised on behalf of the respondents. Under S. 3 of the Act, from the date of the notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in S. 4, which runs into several clauses and sub-sections. Section 4 (1) (a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the notification under S. 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall . . . ensue, namely, (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees ..shall cease and be vested in the State for the purposes of the State tree of all encumbrances . . ," (We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of cl. (a) of S. 4 (1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrub jungle, forest, etc., ceased on the vesting of the estate in theour opinion, there is no substance in this contention. Section 6 refers to those transactions of transfer of any right which is liable to vest in the State as being void. It does not lay down that a transfer made before 16th March 1950, shall be binding upon the State. The transfers which have been saved by S. 6 (1) from being void may be recognised by the State for which the transferee may be entitled to claim some compensation in accordance with the provisions of the Act. But S. 6 does not save that interest from being vested in the State as a result of the notification under S. 3, read with S. 4 (1) (a). The scheme of the Act is that it provides for the acquisition by the State of all interests in the estate of the proprietor himself or of an intermediary, except the tiller of the soil. This it does by vesting all proprietary rights in the State, of whatever grade, by issuing the notification under S. 3, vesting it in the State for the purposes of the State free from all encumbrances. Section 4 lays down in great detail the rights which become extinguished on the vesting of the estate as aforesaid. What is saved to the proprietor or any other person claiming through him is set out in S. 5, cls. (a) to (h), on such terms and conditions as may be determined by the State. Hence any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within S. 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under S. 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in S. 8 and the succeeding sections. The respondents have not been able to show that their interests come under any of the clauses aforesaid of S.in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of S. 5. | 1 | 2,478 | 848 | ### 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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agreements entered into by the outgoing proprietors.8. It would thus appear that in view of the two later decisions of this Court, the High Court was in error in granting any relief to the respondents. But it has been contended on behalf of the respondents that certain aspects of the controversy had not been brought to the notice of the Court on the previous occasion, and that the respondents were entitled to the benefit of S. 6 of the Act. It was contended that the respondents rights were not in the nature of mere licences, but were in the nature of profits a prendre, which were saved to them in view of the provisions of S. 6.9. In our opinion, there is no substance in the contention raised on behalf of the respondents. Under S. 3 of the Act, from the date of the notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in S. 4, which runs into several clauses and sub-sections. Section 4 (1) (a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the notification under S. 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall . . . ensue, namely, (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees ..shall cease and be vested in the State for the purposes of the State tree of all encumbrances . . ," (We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of cl. (a) of S. 4 (1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrub jungle, forest, etc., ceased on the vesting of the estate in the State.10. But it was contended on behalf of the respondents that S. 6 (1) saves their rights from the operation of S. 4 (1) (a), because, it is argued, S. 4 (1) (a) is subject to the provisions of S. 6 (1). Section 6 (1) runs as follows:"6 (1) Except as provided in sub-section (2), the transfer of any right in the property which is liable to vest in the State under this Act made by the proprietor at any time after the 16th March 1950 shall, as from the date of vesting, be void."In our opinion, there is no substance in this contention. Section 6 refers to those transactions of transfer of any right which is liable to vest in the State as being void. It does not lay down that a transfer made before 16th March 1950, shall be binding upon the State. The transfers which have been saved by S. 6 (1) from being void may be recognised by the State for which the transferee may be entitled to claim some compensation in accordance with the provisions of the Act. But S. 6 does not save that interest from being vested in the State as a result of the notification under S. 3, read with S. 4 (1) (a). The scheme of the Act is that it provides for the acquisition by the State of all interests in the estate of the proprietor himself or of an intermediary, except the tiller of the soil. This it does by vesting all proprietary rights in the State, of whatever grade, by issuing the notification under S. 3, vesting it in the State for the purposes of the State free from all encumbrances. Section 4 lays down in great detail the rights which become extinguished on the vesting of the estate as aforesaid. What is saved to the proprietor or any other person claiming through him is set out in S. 5, cls. (a) to (h), on such terms and conditions as may be determined by the State. Hence any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within S. 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under S. 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in S. 8 and the succeeding sections. The respondents have not been able to show that their interests come under any of the clauses aforesaid of S. 5.11. A great deal of argument was advanced on behalf of the respondents showing the distinction between a bare licence and a licence coupled with grant or profits a prendre. But, in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of S. 5.
### Response:
1
### Explanation:
9. In our opinion, there is no substance in the contention raised on behalf of the respondents. Under S. 3 of the Act, from the date of the notification by the State, all proprietary rights in an estate vesting in a proprietor of such an estate or in a person having interest in such proprietary rights through the proprietor, shall vest in the State for the purposes of the State, free from all encumbrances. The consequences of such a vesting are laid down in S. 4, which runs into several clauses and sub-sections. Section 4 (1) (a) is the relevant provision of the Act which determines this controversy entirely against the respondents. It provides that "when the notification under S. 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, and save as otherwise provided in this Act, the consequences as hereinafter set forth shall . . . ensue, namely, (a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees ..shall cease and be vested in the State for the purposes of the State tree of all encumbrances . . ," (We have omitted the words which are not necessary for the purposes of the present appeals). It is clear on a bare reading of the provisions of cl. (a) of S. 4 (1) that whatever rights the proprietor, or a person claiming interest through him, had in the trees, scrub jungle, forest, etc., ceased on the vesting of the estate in theour opinion, there is no substance in this contention. Section 6 refers to those transactions of transfer of any right which is liable to vest in the State as being void. It does not lay down that a transfer made before 16th March 1950, shall be binding upon the State. The transfers which have been saved by S. 6 (1) from being void may be recognised by the State for which the transferee may be entitled to claim some compensation in accordance with the provisions of the Act. But S. 6 does not save that interest from being vested in the State as a result of the notification under S. 3, read with S. 4 (1) (a). The scheme of the Act is that it provides for the acquisition by the State of all interests in the estate of the proprietor himself or of an intermediary, except the tiller of the soil. This it does by vesting all proprietary rights in the State, of whatever grade, by issuing the notification under S. 3, vesting it in the State for the purposes of the State free from all encumbrances. Section 4 lays down in great detail the rights which become extinguished on the vesting of the estate as aforesaid. What is saved to the proprietor or any other person claiming through him is set out in S. 5, cls. (a) to (h), on such terms and conditions as may be determined by the State. Hence any person claiming some interest as a proprietor or as holding through a proprietor in respect of any proprietary interest in an estate has got to bring his interest within S. 5, because on the date of vesting of the estate, the Deputy Commissioner takes charge of all lands other than occupied lands and homestead, and of all interests vesting in the State under S. 3. Upon such taking over of possession, the State becomes liable to pay the compensation provided for in S. 8 and the succeeding sections. The respondents have not been able to show that their interests come under any of the clauses aforesaid of S.in our opinion, it is not necessary to discuss those fine distinctions because whatever may have been the nature of the grant by the outgoing proprietors in favour of the respondents those grants had no legal effect as against the State, except in so far as the State may have recognised them. But the provisions of the Act leave no manner of doubt that the rights claimed by the respondents could not have been enforced against the State, if the latter was not prepared to respect those rights and the rights created by the transactions between the respondents and their grantors did not come within any of the saving clauses of S. 5.
|
First Income-tax Officer, Salem Vs. Short Brothers Private Limited | distributed by a liquidator of a company to escape liability to tax. In Inland Revenue Commissioners v. George Burrell, 1924-2 KB 52, it was held that on the undivided profits of past years and of the year in which the winding up of a company occurred which were distributed among the shareholders, super-tax was not payable because in the winding up they had ceased to be profits and were assets only. It was observed in Burrells case, 1924-2 KB 52, that the only thing the liquidator of a company in liquidation may do is to turn the assets into money and divide the money among the shareholders in proportion to their shares. Surplus of trading profit made in a particular year are distributable rateably among all the shareholders as capital, and it is not right to split up the sums received by the shareholders into capital and income, by examining the accounts of the company when it carried on business, and disintegrating the sum received by the shareholders subsequently into component parts based on an estimate of what might possibly have been done, but was not done. As the Indian Companies Act, 1913, closely followed the scheme of the English Companies Act, and the view expressed in Burrells case, 1924-2 KB 52, applied to the Indian income-tax Act, a special definition of "dividend" was devised by the Parliament by the enactment of Income-tax (Amendment) Act 7 of 1939, with a view to supersede the view in Burrells case, 1924-2 KB 52. Clause (c) of sub-s. (6A) as originally enacted stood as follows :"dividend includes -(c) any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company :Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included : By the Finance Act, 1955 the proviso to sub-cl. (c) of Cl. (6A) was omitted. There was a further amendment made by the Finance Act, 1956 and Cl. (c) to the amended section read as follows :"dividend includes -(c) any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation whether capitalised or not,"Under Act 7 of 1989 profits which arose within six previous years preceding the date of liquidation when distributed were to be deemed dividends. But the effect of the definition was that distribution of profits accumulated after the last day of the previous year whatever their nature could not be regarded as distribution of dividend: Haridas Achratlal v. Commissioner of Income-tax, 1955-27 ITR 684 : (AIR 1955 Bom 388). It was held in that case by the Bombay High Court that for the purpose of S. 2 (6A) (c) as it stood in 1949, a broken period between the last day of the previous year of a company, and the commencement of winding up- could not be considered "a previous year". The Parliament with a view to supersede the view in Haridas Achratlals case. 1955-27 ITR 684 : (AIR 1955 Bom 338 ), deleted by the Finance Act 1055, the proviso to sub-cl. (c).To make its meaning more clear the Parliament by the Finance Act 1956, recast the substantive Cl. (c). Viewed in the context of this legislative history, there is no doubt that "current profits", i.e., profits of a company in liquidation arising after the end of the last previous year and before liquidation commenced, were brought within the net of taxation as dividend. The contention raised by counsel for the Company on this part of the case must fail.10. The question which remains to be considered is whether capital appreciation in respect of the lands from which the income derived is agricultural income and which was not taxable in the hands of the company as capital gains would still on distribution be liable to be taxed as dividend under S. 12 of the Income-tax Act.As we have already pointed out capital gains under S. 12B are chargeable in respect of any profits arising from transfer of "capital assets" and "capital assets" do not include lands from which the income derived is agricultural income. Profits derived by transfer of lands from which the income derived is agricultural income-would not, therefore, be chargeable on a combined reading of S. 12B with S. 2 (4A) of the Income-tax Act under the head "capital gain" The expression "accumulated profits" does not include capital gains arising within the excepted periods : vide Explanation to Section 2 (6A). "Accumulated profits" are, therefore, profits which are so regarded in commercial practice, and capital gains as defined in the Income-tax Act. Realization of appreciated value of assets in commercial practice is regarded as realization of capital rise, and not of profits of the business. Unless, therefore, appreciation in the value of capital assets is included in the capital gains, distribution by the liquidator of the rise in the capital value will not be deemed dividend for the purpose of the Income-tax Act.11. Counsel for the Department contended, relying upon Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income-tax, Bombay, 1955-27 ITR 1 : (AIR 1955 SC 74 ), that since dividend received by a shareholder of a company out of the profits earned from agricultural income is not exempt from liability to pay tax under Section 4 (3) (viii), dividend distributed from profits earned out of sale of capital assets inclusive of lands from which the income derived is agricultural income is also not exempt from income-tax. But the Company does not claim exemption from liability to tax under S. 4 (3) (viii): it claims exemption because the receipt is not income which is chargeable to tax under S 12 under the head "dividend" The case of Mrs. Bacha F. Guzder, 1955-27 ITR 1 : (AIR 1955 SC 74 ), has, therefore, no application to this case.12 | 0[ds]Under Act 7 of 1989 profits which arose within six previous years preceding the date of liquidation when distributed were to be deemed dividends. But the effect of the definition was that distribution of profits accumulated after the last day of the previous year whatever their nature could not be regarded as distribution of dividend: Haridas Achratlal v. Commissioner of Income-tax, 1955-27 ITR 684 : (AIR 1955 Bom 388). It was held in that case by the Bombay High Court that for the purpose of S. 2 (6A) (c) as it stood in 1949, a broken period between the last day of the previous year of a company, and the commencement of winding up- could not be considered "a previous year". The Parliament with a view to supersede the view in Haridas Achratlals case. 1955-27 ITR 684 : (AIR 1955 Bom 338 ), deleted by the Finance Act 1055, the proviso to sub-cl. (c).To make its meaning more clear the Parliament by the Finance Act 1956, recast the substantive Cl. (c). Viewed in the context of this legislative history, there is no doubt that "current profits", i.e., profits of a company in liquidation arising after the end of the last previous year and before liquidation commenced, were brought within the net of taxation as dividend. The contention raised by counsel for the Company on this part of the case must fail.The question which remains to be considered is whether capital appreciation in respect of the lands from which the income derived is agricultural income and which was not taxable in the hands of the company as capital gains would still on distribution be liable to be taxed as dividend under S. 12 of the Income-taxwe have already pointed out capital gains under S. 12B are chargeable in respect of any profits arising from transfer of "capital assets" and "capital assets" do not include lands from which the income derived is agricultural income. Profits derived by transfer of lands from which the income derived is agricultural income-would not, therefore, be chargeable on a combined reading of S. 12B with S. 2 (4A) of the Income-tax Act under the head "capital gain" The expression "accumulated profits" does not include capital gains arising within the excepted periods : vide Explanation to Section 2 (6A). "Accumulated profits" are, therefore, profits which are so regarded in commercial practice, and capital gains as defined in the Income-tax Act. Realization of appreciated value of assets in commercial practice is regarded as realization of capital rise, and not of profits of the business. Unless, therefore, appreciation in the value of capital assets is included in the capital gains, distribution by the liquidator of the rise in the capital value will not be deemed dividend for the purpose of the Income-tax Act.11. Counsel for the Department contended, relying upon Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income-tax, Bombay, 1955-27 ITR 1 : (AIR 1955 SC 74 ), that since dividend received by a shareholder of a company out of the profits earned from agricultural income is not exempt from liability to pay tax under Section 4 (3) (viii), dividend distributed from profits earned out of sale of capital assets inclusive of lands from which the income derived is agricultural income is also not exempt from income-tax. But the Company does not claim exemption from liability to tax under S. 4 (3) (viii): it claims exemption because the receipt is not income which is chargeable to tax under S 12 under the head "dividend" The case of Mrs. Bacha F. Guzder, 1955-27 ITR 1 : (AIR 1955 SC 74 ), has, therefore, no application to this case. | 0 | 3,128 | 700 | ### 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:
distributed by a liquidator of a company to escape liability to tax. In Inland Revenue Commissioners v. George Burrell, 1924-2 KB 52, it was held that on the undivided profits of past years and of the year in which the winding up of a company occurred which were distributed among the shareholders, super-tax was not payable because in the winding up they had ceased to be profits and were assets only. It was observed in Burrells case, 1924-2 KB 52, that the only thing the liquidator of a company in liquidation may do is to turn the assets into money and divide the money among the shareholders in proportion to their shares. Surplus of trading profit made in a particular year are distributable rateably among all the shareholders as capital, and it is not right to split up the sums received by the shareholders into capital and income, by examining the accounts of the company when it carried on business, and disintegrating the sum received by the shareholders subsequently into component parts based on an estimate of what might possibly have been done, but was not done. As the Indian Companies Act, 1913, closely followed the scheme of the English Companies Act, and the view expressed in Burrells case, 1924-2 KB 52, applied to the Indian income-tax Act, a special definition of "dividend" was devised by the Parliament by the enactment of Income-tax (Amendment) Act 7 of 1939, with a view to supersede the view in Burrells case, 1924-2 KB 52. Clause (c) of sub-s. (6A) as originally enacted stood as follows :"dividend includes -(c) any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company :Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included : By the Finance Act, 1955 the proviso to sub-cl. (c) of Cl. (6A) was omitted. There was a further amendment made by the Finance Act, 1956 and Cl. (c) to the amended section read as follows :"dividend includes -(c) any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation whether capitalised or not,"Under Act 7 of 1989 profits which arose within six previous years preceding the date of liquidation when distributed were to be deemed dividends. But the effect of the definition was that distribution of profits accumulated after the last day of the previous year whatever their nature could not be regarded as distribution of dividend: Haridas Achratlal v. Commissioner of Income-tax, 1955-27 ITR 684 : (AIR 1955 Bom 388). It was held in that case by the Bombay High Court that for the purpose of S. 2 (6A) (c) as it stood in 1949, a broken period between the last day of the previous year of a company, and the commencement of winding up- could not be considered "a previous year". The Parliament with a view to supersede the view in Haridas Achratlals case. 1955-27 ITR 684 : (AIR 1955 Bom 338 ), deleted by the Finance Act 1055, the proviso to sub-cl. (c).To make its meaning more clear the Parliament by the Finance Act 1956, recast the substantive Cl. (c). Viewed in the context of this legislative history, there is no doubt that "current profits", i.e., profits of a company in liquidation arising after the end of the last previous year and before liquidation commenced, were brought within the net of taxation as dividend. The contention raised by counsel for the Company on this part of the case must fail.10. The question which remains to be considered is whether capital appreciation in respect of the lands from which the income derived is agricultural income and which was not taxable in the hands of the company as capital gains would still on distribution be liable to be taxed as dividend under S. 12 of the Income-tax Act.As we have already pointed out capital gains under S. 12B are chargeable in respect of any profits arising from transfer of "capital assets" and "capital assets" do not include lands from which the income derived is agricultural income. Profits derived by transfer of lands from which the income derived is agricultural income-would not, therefore, be chargeable on a combined reading of S. 12B with S. 2 (4A) of the Income-tax Act under the head "capital gain" The expression "accumulated profits" does not include capital gains arising within the excepted periods : vide Explanation to Section 2 (6A). "Accumulated profits" are, therefore, profits which are so regarded in commercial practice, and capital gains as defined in the Income-tax Act. Realization of appreciated value of assets in commercial practice is regarded as realization of capital rise, and not of profits of the business. Unless, therefore, appreciation in the value of capital assets is included in the capital gains, distribution by the liquidator of the rise in the capital value will not be deemed dividend for the purpose of the Income-tax Act.11. Counsel for the Department contended, relying upon Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income-tax, Bombay, 1955-27 ITR 1 : (AIR 1955 SC 74 ), that since dividend received by a shareholder of a company out of the profits earned from agricultural income is not exempt from liability to pay tax under Section 4 (3) (viii), dividend distributed from profits earned out of sale of capital assets inclusive of lands from which the income derived is agricultural income is also not exempt from income-tax. But the Company does not claim exemption from liability to tax under S. 4 (3) (viii): it claims exemption because the receipt is not income which is chargeable to tax under S 12 under the head "dividend" The case of Mrs. Bacha F. Guzder, 1955-27 ITR 1 : (AIR 1955 SC 74 ), has, therefore, no application to this case.12
### Response:
0
### Explanation:
Under Act 7 of 1989 profits which arose within six previous years preceding the date of liquidation when distributed were to be deemed dividends. But the effect of the definition was that distribution of profits accumulated after the last day of the previous year whatever their nature could not be regarded as distribution of dividend: Haridas Achratlal v. Commissioner of Income-tax, 1955-27 ITR 684 : (AIR 1955 Bom 388). It was held in that case by the Bombay High Court that for the purpose of S. 2 (6A) (c) as it stood in 1949, a broken period between the last day of the previous year of a company, and the commencement of winding up- could not be considered "a previous year". The Parliament with a view to supersede the view in Haridas Achratlals case. 1955-27 ITR 684 : (AIR 1955 Bom 338 ), deleted by the Finance Act 1055, the proviso to sub-cl. (c).To make its meaning more clear the Parliament by the Finance Act 1956, recast the substantive Cl. (c). Viewed in the context of this legislative history, there is no doubt that "current profits", i.e., profits of a company in liquidation arising after the end of the last previous year and before liquidation commenced, were brought within the net of taxation as dividend. The contention raised by counsel for the Company on this part of the case must fail.The question which remains to be considered is whether capital appreciation in respect of the lands from which the income derived is agricultural income and which was not taxable in the hands of the company as capital gains would still on distribution be liable to be taxed as dividend under S. 12 of the Income-taxwe have already pointed out capital gains under S. 12B are chargeable in respect of any profits arising from transfer of "capital assets" and "capital assets" do not include lands from which the income derived is agricultural income. Profits derived by transfer of lands from which the income derived is agricultural income-would not, therefore, be chargeable on a combined reading of S. 12B with S. 2 (4A) of the Income-tax Act under the head "capital gain" The expression "accumulated profits" does not include capital gains arising within the excepted periods : vide Explanation to Section 2 (6A). "Accumulated profits" are, therefore, profits which are so regarded in commercial practice, and capital gains as defined in the Income-tax Act. Realization of appreciated value of assets in commercial practice is regarded as realization of capital rise, and not of profits of the business. Unless, therefore, appreciation in the value of capital assets is included in the capital gains, distribution by the liquidator of the rise in the capital value will not be deemed dividend for the purpose of the Income-tax Act.11. Counsel for the Department contended, relying upon Mrs. Bacha F. Guzdar, Bombay v. Commissioner of Income-tax, Bombay, 1955-27 ITR 1 : (AIR 1955 SC 74 ), that since dividend received by a shareholder of a company out of the profits earned from agricultural income is not exempt from liability to pay tax under Section 4 (3) (viii), dividend distributed from profits earned out of sale of capital assets inclusive of lands from which the income derived is agricultural income is also not exempt from income-tax. But the Company does not claim exemption from liability to tax under S. 4 (3) (viii): it claims exemption because the receipt is not income which is chargeable to tax under S 12 under the head "dividend" The case of Mrs. Bacha F. Guzder, 1955-27 ITR 1 : (AIR 1955 SC 74 ), has, therefore, no application to this case.
|
MEENA VERMA Vs. THE STATE OF HIMACHAL PRADESH | Advocate General for the respondent no. 1-State and Mr. Amit Singh Chandel, learned counsel for the respondent no. 2.9. There is no dispute that the first respondent has not framed any Rules for the purpose of selection. In S. Chandramohan Nair (supra), a two-Judge Bench was dealing with a situation wherein the Division Bench of the High Court of Kerala had allowed the writ petition and quashed the appointment of the appellant therein as the member of the Kerala State Consumer Disputes Redressal Commission. This Court referred to the Rules, namely, Kerala Consumer Protection Rules, 2005 and opined:-?17. An analysis of these provisions shows that appointment of judicial and other members is required to be made by the State Government on the recommendation of the Selection Committee. If the Chairman and/or the members of the Selection 2 (2010) 12 SCC 687 Committee do not agree on the candidature of any particular person, then opinion of the majority would constitute recommendation of the Selection Committee. Though, the State Government is not bound to accept the recommendations made by the Selection Committee, if it does not want to accept the recommendations, then reasons for doing so have to be recorded. The State Government cannot arbitrarily ignore or reject the recommendations of the Selection Committee. If the appointment made by the State Government is subjected to judicial scrutiny, then it is duty-bound to produce the relevant records including recommendation of the Selection Committee before the court to show that there were valid reasons for not accepting the recommendation.?Further, adverting to the facts, the Court observed:-?19. While deciding Writ Appeal No. 968 of 2007, the Division Bench of the High Court was unduly influenced by the fact that the Chairman of the Selection Committee had initially recorded dissent and at the end of the minutes he separately appended a note suggesting that there was no difference of opinion between him and two members and concluded that name of the appellant was recommended only by the Chairman and not by the members. It appears that attention of the Division Bench was not drawn to the affidavit filed by Smt Sheela Thomas in Writ Petition No. 13058 of 2006 wherein she had categorically averred that a panel of three names including that of the appellant was recommended to the State Government and the difference of opinion was only on the candidature of Shri K.V. Thomas. We have no doubt that if the learned counsel appearing for the parties had properly assisted the Division Bench of the High Court, it may not have recorded the observation that the name of the appellant was recommended only by the Chairman and not by the members.20. That apart, be that as it may, we are convinced that the name of the appellant had been recommended by entire body of the Selection Committee i.e. the Chairman and the members. If this was not so, either of the two members would have, after coming to know of the minutes recorded by the Chairman, lodged a protest or sent communication to the State Government that they had not recommended the name of the appellant and that the minutes recorded by the Chairman did not reflect the actual recommendations. However, the fact of the matter is that neither of them lodged any objection nor sent any communication to the State Government. Therefore, the contrary observations made by the Division Bench in Writ Appeal No. 968 of 2007 cannot but be termed as erroneous and the same could not have been relied upon for quashing the appointment of the appellant.?10. In the case at hand, the appellant and the respondent no. 2 have obtained equal marks. The State Government chose to appoint the appellant who was at serial no. 3 on the foundation that she had better public experience. In S. Chandramohan Nair (supra), the Rule had conferred power on the Government to select any one of the candidates from the panel by ascribing reasons. The Court was of the opinion that the case of the appellant therein was arbitrarily ignored and, accordingly, it dislodged the judgment and order of the High Court.11. In the instant case, the Selection Committee has observed:-?On the basis of the performance of the candidates, we recommend appointment of following candidates as Members of the State Commission and various District Fora, out of the following panels, drawn separately, for each vacancy: Female Member, H.P. State Consumer Commission: Sr. No. Name Marks scored1. Dr. Karuna Machhan 14/202. Ms. Sunita Sharma 11/203. Smt. Meena Verma 11/204. Smt. Yogita Dutta 10/20?12. On a perusal of the same, it is noticeable that the Committee was presided by the President of the Commission and the other members were Principal Secretary (FCS&CA) to the Government of H.P. and Principal Secretary (Law) to the Government of H.P. The Committee had used the phraseology ?On the basis of the performance of the candidates?. The panel was drawn for the female members. It had placed the respondent no. 2 at serial no. 2 and the present appellant at serial no. 3. As it appears, the Committee had drawn the list in accordance with performance and, therefore, the respondent no. 2 was more suitable than the appellant. The State Government, while issuing the notification, had not ascribed any reasons. However, as is seen from the records produced before the High Court, the Principal Secretary had given a note that the ?present appellant had public experience? and on that basis, the Chief Minister signed the file and the notification was issued. The matter would have been different had there been a Rule to enable the State Government to choose a person from the panel. In the absence of any Rule or any executive instruction, when the Committee had drawn a panel on the basis of performance and placed the candidates in seriatim on the basis of the said performance, we are disposed to think that the High Court correctly expressed the opinion that the addition of public experience was uncalled for. | 0[ds]10. In the case at hand, the appellant and the respondent no. 2 have obtained equal marks. The State Government chose to appoint the appellant who was at serial no. 3 on the foundation that she had better public experience. In S. Chandramohan Nair (supra), the Rule had conferred power on the Government to select any one of the candidates from the panel by ascribing reasons. The Court was of the opinion that the case of the appellant therein was arbitrarily ignored and, accordingly, it dislodged the judgment and order of the High Court.On a perusal of the same, it is noticeable that the Committee was presided by the President of the Commission and the other members were Principal Secretary (FCS&CA) to the Government of H.P. and Principal Secretary (Law) to the Government of H.P. The Committee had used the phraseology ?On the basis of the performance of the candidates?. The panel was drawn for the female members. It had placed the respondent no. 2 at serial no. 2 and the present appellant at serial no. 3. As it appears, the Committee had drawn the list in accordance with performance and, therefore, the respondent no. 2 was more suitable than the appellant. The State Government, while issuing the notification, had not ascribed any reasons. However, as is seen from the records produced before the High Court, the Principal Secretary had given a note that the ?present appellant had public experience? and on that basis, the Chief Minister signed the file and the notification was issued. The matter would have been different had there been a Rule to enable the State Government to choose a person from the panel. In the absence of any Rule or any executive instruction, when the Committee had drawn a panel on the basis of performance and placed the candidates in seriatim on the basis of the said performance, we are disposed to think that the High Court correctly expressed the opinion that the addition of public experience was uncalled for. | 0 | 2,885 | 386 | ### 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:
Advocate General for the respondent no. 1-State and Mr. Amit Singh Chandel, learned counsel for the respondent no. 2.9. There is no dispute that the first respondent has not framed any Rules for the purpose of selection. In S. Chandramohan Nair (supra), a two-Judge Bench was dealing with a situation wherein the Division Bench of the High Court of Kerala had allowed the writ petition and quashed the appointment of the appellant therein as the member of the Kerala State Consumer Disputes Redressal Commission. This Court referred to the Rules, namely, Kerala Consumer Protection Rules, 2005 and opined:-?17. An analysis of these provisions shows that appointment of judicial and other members is required to be made by the State Government on the recommendation of the Selection Committee. If the Chairman and/or the members of the Selection 2 (2010) 12 SCC 687 Committee do not agree on the candidature of any particular person, then opinion of the majority would constitute recommendation of the Selection Committee. Though, the State Government is not bound to accept the recommendations made by the Selection Committee, if it does not want to accept the recommendations, then reasons for doing so have to be recorded. The State Government cannot arbitrarily ignore or reject the recommendations of the Selection Committee. If the appointment made by the State Government is subjected to judicial scrutiny, then it is duty-bound to produce the relevant records including recommendation of the Selection Committee before the court to show that there were valid reasons for not accepting the recommendation.?Further, adverting to the facts, the Court observed:-?19. While deciding Writ Appeal No. 968 of 2007, the Division Bench of the High Court was unduly influenced by the fact that the Chairman of the Selection Committee had initially recorded dissent and at the end of the minutes he separately appended a note suggesting that there was no difference of opinion between him and two members and concluded that name of the appellant was recommended only by the Chairman and not by the members. It appears that attention of the Division Bench was not drawn to the affidavit filed by Smt Sheela Thomas in Writ Petition No. 13058 of 2006 wherein she had categorically averred that a panel of three names including that of the appellant was recommended to the State Government and the difference of opinion was only on the candidature of Shri K.V. Thomas. We have no doubt that if the learned counsel appearing for the parties had properly assisted the Division Bench of the High Court, it may not have recorded the observation that the name of the appellant was recommended only by the Chairman and not by the members.20. That apart, be that as it may, we are convinced that the name of the appellant had been recommended by entire body of the Selection Committee i.e. the Chairman and the members. If this was not so, either of the two members would have, after coming to know of the minutes recorded by the Chairman, lodged a protest or sent communication to the State Government that they had not recommended the name of the appellant and that the minutes recorded by the Chairman did not reflect the actual recommendations. However, the fact of the matter is that neither of them lodged any objection nor sent any communication to the State Government. Therefore, the contrary observations made by the Division Bench in Writ Appeal No. 968 of 2007 cannot but be termed as erroneous and the same could not have been relied upon for quashing the appointment of the appellant.?10. In the case at hand, the appellant and the respondent no. 2 have obtained equal marks. The State Government chose to appoint the appellant who was at serial no. 3 on the foundation that she had better public experience. In S. Chandramohan Nair (supra), the Rule had conferred power on the Government to select any one of the candidates from the panel by ascribing reasons. The Court was of the opinion that the case of the appellant therein was arbitrarily ignored and, accordingly, it dislodged the judgment and order of the High Court.11. In the instant case, the Selection Committee has observed:-?On the basis of the performance of the candidates, we recommend appointment of following candidates as Members of the State Commission and various District Fora, out of the following panels, drawn separately, for each vacancy: Female Member, H.P. State Consumer Commission: Sr. No. Name Marks scored1. Dr. Karuna Machhan 14/202. Ms. Sunita Sharma 11/203. Smt. Meena Verma 11/204. Smt. Yogita Dutta 10/20?12. On a perusal of the same, it is noticeable that the Committee was presided by the President of the Commission and the other members were Principal Secretary (FCS&CA) to the Government of H.P. and Principal Secretary (Law) to the Government of H.P. The Committee had used the phraseology ?On the basis of the performance of the candidates?. The panel was drawn for the female members. It had placed the respondent no. 2 at serial no. 2 and the present appellant at serial no. 3. As it appears, the Committee had drawn the list in accordance with performance and, therefore, the respondent no. 2 was more suitable than the appellant. The State Government, while issuing the notification, had not ascribed any reasons. However, as is seen from the records produced before the High Court, the Principal Secretary had given a note that the ?present appellant had public experience? and on that basis, the Chief Minister signed the file and the notification was issued. The matter would have been different had there been a Rule to enable the State Government to choose a person from the panel. In the absence of any Rule or any executive instruction, when the Committee had drawn a panel on the basis of performance and placed the candidates in seriatim on the basis of the said performance, we are disposed to think that the High Court correctly expressed the opinion that the addition of public experience was uncalled for.
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10. In the case at hand, the appellant and the respondent no. 2 have obtained equal marks. The State Government chose to appoint the appellant who was at serial no. 3 on the foundation that she had better public experience. In S. Chandramohan Nair (supra), the Rule had conferred power on the Government to select any one of the candidates from the panel by ascribing reasons. The Court was of the opinion that the case of the appellant therein was arbitrarily ignored and, accordingly, it dislodged the judgment and order of the High Court.On a perusal of the same, it is noticeable that the Committee was presided by the President of the Commission and the other members were Principal Secretary (FCS&CA) to the Government of H.P. and Principal Secretary (Law) to the Government of H.P. The Committee had used the phraseology ?On the basis of the performance of the candidates?. The panel was drawn for the female members. It had placed the respondent no. 2 at serial no. 2 and the present appellant at serial no. 3. As it appears, the Committee had drawn the list in accordance with performance and, therefore, the respondent no. 2 was more suitable than the appellant. The State Government, while issuing the notification, had not ascribed any reasons. However, as is seen from the records produced before the High Court, the Principal Secretary had given a note that the ?present appellant had public experience? and on that basis, the Chief Minister signed the file and the notification was issued. The matter would have been different had there been a Rule to enable the State Government to choose a person from the panel. In the absence of any Rule or any executive instruction, when the Committee had drawn a panel on the basis of performance and placed the candidates in seriatim on the basis of the said performance, we are disposed to think that the High Court correctly expressed the opinion that the addition of public experience was uncalled for.
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Nilkanth Prasad And Others Vs. State Of Bihar | to Ratnapura, then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties. Sir John Beaumont in expounding the meaning of the word "route" observed as follows:"If route has the same meaning as highway in the Ordinance this argument must prevail, since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships opinion it is impossible to say that route and highway in the two Ordinances are synonymous terms........... A highway is the physical track along which an omnibus runs, whilst a route appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed." 8. This distinction between "route" and "road" is relied upon by the appellants to show that the notified route, which we have called AB was a different route from the routes for which renewal of permits was demanded, even though route AB might have been a portion of the "road traversed by the omnibuses of the appellants plying on their "routes." The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration. The question is whether a similar distinction can be made in the context of the Motor Vehicles Act. Mr. Viswanatha Sastri appearing for the appellants took us through Ss. 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used, contra-distinguished from the word "area," and contended that everywhere the word "route" is used in the sense of a notional line between two termini running a stated course, and is used in contradistinction to what may be conveyed by the word "area". In Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 S C 82, this Court, in dealing with the scheme of the Motor Vehicles Act, declined to make any such distinction between "route" and "area". This Court, speaking through Subba Rao J., observed at p. 93 :"Under S. 68-C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an area and a route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C." In any event, under S.68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68-F (2)(c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as to"curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route". This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the "road" common to both. The distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV- A, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State. Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under S. 68F (2) (c) (iii) of the Act. The decision under appeal was, therefore, correct in all the circumstances of the case. 9. This leaves over for consideration Civil Appeal No. 434 of 1961. There, the question which arose was decided in the same way in which we have disposed of the other appeals on merits. Ramaswami, C. J. and Kanhaiya Singh, J. referred to an earlier decision (M. J. C. No. 354 of 1960 decided on 13th May 1960) given by the Chief Justice and Chaudhuri, J., in which they had applied the Privy Council case, and made a distinction between a route which was longer than the notified route, though running for part of the way along the notified route and the notified route. In the judgment from which Civil Appeal No. 434 of 1961 arises, the learned Chief Justice has declined to follow his earlier ruling which, he considers, was given per incuriam, because the provisions of S. 68F (2) (c) (iii) of the Motor Vehicles Act were not taken into account. After considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail. | 0[ds]In the former, the grant of renewal of the permits has been made without any objection, and in the latter, in spite of the objections filed by the Rajya Transport. The competency of the appeals before the Appeal Board is involved in both the groups, though on different grounds. The answer to the different objections is, however, the sameIn all the present cases, The State Transport Undertaking had already been granted a permit over route AB, and if the private operators, that is to say, the appellants, were not entitled, in law, to the renewal of their permits for routes which embraced also route AB, then the Regional transport Authority could not but refuse to renew the permitsIn our opinion, we should not interfere on this ground either. In this connection the difference between the two sets of cases arising from the fact whether the Rajya Transport, Bihar, had objected or not, completely disappearsIn any event, under S.68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68-F (2)(c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as toThis means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the "road" common to both. The distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV- A, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State. Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under S. 68F (2) (c) (iii) of the Act. The decision under appeal was, therefore, correct in all the circumstances of the caseAfter considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail. | 0 | 3,398 | 605 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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to Ratnapura, then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties. Sir John Beaumont in expounding the meaning of the word "route" observed as follows:"If route has the same meaning as highway in the Ordinance this argument must prevail, since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships opinion it is impossible to say that route and highway in the two Ordinances are synonymous terms........... A highway is the physical track along which an omnibus runs, whilst a route appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed." 8. This distinction between "route" and "road" is relied upon by the appellants to show that the notified route, which we have called AB was a different route from the routes for which renewal of permits was demanded, even though route AB might have been a portion of the "road traversed by the omnibuses of the appellants plying on their "routes." The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration. The question is whether a similar distinction can be made in the context of the Motor Vehicles Act. Mr. Viswanatha Sastri appearing for the appellants took us through Ss. 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used, contra-distinguished from the word "area," and contended that everywhere the word "route" is used in the sense of a notional line between two termini running a stated course, and is used in contradistinction to what may be conveyed by the word "area". In Kondala Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1961 S C 82, this Court, in dealing with the scheme of the Motor Vehicles Act, declined to make any such distinction between "route" and "area". This Court, speaking through Subba Rao J., observed at p. 93 :"Under S. 68-C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an area and a route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C." In any event, under S.68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68-F (2)(c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as to"curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route". This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the "road" common to both. The distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV- A, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State. Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under S. 68F (2) (c) (iii) of the Act. The decision under appeal was, therefore, correct in all the circumstances of the case. 9. This leaves over for consideration Civil Appeal No. 434 of 1961. There, the question which arose was decided in the same way in which we have disposed of the other appeals on merits. Ramaswami, C. J. and Kanhaiya Singh, J. referred to an earlier decision (M. J. C. No. 354 of 1960 decided on 13th May 1960) given by the Chief Justice and Chaudhuri, J., in which they had applied the Privy Council case, and made a distinction between a route which was longer than the notified route, though running for part of the way along the notified route and the notified route. In the judgment from which Civil Appeal No. 434 of 1961 arises, the learned Chief Justice has declined to follow his earlier ruling which, he considers, was given per incuriam, because the provisions of S. 68F (2) (c) (iii) of the Motor Vehicles Act were not taken into account. After considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail.
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In the former, the grant of renewal of the permits has been made without any objection, and in the latter, in spite of the objections filed by the Rajya Transport. The competency of the appeals before the Appeal Board is involved in both the groups, though on different grounds. The answer to the different objections is, however, the sameIn all the present cases, The State Transport Undertaking had already been granted a permit over route AB, and if the private operators, that is to say, the appellants, were not entitled, in law, to the renewal of their permits for routes which embraced also route AB, then the Regional transport Authority could not but refuse to renew the permitsIn our opinion, we should not interfere on this ground either. In this connection the difference between the two sets of cases arising from the fact whether the Rajya Transport, Bihar, had objected or not, completely disappearsIn any event, under S.68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under S. 68-F (2)(c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as toThis means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the "road" common to both. The distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. IVA, because you cannot curtail the route without curtailing a portion of the road, and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same. The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap. IV- A, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State. Transport Undertakings. In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme. Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under S. 68F (2) (c) (iii) of the Act. The decision under appeal was, therefore, correct in all the circumstances of the caseAfter considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning. In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail.
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Phool Chand Sharma And Others Vs. Chandra Shanker Pathakand Others | for the respondent raised two preliminary objections to the hearing of this appeal. The first objection was that this appeal was barred by res judicata. To understand this objection it is necessary to state a few more facts. When the Board of Revenue upheld the order of the Additional Commissioner declining one prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under At. 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U.P. Zamindari and Land Reforms Act. 1950 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there is now a decision of the High Court which has become final and binding on the parties. Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired, the appellant is not entitled to by-pass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue.4. We consider this preliminary objection well founded. Learned Counsel for the respondent relied in support of his submission on the decision of this Court in Daryao v. State of U.P., 1962-1 SCR 574 : (AIR 1961 SC 1457 ).The question before the Court was whether, when the High Court dismissed a writ petition under Art. 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened, a subsequent petition to the Supreme Court under Art. 32 of the Constitution on the same facts and for the same reliefs filed by the same party was permissible. This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionary. 5. Learned Counsel for the appellant invited our attention to the decision of this Court in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 as laying down a rule not quite so inflexible as the decision in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ) would suggest, that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court, this Court was competent to waive this rule and hear the appeal notwithstanding that it meant that the decision of the High Court was by-passed. No doubt, there are few observations of S. K. Das, J. who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observation are only by way of obiter and cannot outweigh the express decision on the point in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ). We might, however, point out that in Indian Aluminium Co. Ltd. v. Commissioner of Income-tax West Bengal, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) in which also the judgment was delivered by S. K. Das, J. the reasoning of the learned Judge who held a similar preliminary objection is more in line with the decision in Daryaos case 1962-1 SCR-574 : (AIR 161 SC 1457) though the latter judgment which was delivered on the same day as in the Indian Aluminium Co.s case, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) is not naturally referred to. The learned Judge observed :"The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above - (no-appeal was preferred against the order of the High Court refusing to make a reference under S. 66(2) of the Income-tax Act) - special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under Art. 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under S. 66 of the Act . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under Art. 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court." This preliminary objection therefore has to be upheld. 6. The other preliminary objection raised was this. The application for special leave filed by the appellant was out of time and the delay in filing it was condoned by this Court without notice to the respondent. Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked. | 0[ds]This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionaryNo doubt, there are few observations of S. K. Das, J. who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observation are only by way of obiter and cannot outweigh the express decision on the point in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ). We might, however, point out that in Indian Aluminium Co. Ltd. v. Commissioner of Income-tax West Bengal, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) in which also the judgment was delivered by S. K. Das, J. the reasoning of the learned Judge who held a similar preliminary objection is more in line with the decision in Daryaos case 1962-1 SCR-574 : (AIR 161 SC 1457) though the latter judgment which was delivered on the same day as in the Indian Aluminium Co.s case, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) is not naturally referred to. The learned Judge observed :"The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above - (no-appeal was preferred against the order of the High Court refusing to make a reference under S. 66(2) of the Income-tax Act) - special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under Art. 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under S. 66 of the Act . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under Art. 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court."This preliminary objection therefore has to be upheld. | 0 | 1,571 | 483 | ### 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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for the respondent raised two preliminary objections to the hearing of this appeal. The first objection was that this appeal was barred by res judicata. To understand this objection it is necessary to state a few more facts. When the Board of Revenue upheld the order of the Additional Commissioner declining one prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under At. 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U.P. Zamindari and Land Reforms Act. 1950 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there is now a decision of the High Court which has become final and binding on the parties. Learned Counsel for the respondent therefore contends that without the correctness of the decision of the High Court being challenged before us and the finality of that judgment impaired, the appellant is not entitled to by-pass that decision and seek to practically obtain a reversal of it by attacking the correctness of the decision of the Board of Revenue.4. We consider this preliminary objection well founded. Learned Counsel for the respondent relied in support of his submission on the decision of this Court in Daryao v. State of U.P., 1962-1 SCR 574 : (AIR 1961 SC 1457 ).The question before the Court was whether, when the High Court dismissed a writ petition under Art. 226 after hearing a matter on the merits on the ground that no fundamental right was proved or contravened, a subsequent petition to the Supreme Court under Art. 32 of the Constitution on the same facts and for the same reliefs filed by the same party was permissible. This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionary. 5. Learned Counsel for the appellant invited our attention to the decision of this Court in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 as laying down a rule not quite so inflexible as the decision in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ) would suggest, that it depended upon the facts of each case and that in a proper case dependent upon the discretion of the Court, this Court was competent to waive this rule and hear the appeal notwithstanding that it meant that the decision of the High Court was by-passed. No doubt, there are few observations of S. K. Das, J. who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observation are only by way of obiter and cannot outweigh the express decision on the point in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ). We might, however, point out that in Indian Aluminium Co. Ltd. v. Commissioner of Income-tax West Bengal, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) in which also the judgment was delivered by S. K. Das, J. the reasoning of the learned Judge who held a similar preliminary objection is more in line with the decision in Daryaos case 1962-1 SCR-574 : (AIR 161 SC 1457) though the latter judgment which was delivered on the same day as in the Indian Aluminium Co.s case, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) is not naturally referred to. The learned Judge observed :"The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above - (no-appeal was preferred against the order of the High Court refusing to make a reference under S. 66(2) of the Income-tax Act) - special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under Art. 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under S. 66 of the Act . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under Art. 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court." This preliminary objection therefore has to be upheld. 6. The other preliminary objection raised was this. The application for special leave filed by the appellant was out of time and the delay in filing it was condoned by this Court without notice to the respondent. Learned Counsel sought to urge that there were no grounds for condoning the delay and that for this reason the leave granted should be revoked.
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0
### Explanation:
This Court held that where such a petition was heard on the merits and dismissed by the High Court the decision pronounced was binding on the parties unless it was modified or reversed in appeal or by other appropriate proceedings. If thus the rule of res judicata were a bar even to a petition under Art. 32 which is a constitutionally guaranteed right, it looks to us that it would be a fortiori so as regards an appeal under Art. 136 where the right to relief is discretionaryNo doubt, there are few observations of S. K. Das, J. who spoke for the Court which are capable of being understood in the manner suggested by learned Counsel but as ultimately the learned Judges upheld the preliminary objection and dismissed the appeal, these observation are only by way of obiter and cannot outweigh the express decision on the point in Daryaos case, 1962-1 SCR 574 : (AIR 1961 SC 1457 ). We might, however, point out that in Indian Aluminium Co. Ltd. v. Commissioner of Income-tax West Bengal, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) in which also the judgment was delivered by S. K. Das, J. the reasoning of the learned Judge who held a similar preliminary objection is more in line with the decision in Daryaos case 1962-1 SCR-574 : (AIR 161 SC 1457) though the latter judgment which was delivered on the same day as in the Indian Aluminium Co.s case, 1961-43 ITR 532 : (AIR 1962 SC 1619 ) is not naturally referred to. The learned Judge observed :"The question which has arisen in this appeal by way of a preliminary objection is whether in the circumstances set out above - (no-appeal was preferred against the order of the High Court refusing to make a reference under S. 66(2) of the Income-tax Act) - special leave to appeal from the decision of the Tribunal dated May 29, 1956, was properly given under Art. 136 of the Constitution and whether the appellant is entitled to ask this Court to exercise its discretion under the said article when it did not move against the subsequent orders of the Board and the High Court under S. 66 of the Act . . . We hold that special leave to appeal from the decision of the Tribunal dated May 29, 1956, was not properly granted in this case and the appellant is not entitled to ask us to exercise our power under Art. 136 of the Constitution, when it did not move against the subsequent orders of the Board and the High Court."This preliminary objection therefore has to be upheld.
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JAWED URDU PRIMARY SCHOOL THROUGH ITS SECRETARY Vs. COLLECTOR OF MUMBAI | the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writ petition. 9.2 At the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/or arbitrary. 9.3 Respondent No. 4 is relying upon its first application dated 11.06.2001 in support of its case that they applied for the land in question for setting up a primary school. However, considering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primary school. At this stage, noting on the file of the Revenue Department dated 22.09.2004 deserves to be noted, which reads as under:?22-09-2004 The Education Department has not received any proposal from the Nasheman Education Welfare Society about starting a school. Further, even a permission has not been given to the society for a primary school at the place in question. However, please see the order of the Hon?ble Chief Minister on page 73/TV. Pursuant thereto there should be no objection for the Finance Department to concur.?Therefore, considering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality. 10. As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality. | 1[ds]9. Heard the learned Counsel appearing on behalf of the respective parties at length. We have perused and considered in detail the material on record, more particularly, the applications/representations made by the appellants as well as the correspondence/representations/applications made by respondent No.It is not in dispute that the land in question is reserved for the primary school in the development plan. It is the case of behalf of the appellants as well as respondent No. 4 that both of them applied for the land in question for establishing the primary school. It is required to be noted that the applications for allotment of the land were required to be made in Proforma-A. Relying upon the representations/applications/communications, right from 25.07.2001, and the subsequent correspondences on record, it is the case on behalf of the appellants-original writ petitioners that they made the application for allotment of the land in question specifically for establishing the primary school. On a bare reading of the application dated 25.07.2001 made by the appellant-Trust, it appears that the said application cannot be said to be made specifically for a primary school. In the application dated 25.07.2001, the appellant-Trust requested for allotment of the land in question by stating that the land in question is reserved for the school or for such purposes by the Government of Maharashtra and the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writAt the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/orconsidering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primaryconsidering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality.As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality. | 1 | 4,070 | 1,205 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writ petition. 9.2 At the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/or arbitrary. 9.3 Respondent No. 4 is relying upon its first application dated 11.06.2001 in support of its case that they applied for the land in question for setting up a primary school. However, considering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primary school. At this stage, noting on the file of the Revenue Department dated 22.09.2004 deserves to be noted, which reads as under:?22-09-2004 The Education Department has not received any proposal from the Nasheman Education Welfare Society about starting a school. Further, even a permission has not been given to the society for a primary school at the place in question. However, please see the order of the Hon?ble Chief Minister on page 73/TV. Pursuant thereto there should be no objection for the Finance Department to concur.?Therefore, considering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality. 10. As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality.
### Response:
1
### Explanation:
be noted that the applications for allotment of the land were required to be made in Proforma-A. Relying upon the representations/applications/communications, right from 25.07.2001, and the subsequent correspondences on record, it is the case on behalf of the appellants-original writ petitioners that they made the application for allotment of the land in question specifically for establishing the primary school. On a bare reading of the application dated 25.07.2001 made by the appellant-Trust, it appears that the said application cannot be said to be made specifically for a primary school. In the application dated 25.07.2001, the appellant-Trust requested for allotment of the land in question by stating that the land in question is reserved for the school or for such purposes by the Government of Maharashtra and the same is quite convenient and suitable to them to have school building and to accommodate their children/students and also to adjust the growing crowd of the students in the said school. Thereafter, for the first time, in the representation dated 02.04.2002, the appellant-Trust stated that they are running a high school and a primary school. Even considering the representation dated 02.04.2002, it cannot be said that the appellants applied for the allotment of the land specifically for establishing the primary school. Even in the proforma, the reason for applying the land is stated to be ?for school and play-ground?. Even in the subsequent communication dated 24.09.2002, there is no specific mention that the land is applied specifically for establishing the primary school. Merely because the appellant- Trust might be running even a primary school, along with the secondary school, it cannot be presumed that the appellant-Trust applied for the land in question specifically for the primary school. Therefore, considering the aforesaid facts and circumstances of the case, it cannot be said that the High Court has committed any error in not granting the relief to the appellants and/or the High Court has committed any error in dismissing the writAt the same time, we cannot lose sight of the fact that even the grant of land in favour of respondent No. 4 also cannot be sustained, as the same, for the reasons stated hereinabove, is found to be illegal and/orconsidering the material on record, there does not appear to be any application submitted by respondent No. 4 dated 11.06.2001 and that too in the Proforma-A, but it is on record that a straight request was made by respondent No. 4 to the then Chief Minister (Annexure P-28). Annexure P-29 dated 11.06.2001 is by one Mohd. Aarif Nasim Khan, the then Minister of State for Food, Civil Supply and Consumer Protection forwarding the representation received from respondent No. 4, by which he recommended to allot the land in question in favour of respondent No. 4. Even considering the documents produced at Annexure P-28, a representation/request made by respondent No. 4 for allotment of the land in question made to the then Chief Minister, it is not born out that a request was made for allotment of land by respondent No. 4 specifically for establishment of a primary school. Even in the recommendation made by the then Minister of State for Food, Civil Supply and Consumer Protection dated 11.06.2001, it cannot be said that even the recommendation was for allotting the land in question in favour of respondent No. 4 for establishing the primary school. On the basis of the said representation, the State Government took a decision and/or granted sanction to grant the land in question in favour of respondent No. 4. The subsequent opinions of the various authorities, if are perused and considered, they are solely on the basis that the Government has granted the sanction to allot the land in favour of respondent No. 4. It is also required to be noted at this stage that even at the relevant time respondent No. 4 did not even apply for the recognition to start a primaryconsidering the entire material on record and the circumstances narrated hereinabove, even respondent No. 4 was not eligible and/or entitled to the allotment of the land in question, as they also never applied for allotment of the land in question specifically for establishing the primary school and, that too, in Proforma-A. A simple representation was made to the then Chief Minister and also the Revenue Minister for allotment and the same representation came to be accepted by the Government. Therefore, the grant of the land in favour of respondent No. 4 is also illegal and arbitrary and the same has been confirmed subsequently by the concerned Minister by an order dated 01.06.2005 which was impugned before the High Court. Even the grounds/reasons stated in the order dated 01.06.2005 confirming the allotment in favour respondent No. 4 also cannot be said to be germane and/or a valid ground/reason to allot the land in question in favour of respondent No. 4. As observed hereinabove, even respondent No. 4 was not entitled to the allotment of land in question for the reasons stated hereinabove. Under the circumstances, the allotment of land in question in favour of respondent No. 4 also cannot be sustained and the same deserves to be quashed and set aside by this this Court even in exercise of its powers under Article 142 of the Constitution of India, as this Court has once found that the allotment in favour of respondent No. 4 is also illegal and arbitrary, this Court is of the opinion that not interfering with the order dated 01.06.2005 and/or grant of land in question in favour of respondent No. 4 would tantamount to continuing the illegality.As stated by the learned counsel appearing on behalf of respondent No. 3-Brihanmumbai Municipal Corporation at the bar that if neither the appellant-Trust nor respondent No. 4 are allotted the land in question, considering the growing population and the need of the primary school in the locality, respondent No. 3-Brihanmumbai Municipal Corporation is ready and willing to take the land in question and establish a primary school in the locality.
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M/S. P. Manohar Reddy & Bros Vs. Maharashtra Krishna Valley Dev.Corp.&Ors | arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,-(a) An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause." (Emphasis supplied). Modern laws on arbitration confirm the concept. The United States Supreme Court in the recent judgment in Buckeye Check Cashing, Inc. v. Cardegna (546 US 460) acknowledged that the separability rule permits a court "to enforce an arbitration agreement in a contract that the arbitrator later finds to be void." The Court, referring to its earlier judgments in Prima Paint Corp. v. Flood & Conklin Mfg. Co., (388 U. S. 395), and Southland Corp. v. Keating, (465 U. S. 1), inter alia, held :- "Prima Paint and Southland answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." But this must be distinguished from the situation where the claim itself was to be raised during the subsistence of a contract so as to invoke the arbitration agreement would not apply. M/s Bharat Heavy Electricals Limited, Ranipur vs. M/s Amar Nath Bhan Prakash (1982) 1 SCC 625 , whereupon reliance has been placed by Mr. Sundaravaradan is not applicable as it was held therein that the question whether there was discharge of the contract by accord and satisfaction or not, is itself arbitrable. The said question need not detain us having been considered by this Court in Bharat Coking Coal Ltd. vs. Annapurna Construction [(2003) 8 SCC 154] holding: "14. The question is as to whether the claim of the contractor is de hors the rules or not was a matter which fell for consideration before the arbitrator. He was bound to consider the same. The jurisdiction of the arbitrator in such a matter must be held to be confined to the four-corners of the contract. He could not have ignored an important clause in the agreement; although it may be open to the arbitrator to arrive at a finding on the materials on records that the claimants claim for additional work was otherwise justified." 27. In Chairman and MD, NTPC Ltd. vs. Reshmi Constructions, Builders & Contractors [(2004) 2 SCC 663] , this Court held: "18. Normally, an accord and satisfaction by itself would not affect the arbitration clause but if the dispute is that the contract itself does not subsist, the question of invoking the arbitration clause may not arise. But in the event it be held that the contract survives, recourse to the arbitration clause may be taken. [See Union of India v. Kishorilal Gupta (AIR 1959 SC 1362 ) and Naihati Jute Mills Ltd. v. Khyaliram Jagannath (AIR 1968 SC 522 )." It was furthermore opined "28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position.29. We may, however, hasten to add that such a case has to be made out and proved before the Arbitrator for obtaining an award.30. At this stage, the Court, however, will only be concerned with the question whether trial issues have been raised which are required to be determined by the Arbitrators." 28. We, however, as noticed hereinbefore, are concerned with a different fact situation. As arbitration clause could not be invoked having regard to the limited application of clauses 37, 54 and 55 of the General Conditions of the Contract, we are of the opinion that the trial court was not correct in directing appointment of an arbitrator. 29. We may notice that in Wild Life Institute of India, Dehradun vs. Vijay Kumar Garg [(1997) 10 SCC 528] , a Division Bench of this Court held as under: "It is also necessary to refer to the arbitration clause under the contract which clearly provides that if the contractor does not make any demand for arbitration in respect of any claim in writing within 90 days of receiving the intimation from the appellants that the bill is ready for payment, the claim of the contractor will be deemed to have been waived and absolutely barred and the appellants shall be discharged and released of all liabilities under the contract in respect of these claims. The liability, therefore, of the appellants cease if no claim of the contractor is received within 90 days of receipt by the contractor of an intimation that the bill is ready for payment. This clause operates to discharge the liability of the appellants on expiry of 90 days as set out therein and is not merely a clause providing a period of limitation. In the present case, the contractor has not made any claim within 90 days of even receipt of the amount under the final bill. The dispute has been raised for the first time by the contractor 10 months after the receipt of the amount under the final bill." 30. The High Court has relied upon a decision of this Court in M/s K. Ramaiah and Company Vs. Chairman & Managing Director, National Thermal Power Corpn. [1994 Supp. (3) SCC 126]. We need not deal therewith in details as the effect thereof has been considered by us in Bharat Coking Coal Ltd. vs. Annapurna Construction (supra). 31. It is also not a case where sub-section (4) of Section 37 of the Act could be invoked. Appellant did not invoke Section 37(4) of the Act. No reason has been assigned as to why the said discretion of the court should be invoked particularly when the claim has been raised only after completion of the work.32. For the reasons aforementioned, we, | 0[ds]Court, however, will only be concerned with the question whether trial issues have been raised which are required to be determined by thehowever, as noticed hereinbefore, are concerned with a different fact situation. As arbitration clause could not be invoked having regard to the limited application of clauses 37, 54 and 55 of the General Conditions of the Contract, we are of the opinion that the trial court was not correct in directing appointment of anis also not a case where sub-section (4) of Section 37 of the Act could be invoked. Appellant did not invoke Section 37(4) of the Act. No reason has been assigned as to why the said discretion of the court should be invoked particularly when the claim has been raised only after completion of the work. | 0 | 5,948 | 150 | ### 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:
arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,-(a) An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause." (Emphasis supplied). Modern laws on arbitration confirm the concept. The United States Supreme Court in the recent judgment in Buckeye Check Cashing, Inc. v. Cardegna (546 US 460) acknowledged that the separability rule permits a court "to enforce an arbitration agreement in a contract that the arbitrator later finds to be void." The Court, referring to its earlier judgments in Prima Paint Corp. v. Flood & Conklin Mfg. Co., (388 U. S. 395), and Southland Corp. v. Keating, (465 U. S. 1), inter alia, held :- "Prima Paint and Southland answer the question presented here by establishing three propositions. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract." But this must be distinguished from the situation where the claim itself was to be raised during the subsistence of a contract so as to invoke the arbitration agreement would not apply. M/s Bharat Heavy Electricals Limited, Ranipur vs. M/s Amar Nath Bhan Prakash (1982) 1 SCC 625 , whereupon reliance has been placed by Mr. Sundaravaradan is not applicable as it was held therein that the question whether there was discharge of the contract by accord and satisfaction or not, is itself arbitrable. The said question need not detain us having been considered by this Court in Bharat Coking Coal Ltd. vs. Annapurna Construction [(2003) 8 SCC 154] holding: "14. The question is as to whether the claim of the contractor is de hors the rules or not was a matter which fell for consideration before the arbitrator. He was bound to consider the same. The jurisdiction of the arbitrator in such a matter must be held to be confined to the four-corners of the contract. He could not have ignored an important clause in the agreement; although it may be open to the arbitrator to arrive at a finding on the materials on records that the claimants claim for additional work was otherwise justified." 27. In Chairman and MD, NTPC Ltd. vs. Reshmi Constructions, Builders & Contractors [(2004) 2 SCC 663] , this Court held: "18. Normally, an accord and satisfaction by itself would not affect the arbitration clause but if the dispute is that the contract itself does not subsist, the question of invoking the arbitration clause may not arise. But in the event it be held that the contract survives, recourse to the arbitration clause may be taken. [See Union of India v. Kishorilal Gupta (AIR 1959 SC 1362 ) and Naihati Jute Mills Ltd. v. Khyaliram Jagannath (AIR 1968 SC 522 )." It was furthermore opined "28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party to the bargain who is in a stronger position.29. We may, however, hasten to add that such a case has to be made out and proved before the Arbitrator for obtaining an award.30. At this stage, the Court, however, will only be concerned with the question whether trial issues have been raised which are required to be determined by the Arbitrators." 28. We, however, as noticed hereinbefore, are concerned with a different fact situation. As arbitration clause could not be invoked having regard to the limited application of clauses 37, 54 and 55 of the General Conditions of the Contract, we are of the opinion that the trial court was not correct in directing appointment of an arbitrator. 29. We may notice that in Wild Life Institute of India, Dehradun vs. Vijay Kumar Garg [(1997) 10 SCC 528] , a Division Bench of this Court held as under: "It is also necessary to refer to the arbitration clause under the contract which clearly provides that if the contractor does not make any demand for arbitration in respect of any claim in writing within 90 days of receiving the intimation from the appellants that the bill is ready for payment, the claim of the contractor will be deemed to have been waived and absolutely barred and the appellants shall be discharged and released of all liabilities under the contract in respect of these claims. The liability, therefore, of the appellants cease if no claim of the contractor is received within 90 days of receipt by the contractor of an intimation that the bill is ready for payment. This clause operates to discharge the liability of the appellants on expiry of 90 days as set out therein and is not merely a clause providing a period of limitation. In the present case, the contractor has not made any claim within 90 days of even receipt of the amount under the final bill. The dispute has been raised for the first time by the contractor 10 months after the receipt of the amount under the final bill." 30. The High Court has relied upon a decision of this Court in M/s K. Ramaiah and Company Vs. Chairman & Managing Director, National Thermal Power Corpn. [1994 Supp. (3) SCC 126]. We need not deal therewith in details as the effect thereof has been considered by us in Bharat Coking Coal Ltd. vs. Annapurna Construction (supra). 31. It is also not a case where sub-section (4) of Section 37 of the Act could be invoked. Appellant did not invoke Section 37(4) of the Act. No reason has been assigned as to why the said discretion of the court should be invoked particularly when the claim has been raised only after completion of the work.32. For the reasons aforementioned, we,
### Response:
0
### Explanation:
Court, however, will only be concerned with the question whether trial issues have been raised which are required to be determined by thehowever, as noticed hereinbefore, are concerned with a different fact situation. As arbitration clause could not be invoked having regard to the limited application of clauses 37, 54 and 55 of the General Conditions of the Contract, we are of the opinion that the trial court was not correct in directing appointment of anis also not a case where sub-section (4) of Section 37 of the Act could be invoked. Appellant did not invoke Section 37(4) of the Act. No reason has been assigned as to why the said discretion of the court should be invoked particularly when the claim has been raised only after completion of the work.
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GANPATI BABJI ALAMWAR (D) BY LRS Vs. DIGAMBARRAO VENKATRAO BHADKE AND ORS. | 26.04.1970. That amount & Rs.500/- which we have received earlier in cash from you. Accordingly there is no objection or grievance for receiving Rs.11,000/- (in words Rs. Eleven thousand only) & giving possession. The purchasers are agriculturists. Even after purchase of this land their land holding will not be excess than the ceiling limits as per the provisions of Maharashtra Agricultural Lands (Ceiling & Holdings) Act, 1961 & not more than 2/3 of minimum holding prescribed under the Act. Therefore for this transaction there is no need to seek permission of Deputy Collector as required under Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1965. The executants of this deed are not from Scheduled Caste and Scheduled Tribes. Hence this Conditional Sale deed is executed by us with free will & satisfaction & signed on 29 April 1971.?9. Section 58, clause (c) of the Transfer of Property Act defines mortgage by conditional sale as follows:-?Where the mortgagor ostensibly sells the mortgaged property—on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, oron condition that on such payment being made the sale shall become void, oron condition that on such payment being made the buyer shall transfer the property to the seller,the transaction is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale;Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.?10. Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58(c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. The language used in the agreement may not always be conclusive.11. In Bhaskar Waman Joshi (deceased) and Ors. vs. Shrinarayan Rambilas Agarwal (deceased) and Ors., AIR 1960 SC 301 , the principles for determination of the nature of the document were explained as follows:-?7…The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts.?12. In the light of the aforesaid discussion and the facts of the present case, an examination of the recitals in the agreement dated 29.04.1971 holistically, including the heading of the document, we are left with no doubt that it was not a sale deed with an option for repurchase but a document of mortgage by conditional sale. An agriculturist will normally not so easily dispose his agricultural land, the source of his survival and livelihood merely for purchases made by him on credit. The dire financial straits of the plaintiffs is evident from the fact that they were left with no option but to mortgage 2½ acres of their agricultural lands for credit purchase of daily necessities. The financial stringency of the plaintiffs is apparent from their failure to repay anything even after execution of the instalment bond. Given the limitations of the plaintiffs because of their poor financial status, the fact that they may not have objected to the mutation so done three years later cannot be considered as sufficient for a contrary interpretation of the agreement dated 29.04.1971, especially when the Appellate Court held that the plaintiffs were in possession of the lands. In the facts of the case, a debtor and creditor relationship stands clearly established and hardly needs further elucidation. The limitation for the right to redeem, under Article 61(a) of the Limitation Act 1963, is 30 years. The suit for redemption was therefore within limitation. In the facts of the present case, we do not consider the delay of seven years in filing the suit so fatal, as to disinherit the plaintiff from his agricultural lands.13. In Vanchala Bhai (supra), there was a finding that their existed no relationship of debtor and creditor. In that background, the delay of 11 years in institution of the suit for redemption was considered as a relevant factor.14. In Bibi Fatima (supra), the agreement was held to be a mortgage by conditional sale as the respondent had continued to be in possession of the lands and the loan was raised to discharge debts.15. The observations in Vithal Tukaram Kadam (supra) that attendant surrounding circumstances should be considered, and upon which learned counsel for the appellant laid much emphasis, in our opinion is of no avail to him in the facts and circumstances of the present case. The question whether the appellant was a bonafide purchaser or not cannot be considered relevant in the facts of the present case and may require further evidence. It is therefore left open for consideration vis-à-vis defendant no.1 in an appropriate proceeding if instituted by the appellant. 16. | 0[ds]7. The plaintiffs owed Rs.10,500/- to defendant no.1 for credit purchases of daily necessities from the shop of the latter. The instalment bond was executed by the plaintiffs on 26.04.1970, to repay the amount in three instalments falling due on the Gudi Padwa day in 1971, 1972 and 1973. On failure to pay the first instalment in 1971, the agreement in question, Exhibit 52, came to be executed on 29.04.1971. Defendant no.1 got the mutation done in his name after notice to the plaintiffs on 13.05.1976, i.e. three years after the last date for payment of instalments on Gudi Padwa in 1973. Defendant no.1 then resold the land to defendant no.2 on 13.02.1978. The suit for redemption of mortgage was filed in 1980.In the light of the aforesaid discussion and the facts of the present case, an examination of the recitals in the agreement dated 29.04.1971 holistically, including the heading of the document, we are left with no doubt that it was not a sale deed with an option for repurchase but a document of mortgage by conditional sale. An agriculturist will normally not so easily dispose his agricultural land, the source of his survival and livelihood merely for purchases made by him on credit. The dire financial straits of the plaintiffs is evident from the fact that they were left with no option but to mortgage 2½ acres of their agricultural lands for credit purchase of daily necessities. The financial stringency of the plaintiffs is apparent from their failure to repay anything even after execution of the instalment bond. Given the limitations of the plaintiffs because of their poor financial status, the fact that they may not have objected to the mutation so done three years later cannot be considered as sufficient for a contrary interpretation of the agreement dated 29.04.1971, especially when the Appellate Court held that the plaintiffs were in possession of the lands. In the facts of the case, a debtor and creditor relationship stands clearly established and hardly needs further elucidation. The limitation for the right to redeem, under Article 61(a) of the Limitation Act 1963, is 30 years. The suit for redemption was therefore within limitation. In the facts of the present case, we do not consider the delay of seven years in filing the suit so fatal, as to disinherit the plaintiff from his agricultural lands.The observations in Vithal Tukaram Kadam (supra) that attendant surrounding circumstances should be considered, and upon which learned counsel for the appellant laid much emphasis, in our opinion is of no avail to him in the facts and circumstances of the present case. The question whether the appellant was a bonafide purchaser or not cannot be considered relevant in the facts of the present case and may require further evidence. It is therefore left open for consideration vis-à-vis defendant no.1 in an appropriate proceeding if instituted by the appellant. | 0 | 2,612 | 529 | ### 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:
26.04.1970. That amount & Rs.500/- which we have received earlier in cash from you. Accordingly there is no objection or grievance for receiving Rs.11,000/- (in words Rs. Eleven thousand only) & giving possession. The purchasers are agriculturists. Even after purchase of this land their land holding will not be excess than the ceiling limits as per the provisions of Maharashtra Agricultural Lands (Ceiling & Holdings) Act, 1961 & not more than 2/3 of minimum holding prescribed under the Act. Therefore for this transaction there is no need to seek permission of Deputy Collector as required under Hyderabad Tenancy & Agricultural Lands (Amendment) Act, 1965. The executants of this deed are not from Scheduled Caste and Scheduled Tribes. Hence this Conditional Sale deed is executed by us with free will & satisfaction & signed on 29 April 1971.?9. Section 58, clause (c) of the Transfer of Property Act defines mortgage by conditional sale as follows:-?Where the mortgagor ostensibly sells the mortgaged property—on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, oron condition that on such payment being made the sale shall become void, oron condition that on such payment being made the buyer shall transfer the property to the seller,the transaction is called a mortgage by conditional sale and the mortgagee, a mortgagee by conditional sale;Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.?10. Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58(c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. The language used in the agreement may not always be conclusive.11. In Bhaskar Waman Joshi (deceased) and Ors. vs. Shrinarayan Rambilas Agarwal (deceased) and Ors., AIR 1960 SC 301 , the principles for determination of the nature of the document were explained as follows:-?7…The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts.?12. In the light of the aforesaid discussion and the facts of the present case, an examination of the recitals in the agreement dated 29.04.1971 holistically, including the heading of the document, we are left with no doubt that it was not a sale deed with an option for repurchase but a document of mortgage by conditional sale. An agriculturist will normally not so easily dispose his agricultural land, the source of his survival and livelihood merely for purchases made by him on credit. The dire financial straits of the plaintiffs is evident from the fact that they were left with no option but to mortgage 2½ acres of their agricultural lands for credit purchase of daily necessities. The financial stringency of the plaintiffs is apparent from their failure to repay anything even after execution of the instalment bond. Given the limitations of the plaintiffs because of their poor financial status, the fact that they may not have objected to the mutation so done three years later cannot be considered as sufficient for a contrary interpretation of the agreement dated 29.04.1971, especially when the Appellate Court held that the plaintiffs were in possession of the lands. In the facts of the case, a debtor and creditor relationship stands clearly established and hardly needs further elucidation. The limitation for the right to redeem, under Article 61(a) of the Limitation Act 1963, is 30 years. The suit for redemption was therefore within limitation. In the facts of the present case, we do not consider the delay of seven years in filing the suit so fatal, as to disinherit the plaintiff from his agricultural lands.13. In Vanchala Bhai (supra), there was a finding that their existed no relationship of debtor and creditor. In that background, the delay of 11 years in institution of the suit for redemption was considered as a relevant factor.14. In Bibi Fatima (supra), the agreement was held to be a mortgage by conditional sale as the respondent had continued to be in possession of the lands and the loan was raised to discharge debts.15. The observations in Vithal Tukaram Kadam (supra) that attendant surrounding circumstances should be considered, and upon which learned counsel for the appellant laid much emphasis, in our opinion is of no avail to him in the facts and circumstances of the present case. The question whether the appellant was a bonafide purchaser or not cannot be considered relevant in the facts of the present case and may require further evidence. It is therefore left open for consideration vis-à-vis defendant no.1 in an appropriate proceeding if instituted by the appellant. 16.
### Response:
0
### Explanation:
7. The plaintiffs owed Rs.10,500/- to defendant no.1 for credit purchases of daily necessities from the shop of the latter. The instalment bond was executed by the plaintiffs on 26.04.1970, to repay the amount in three instalments falling due on the Gudi Padwa day in 1971, 1972 and 1973. On failure to pay the first instalment in 1971, the agreement in question, Exhibit 52, came to be executed on 29.04.1971. Defendant no.1 got the mutation done in his name after notice to the plaintiffs on 13.05.1976, i.e. three years after the last date for payment of instalments on Gudi Padwa in 1973. Defendant no.1 then resold the land to defendant no.2 on 13.02.1978. The suit for redemption of mortgage was filed in 1980.In the light of the aforesaid discussion and the facts of the present case, an examination of the recitals in the agreement dated 29.04.1971 holistically, including the heading of the document, we are left with no doubt that it was not a sale deed with an option for repurchase but a document of mortgage by conditional sale. An agriculturist will normally not so easily dispose his agricultural land, the source of his survival and livelihood merely for purchases made by him on credit. The dire financial straits of the plaintiffs is evident from the fact that they were left with no option but to mortgage 2½ acres of their agricultural lands for credit purchase of daily necessities. The financial stringency of the plaintiffs is apparent from their failure to repay anything even after execution of the instalment bond. Given the limitations of the plaintiffs because of their poor financial status, the fact that they may not have objected to the mutation so done three years later cannot be considered as sufficient for a contrary interpretation of the agreement dated 29.04.1971, especially when the Appellate Court held that the plaintiffs were in possession of the lands. In the facts of the case, a debtor and creditor relationship stands clearly established and hardly needs further elucidation. The limitation for the right to redeem, under Article 61(a) of the Limitation Act 1963, is 30 years. The suit for redemption was therefore within limitation. In the facts of the present case, we do not consider the delay of seven years in filing the suit so fatal, as to disinherit the plaintiff from his agricultural lands.The observations in Vithal Tukaram Kadam (supra) that attendant surrounding circumstances should be considered, and upon which learned counsel for the appellant laid much emphasis, in our opinion is of no avail to him in the facts and circumstances of the present case. The question whether the appellant was a bonafide purchaser or not cannot be considered relevant in the facts of the present case and may require further evidence. It is therefore left open for consideration vis-à-vis defendant no.1 in an appropriate proceeding if instituted by the appellant.
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Union of India and Another Vs. Messrs Brij Fertilizers Private Limited and Others | rock phosphate purchased by the manufacturers as per their invoices an attempt was made to demonstrate that if the figures mentioned therein were taken as correct and they are compared with the calculation given by the PDIL it would be clear that the standard specification could not have been achieved. It is necessary to mention at this stage that the rock phosphate found in Hirapur mines was of three grades. That is clear from the letter of Assistant General Manager, Miner to the Joint Director, Fertiliser Coordination Committee. Relevant part of the letter reads "We are selling Hirapur Phosphorite for so may Fertiliser SSP manufacturers since starting of the mining and we never found any complaint regarding its suitability to manufacture SSP Fertiliser. We have learnt from Fertiliser Manufacturing Units that our Phosphorite is suitable for SSP Fertiliser manufacturing but in case of FO2O3 content increase in Phosphorite the wear and tear of the plant increases. We had also been directed by Joint Director (F&A) FICC, vide their letter dated 31-8-1989 to sell our Phosphorite in category A to SSP Units. This further certifies the suitability of our Phosphorite for SSP manufacturing of requisite grade. The material supplied to these units are of 32% category A and not 25% as given in PDIL report hence the question of blending with other Rock Phosphate is not required to manufacture the requisite grade SSPThe M.P.S.M.C. was selling Hirapur Phosphorite in different percentages P2O5 grades and not in mix condition. Our grades and other specifications are indicated belowBefore 5-3-1991 From 6-3-19911. 1st (A) 1st (A)P2O5 + 30%, SiO2 + 15% - 18% P2O5 + 29% - 31%, SiO2 + 15%FO2O3 below 4.5% 18%FO2O3 below 4%A. +1 1/2"-2 1/2" size A. +1/2"-21/2" sizeB. R.O.M. B. R. O. M2. 1st (B) 1st (B)P2O5 + 28%-30% SiO2 + 22% PrO5 + 27% SiO2 + 18%FO2O3 above 4.5% FO2O3 above 4.5%A. -1/2" size A. 1/2" sizeB. R.O.M. B. R.O.MC. By Product Dust3. II GradeP2O5 + 22% SiO2 and FO2O3No grantee R. O. M." Further no rock phosphate has been or could be purchased by any manufacturer expect through a corporation of the State. this fact is admitted in the counter-affidavit of the appellant extracted earlier. It is also clear from the letter of Assistant General Manager that Brij Fertilisers did not use any rock except Grade A. it is claimed by the respondents that on a technical assessment conducted by Bhabha Research Institute for Lalitpur rocks that the water soluble in rock phosphate with P2O5 with 29% to 32% is more than 16%. Even if this report is ignored the letter of Assistant Mines Inspector establishes that water soluble phosphate Hirapur mines of Grade A was 16%. Each respondent has filed details of rock phosphate consumed by its unit from various corporations. The average grade mentioned is 31%. No one has used grade II. Even Avadh Fertiliser has not used rock phosphate below 27%. From the chart appended in respect of Hirapur mines the blending in proportion of 50% indigenous and 50% indicates that even with rock of 30.66% the water soluble actually was 17.57%. These figures could not be disputed in the reply filed on behalf of Union of India. From the PDIL report it is clear that it had undertaken test of rock with 24.85% P2O5 and 30.03% Silica and suggested that the most suited blend with such rock was 20% indigenous and 80% imported. It could not furnish any guideline or material to reject the rock phosphate used by the respondents which varies between 27% P2O5 to 31% P2O5. In absence of any reliable data or any material the inference drawn by the appellants in the notice was baseless. The counter-affidavit filed in the High Court by the appellant did not explain the basis for concluding that for producing SSP of 16% W.S. P2O5 the rock phosphate should contain a minimum of 31% P2O5. It is contrary to the letter of Assistant General Manager, Mines. In any case PDIL could not furnish any basis for it. In absence of any valid justification the entire exercise undertaken by the appellant was vitiated being tainted with arbitrariness8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded from issuing show-cause notice and requiring the manufactures to appears and explain their claim. It was urged that the High Court was not justified in quashing the show-cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order. True, the High Court should normally not interfere at the stage of cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter-affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various counts and have virtually closed their unit. We are pained to say that the authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed. Entire litigation appears to be a sad plight for those who have set up small-scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilisers is much more than the price fixed by the Government for which it assured to pay subsidy | 0[ds]Further no rock phosphate has been or could be purchased by any manufacturer expect through a corporation of the State. this fact is admitted in the counter-affidavit of the appellant extracted earlier. It is also clear from the letter of Assistant General Manager that Brij Fertilisers did not use any rock except Grade A. it is claimed by the respondents that on a technical assessment conducted by Bhabha Research Institute for Lalitpur rocks that the water soluble in rock phosphate with P2O5 with 29% to 32% is more than 16%. Even if this report is ignored the letter of Assistant Mines Inspector establishes that water soluble phosphate Hirapur mines of Grade A was 16%. Each respondent has filed details of rock phosphate consumed by its unit from various corporations. The average grade mentioned is 31%. No one has used grade II. Even Avadh Fertiliser has not used rock phosphate below 27%. From the chart appended in respect of Hirapur mines the blending in proportion of 50% indigenous and 50% indicates that even with rock of 30.66% the water soluble actually was 17.57%. These figures could not be disputed in the reply filed on behalf of Union of India. From the PDIL report it is clear that it had undertaken test of rock with 24.85% P2O5 and 30.03% Silica and suggested that the most suited blend with such rock was 20% indigenous and 80% imported. It could not furnish any guideline or material to reject the rock phosphate used by the respondents which varies between 27% P2O5 to 31% P2O5. In absence of any reliable data or any material the inference drawn by the appellants in the notice was baseless. The counter-affidavit filed in the High Court by the appellant did not explain the basis for concluding that for producing SSP of 16% W.S. P2O5 the rock phosphate should contain a minimum of 31% P2O5. It is contrary to the letter of Assistant General Manager, Mines. In any case PDIL could not furnish any basis for it. In absence of any valid justification the entire exercise undertaken by the appellant was vitiated being tainted with arbitrariness8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded from issuing show-cause notice and requiring the manufactures to appears and explain their claim. It was urged that the High Court was not justified in quashing the show-cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order. True, the High Court should normally not interfere at the stage of cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter-affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various counts and have virtually closed their unit. We are pained to say that the authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed. Entire litigation appears to be a sad plight for those who have set up small-scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilisers is much more than the price fixed by the Government for which it assured to pay subsidy | 0 | 4,130 | 713 | ### 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:
rock phosphate purchased by the manufacturers as per their invoices an attempt was made to demonstrate that if the figures mentioned therein were taken as correct and they are compared with the calculation given by the PDIL it would be clear that the standard specification could not have been achieved. It is necessary to mention at this stage that the rock phosphate found in Hirapur mines was of three grades. That is clear from the letter of Assistant General Manager, Miner to the Joint Director, Fertiliser Coordination Committee. Relevant part of the letter reads "We are selling Hirapur Phosphorite for so may Fertiliser SSP manufacturers since starting of the mining and we never found any complaint regarding its suitability to manufacture SSP Fertiliser. We have learnt from Fertiliser Manufacturing Units that our Phosphorite is suitable for SSP Fertiliser manufacturing but in case of FO2O3 content increase in Phosphorite the wear and tear of the plant increases. We had also been directed by Joint Director (F&A) FICC, vide their letter dated 31-8-1989 to sell our Phosphorite in category A to SSP Units. This further certifies the suitability of our Phosphorite for SSP manufacturing of requisite grade. The material supplied to these units are of 32% category A and not 25% as given in PDIL report hence the question of blending with other Rock Phosphate is not required to manufacture the requisite grade SSPThe M.P.S.M.C. was selling Hirapur Phosphorite in different percentages P2O5 grades and not in mix condition. Our grades and other specifications are indicated belowBefore 5-3-1991 From 6-3-19911. 1st (A) 1st (A)P2O5 + 30%, SiO2 + 15% - 18% P2O5 + 29% - 31%, SiO2 + 15%FO2O3 below 4.5% 18%FO2O3 below 4%A. +1 1/2"-2 1/2" size A. +1/2"-21/2" sizeB. R.O.M. B. R. O. M2. 1st (B) 1st (B)P2O5 + 28%-30% SiO2 + 22% PrO5 + 27% SiO2 + 18%FO2O3 above 4.5% FO2O3 above 4.5%A. -1/2" size A. 1/2" sizeB. R.O.M. B. R.O.MC. By Product Dust3. II GradeP2O5 + 22% SiO2 and FO2O3No grantee R. O. M." Further no rock phosphate has been or could be purchased by any manufacturer expect through a corporation of the State. this fact is admitted in the counter-affidavit of the appellant extracted earlier. It is also clear from the letter of Assistant General Manager that Brij Fertilisers did not use any rock except Grade A. it is claimed by the respondents that on a technical assessment conducted by Bhabha Research Institute for Lalitpur rocks that the water soluble in rock phosphate with P2O5 with 29% to 32% is more than 16%. Even if this report is ignored the letter of Assistant Mines Inspector establishes that water soluble phosphate Hirapur mines of Grade A was 16%. Each respondent has filed details of rock phosphate consumed by its unit from various corporations. The average grade mentioned is 31%. No one has used grade II. Even Avadh Fertiliser has not used rock phosphate below 27%. From the chart appended in respect of Hirapur mines the blending in proportion of 50% indigenous and 50% indicates that even with rock of 30.66% the water soluble actually was 17.57%. These figures could not be disputed in the reply filed on behalf of Union of India. From the PDIL report it is clear that it had undertaken test of rock with 24.85% P2O5 and 30.03% Silica and suggested that the most suited blend with such rock was 20% indigenous and 80% imported. It could not furnish any guideline or material to reject the rock phosphate used by the respondents which varies between 27% P2O5 to 31% P2O5. In absence of any reliable data or any material the inference drawn by the appellants in the notice was baseless. The counter-affidavit filed in the High Court by the appellant did not explain the basis for concluding that for producing SSP of 16% W.S. P2O5 the rock phosphate should contain a minimum of 31% P2O5. It is contrary to the letter of Assistant General Manager, Mines. In any case PDIL could not furnish any basis for it. In absence of any valid justification the entire exercise undertaken by the appellant was vitiated being tainted with arbitrariness8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded from issuing show-cause notice and requiring the manufactures to appears and explain their claim. It was urged that the High Court was not justified in quashing the show-cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order. True, the High Court should normally not interfere at the stage of cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter-affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various counts and have virtually closed their unit. We are pained to say that the authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed. Entire litigation appears to be a sad plight for those who have set up small-scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilisers is much more than the price fixed by the Government for which it assured to pay subsidy
### Response:
0
### Explanation:
Further no rock phosphate has been or could be purchased by any manufacturer expect through a corporation of the State. this fact is admitted in the counter-affidavit of the appellant extracted earlier. It is also clear from the letter of Assistant General Manager that Brij Fertilisers did not use any rock except Grade A. it is claimed by the respondents that on a technical assessment conducted by Bhabha Research Institute for Lalitpur rocks that the water soluble in rock phosphate with P2O5 with 29% to 32% is more than 16%. Even if this report is ignored the letter of Assistant Mines Inspector establishes that water soluble phosphate Hirapur mines of Grade A was 16%. Each respondent has filed details of rock phosphate consumed by its unit from various corporations. The average grade mentioned is 31%. No one has used grade II. Even Avadh Fertiliser has not used rock phosphate below 27%. From the chart appended in respect of Hirapur mines the blending in proportion of 50% indigenous and 50% indicates that even with rock of 30.66% the water soluble actually was 17.57%. These figures could not be disputed in the reply filed on behalf of Union of India. From the PDIL report it is clear that it had undertaken test of rock with 24.85% P2O5 and 30.03% Silica and suggested that the most suited blend with such rock was 20% indigenous and 80% imported. It could not furnish any guideline or material to reject the rock phosphate used by the respondents which varies between 27% P2O5 to 31% P2O5. In absence of any reliable data or any material the inference drawn by the appellants in the notice was baseless. The counter-affidavit filed in the High Court by the appellant did not explain the basis for concluding that for producing SSP of 16% W.S. P2O5 the rock phosphate should contain a minimum of 31% P2O5. It is contrary to the letter of Assistant General Manager, Mines. In any case PDIL could not furnish any basis for it. In absence of any valid justification the entire exercise undertaken by the appellant was vitiated being tainted with arbitrariness8. Failing in his effort to assail the order on merits the learned Additional Solicitor General vehemently urged that the department was not precluded from issuing show-cause notice and requiring the manufactures to appears and explain their claim. It was urged that the High Court was not justified in quashing the show-cause notice and issuing the directions for paying the subsidy without giving an opportunity to the department to verify if the respondents had in fact complied with Control Order. True, the High Court should normally not interfere at the stage of cause notice. But where, from the facts it is apparent that there was no material available with the department to doubt the statement on behalf of the respondents and their own officers at every point of time had issued the certificate the correctness of which could not be disputed or doubted except by raising unfounded suspicion or drawing on imagination it would be failing to exercise jurisdiction if the Court does not discharge its constitutional obligation of protecting the manufacturers who, as is apparent from the counter-affidavit filed in this Court and the various letters issued from different authorities are in perilous condition as they are not able to meet their liabilities to pay to financial institutions and various other authorities and are facing proceedings on various counts and have virtually closed their unit. We are pained to say that the authorities did not realise either the purpose of granting subsidy or the harassment to which the manufacturers have been exposed. Entire litigation appears to be a sad plight for those who have set up small-scale units in the hope that they will stand on their own on the subsidy given by the Government as admittedly the price of manufacturing fertilisers is much more than the price fixed by the Government for which it assured to pay subsidy
|
Mohammed Faizal K.A Vs. D. Sali | taken in the case of Collector of Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors. (2000) 9 SCC 145 ).20. In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities were ill-advised not to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 was re-assigned on that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Police (non-IPS), respectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced as non-est consequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have to re-visit the case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondingly re-allocate the notional date of promotion for the next promotion to the post of Superintendent of Police (Non-IPS/IPS Cadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Court - that it is mandatory to prepare a select list on year-to-year basis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000. | 1[ds]Indeed, from the indisputable facts emerging from the record, the appellant was appointed as Sub Inspector of Police on 12th October, 1981 in the 13th batch after the respondent No.1 was already appointed on that post on 22nd June, 1981, in the 12th batch. It is also noticed that the appellant was promoted to the post of Circle Inspector on 1st June, 1994 after respondent No.1 was already promoted on the said post in January, 1992. Since, respondent No.1 was promoted in earlier point of time, he became eligible for being considered for promotion to the post of Deputy Superintendent of Police in February, 2001 at which point of time the appellant was not eligible in that regard. The appellant became eligible to be considered for such promotion only in 2002.Be that as it may, the appellant, as aforementioned, was not eligible to be included in the said list. So understood, it must follow that the appellant cannot be an aggrieved party if any order was to be passed in favour of respondent No.1. However, the appellant asserts that he is aggrieved because of the illegality in the decision to promote respondent No.1 against the vacancy in 2001 on two counts. Firstly, because the appellant was already selected and promoted to the post of Deputy Superintendent of Police on 13th September, 2002 and, thus, became senior to respondent No.1 in that cadre which was a selection post. Secondly, because of the wrongful inclusion and moreso, promotion of respondent No.1 to the post of Deputy Superintendent of Police and alsonotional seniority position as 19th March, 2001 in furtherance of the impugned decision rendered by the learned Single Judge, dated 8th April, 2010, inevitably, it has resulted in making the appellant junior to respondent No. 1 in the cadre of Deputy Superintendent of Police and also affected his prospects of further promotion and seniority. That has given rise to the cause of action for the appellant to challenge the decisions of the High Court but for which the respondent No. 1 could not have entered the stated cadre before 14th January, 2005. We find force in this submission. It is true that the appellant may not be eligible to be included in the select list for the year 2001, but it is open to him to point out that respondent No.1 could never have been legitimately included in the select list until 2003 and before which date the appellant was already promoted to the post of Deputy Superintendent of Police and had been assigned seniority on that basis. The respondent No1, however, was promoted to the post of Deputy Superintendent of Police and joined that cadre later only on 14th January, 2005. As these just reasons have been glossed over or discarded as a result of the decision of the learned Single Judge, in particular dated 8th April, 2010, the appellant is directly affected by the outcome of such decision in the matter of his seniority. Hence, he can be said to be an aggrieved person to challenge the High Court decision; and if that challenge succeeds, all the consequential steps taken by the Competent Authority on the basis of such decision must stand effaced asIn that, the appellant had already been selected and prompted to the post of Deputy Superintendent of Police on 13th September, 2002. It is because of the decision of the High Court dated 8th April, 2010 the Competent Authorities gave notional date of promotion to respondent No.1 in that cadre as 19th March, 2001 andthe seniority to him making the appellant junior to respondent No.1, even though selected and promoted in earlier point of time.15. Indeed, the Division Bench has rightly distinguished the decisions of this Court in the case of State of Uttaranchal and Anr. Vs. Madan Mohan Joshi and Ors. (2008) 6 SCC 797 ); KM. Rashmi Mishra Vs. M.P. Public Service Commission and Ors. (2006) 12 SCC 724 ); and Suresh Vs. Yeotmal District Central Cooperative Bank Limited and Anr. (2008) 12 SCC 558 ); having held that the lis before the learned Single Judge was not in relation to adjudication ofseniority position of the parties but was for determination of eligibility and entitlement of respondent No.1 to consider him for promotion to the post of Deputy Superintendent of Police.16. Be that as it may, the appellant could still challenge the decision of the learned Single Judge dated 8th April, 2010, for the reasons indicated hitherto. The appellant, however, will have to point out the manifest illegality or error committed in the matter of giving promotion to respondent No.1 against the vacancy of 2001 and succeed in that behalf.17. We may, therefore, without dilating on any other contention, straightaway advert to the background in which the two decisions were passed by the learned Single Judge of the High Court. The first impugned decision was rendered by the learned Single Judge on 23rd June, 2004. The relevant portion of this decision has been extracted in paragraph 6, above. The crux of the direction issued by the Court was to consider the claim of respondent No.1 for promotion against the vacancy of 2001 on the basis of his Confidential Records for the years 1998, 1999 and 2001We find no infirmity in the direction so issued by the High Court. For, the nature of direction given by the learned Single Judge vide judgment dated 23rd June, 2004, provided full play to the DPC to select or not to select respondent No.1 against the vacancies of 2001 after considering the Confidential Records of respondent No.1 for three preceding years, i.e. 1998, 1999 and 2000This is how the DPC as well as the Competent Authority of the State understood the direction and after due deliberations issued an order on 20th November, 2004. As a result, the Competent Authority while considering the claim referred to the fact that major punishment (i.e. increment bar for two years with cumulative effect vide PHQ Order No.G5/73080 dated 5th November, 1997) was still operating against respondent No.1. That punishment was to operate for two years with cumulative effect fromit is that the check period for selection against vacancies of 2001, would be 1998, 1999 & 2000. However, as the punishment awarded in 1997, transcended beyond 1997, as it was to operate for a period of two years, the argument of respondent No.1 that the punishment given in 1997 could not be reckoned is untenable. The learned Single Judge whilst considering the third writ petition of respondent No.1 decided on 8th April, 2010, however, observed that taking that punishment into account was against the spirit of the decision dated 23rd June, 2004 [rendered in the second writ petition (No.35398/2002) filed by respondent No.1]. In our opinion, the learned Single Judge as well as the Division Bench of the High Court committed palpable error and misread the previous decision dated 23rd June, 2004 rendered in the second writ petition. As aforementioned, on a plain reading of the said judgment dated 23rd June, 2004, it is crystal clear that the Competent Authorities were directed to reconsider the claim of respondent No.1 by taking into account the check period as 1998, 1999 & 2000for promotion to the post of Deputy Superintendent of Police against the vacancies in the year 2001. From the entire judgment dated 23rd June, 2004, we are unable to discern any opinion recorded by the learned Single Judge that the punishment even if it were to operate beyond 1997 and during the check period, cannot be taken into account by the DPC for determining the merit and ability of the candidate concerned. The legal position on this issue is no more res integra.In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities werenot to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 wason that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Policerespectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced asconsequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have tothe case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondinglythe notional date of promotion for the next promotion to the post of Superintendent of PoliceCadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Courtthat it is mandatory to prepare a select list onbasis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000. | 1 | 7,472 | 2,484 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
taken in the case of Collector of Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors. (2000) 9 SCC 145 ).20. In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities were ill-advised not to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 was re-assigned on that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Police (non-IPS), respectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced as non-est consequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have to re-visit the case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondingly re-allocate the notional date of promotion for the next promotion to the post of Superintendent of Police (Non-IPS/IPS Cadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Court - that it is mandatory to prepare a select list on year-to-year basis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000.
### Response:
1
### Explanation:
it were to operate beyond 1997 and during the check period, cannot be taken into account by the DPC for determining the merit and ability of the candidate concerned. The legal position on this issue is no more res integra.In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities werenot to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 wason that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Policerespectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced asconsequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have tothe case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondinglythe notional date of promotion for the next promotion to the post of Superintendent of PoliceCadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Courtthat it is mandatory to prepare a select list onbasis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000.
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Commissioner of Income Tax Vs. Sarangpur Cotton Mfg. Co. Ltd | 1. The present appeal has been filed against the judgment and order dated July 3, 2002 passed by the High Court of Gujarat at Ahmedabad in Income Tax Reference No. 141 of 1989. The following question of law has been raised in the appeal:Whether the High Court was right in law in holding that the assessee was entitled to deduction on account of revenue expenditure incurred on machinery replaced for the value of Rs. 26,84,235?Briefly stated the facts, which give rise to this appeal, are as follows:2. The Respondent-Assessee is a public limited company and is engaged in the business of manufacturing cotton yarns and textile. During the assessment year 1974-75, the Respondent-Assessee has claimed deduction of Rs. 35,49,011 as repairs and replacement of machinery expenditure on conversion material etc. The assessing authority disallowed a sum of Rs. 27,71,270 out of the aforesaid revenue expenditure claimed by the Respondent on the ground that it related to installation of the above machinery and is in the nature of outlay of capital expenditure.3. Feeling aggrieved, the Respondent-Assessee preferred appeal before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) vide order dated September 29, 1983 allowed Rs. 26,84,235 as admissible revenue expenditure and at the same time directed the Assessing Officer to withdraw the depreciation and development rebate granted on these capitalized items, as they have been treated as revenue expenditure.4. The Revenue preferred an appeal before the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal vide order dated September 12, 1985 agreed with the order passed by the Commissioner of Income-tax (Appeals) and dismissed the appeal.5. Still feeling aggrieved, the Revenue Department preferred a reference application before the Gujarat High Court. The High Court by the impugned order had answered the question of law raised by the Appellant herein in favour of the Respondent-Assessee.6. We have heard the Ms. Pinky Anand, learned Additional Solicitor General appearing on behalf of the Appellant-Revenue Department. No one has entered appearance on behalf of the Respondent-Assessee.7. Learned Additional Solicitor General submitted that the view taken by the Gujarat High Court by relying on two decisions in the case of CIT v. Baroda Industrial Development Corporation Ltd. [1992] 198 ITR 716 (Guj) and in the case of CIT v. Satyadev Chemical Ltd. [1997] 226 ITR 95 (Guj) has been impliedly overruled by this Court in the case of CIT v. Saravana Spinning Mills (P.) Ltd. [2007] 7 SCC 298 : [2007] 293 ITR 201 (SC) . She submitted that each item for which deduction under the head "current repairs" was sought is a machine by itself and therefore deduction Under Section 31(i) cannot be allowed. She invited our attention to paragraphs 9, 10, 12, 13 and 14 of the judgment in the case of Saravana Spinning Mills (P.) Ltd. (supra) and submitted that if the current repairs relate to independent machines itself instead of repair of a part of that machine, deduction cannot be granted Under Section 31(i) of the Income-tax Act, 1961. In Saravana Spinning Mills (P.) Ltd. (supra) this Court has held that in a textile mill there are several Departments/divisions. In each Department/division there are several machines and perform different functions. Therefore, when each of the Department/Division perform different functions, repair/substitution of an old machine will not come within the definition of the word "current repairs" and deduction cannot be claimed thereunder. | 1[ds]In Saravana Spinning Mills (P.) Ltd. (supra) this Court has held that in a textile mill there are several Departments/divisions. In each Department/division there are several machines and perform different functions. Therefore, when each of the Department/Division perform different functions, repair/substitution of an old machine will not come within the definition of the word "current repairs" and deduction cannot be claimed thereunder. | 1 | 647 | 78 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
1. The present appeal has been filed against the judgment and order dated July 3, 2002 passed by the High Court of Gujarat at Ahmedabad in Income Tax Reference No. 141 of 1989. The following question of law has been raised in the appeal:Whether the High Court was right in law in holding that the assessee was entitled to deduction on account of revenue expenditure incurred on machinery replaced for the value of Rs. 26,84,235?Briefly stated the facts, which give rise to this appeal, are as follows:2. The Respondent-Assessee is a public limited company and is engaged in the business of manufacturing cotton yarns and textile. During the assessment year 1974-75, the Respondent-Assessee has claimed deduction of Rs. 35,49,011 as repairs and replacement of machinery expenditure on conversion material etc. The assessing authority disallowed a sum of Rs. 27,71,270 out of the aforesaid revenue expenditure claimed by the Respondent on the ground that it related to installation of the above machinery and is in the nature of outlay of capital expenditure.3. Feeling aggrieved, the Respondent-Assessee preferred appeal before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) vide order dated September 29, 1983 allowed Rs. 26,84,235 as admissible revenue expenditure and at the same time directed the Assessing Officer to withdraw the depreciation and development rebate granted on these capitalized items, as they have been treated as revenue expenditure.4. The Revenue preferred an appeal before the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal vide order dated September 12, 1985 agreed with the order passed by the Commissioner of Income-tax (Appeals) and dismissed the appeal.5. Still feeling aggrieved, the Revenue Department preferred a reference application before the Gujarat High Court. The High Court by the impugned order had answered the question of law raised by the Appellant herein in favour of the Respondent-Assessee.6. We have heard the Ms. Pinky Anand, learned Additional Solicitor General appearing on behalf of the Appellant-Revenue Department. No one has entered appearance on behalf of the Respondent-Assessee.7. Learned Additional Solicitor General submitted that the view taken by the Gujarat High Court by relying on two decisions in the case of CIT v. Baroda Industrial Development Corporation Ltd. [1992] 198 ITR 716 (Guj) and in the case of CIT v. Satyadev Chemical Ltd. [1997] 226 ITR 95 (Guj) has been impliedly overruled by this Court in the case of CIT v. Saravana Spinning Mills (P.) Ltd. [2007] 7 SCC 298 : [2007] 293 ITR 201 (SC) . She submitted that each item for which deduction under the head "current repairs" was sought is a machine by itself and therefore deduction Under Section 31(i) cannot be allowed. She invited our attention to paragraphs 9, 10, 12, 13 and 14 of the judgment in the case of Saravana Spinning Mills (P.) Ltd. (supra) and submitted that if the current repairs relate to independent machines itself instead of repair of a part of that machine, deduction cannot be granted Under Section 31(i) of the Income-tax Act, 1961. In Saravana Spinning Mills (P.) Ltd. (supra) this Court has held that in a textile mill there are several Departments/divisions. In each Department/division there are several machines and perform different functions. Therefore, when each of the Department/Division perform different functions, repair/substitution of an old machine will not come within the definition of the word "current repairs" and deduction cannot be claimed thereunder.
### Response:
1
### Explanation:
In Saravana Spinning Mills (P.) Ltd. (supra) this Court has held that in a textile mill there are several Departments/divisions. In each Department/division there are several machines and perform different functions. Therefore, when each of the Department/Division perform different functions, repair/substitution of an old machine will not come within the definition of the word "current repairs" and deduction cannot be claimed thereunder.
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R. Balakrishna Pillai Vs. State Of Kerala | required for specific offences." The author then comments: "Criminal offences vary in that some may require intention as the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways." It is clear thus that the accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say generally the mental state and the criminal act must coincide. The criminal act may be one which may be intended by the wrong doer. It is as well known were intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. As indicated earlier, situation varies in respect of different kinds of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. In the case in hand we have found that there is no sale of energy to M/s. GIL by KSEB nor the appellants had any say in price fixation for M/s. GIL by KEB. In this light we4 may pass on to Criminal Law - J.C. Smith, Brian Hogan [ Criminal Law, Smith, Hogan, 6th Edition, p31], where proposition of law is put as follows: "It is a general principle of criminal law that a person may be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs.The event, or state of affairs, is called the actus reus ad the state of mind the mens rea of the crime." 44. We further find the said principle of criminal jurisprudence stated in Criminal Law by K.D. Gaur [Criminal Law - cases and materials, K.D. Gaur, Third edition, p.23], wherein it is stated as follows: "Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."45. Glanville Williams in Criminal Law [Criminal Law - Glanville Williams - The General Part - Second Edition p.1] has also stated as follows in connection with the intention accompanying the act" "The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus" It is further stated: "Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the Kings death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so..." 46. Thus, looking to the definition of the crime in the case in hand namely, clause (d) of sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a concious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and finding recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails. | 1[ds]46. Thus, looking to the definition of the crime in the case in hand namely, clause (d) of sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a concious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and finding recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails. | 1 | 16,017 | 295 | ### 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:
required for specific offences." The author then comments: "Criminal offences vary in that some may require intention as the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways." It is clear thus that the accused must have the mental state or degree of fault at the relevant time. It may of course differ from crime to crime according to the definition thereof. The matter of degrees may also differ. That is to say generally the mental state and the criminal act must coincide. The criminal act may be one which may be intended by the wrong doer. It is as well known were intention is not punishable except when it is accompanied by an act or conduct of commission or omission on the part of the accused. As indicated earlier, situation varies in respect of different kinds of crimes as in some of them even negligence or careless act may constitute an offence or there may be cases of presumptions and putting the accused to proof to the contrary. In the case in hand we have found that there is no sale of energy to M/s. GIL by KSEB nor the appellants had any say in price fixation for M/s. GIL by KEB. In this light we4 may pass on to Criminal Law - J.C. Smith, Brian Hogan [ Criminal Law, Smith, Hogan, 6th Edition, p31], where proposition of law is put as follows: "It is a general principle of criminal law that a person may be convicted of a crime unless the prosecution have proved beyond reasonable doubt both (a) that he caused a certain event or that responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law, and (b) that he had a defined state of mind in relation to the causing of the event or the existence of the state of affairs.The event, or state of affairs, is called the actus reus ad the state of mind the mens rea of the crime." 44. We further find the said principle of criminal jurisprudence stated in Criminal Law by K.D. Gaur [Criminal Law - cases and materials, K.D. Gaur, Third edition, p.23], wherein it is stated as follows: "Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively."45. Glanville Williams in Criminal Law [Criminal Law - Glanville Williams - The General Part - Second Edition p.1] has also stated as follows in connection with the intention accompanying the act" "The chief problems in the general part of criminal law pertain to the requirement of a criminal state of mind, mens rea; but these cannot be adequately discussed without a preliminary exploration of the nature of an actus reus" It is further stated: "Although thoughts are free, the uttering of them is another matter. Speaking or writing is an act, and is capable of being treason, sedition, conspiracy or incitement; indeed, almost any crime can be committed by mere words, for it may be committed by the accused ordering an innocent agent (e.g., a child under eight) to do the act. But to constitute a criminal act there must be (as said already) something more than a mere mental resolution. Apparent, but not real, exceptions to this proposition are treason and conspiracy. It is treason to compass the Kings death, but the law requires an overt act manifesting the intention; and this act must be something more than a confession of the intention. It must be an act intended to further the intention; perhaps, too, it must actually do so..." 46. Thus, looking to the definition of the crime in the case in hand namely, clause (d) of sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a concious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and finding recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails.
### Response:
1
### Explanation:
46. Thus, looking to the definition of the crime in the case in hand namely, clause (d) of sub-section (1) of Section 5 of the Act, according to the principle indicated above it is necessary that the act must have been done illegally abusing his position as public servant for obtaining benefit pecuniary or otherwise for himself or for someone else. This is an offence which would require an intention to accompany the act. The element of mental state would be necessary to do a concious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else, then too element of mental state must be there at the relevant time. In view of the facts and circumstances indicated in the discussion held earlier in this judgment, and finding recorded on facts, we firstly hold that facts leading to charges are not proved and we also find that the element of mens rea and intention is totally lacking. The electrical energy was exported to Karnataka/KEB at the request of State of Karnataka during the period of crisis of shortage of energy which is not objected to, so as to be illegal but for a part of it which is allocated by the State of Karnataka/KEB to M/s. GIL which constitutes no offence. The prosecution failed to prove the case of sale of electricity by KSEB to M/s. GIL or the KSEB or A1 and A2 having caused profit to M/s. GIL. Admittedly, appellants did not stand to gain in any manner. The prosecution case thus fails.
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Ellora Paper Mills Limited Vs. The State of Madhya Pradesh | of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. xxx xxx xxx 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: 9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 9. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court is contrary to the law laid down by this Court in the cases of TRF (supra), Bharat Broadband Network Limited (supra) and the recent decision of this Court in the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra). It is held that the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate by operation of law in view of Section 12(5) read with Seventh Schedule and a fresh arbitrator has to be appointed under the provisions of the Arbitration Act, 1996. The impugned judgment and order passed by the High Court is therefore unsustainable and deserves to be quashed and set aside. | 1[ds]6. It is not in dispute that the High Court earlier constituted the Arbitral Tribunal of Stationery Purchase Committee comprising of officers of the respondent, viz, Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members. It may be true that the earlier Arbitral Tribunal – Stationery Purchase Committee was constituted as per the agreement entered into between the parties. It is also true that initially the said Arbitral Tribunal was constituted by the High Court in the year 2001, however, thereafter Stationery Purchase Committee – Arbitral Tribunal could not commence the arbitration proceedings in view of number of proceedings initiated by the appellant. There was a stay granted by the High Court from 4.5.2001 to 24.01.2017 and thereafter in the year 2019, the present application was preferred before the High Court invoking Section 14 read with Sections 11 & 15 of the Arbitration Act, 1996 seeking termination of the mandate of the originally constituted Arbitral Tribunal and to appoint a new arbitrator. It has also come on record that in between, the officers who were members of the Stationery Purchase Committee – Arbitral Tribunal had retired. At this stage, we are not considering whether those persons could have been continued as members of the Stationery Purchase Committee – Arbitral or not. However, the fact remains that after the constitution of the Arbitral Tribunal in the year 2001, no further steps whatsoever have been taken in the arbitration proceedings and therefore technically it cannot be said that the arbitration proceedings by the Arbitral Tribunal – Stationery Purchase Committee has commenced.It cannot be disputed that in the present case, the Stationery Purchase Committee -Arbitral Tribunal comprising of officers of the respondent-State are all ineligible to become and/or to continue as arbitrators in view of the mandate of sub-section (5) of Section 12 read with Seventh Schedule. Therefore, by operation of law and by amending Section 12 and bringing on statute sub-section (5) of Section 12 read with Seventh Schedule, the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate and such an Arbitral Tribunal cannot be permitted to continue and therefore a fresh arbitrator has to be appointed as per Arbitration Act, 1996.8. An identical question came to be considered by this Court in the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra), and after considering the decisions of this Court in the case of TRF (supra) and other decisions on the point, in paragraphs 13, 14 and 15, it is observed and held as under:13. So far as the submission on behalf of the petitioners that the agreement was prior to the insertion of Sub-section (5) of Section 12 read with Seventh Schedule to the Act and therefore the disqualification under Sub-section (5) of Section 12 read with Seventh Schedule to the Act shall not be applicable and that once an arbitrator - Chairman started the arbitration proceedings thereafter the High Court is not justified in appointing an arbitrator are concerned the aforesaid has no substance and can to be accepted in view of the decision of this Court in Trf Ltd. v. Energo Engineering Projects Ltd., (2017) 8 SCC 377 ; Bharat Broadband Network Limited v. United Telecoms Limited, (2019) 5 SCC 755 ; Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation Limited, (2017) 4 SCC 665 . In the aforesaid decisions this Court had an occasion to consider in detail the object and purpose of insertion of Subsection (5) of Section 12 read with Seventh Schedule to the Act. In the case of Voestalpine Schienen GMBH (Supra) it is observed and held by this Court that the main purpose for amending the provision was to provide for neutrality of arbitrators. It is further observed that in order to achieve this, Sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject-matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. It is further observed that in such an eventuality i.e. when the arbitration clause finds foul with the amended provisions (Sub-section (5) of Section 12 read with Seventh Schedule) the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator as may be permissible. It is further observed that, that would be the effect of non obstante clause contained in sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of the arbitration agreement.14. It is further observed and held by this Court in the aforesaid decision that independence and impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which apply to all judicial and quasi-judicial proceedings. It is further observed that it is for this reason that notwithstanding the fact that relationship between the parties, to the arbitration and the arbitrators themselves are contractual in nature and the source of an arbitrators appointment is deduced from the agreement entered into between the parties, notwithstanding the same non- independence and non-impartiality of such arbitrator would render him ineligible to conduct the arbitration. It is further observed that the genesis behind this rational is that even when an arbitrator is appointed in terms of contract and by the parties to the contract, he is independent of the parties. In paragraphs 16 to 18 it is observed and held as under:16. Apart from other amendments, Section 12 was also amended and the amended provision has already been reproduced above. This amendment is also based on the recommendation of the Law Commission which specifically dealt with the issue of neutrality of arbitrators and a discussion in this behalf is contained in paras 53 to 60 and we would like to reproduce the entire discussion hereinbelow:NEUTRALITY OF ARBITRATORS53. It is universally accepted that any quasi-judicial process, including the arbitration process, must be in accordance with principles of natural justice. In the context of arbitration, neutrality of arbitrators, viz. their independence and impartiality, is critical to the entire process.54. In the Act, the test for neutrality is set out in Section 12(3) which provides -12.(3) An arbitrator may be challenged only if -(a) circumstances exist that give rise to justifiable doubts as to his independence or impartiality…55. The Act does not lay down any other conditions to identify the circumstances which give rise to justifiable doubts, and it is clear that there can be many such circumstances and situations. The test is not whether, given the circumstances, there is any actual bias for that is setting the bar too high; but, whether the circumstances in question give rise to any justifiable apprehensions of bias.56. The limits of this provision has been tested in the Indian Supreme Court in the context of contracts with State entities naming particular persons/designations (associated with that entity) as a potential arbitrator. It appears to be settled by a series of decisions of the Supreme Court (See Executive Engineer, Irrigation Division, Puri v. Gangaram Chhapolia, (1984) 3 SCC 627 ; Secretary to Government Transport Department, Madras v. Munusamy Mudaliar, 1988 Supp SCC 651; International Authority of India v. K.D. Bali, (1988) 2 SCC 360 ; S. Rajan v. State of Kerala, (1992) 3 SCC 608 ; Indian Drugs & Pharmaceuticals v. Indo-Swiss Synthetics Germ Manufacturing Co. Ltd., (1996) 1 SCC 54 ; Union of India v. M.P. Gupta, (2004) 10 SCC 504; Ace Pipeline Contract Pvt. Ltd. v. Bharat Petroleum Corporation Ltd., (2007) 5 SCC 304) that arbitration agreements in government contracts which provide for arbitration by a serving employee of the department, are valid and enforceable. While the Supreme Court, in Indian Oil Corp. Ltd. v. Raja Transport (P) Ltd., (2009) 8 SCC 520 carved out a minor exception in situations when the arbitratorwas the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute (SCC p. 533, para 34) and this exception was used by the Supreme Court in Denel (Proprietary) Ltd. v. Govt. of India, Ministry of Defence, (2012) 2 SCC 759 : AIR 2012 SC 817 and Bipromasz Bipron Trading SA v. Bharat Electronics Ltd., (2012) 6 SCC 384, to appoint an independent arbitrator under section 11, this is not enough.57. The balance between procedural fairness and binding nature of these contracts, appears to have been tilted in favour of the latter by the Supreme Court, and the Commission believes the present position of law is far from 18 satisfactory. Since the principles of impartiality and independence cannot be discarded at any stage of the proceedings, specifically at the stage of constitution of the arbitral tribunal, it would be incongruous to say that party autonomy can be exercised in complete disregard of these principles - even if the same has been agreed prior to the disputes having arisen between the parties. There are certain minimum levels of independence and impartiality that should be required of the arbitral process regardless of the parties apparent agreement. A sensible law cannot, for instance, permit appointment of an arbitrator who is himself a party to the dispute, or who is employed by (or similarly dependent on) one party, even if this is what the parties agreed. The Commission hastens to add that Mr. PK Malhotra, the ex officio member of the Law Commission suggested having an exception for the State, and allow State parties to appoint employee arbitrators. The Commission is of the opinion that, on this issue, there cannot be any distinction between State and non-State parties. The concept of party autonomy cannot be stretched to a point where it negates the very basis of having impartial and independent adjudicators for resolution of disputes. In fact, when the party appointing an adjudicator is the State, the duty to appoint an impartial and independent adjudicator is that much more onerous - and the right to natural justice cannot be said to have been waived only on the basis of a prior agreement between the parties at the time of the contract and before arising of the disputes.58. Large-scale amendments have been suggested to address this fundamental issue of neutrality of arbitrators, which the Commission believes is critical to the functioning of the arbitration process in India. In particular, amendments have been proposed to sections 11, 12 and 14 of the Act.59. The Commission has proposed the requirement of having specific disclosures by the arbitrator, at the stage of his *possible* appointment, regarding existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of the Fourth Schedule, which has drawn from the red and orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and which would be treated as a guide to determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms of the proposed section 12(5) of the Act and the Fifth Schedule which incorporates the categories from the red list of the IBA Guidelines (as above), the person proposed to be appointed as an arbitrator shall be *ineligible* to be so appointed, notwithstanding any prior agreement to the contrary. In the event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms of the proposed explanation to section 14. Therefore, while the *disclosure* is required with respect to a broader list of categories (as set out in the Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the *ineligibility* to be appointed as an arbitrator (and the consequent de jure inability to so act) follows from a smaller and more serious sub- set of situations (as set out in the Fifth Schedule, and as based on the Red list of the IBA Guidelines).60. The Commission, however, feels that *real* and *genuine* party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality. To deal with such situations, the Commission has proposed the proviso to section 12(5), where parties may, subsequent to disputes having arisen between them, waive the applicability of the proposed section 12(5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12(5) must be followed. In the event the High Court is approached in connection with appointment of an arbitrator, the Commission has proposed seeking the disclosure in terms of section 12(1) and in which context the High Court or the designate is to have due regard to the contents of such disclosure in appointing the arbitrator.17. We may put a note of clarification here. Though, the Law Commission discussed the aforesaid aspect under the heading Neutrality of Arbitrators, the focus of discussion was on impartiality and independence of the arbitrators which has relation to or bias towards one of the parties. In the field of international arbitration, neutrality is generally related to the nationality of the arbitrator. In international sphere, the appearance of neutrality is considered equally important, which means that an arbitrator is neutral if his nationality is different from that of the parties. However, that is not the aspect which is being considered and the term neutrality used is relatable to impartiality and independence of the arbitrators, without any bias towards any of the parties. In fact, the term neutrality of arbitrators is commonly used in this context as well.18. Keeping in mind the aforequoted recommendation of the Law Commission, with which spirit, Section 12 has been amended by the Amendment Act, 2015, it is manifest that the main purpose for amending the provision was to provide for neutrality of arbitrators. In order to achieve this, sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. In such an eventuality i.e. when the arbitration clause finds foul with the amended provisions extracted above, the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator(s) as may be permissible. That would be the effect of non obstante clause contained in sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of arbitration agreement.15. In the case of Bharat Broadband Network Limited (Supra), it is observed that Sub-section (5) of Section 12 read with Seventh Schedule made it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes ineligible to act as an arbitrator. It is further observed that once he becomes ineligible, it is clear that he then become dejure unable to perform his functions inasmuch as in law, he is regarded as ineligible. It further is observed in the said decision that where a person becomes ineligible to be appointed as an arbitrator there is no question of challenge to such arbitrator before such arbitrator in such a case i.e. a case which falls under Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator and this being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator.8.1 In the aforesaid decision, this Court also negatived the submission that as the contractor participated in the arbitration proceedings before the arbitrator therefore subsequently, he ought not to have approached the High Court for appointment of a fresh arbitrator under Section 11 of the Arbitration Act, 1996. After referring to the decision of this Court in the case of Bharat Broadband Network Limited v. United Telecoms Limited, reported in (2019) 5 SCC 755, it is observed and held in paragraph 20 as under:20. Now so far as the submission on behalf of the petitioners that the respondents participated in the arbitration proceedings before the sole arbitrator - Chairman and therefore he ought not to have approached the High Court for appointment of arbitrator under Section 11 is concerned, the same has also no substance. As held by this Court in the case of Bharat Broadband Network Limited (Supra) there must be an express agreement in writing to satisfy the requirements of Section 12(5) proviso. In paragraphs 15 & 20 it is observed and held as under:15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.xxx xxx xxx20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing.This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.9. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court is contrary to the law laid down by this Court in the cases of TRF (supra), Bharat Broadband Network Limited (supra) and the recent decision of this Court in the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra). It is held that the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate by operation of law in view of Section 12(5) read with Seventh Schedule and a fresh arbitrator has to be appointed under the provisions of the Arbitration Act, 1996. The impugned judgment and order passed by the High Court is therefore unsustainable and deserves to be quashed and set aside. | 1 | 7,108 | 4,554 | ### Instruction:
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of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. xxx xxx xxx 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: 9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 9. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court is contrary to the law laid down by this Court in the cases of TRF (supra), Bharat Broadband Network Limited (supra) and the recent decision of this Court in the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra). It is held that the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate by operation of law in view of Section 12(5) read with Seventh Schedule and a fresh arbitrator has to be appointed under the provisions of the Arbitration Act, 1996. The impugned judgment and order passed by the High Court is therefore unsustainable and deserves to be quashed and set aside.
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counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.xxx xxx xxx20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing.This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.9. In view of the above and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court is contrary to the law laid down by this Court in the cases of TRF (supra), Bharat Broadband Network Limited (supra) and the recent decision of this Court in the case of Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited (supra). It is held that the earlier Arbitral Tribunal – Stationery Purchase Committee comprising of Additional Secretary, Department of Revenue as President and (i) Deputy Secretary, Department of Revenue, (ii) Deputy Secretary, General Administration Department, (iii) Deputy Secretary, Department of Finance, (iv) Deputy Secretary/Under Secretary, General Administration Department and (v) Senior Deputy Controller of Head Office, Printing as Members, has lost its mandate by operation of law in view of Section 12(5) read with Seventh Schedule and a fresh arbitrator has to be appointed under the provisions of the Arbitration Act, 1996. The impugned judgment and order passed by the High Court is therefore unsustainable and deserves to be quashed and set aside.
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PRINCIPAL COMMISSIONER OF INCOME TAX, Mumbai Vs. M/s I?-Ven Interactive Limited, Mumbai | upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act. 7. Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Act and the Income Tax Act is concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so. 8. Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue. 9. In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law. | 1[ds]6.1 At the outset, it is required to be noted that notice under Section 143(2) of the 1961 Act was sent by the Assessing Officer to the assessee at the address as mentioned in the PAN database on 05.10.2007 and the same was within the time limit prescribed in proviso to Section 143(2) of the 1961 Act. However, it was the case on behalf of the assessee that the said notice was not served upon the assessee as the assessee changed its name and address and shifted to new address prior thereto and therefore the said notice was not served upon the assessee and by the time when subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Act and the Income Tax Act is concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue.In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law. | 1 | 2,958 | 1,222 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act. 7. Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Act and the Income Tax Act is concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so. 8. Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue. 9. In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law.
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when subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Act and the Income Tax Act is concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue.In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law.
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Workmen Of Indian Standards Institution Vs. Management Of Indian Standards Institution | his turnover and to his reputation by marketing uniform quality of goods of high standard assured by compliance with the standards and the consumer, to benefit from lower prices, higher quality and more safety - in short, get value for the money spent by him. The Institution renders what are termed "extension services" to industries which opt for them and these extension services are made available in three distinct phases, namely, pilot study, systematic development and evaluation. If this is not rendering of material services to a section of the community, we fail to see what other activity can be so regarded. There is also co-operation between the management of the Institution and the employees who are associated together for rendering these material services. It is true that the standards are prepared by Sectional Committee which are composed of representatives of all concerned, including scientists and technicians, with consumer interest playing a dominant role and they are not exclusively the result of the work carried out by the employees, but the participation of the employees is not altogether absent. Not only do the employees who are technicians participate in the work relating to various aspects of preparation of standards but the draft standards are also verified in the laboratories of the Institution which are operated by the employees. Moreover, the distribution and sale of standards prepared and published by the Institution is being made through the employees. The Certificate Marketing Scheme, maintenance of laboratories and libraries, publication of ISI bulletin, Standard Monthly Additions and other magazines, journals and leaflets and publicity of the activities of the Institution are all carried on with the help of the employees. There are a large number of employees of the Institution belonging to Grades II, III and IV, apart from officers in Grade I. Some of the employees in Grade II are technical people closely associated with the technical activities of the Institution. There can, therefore, be no doubt that the activities of the institution fall within the category of undertaking analogous to trade or business and must be regarded as an "industry" within the meaning of S. 2(j).25. This view which we are taking receives support from an earlier decision of this Court in the Ahmedabad Textile Industrys Research Association v. The State of Bombay and others (supra). The question was whether the activity of the appellant-Association, which was a textile research institute established for the purpose of carrying on research and other scientific work in connection with the textile trade or industry and other trade and industries allied therewith or necessary whereto, was an "industry" for the purpose of the Act. This Court analysed the activity of the appellant-Association and pointed out that it is an "activity" systematically undertaken; its object is to render material services to a part of the community (namely member-mills) - the material services being the discovery of processes of manufacture, etc., with a view to secure greater efficiency, rationalisation and reduction of costs of the member-mills; it is being carried on with help of employees (namely, technical personnel) who have no rights in the results of the research carried on by them as employees of the association; it is organised or arranged in a manner in which a trade or business is generally organised; it postulates co-operation between employers (namely, the association) and the employees (namely, the technical personnel and others) which is necessary for its success, for the employers provide monies for carrying on the activities of the association and its object clearly is to render material services to a part of the community by discovery of process of manufacture, etc., with a view to secure greater efficiency, relationlisation and reduction of costs. "It was observed by this Court that the undertaking as a whole is" in the nature of business or trade organised with the object of discovering ways and means by which the member-mills may obtain larger profits in connection with their industries, and on this view, the Court held that "the appellant-Association is carrying on an activity which clearly comes within the meaning of the word "industry" in S. 2(j). "This case bears a very close analogy to the present case and indeed, some of the observations made by this Court in that case - particularly those underlined by us - aptly describe the nature of the activities of the Institution and the reasoning on which the decision in this case is based is equally applicable in the decision of the present case.26. There is also one other decision of this Court which amply supports the view we are taking and that is the decision in the Management of the FICCI v. Workmen (supra). The question which arise in that case was whether the federation of Indian Chambers of Commerce and Industry, for short referred to as FICCI, was an industry within the meaning of S. 2(j). This Court reviewed most of the earlier decisions on the subject and after summarising the broad test for determining what is an industry, proceeded to analyse the activities of FICCI and pointed out that "the Federation carries on systematic activities to assist its members and other businessmen and industrialists and even non-members, as for instance, in giving them the right to subscribe to their bulletin; in taking up their cases and solving their difficulties and in obtaining concessions and facilities for them from the Government. These activities are business activities and material services, which are not necessarily confined to the illustrations given by Hidyatullah. C.J., in the Gymkhana case by way of illustration only, rendered to businessmen, traders and industrialists who are members of the constituents of the Federation. There can in our view be no doubt that the Federation is an industry within the meaning of S.2(j) of the Act." This decision is also very apposite and helpful and leaves no doubt that the activities of the Institution in the present case are an "industry" so as to attract the beneficent provisions of the Act. | 1[ds]The definition is in two parts. The first part says that it means any business, trade, undertaking, manufacture or calling of employers and then it goes on to say in the second part that it includes any calling, service, employment handicraft, or industrial occupation or avocation of workmen. This Court had occasion to consider this definition in the case of State of Bombay v. The Hospital Mazdoor Sabha,L.L.J. 251], where this Court sought to expand the concept of "industry" by a process of judicial interpretation (to meet the changing requirements of modern currents ofthought). It was pointed out by this Court that "S. 2(j) does not define "industry" in the usual manner by prescribing what it means : the first clause of the definition gives the statutory meaning of "industry" and the second clause deliberately refers to several other items of industry and brings them in the definition in an inclusive way." But this interpretation of the definition was disapproved by a larger Bench of this Court in Management of Safdarjung Hospital v. K. S. Sethi,L.L.J. 266]. We shall immediately proceed to examine that decision, as that is the decision which presently holds the field and must ultimately govern the determination of the present case. But before we do so we must refer to another decision of this Court which came a little before Safdarjung Hospital case (supra). That is the decision in Secretary, Madras Gymkhana club employees Union v. Management of the Gymkhana (supra). While dealing with the definition of "industry" in this case, it was pointed out by this Court that "denotation of the term "industry" is to be found in the first part relating to employers and the full connotation of the term is intended to include the second part relating to workmen" and it was concluded : "If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define "industry" .... But the inclusive part of the definition the labour force employed in an industry is made an integral part of the industry for purpose of industrial disputes although industry is ordinarily something which employers create or undertake." We may point that the concept underlying the observation that "industry is ordinarily something which employers create or undertake" is gradually yielding place to the modern concept which regards industry as a joint venture undertaken by employers and workmenan enterprise which belongs equally to both. But we need not dwell on this any longer, as it is not of immediate concern to us in this case. It is sufficient to point out that the interpretation of the definition of "industry" given in Madras Gymkhana case (supra) struck a slightly different note from what it was understood to mean in the State of Bombay v. Hospital Mazdoor Sabha case (supra). But again in Safdarjung Hospital case (supra) this Court found it necessary to qualify what it had said in the Madras Gymkhana case (supra) in regard the meaning of "industry" and after referring to the definition of industry in S.4 of the Commonwealth Conciliation and Arbitration Act,this Court observed :"Although the two definitions are worded differently the purport of both is the same. It is not necessary to view our definition in two parties. The definition read as a whole denotes a collective enterprise in which employers and employees are associated. It does not exist either by employers alone or by employees alone or by employees alone. It exists only when there is a relationship between employers and employees, the former engaged in business, trade, undertaking, manufacture or calling employers and the latter engaged in any calling, service, employment, handicraft or industrial occupation or avocation. There must, therefore, be an enterprise in which the employers follow their avocation as detailed in the definition and employ workmen. The definition no doubt seeks to define "industry" with reference to employers occupation but includes the employees, for without the two there can be no industry. An industry is only to be found when there are employers and employees, the former relying upon the services of the latter to fulfill their own occupations."The Court then proceeded to add that "every case of employment is not necessarily productive of an industry. Domestic employment, administrative services of public officials, service in aid of occupations of professional men, also disclose relationship of employers and employees but they cannot be regarded as in the course of industry." A workmen can be regarded as one employed in any industry only "If he is following one of the vocations mentioned in conjunction with his employers engaged in the vocations mentioned in relation to the employers." Thus, a basic requirement of "industry" is that the employers must be "carrying on any business, trade, undertaking, manufacture or calling of employers. If they are not, there is no industry as such." Now, what these expressions mean has been discussed in a large number of cases decided by this Court. These Cases have all been reviewed in the Madras Gymkhana case. We, are, however, not directly concerned with any of these expressions except "undertaking", for the case of the workmen is not that the management of the Institution is carrying on any business, trade, manufacture or calling but it rests on a very limited ground, namely, that the management of the Institution is carrying on an undertaking. It, therefore, becomes necessary to inquire what is the meaning and scope of the term "undertaking" as used in the definition in S. 2(j).What then are the attributes or features which make an undertaking analogous to trade or business so as to attract the applicability of S. 2(j). It is difficult to enumerate these possible attributes or features definitely or exhaustively. Indeed, it would not be prudent to do so. So infinitely varied andis human activity and with the incredible growth and progress in all branches of knowledge and ever widening areas of experience at all levels, it is becoming so diversified and expanding in so many direction hitherto unthought of, that no rigid and doctrinaire approach can be adopted in considering this question. Such an approach would fail to measure up to the needs of the growing welfare State which is constantly engaged in undertaking new and varied activities as part of its social welfare policy. The concept of industry, which is intended to be a convenient and effective tool in the hands of industrial adjudication for bringing about industrial peace and harmony, would lose this capacity for adjustment and change. It would be petrified and robbed of its dynamic content. The court should, therefore, as far as possible avoid formulating of adopting generalisations and hesitate to cast the concept of industry in a narrow rigid mould which would not permit of expansion as and when necessity arises. Only some working principle may be evolved which would furnish guidance in determining what are the attributes or characteristics which would ordinarily indicate that an undertaking is analogous to trade or business.9. What can fairly be regarded as sufficiently elastic or flexible working principle for this purpose has been discussed in a number of decisions of this Court of which we may refer only to three, namely, the Hospital Mazdoor Sabha case. The Madras Gymkhana case The Safdarjung Hospital case. Though the language used in these decisions to state the working principle is not uniform and there are minor variation in the formulation according as one aspect is more emphasised than the other, the working principle laid down is basically the same.It would thus be seen that the broad test for determining when an undertaking can be said to be analogous to trade or business laid down in the Safdarjung Hospital case (supra) was the same as in the Hospital Mazdoor Sabha case (supra). The Safdarjung Hospital case (supra) did not make any real departure in the enunciation of the test. It is only in the application of this test to the case of hospitals that the Safdarjung Hospital case (supra) took a different view and observed that the judgment in the Hospital Mazdoor Sabha case (supra) had taken an extreme view of the matter which was not justified." There was also one other ground on which the decision in the Safdarjung Hospital case (supra) disapproved of the view taken in the Hospital Mazdoor Sabha case (supra) and that ground was that the decision in the Hospital Mazdoor Sabha case proceeded on an erroneous basis that an activity, in order to be an undertaking analogous to trade or business, need not be an economic activity and applied a wrong test, namely, "can such activity be carried on by private individuals or group of individuals ?" It would, therefore seems that, in view of the decision in Safdarjung Hospital case, this last test applied in the Hospital Mazdoor Sabha can must be rejected as irrelevant and it must be held that an activity, in order to be recognised as an undertaking analogous to trade or business must be an economic activity in the sense that it is productive of material goods or material services.11. To summarise, an activity can be regarded as an "industry" within the meaning of S. 2(j) only if there is relationship of employer and employees and the former is engaged in "business, trade, undertaking, manufacture or calling of employers" and the latter, "in any calling, service, employment, handicraft or industrial occupation or avocation." Though "undertaking" is a word of large import and it means anything undertaken or any project or enterprise, in the context in which it occurs, it must be read as meaning an undertaking analogous to trade or business. In order that an activity may be regarded as an undertaking analogous to trade or business, it must be "organised or arranged in a manner in which trade or business is generally organised or arranged." It must not be casual nor must it be for oneself nor for pleasure. And it must rest onbetween employer and employees who associate together with a view to production, sale or distribution of material goods or material services. It is entirely irrelevant whether or not there is profit motive or investment of capital in such activity. Even without these two features an activity can be an undertaking analogous to trade or business. It is also immaterial "that its objects are charitable or that it does not make profits or even where profits are made, they are not distributed amongst the members, " or that its activity is subsidised by the Government. Again it is not necessary that "the employer must always be a private individual .......... The Act, in terms, contemplates cases of industrial disputes where the Government or a local authority or a public utility service may be the employer ......." It also makes no difference that the material services rendered by the undertaking are in public interest. The concept of public interest in a modern welfare State, where new social values are fast emerging and old dying out, is indeed so wide and so broad and comprehensive is its spectrum and range that many activities which admittedly fall within the category of "industry" are clearly designed to subserve public interest. In fact, whenever any industry is carried on by the Government, it would be in public interest, for the Government can act only in public interest. Whether an activity is carried on in public interest or not can, therefore, never be a criterion for determining its character as an industry. Having thus examined the legal concept of industry as expounded in the decisions of this Court, we may now proceed to consider whether the activity of the Institution can be characterised as an industry in the light of the broad test discussed by us.The Rules and Regulations of the Institution makes various provisions in regard to the mechanics of the functioning of the Institution. Rule 2 lays down that there shall be two categories of members, namely, subscribing members and committee members and their rights and privileges are enumerated in Rule 5, Rule 7 vests the management of the affairs of the Institution in a General Council and its composition is laid down in Rule 8 and its functions, in Rule 11. Rule 15 provides for the constitution of the Executive Committee and it lays down that the Executive Committee shall have the powers to manage theaffairs of the Institution, including administration of ISI (Certification Marks) Act, 1952 in conformity with policies laid down by the General Council. The Institution can have different branches as may be decided upon by the General Council under Rule 18. Rule 19 says that a division shall constitute the main section of the technical activities of the Institution and Rule 20 declares that the work of a division shall be controlled by a Division Council. What shall be the constitution of a Division Council is laid down in Rule 22 and that Rule provides that a Division Council shall be constituted from the representatives of the respective interests of users, manufactures and other persons or bodies concerned in or associated with the industries included in the Division. Rule 26 deals with Sectional Committees and it says that the Sectional Committee shall be appointed by a Division Council or if necessary, by Executive Committee for the preparation of a particular standard or group of standards and the Sectional Committee shall be composed of representatives of such interests as, in the opinion of the Division Council of Executive Committee, are concerned with the standards referred to the Committee. It emphasises that on the Sectional Committee all interests shall be adequately represented including scientists and technicians, but consumer interest shall, as far as possible predominate.14. Now, at this stage it would be convenient to explain what are standards and why they are necessary to be established. Standards are technical documents describing constructional, operational and technological requirements of a material, a product or a process for a given purpose. They furnish such details as material to use, dimensions and sizes to be adopted performance to be expected, and quality to be achieve; they also give methods of tests for comparing the judging quality of goods produced by the manufacturer. Standards may be any one or more of the following five categories : (a) Dimensional Standards which secure interchangeability and eliminate unnecessary variety of types for the same or similar purposes; (b) Performance and quality Standards which ensure that the final article will be fit for the job it is designed to do; (c) Standard Methods of Tests which enable or products intended for the same purpose to be compared uniformly; (d) Standard Technical Terms and Symbols which provide a common, easily understood technical language for the industry, and (e) Standard Codes of Practices which set out the most efficient methods of installation, use and maintenance of equipment and recommend methods of technical operations. These are necessary in order to meet the challenges posed by the fast developing industrial economy of the country and mass production of economic goods and services. The manufacturer should be able to produce goods of specified quality so that he can win the confidence andof the consumer and build up internal and external markets for his products. He should also be able to increase his productivity, produce goods at minimum cost and achieve overall economy by best utilization of human and material resources at its disposal. Standards which are based on the consolidated results of science, technology and experience, furnish guidance to the manufacturer in this behalf and confer economic benefits for the development of industry and smooth flow of commerce.15. The procedure for preparing standards is laid down in Rule 29 of the Rules and Regulations of the Institution. The underlying principles for the preparation of standards are that they shall be in accordance with the needs of the industry and fulfill a generally recognised want, that the interests of both producers and consumers shall be considered and that periodic review, shall be undertaken. The work of standardisation of any specific subject can be undertaken only when the Division Council concerned is satisfied, as a result of its own deliberations or of an investigation and consultation with the producer and consumer interests, that the necessity for standarisation has been established. When the subject has been so investigated and the need established, the Division Council concerned would refer the work to an appropriate Sectional Committee and the Sectional Committee would then explore and study the subject and prepare a draft of the proposed standard. The draft standard would then be issued a draft form for a period to be determined by the Sectional Committee but not less than three months and widely circulated amongst those likely to be interested for the purpose of securing critical review and suggestions for improvement which, if found desirable, would be incorporated in the draft. This procedure for circulation can, in an appropriate case, be curtailed or dispensed with by the Division Council. The consideration of the comments received as a result of the circulation of the draft standard would be undertaken by the Sectional Committee and the final draft prepared after verification in the appropriate laboratories where necessary. The standard so finalized by the Sectional Committee would then be referred to the Division Council concerned for adoption and on such adoption by the Division Council, it would be published as an Indian Standard.It will, therefore, be seen that the Standard Mark is the most authentic representation to the consumer that the article or process in respect of which it is used conforms to the relevant Indian Standard and Indian Standard thus becomes meaningful and advantageous by reason of the use of the Standard Mark. But no one can use the Standard Mark without a licence from the Institution and even if there is a licence, the standard mark cannot be used in relation to an article or process unless such article or process confers to the relevant Indian Standard. The issue of licences for use of Standard marks under the certification marks scheme is, therefore, a very important activity of the Institution complementary as well as supplementary to preparation and publication of Indian Standards. The Certification Marks Scheme has been making considerable progress from year to year and while, according to the Annual Report of the Institution fromthe total number of licences issued since the inception of the scheme upon 31st March, 1968 and 1665 the annual value of goods covered under the scheme was approximately Rs. 3, 800 million, the total number of licences granted upto 31st March, 1974 increased to 3784 and the annual value of goods covered under the scheme rose to approximately Rs. 5, 000 million during the yearas per the figures contained in the Annual Report for that year. The total income from certification marking does not appear to have been shown separately in the Annual Report of there Institution for the yearbut according to the Annual Report forit was Rs. 5.2 million during that year. The Annual Reports of the Institution clearly reveal that from year to year the total number of licences granted by the Institution is steadily increasing and so is the total income from certification marking.21. The Institution has also several laboratories for the purpose of carrying out testing operations. It has a well equipped library at the Headquarters and there are also laboratories at the branch offices where testing of different articles is carried out. The testing work carried out in these laboratories has shown a consistent rise over the years and while during the yearthe number of samples received for testing was 3853 and the value of testing work done was Rs. 3, 96, 468, the number of samples received duringwas 12726 and the value of testing working done during that year was Rs. 8, 76, 847.58. The samples tested at the laboratories are not only those submitted but the manufacturers, distributors and consumers, but also those taken by the Inspectors for the purposes of ascertaining whether any article or process in relation to which the Standard Mark is used conforms to the Indian Standard or whether the Standard Mark has been improperly used in relation to any article or process. The laboratories are also used in connection with the preparation of Indian Standards as contemplated in cl. (f) of Rule 29 of the Rules and Regulations of the Institution.22. Then, the Institution maintains libraries at the Headquarters and at the branch offices which render useful service to the subscribing members, the Committee members, the Staff members and others. The library at the Headquarters, which is open to visitors has complete sets of overseas standards and specifications and related indices. It has also classified subject catalogues for consultation and retrieval of information of standardization. It also prepares and circulates for the benefit of its users a monthly list of current published information on standardization. It has also brought outbibliographies at the request of technical staff and Committee members and also published an important bibliography, namely, "World List of Standards on Paper Products." Quite often, technical enquiries are received from the industry and the necessary information is supplied by the libraries of the Institution. The libraries also disseminate technical information on national and overseas standards, specifications and other allied subjects.It is clear from the resume of the activities of the Institution given above that the undertaking of the Institution answers the broad test laid down in the Safdarjung Hospital case and explained by us in the earlier part of the judgment and must be held to be an industry within the meaning of S. 2(j). The activities of the Institution are carried on in a systemic manner and are organised or arranged in a manner in which trade or business is ordinarily organised or arranged. The Institution derives large income from its activities, which was about Rs. 4.5 million inand rose to about Rs. 10.2 million ina bulk of the income being accounted for by sale proceeds of Indian Standards and Certification Marking fees. The object of the activities of the Institution is to render material services to a part of the community, namely, manufactures, distributors and consumers. Standards set the recognised level of good quality,for building domestic and export markets and developing goodwill and prestige for the manufacturer : they provide the framework for mass production, increase in productivity, simplification in production process and enhancement in labour efficiency : They make for dimensional interchangeability by setting national and also international patterns of interrelated sizes : they incorporate result of the latest developments in research and technology : they increase consumer confidence and goodwill bringing wide markets and quick turnover with savings for the buyer and they bring more profits and lower costs by optimum utilization of scarce resources. The brochure on "standards for textiles" points out that amongst various advantages which accrue from the application of standards in themanufacturing programmes are increased efficiency, less waste of manpower and material, higher productivity through longer runs in the factory. Simplified buying, costing and cataloguing and stabilizing and promoting exports by sending goods of uniform quality abroad. The Certification Marking Scheme involving issue of licences for use of Standards Marks, maintenance of laboratories and libraries, bringing out various publications, such as ISI bulletin, standards monthly additions and other brochures and leaflets and publicity through different kinds of media, which constitute the other activities of the Institution apart from preparation and publication of standards, are intended to promote implementation of standards, create consciousness about the importance of standardization and quality control amongst different sectors of the economy and further inplant standardization activity, with a view to helping the manufacturer, to set up production and lower manufacturing cost, increase labour efficiency by simplifying production processes and ensure dependable and quality goods, increase consumer confidence and goodwill and achieve greater turnover and increased profits by maximum utilization of human and material resources, the distributor, to add to his turnover and to his reputation by marketing uniform quality of goods of high standard assured by compliance with the standards and the consumer, to benefit from lower prices, higher quality and more safetyin short, get value for the money spent by him. The Institution renders what are termed "extension services" to industries which opt for them and these extension services are made available in three distinct phases, namely, pilot study, systematic development and evaluation. If this is not rendering of material services to a section of the community, we fail to see what other activity can be so regarded. There is alsobetween the management of the Institution and the employees who are associated together for rendering these material services. It is true that the standards are prepared by Sectional Committee which are composed of representatives of all concerned, including scientists and technicians, with consumer interest playing a dominant role and they are not exclusively the result of the work carried out by the employees, but the participation of the employees is not altogether absent. Not only do the employees who are technicians participate in the work relating to various aspects of preparation of standards but the draft standards are also verified in the laboratories of the Institution which are operated by the employees. Moreover, the distribution and sale of standards prepared and published by the Institution is being made through the employees. The Certificate Marketing Scheme, maintenance of laboratories and libraries, publication of ISI bulletin, Standard Monthly Additions and other magazines, journals and leaflets and publicity of the activities of the Institution are all carried on with the help of the employees. There are a large number of employees of the Institution belonging to Grades II, III and IV, apart from officers in Grade I. Some of the employees in Grade II are technical people closely associated with the technical activities of the Institution. There can, therefore, be no doubt that the activities of the institution fall within the category of undertaking analogous to trade or business and must be regarded as an "industry" within the meaning of S. 2(j).25. This view which we are taking receives support from an earlier decision of this Court in the Ahmedabad Textile Industrys Research Association v. The State of Bombay and others (supra). | 1 | 12,810 | 4,864 | ### Instruction:
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his turnover and to his reputation by marketing uniform quality of goods of high standard assured by compliance with the standards and the consumer, to benefit from lower prices, higher quality and more safety - in short, get value for the money spent by him. The Institution renders what are termed "extension services" to industries which opt for them and these extension services are made available in three distinct phases, namely, pilot study, systematic development and evaluation. If this is not rendering of material services to a section of the community, we fail to see what other activity can be so regarded. There is also co-operation between the management of the Institution and the employees who are associated together for rendering these material services. It is true that the standards are prepared by Sectional Committee which are composed of representatives of all concerned, including scientists and technicians, with consumer interest playing a dominant role and they are not exclusively the result of the work carried out by the employees, but the participation of the employees is not altogether absent. Not only do the employees who are technicians participate in the work relating to various aspects of preparation of standards but the draft standards are also verified in the laboratories of the Institution which are operated by the employees. Moreover, the distribution and sale of standards prepared and published by the Institution is being made through the employees. The Certificate Marketing Scheme, maintenance of laboratories and libraries, publication of ISI bulletin, Standard Monthly Additions and other magazines, journals and leaflets and publicity of the activities of the Institution are all carried on with the help of the employees. There are a large number of employees of the Institution belonging to Grades II, III and IV, apart from officers in Grade I. Some of the employees in Grade II are technical people closely associated with the technical activities of the Institution. There can, therefore, be no doubt that the activities of the institution fall within the category of undertaking analogous to trade or business and must be regarded as an "industry" within the meaning of S. 2(j).25. This view which we are taking receives support from an earlier decision of this Court in the Ahmedabad Textile Industrys Research Association v. The State of Bombay and others (supra). The question was whether the activity of the appellant-Association, which was a textile research institute established for the purpose of carrying on research and other scientific work in connection with the textile trade or industry and other trade and industries allied therewith or necessary whereto, was an "industry" for the purpose of the Act. This Court analysed the activity of the appellant-Association and pointed out that it is an "activity" systematically undertaken; its object is to render material services to a part of the community (namely member-mills) - the material services being the discovery of processes of manufacture, etc., with a view to secure greater efficiency, rationalisation and reduction of costs of the member-mills; it is being carried on with help of employees (namely, technical personnel) who have no rights in the results of the research carried on by them as employees of the association; it is organised or arranged in a manner in which a trade or business is generally organised; it postulates co-operation between employers (namely, the association) and the employees (namely, the technical personnel and others) which is necessary for its success, for the employers provide monies for carrying on the activities of the association and its object clearly is to render material services to a part of the community by discovery of process of manufacture, etc., with a view to secure greater efficiency, relationlisation and reduction of costs. "It was observed by this Court that the undertaking as a whole is" in the nature of business or trade organised with the object of discovering ways and means by which the member-mills may obtain larger profits in connection with their industries, and on this view, the Court held that "the appellant-Association is carrying on an activity which clearly comes within the meaning of the word "industry" in S. 2(j). "This case bears a very close analogy to the present case and indeed, some of the observations made by this Court in that case - particularly those underlined by us - aptly describe the nature of the activities of the Institution and the reasoning on which the decision in this case is based is equally applicable in the decision of the present case.26. There is also one other decision of this Court which amply supports the view we are taking and that is the decision in the Management of the FICCI v. Workmen (supra). The question which arise in that case was whether the federation of Indian Chambers of Commerce and Industry, for short referred to as FICCI, was an industry within the meaning of S. 2(j). This Court reviewed most of the earlier decisions on the subject and after summarising the broad test for determining what is an industry, proceeded to analyse the activities of FICCI and pointed out that "the Federation carries on systematic activities to assist its members and other businessmen and industrialists and even non-members, as for instance, in giving them the right to subscribe to their bulletin; in taking up their cases and solving their difficulties and in obtaining concessions and facilities for them from the Government. These activities are business activities and material services, which are not necessarily confined to the illustrations given by Hidyatullah. C.J., in the Gymkhana case by way of illustration only, rendered to businessmen, traders and industrialists who are members of the constituents of the Federation. There can in our view be no doubt that the Federation is an industry within the meaning of S.2(j) of the Act." This decision is also very apposite and helpful and leaves no doubt that the activities of the Institution in the present case are an "industry" so as to attract the beneficent provisions of the Act.
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laboratories are also used in connection with the preparation of Indian Standards as contemplated in cl. (f) of Rule 29 of the Rules and Regulations of the Institution.22. Then, the Institution maintains libraries at the Headquarters and at the branch offices which render useful service to the subscribing members, the Committee members, the Staff members and others. The library at the Headquarters, which is open to visitors has complete sets of overseas standards and specifications and related indices. It has also classified subject catalogues for consultation and retrieval of information of standardization. It also prepares and circulates for the benefit of its users a monthly list of current published information on standardization. It has also brought outbibliographies at the request of technical staff and Committee members and also published an important bibliography, namely, "World List of Standards on Paper Products." Quite often, technical enquiries are received from the industry and the necessary information is supplied by the libraries of the Institution. The libraries also disseminate technical information on national and overseas standards, specifications and other allied subjects.It is clear from the resume of the activities of the Institution given above that the undertaking of the Institution answers the broad test laid down in the Safdarjung Hospital case and explained by us in the earlier part of the judgment and must be held to be an industry within the meaning of S. 2(j). The activities of the Institution are carried on in a systemic manner and are organised or arranged in a manner in which trade or business is ordinarily organised or arranged. The Institution derives large income from its activities, which was about Rs. 4.5 million inand rose to about Rs. 10.2 million ina bulk of the income being accounted for by sale proceeds of Indian Standards and Certification Marking fees. The object of the activities of the Institution is to render material services to a part of the community, namely, manufactures, distributors and consumers. Standards set the recognised level of good quality,for building domestic and export markets and developing goodwill and prestige for the manufacturer : they provide the framework for mass production, increase in productivity, simplification in production process and enhancement in labour efficiency : They make for dimensional interchangeability by setting national and also international patterns of interrelated sizes : they incorporate result of the latest developments in research and technology : they increase consumer confidence and goodwill bringing wide markets and quick turnover with savings for the buyer and they bring more profits and lower costs by optimum utilization of scarce resources. The brochure on "standards for textiles" points out that amongst various advantages which accrue from the application of standards in themanufacturing programmes are increased efficiency, less waste of manpower and material, higher productivity through longer runs in the factory. Simplified buying, costing and cataloguing and stabilizing and promoting exports by sending goods of uniform quality abroad. The Certification Marking Scheme involving issue of licences for use of Standards Marks, maintenance of laboratories and libraries, bringing out various publications, such as ISI bulletin, standards monthly additions and other brochures and leaflets and publicity through different kinds of media, which constitute the other activities of the Institution apart from preparation and publication of standards, are intended to promote implementation of standards, create consciousness about the importance of standardization and quality control amongst different sectors of the economy and further inplant standardization activity, with a view to helping the manufacturer, to set up production and lower manufacturing cost, increase labour efficiency by simplifying production processes and ensure dependable and quality goods, increase consumer confidence and goodwill and achieve greater turnover and increased profits by maximum utilization of human and material resources, the distributor, to add to his turnover and to his reputation by marketing uniform quality of goods of high standard assured by compliance with the standards and the consumer, to benefit from lower prices, higher quality and more safetyin short, get value for the money spent by him. The Institution renders what are termed "extension services" to industries which opt for them and these extension services are made available in three distinct phases, namely, pilot study, systematic development and evaluation. If this is not rendering of material services to a section of the community, we fail to see what other activity can be so regarded. There is alsobetween the management of the Institution and the employees who are associated together for rendering these material services. It is true that the standards are prepared by Sectional Committee which are composed of representatives of all concerned, including scientists and technicians, with consumer interest playing a dominant role and they are not exclusively the result of the work carried out by the employees, but the participation of the employees is not altogether absent. Not only do the employees who are technicians participate in the work relating to various aspects of preparation of standards but the draft standards are also verified in the laboratories of the Institution which are operated by the employees. Moreover, the distribution and sale of standards prepared and published by the Institution is being made through the employees. The Certificate Marketing Scheme, maintenance of laboratories and libraries, publication of ISI bulletin, Standard Monthly Additions and other magazines, journals and leaflets and publicity of the activities of the Institution are all carried on with the help of the employees. There are a large number of employees of the Institution belonging to Grades II, III and IV, apart from officers in Grade I. Some of the employees in Grade II are technical people closely associated with the technical activities of the Institution. There can, therefore, be no doubt that the activities of the institution fall within the category of undertaking analogous to trade or business and must be regarded as an "industry" within the meaning of S. 2(j).25. This view which we are taking receives support from an earlier decision of this Court in the Ahmedabad Textile Industrys Research Association v. The State of Bombay and others (supra).
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Raja Sailendra Narayan Bhanj Deo Vs. Kumar Jagat Kishore Prasad Narayan Singh | the compensation shall first be payable to the creditor and then to the proprietor or tenure-holder, the amount of compensation payable to the creditor being the amount determined under Ch. 4. All compensation payable to the proprietor, tenure-holder or encumbrancer is required to be set out in the Compensation Assessment-roll. Section 35 of the Act states, "No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters." This section would make it impossible for the decision of the Claims Officer or the Board to be challenged in an ordinary civil proceeding Section 32, which is contained in Chapter 6 of the Act, provides that when the Compensation Assessment-roll has become final as prescribed in the Act, the Compensation Officer appointed under the Act proceed to make payment in the matter specified in it. We may also refer to S. 38 of the Act which states that the Claims Officer and the Compensation Officer shall have the powers of a Civil Court.14. What is the effect of these provisions on the redemption decree in so as it directed the mortgage accounts to be taken? It seems to us that they rendered that part of the decree also infructuous. In our view, the mortgage accounts cannot be taken under the decree for they have already been taken under the Act and the decision of the Claims; Officer on the state of the accounts is final under S.18(3). In view of S. 35, no suit can be brought concerning the decision of the Claims Officer. It is true that the suit in the present case had been brought before the Act and would not itself be affected by S. 35.But we should suppose that the Act will now prevent the account being taken under the decree so as to challenge the decision of the Claims Officer. If this were not so, the Officer taking the accounts under the decree has to accept the Claims Officers decision for that is final and the parties cannot challenge it. That being so, the result would be that the officer taking the accounts would have to make a report finding that the same amount which the Claims Officer found to be due, was due to the mortgagee. On this report a decree would follow and the appellant would become entitled to the amount found due to him under the decree. Now, he was already entitled to that amount under S. 32(1) of the Act. He would then have a right to be paid the same sum twice over in respect of the same mortgage right. We cannot conceive that such an anomalous position could have been intended by the Act. We, therefore, think that since the Act, the redemption decree cannot be given effect to.15. The High Court seems to have thought that the Officer taking the accounts under the redemption decree would not be bound by the decision of the Claims Officer. This view was, based on the reason that only such of the Claims Officers decisions would be blinding as had been given in matters over which he had jurisdiction and that he had no jurisdiction to investigate into a claim by the mortgagor in respect of realisation by the mortgagee from the mortgaged properties in excess of his dues. We think that in this the High Court was in error. In taking the accounts the Claims Officer has to decide under S.16(2)(b) how much had been paid to the mortgagee of realised by him. It is, therefore, wrong to say that the Act did not give the Claims Officer jurisdiction to go into the question of the realisation by the mortgagee. It is true, as the High Court pointed out, that the Act does not expressly bar a suit by a mortgagor for redemption but that seems to be the practical and inevitable effect of it. This does not affect the rights of a mortgagor. He can establish before the Claims Officer that the mortgagee had realised out of the income of the mortgaged properties of which he was in possession more than what was legitimately due to him. If he succeeds in doing that, the Claims Officer will hold that nothing is payable to the mortgagee out of the compensation. He tray even indicate that the mortgagee has been overpaid to a certain extent. Whether in such a case the mortgagor can file a suit to recover from the mortgagee the amount paid in excess is not a question that arises in this appeal. Even if he could, that would not lead to the conclusion that in the present case the mortgage accounts can be taken under the redemption decree. We, therefore, express no opinion on that question. We think it right to point out that the Act has taken sufficient care to see that neither the mortgagor nor the mortgagee is in any way prejudiced in the proceedings concerning the investigation of the mortgagees claim. It has provided that the investigation would be by experienced judicial officers of high status and that the proceedings would be taken as if they were taken in a Civil Court.16. In the result, in our view, on the mortgage security having vested in the State of Bihar free from encumbrances under the Land Reforms Act the redemption decree passed by, the learned Subordinate Judge became infructuous. The decree could not stand any more; the accounts directed to be taken by it could no more be taken, nor the other directions contained in it carried out. In our view, the High Court was in error in confirming the decree. The decree could no longer be acted upon. The claim proceedings under the Act finally determined the state of the mortgage accounts. | 1[ds]11. We think that this appeal must be allowed. It is clear that a redemption decree can no more be given effect to after the notification issued under the Land Reforms Act, since thereafter the mortgaged tenures became vested in the State of Bihar free from all encumbrances. The tenures having vested in the State of Bihar, the mortgagee had no longer any interest in the tenures nor was he in possession of them. He could not carry out the decree by reconveying the tenures to the mortgagor or put him into possession. The mortgage as a security had ceased to exist, for the mortgaged properties vested in the State of Bihar under the Act free from all encumbrances. The mortgagor in his turn also ceased to be entitled to the mortgaged properties. He had hence no right to redeem them. Therefore, in our view, the decree for redemption which had been previously passed, becameare unable to accept this contention in view of the provisions of the Land Reforms Act to some of which we shall nowseems to us that they rendered that part of the decree also infructuous. In our view, the mortgage accounts cannot be taken under the decree for they have already been taken under the Act and the decision of the Claims; Officer on the state of the accounts is final under S.18(3). In view of S. 35, no suit can be brought concerning the decision of the Claims Officer. It is true that the suit in the present case had been brought before the Act and would not itself be affected by S. 35.But we should suppose that the Act will now prevent the account being taken under the decree so as to challenge the decision of the Claims Officer. If this were not so, the Officer taking the accounts under the decree has to accept the Claims Officers decision for that is final and the parties cannot challenge it. That being so, the result would be that the officer taking the accounts would have to make a report finding that the same amount which the Claims Officer found to be due, was due to the mortgagee. On this report a decree would follow and the appellant would become entitled to the amount found due to him under the decree. Now, he was already entitled to that amount under S. 32(1) of the Act. He would then have a right to be paid the same sum twice over in respect of the same mortgage right. We cannot conceive that such an anomalous position could have been intended by the Act. We, therefore, think that since the Act, the redemption decree cannot be given effect to.15. The High Court seems to have thought that the Officer taking the accounts under the redemption decree would not be bound by the decision of the Claims Officer. This view was, based on the reason that only such of the Claims Officers decisions would be blinding as had been given in matters over which he had jurisdiction and that he had no jurisdiction to investigate into a claim by the mortgagor in respect of realisation by the mortgagee from the mortgaged properties in excess of his dues. We think that in this the High Court was in error. In taking the accounts the Claims Officer has to decide under S.16(2)(b) how much had been paid to the mortgagee of realised by him. It is, therefore, wrong to say that the Act did not give the Claims Officer jurisdiction to go into the question of the realisation by the mortgagee. It is true, as the High Court pointed out, that the Act does not expressly bar a suit by a mortgagor for redemption but that seems to be the practical and inevitable effect of it. This does not affect the rights of a mortgagor. He can establish before the Claims Officer that the mortgagee had realised out of the income of the mortgaged properties of which he was in possession more than what was legitimately due to him. If he succeeds in doing that, the Claims Officer will hold that nothing is payable to the mortgagee out of the compensation. He tray even indicate that the mortgagee has been overpaid to a certain extent. Whether in such a case the mortgagor can file a suit to recover from the mortgagee the amount paid in excess is not a question that arises in this appeal. Even if he could, that would not lead to the conclusion that in the present case the mortgage accounts can be taken under the redemption decree. We, therefore, express no opinion on that question. We think it right to point out that the Act has taken sufficient care to see that neither the mortgagor nor the mortgagee is in any way prejudiced in the proceedings concerning the investigation of the mortgagees claim. It has provided that the investigation would be by experienced judicial officers of high status and that the proceedings would be taken as if they were taken in a Civil Court.16. In the result, in our view, on the mortgage security having vested in the State of Bihar free from encumbrances under the Land Reforms Act the redemption decree passed by, the learned Subordinate Judge became infructuous. The decree could not stand any more; the accounts directed to be taken by it could no more be taken, nor the other directions contained in it carried out. In our view, the High Court was in error in confirming the decree. The decree could no longer be acted upon. The claim proceedings under the Act finally determined the state of the mortgage accounts. | 1 | 3,159 | 1,036 | ### 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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the compensation shall first be payable to the creditor and then to the proprietor or tenure-holder, the amount of compensation payable to the creditor being the amount determined under Ch. 4. All compensation payable to the proprietor, tenure-holder or encumbrancer is required to be set out in the Compensation Assessment-roll. Section 35 of the Act states, "No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters." This section would make it impossible for the decision of the Claims Officer or the Board to be challenged in an ordinary civil proceeding Section 32, which is contained in Chapter 6 of the Act, provides that when the Compensation Assessment-roll has become final as prescribed in the Act, the Compensation Officer appointed under the Act proceed to make payment in the matter specified in it. We may also refer to S. 38 of the Act which states that the Claims Officer and the Compensation Officer shall have the powers of a Civil Court.14. What is the effect of these provisions on the redemption decree in so as it directed the mortgage accounts to be taken? It seems to us that they rendered that part of the decree also infructuous. In our view, the mortgage accounts cannot be taken under the decree for they have already been taken under the Act and the decision of the Claims; Officer on the state of the accounts is final under S.18(3). In view of S. 35, no suit can be brought concerning the decision of the Claims Officer. It is true that the suit in the present case had been brought before the Act and would not itself be affected by S. 35.But we should suppose that the Act will now prevent the account being taken under the decree so as to challenge the decision of the Claims Officer. If this were not so, the Officer taking the accounts under the decree has to accept the Claims Officers decision for that is final and the parties cannot challenge it. That being so, the result would be that the officer taking the accounts would have to make a report finding that the same amount which the Claims Officer found to be due, was due to the mortgagee. On this report a decree would follow and the appellant would become entitled to the amount found due to him under the decree. Now, he was already entitled to that amount under S. 32(1) of the Act. He would then have a right to be paid the same sum twice over in respect of the same mortgage right. We cannot conceive that such an anomalous position could have been intended by the Act. We, therefore, think that since the Act, the redemption decree cannot be given effect to.15. The High Court seems to have thought that the Officer taking the accounts under the redemption decree would not be bound by the decision of the Claims Officer. This view was, based on the reason that only such of the Claims Officers decisions would be blinding as had been given in matters over which he had jurisdiction and that he had no jurisdiction to investigate into a claim by the mortgagor in respect of realisation by the mortgagee from the mortgaged properties in excess of his dues. We think that in this the High Court was in error. In taking the accounts the Claims Officer has to decide under S.16(2)(b) how much had been paid to the mortgagee of realised by him. It is, therefore, wrong to say that the Act did not give the Claims Officer jurisdiction to go into the question of the realisation by the mortgagee. It is true, as the High Court pointed out, that the Act does not expressly bar a suit by a mortgagor for redemption but that seems to be the practical and inevitable effect of it. This does not affect the rights of a mortgagor. He can establish before the Claims Officer that the mortgagee had realised out of the income of the mortgaged properties of which he was in possession more than what was legitimately due to him. If he succeeds in doing that, the Claims Officer will hold that nothing is payable to the mortgagee out of the compensation. He tray even indicate that the mortgagee has been overpaid to a certain extent. Whether in such a case the mortgagor can file a suit to recover from the mortgagee the amount paid in excess is not a question that arises in this appeal. Even if he could, that would not lead to the conclusion that in the present case the mortgage accounts can be taken under the redemption decree. We, therefore, express no opinion on that question. We think it right to point out that the Act has taken sufficient care to see that neither the mortgagor nor the mortgagee is in any way prejudiced in the proceedings concerning the investigation of the mortgagees claim. It has provided that the investigation would be by experienced judicial officers of high status and that the proceedings would be taken as if they were taken in a Civil Court.16. In the result, in our view, on the mortgage security having vested in the State of Bihar free from encumbrances under the Land Reforms Act the redemption decree passed by, the learned Subordinate Judge became infructuous. The decree could not stand any more; the accounts directed to be taken by it could no more be taken, nor the other directions contained in it carried out. In our view, the High Court was in error in confirming the decree. The decree could no longer be acted upon. The claim proceedings under the Act finally determined the state of the mortgage accounts.
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11. We think that this appeal must be allowed. It is clear that a redemption decree can no more be given effect to after the notification issued under the Land Reforms Act, since thereafter the mortgaged tenures became vested in the State of Bihar free from all encumbrances. The tenures having vested in the State of Bihar, the mortgagee had no longer any interest in the tenures nor was he in possession of them. He could not carry out the decree by reconveying the tenures to the mortgagor or put him into possession. The mortgage as a security had ceased to exist, for the mortgaged properties vested in the State of Bihar under the Act free from all encumbrances. The mortgagor in his turn also ceased to be entitled to the mortgaged properties. He had hence no right to redeem them. Therefore, in our view, the decree for redemption which had been previously passed, becameare unable to accept this contention in view of the provisions of the Land Reforms Act to some of which we shall nowseems to us that they rendered that part of the decree also infructuous. In our view, the mortgage accounts cannot be taken under the decree for they have already been taken under the Act and the decision of the Claims; Officer on the state of the accounts is final under S.18(3). In view of S. 35, no suit can be brought concerning the decision of the Claims Officer. It is true that the suit in the present case had been brought before the Act and would not itself be affected by S. 35.But we should suppose that the Act will now prevent the account being taken under the decree so as to challenge the decision of the Claims Officer. If this were not so, the Officer taking the accounts under the decree has to accept the Claims Officers decision for that is final and the parties cannot challenge it. That being so, the result would be that the officer taking the accounts would have to make a report finding that the same amount which the Claims Officer found to be due, was due to the mortgagee. On this report a decree would follow and the appellant would become entitled to the amount found due to him under the decree. Now, he was already entitled to that amount under S. 32(1) of the Act. He would then have a right to be paid the same sum twice over in respect of the same mortgage right. We cannot conceive that such an anomalous position could have been intended by the Act. We, therefore, think that since the Act, the redemption decree cannot be given effect to.15. The High Court seems to have thought that the Officer taking the accounts under the redemption decree would not be bound by the decision of the Claims Officer. This view was, based on the reason that only such of the Claims Officers decisions would be blinding as had been given in matters over which he had jurisdiction and that he had no jurisdiction to investigate into a claim by the mortgagor in respect of realisation by the mortgagee from the mortgaged properties in excess of his dues. We think that in this the High Court was in error. In taking the accounts the Claims Officer has to decide under S.16(2)(b) how much had been paid to the mortgagee of realised by him. It is, therefore, wrong to say that the Act did not give the Claims Officer jurisdiction to go into the question of the realisation by the mortgagee. It is true, as the High Court pointed out, that the Act does not expressly bar a suit by a mortgagor for redemption but that seems to be the practical and inevitable effect of it. This does not affect the rights of a mortgagor. He can establish before the Claims Officer that the mortgagee had realised out of the income of the mortgaged properties of which he was in possession more than what was legitimately due to him. If he succeeds in doing that, the Claims Officer will hold that nothing is payable to the mortgagee out of the compensation. He tray even indicate that the mortgagee has been overpaid to a certain extent. Whether in such a case the mortgagor can file a suit to recover from the mortgagee the amount paid in excess is not a question that arises in this appeal. Even if he could, that would not lead to the conclusion that in the present case the mortgage accounts can be taken under the redemption decree. We, therefore, express no opinion on that question. We think it right to point out that the Act has taken sufficient care to see that neither the mortgagor nor the mortgagee is in any way prejudiced in the proceedings concerning the investigation of the mortgagees claim. It has provided that the investigation would be by experienced judicial officers of high status and that the proceedings would be taken as if they were taken in a Civil Court.16. In the result, in our view, on the mortgage security having vested in the State of Bihar free from encumbrances under the Land Reforms Act the redemption decree passed by, the learned Subordinate Judge became infructuous. The decree could not stand any more; the accounts directed to be taken by it could no more be taken, nor the other directions contained in it carried out. In our view, the High Court was in error in confirming the decree. The decree could no longer be acted upon. The claim proceedings under the Act finally determined the state of the mortgage accounts.
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Niranjan Shankar Golikari Vs. The Century Spinning And Mfg. Co. Ltd | necessary for the protection of the employers legitimate interests. 14. These decisions do not fall within the class of cases where the negative covenant operated during and for the period of employment as in Gaumont Corporations Case, 1936-2 All ER 1686 (Supra) and 1937-1 KB 209 (Supra) where the covenant was held not to be a restraint of trade or against public policy unless the agreement was wholly one-sided and therefore unconscionable as in 1927 WN 233 (Supra) or where the negative covenant was such that an injunction to enforce it would indirectly compel the employee either to idleness or to serve the employer, a thing which the court would not order as in 1898-1 Ch 671 (Supra). There is, however, the decision of a Single Judge of the Calcutta High Court in Gopal Paper Mills Ltd. v. Surendra K. Ganeshdas Malhotra, AIR 1962 Cal 61 , a case of breach of a negative covenant during the period of employment. This decision, in our view, was rightly distinguished by the High Court as the period of contract there was as much as 20 years and the contract gave the employer an arbitrary power to terminate the service without notice if the employer decided not to retain the employee during the three years of apprenticeship or thereafter if the employee failed to perform his duties to the satisfaction of the employer who had absolute discretion to decide whether the employee did so and the employers certificate that he did not, was to be conclusive as between the parties. Such a contract would clearly fall in the class of contracts held void as being one sided as in 1927 WN 233 (Supra). The decision in AIR 1962 Cal. 61 therefore cannot further the appellants case. 15. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract.Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided as in the case of W. H. Milsted and - Son Ltd., 1927 WN 233 (Supra). Both the Trial Court and the High Court have found, and in our view, rightly, that the negative covenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent company was reasonable and necessary for the protection of the companys interests and not such as the court would refuse to enforce. There is therefore no validity in the contention that the negative covenant contained in clause 17 amounted to a restraint of trade and therefore against public policy. 16. The next question is where the injunction in the terms in which it is framed should have been granted. There is no doubt that the courts have a wide discretion to enforce by injunction a negative covenant. Both the courts below have concurrently found that the apprehension of the respondent company that information regarding the special processes and the special machinery imparted to and acquired by the appellant during the period of training and thereafter might be divulged was justified: that the information and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have gained while in the service of the respondent company and that it was against his disclosing the former to the rival company which required protection. It was argued however that the terms of clause l7 were too wide and that the court cannot sever the good from the bad and issue an injunction to the extent that was good. But the rule against severance applies to cases where the covenant is bad in law and it is in such cases that the court is precluded from severing the good from the bad. But there is nothing to prevent the court from granting a limited injunction to the extent that is necessary to protect the employers interests where the negative stipulation is not void. There is also nothing to show that if the negative covenant is enforced the appellant would be driven to idleness or would be compelled to go back to the respondent company. It may be that if he is not permitted to get himself employed in another similar employment he might perhaps get a lesser remuneration than the one agreed to by Rajasthan Rayon. But that is no consideration against enforcing the covenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that no injunction should be granted against him to enforce the negative covenant which is not opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company. 17. As regards Clause 9 the injunction is to restrain him from divulging any and all information, Instruments, documents, reports, etc. which may have come to his knowledge while he was serving the respondent company. No serious objection was taken by Mr. Sen against this injunction and therefore we need say no more about it. | 0[ds]An employer, for instance, is not entitled to protect himself against competition on the part of an employee after the employment has ceased but a purchaser of a business is entitled to protect himself against competition per se on the part of the vendor. This principle is based on the footing that an employer has no legitimate interest in preventing an employee after he leaves his service from entering the service of a competitor merely on the ground that he is a competitorAn agreementof service contained both a positive covenant, viz., that the employee shall devote his whole-time attention to the service of the employers and also a negative, covenant preventing the employee from working elsewhere during the term of the agreementIt was also not a case of the employee possessing any special talent but that of a mere canvasser. This decision, however, cannot assist us as the negative covenant therein was to operate after the termination of the contractThis decision, in our view, was rightly distinguished by the High Court as the period of contract there was as much as 20 years and the contract gave the employer an arbitrary power to terminate the service without notice if the employer decided not to retain the employee during the three years of apprenticeship or thereafter if the employee failed to perform his duties to the satisfaction of the employer who had absolute discretion to decide whether the employee did so and the employers certificate that he did not, was to be conclusive as between the parties. Such a contract would clearly fall in the class of contracts held void as being one sided as in 1927 WN 233 (Supra). The decision in AIR 1962 Cal. 61 therefore cannot further the appellants case15. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract.Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided as in the case of W. H. Milsted and - Son Ltd., 1927 WN 233 (Supra). Both the Trial Court and the High Court have found, and in our view, rightly, that the negative covenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent company was reasonable and necessary for the protection of the companys interests and not such as the court would refuse to enforce. There is therefore no validity in the contention that the negative covenant contained in clause 17 amounted to a restraint of trade and therefore against public policyThere is no doubt that the courts have a wide discretion to enforce by injunction a negative covenant. Both the courts below have concurrently found that the apprehension of the respondent company that information regarding the special processes and the special machinery imparted to and acquired by the appellant during the period of training and thereafter might be divulged was justified: that the information and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have gained while in the service of the respondent company and that it was against his disclosing the former to the rival company which required protection. It was argued however that the terms of clause l7 were too wide and that the court cannot sever the good from the bad and issue an injunction to the extent that was good. But the rule against severance applies to cases where the covenant is bad in law and it is in such cases that the court is precluded from severing the good from the bad. But there is nothing to prevent the court from granting a limited injunction to the extent that is necessary to protect the employers interests where the negative stipulation is not void. There is also nothing to show that if the negative covenant is enforced the appellant would be driven to idleness or would be compelled to go back to the respondent company. It may be that if he is not permitted to get himself employed in another similar employment he might perhaps get a lesser remuneration than the one agreed to by Rajasthan Rayon. But that is no consideration against enforcing the covenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that no injunction should be granted against him to enforce the negative covenant which is not opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company17. As regards Clause 9 the injunction is to restrain him from divulging any and all information, Instruments, documents, reports, etc. which may have come to his knowledge while he was serving the respondent company. No serious objection was taken by Mr. Sen against this injunction and therefore we need say no more about it. | 0 | 6,107 | 1,032 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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necessary for the protection of the employers legitimate interests. 14. These decisions do not fall within the class of cases where the negative covenant operated during and for the period of employment as in Gaumont Corporations Case, 1936-2 All ER 1686 (Supra) and 1937-1 KB 209 (Supra) where the covenant was held not to be a restraint of trade or against public policy unless the agreement was wholly one-sided and therefore unconscionable as in 1927 WN 233 (Supra) or where the negative covenant was such that an injunction to enforce it would indirectly compel the employee either to idleness or to serve the employer, a thing which the court would not order as in 1898-1 Ch 671 (Supra). There is, however, the decision of a Single Judge of the Calcutta High Court in Gopal Paper Mills Ltd. v. Surendra K. Ganeshdas Malhotra, AIR 1962 Cal 61 , a case of breach of a negative covenant during the period of employment. This decision, in our view, was rightly distinguished by the High Court as the period of contract there was as much as 20 years and the contract gave the employer an arbitrary power to terminate the service without notice if the employer decided not to retain the employee during the three years of apprenticeship or thereafter if the employee failed to perform his duties to the satisfaction of the employer who had absolute discretion to decide whether the employee did so and the employers certificate that he did not, was to be conclusive as between the parties. Such a contract would clearly fall in the class of contracts held void as being one sided as in 1927 WN 233 (Supra). The decision in AIR 1962 Cal. 61 therefore cannot further the appellants case. 15. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract.Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided as in the case of W. H. Milsted and - Son Ltd., 1927 WN 233 (Supra). Both the Trial Court and the High Court have found, and in our view, rightly, that the negative covenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent company was reasonable and necessary for the protection of the companys interests and not such as the court would refuse to enforce. There is therefore no validity in the contention that the negative covenant contained in clause 17 amounted to a restraint of trade and therefore against public policy. 16. The next question is where the injunction in the terms in which it is framed should have been granted. There is no doubt that the courts have a wide discretion to enforce by injunction a negative covenant. Both the courts below have concurrently found that the apprehension of the respondent company that information regarding the special processes and the special machinery imparted to and acquired by the appellant during the period of training and thereafter might be divulged was justified: that the information and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have gained while in the service of the respondent company and that it was against his disclosing the former to the rival company which required protection. It was argued however that the terms of clause l7 were too wide and that the court cannot sever the good from the bad and issue an injunction to the extent that was good. But the rule against severance applies to cases where the covenant is bad in law and it is in such cases that the court is precluded from severing the good from the bad. But there is nothing to prevent the court from granting a limited injunction to the extent that is necessary to protect the employers interests where the negative stipulation is not void. There is also nothing to show that if the negative covenant is enforced the appellant would be driven to idleness or would be compelled to go back to the respondent company. It may be that if he is not permitted to get himself employed in another similar employment he might perhaps get a lesser remuneration than the one agreed to by Rajasthan Rayon. But that is no consideration against enforcing the covenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that no injunction should be granted against him to enforce the negative covenant which is not opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company. 17. As regards Clause 9 the injunction is to restrain him from divulging any and all information, Instruments, documents, reports, etc. which may have come to his knowledge while he was serving the respondent company. No serious objection was taken by Mr. Sen against this injunction and therefore we need say no more about it.
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### Explanation:
An employer, for instance, is not entitled to protect himself against competition on the part of an employee after the employment has ceased but a purchaser of a business is entitled to protect himself against competition per se on the part of the vendor. This principle is based on the footing that an employer has no legitimate interest in preventing an employee after he leaves his service from entering the service of a competitor merely on the ground that he is a competitorAn agreementof service contained both a positive covenant, viz., that the employee shall devote his whole-time attention to the service of the employers and also a negative, covenant preventing the employee from working elsewhere during the term of the agreementIt was also not a case of the employee possessing any special talent but that of a mere canvasser. This decision, however, cannot assist us as the negative covenant therein was to operate after the termination of the contractThis decision, in our view, was rightly distinguished by the High Court as the period of contract there was as much as 20 years and the contract gave the employer an arbitrary power to terminate the service without notice if the employer decided not to retain the employee during the three years of apprenticeship or thereafter if the employee failed to perform his duties to the satisfaction of the employer who had absolute discretion to decide whether the employee did so and the employers certificate that he did not, was to be conclusive as between the parties. Such a contract would clearly fall in the class of contracts held void as being one sided as in 1927 WN 233 (Supra). The decision in AIR 1962 Cal. 61 therefore cannot further the appellants case15. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract.Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one-sided as in the case of W. H. Milsted and - Son Ltd., 1927 WN 233 (Supra). Both the Trial Court and the High Court have found, and in our view, rightly, that the negative covenant in the present case restricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent company was reasonable and necessary for the protection of the companys interests and not such as the court would refuse to enforce. There is therefore no validity in the contention that the negative covenant contained in clause 17 amounted to a restraint of trade and therefore against public policyThere is no doubt that the courts have a wide discretion to enforce by injunction a negative covenant. Both the courts below have concurrently found that the apprehension of the respondent company that information regarding the special processes and the special machinery imparted to and acquired by the appellant during the period of training and thereafter might be divulged was justified: that the information and knowledge disclosed to him during this period was different from the general knowledge and experience that he might have gained while in the service of the respondent company and that it was against his disclosing the former to the rival company which required protection. It was argued however that the terms of clause l7 were too wide and that the court cannot sever the good from the bad and issue an injunction to the extent that was good. But the rule against severance applies to cases where the covenant is bad in law and it is in such cases that the court is precluded from severing the good from the bad. But there is nothing to prevent the court from granting a limited injunction to the extent that is necessary to protect the employers interests where the negative stipulation is not void. There is also nothing to show that if the negative covenant is enforced the appellant would be driven to idleness or would be compelled to go back to the respondent company. It may be that if he is not permitted to get himself employed in another similar employment he might perhaps get a lesser remuneration than the one agreed to by Rajasthan Rayon. But that is no consideration against enforcing the covenant. The evidence is clear that the appellant has torn the agreement to pieces only because he was offered a higher remuneration. Obviously he cannot be heard to say that no injunction should be granted against him to enforce the negative covenant which is not opposed to public policy. The injunction issued against him is restricted as to time, the nature of employment and as to area and cannot therefore be said to be too wide or unreasonable or unnecessary for the protection of the interests of the respondent company17. As regards Clause 9 the injunction is to restrain him from divulging any and all information, Instruments, documents, reports, etc. which may have come to his knowledge while he was serving the respondent company. No serious objection was taken by Mr. Sen against this injunction and therefore we need say no more about it.
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Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel | the complaint of an offence, of which he is authorised to take cognizance. This irrefutably is at the pre-cognizance stage and thus logically before the issuance of process to the accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other accused persons. 47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. 48. The un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone. 49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court. | 0[ds]47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court. | 0 | 11,411 | 769 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the complaint of an offence, of which he is authorised to take cognizance. This irrefutably is at the pre-cognizance stage and thus logically before the issuance of process to the accused and his attendance in response thereto. As adverted to hereinabove, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not made an accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accoutre a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other accused persons. 47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. 48. The un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone. 49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court.
### Response:
0
### Explanation:
47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court.
|
Gurbux Singh Vs. Bhooralal | that we consider that a plea of a bar under O. 2 R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C. S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2 R. 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the sage of the appeal the learned District Judge noticed this lacuna in the appellants case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under O. 2 R. 2, Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read:"The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two court have, however, freely cited for the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court."8. It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleading in the earlier suit part of the record in the present suit. We’re unable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit.9. Learned Counsel for the appellant, however, urged that in his plaint in the present suit the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profit. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words mesne profits therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming.10. | 0[ds]We do not consider it necessary to examine this conflict of judicial opinion in this case as, in our opinion, the learned District Judge was right in holding that the appellant had not placed before the Court material for the purpose of founding a plea of O. 2 R. 2, Civil Procedureunable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the presentare unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words mesne profits therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming. | 0 | 2,771 | 721 | ### 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:
that we consider that a plea of a bar under O. 2 R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C. S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2 R. 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the sage of the appeal the learned District Judge noticed this lacuna in the appellants case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under O. 2 R. 2, Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read:"The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two court have, however, freely cited for the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court."8. It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleading in the earlier suit part of the record in the present suit. We’re unable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit.9. Learned Counsel for the appellant, however, urged that in his plaint in the present suit the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profit. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words mesne profits therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming.10.
### Response:
0
### Explanation:
We do not consider it necessary to examine this conflict of judicial opinion in this case as, in our opinion, the learned District Judge was right in holding that the appellant had not placed before the Court material for the purpose of founding a plea of O. 2 R. 2, Civil Procedureunable to agree with this interpretation of these observations. The statement of the learned Judge "The two court have, however, freely cited from the record of the earlier suit" is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under O. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under O. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under O. 41 R. 27, Civil Procedure code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the presentare unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ,mesne profits is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression mesne profits; is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsels argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under O. 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words mesne profits therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression mesne profits has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order or remand which we are affirming.
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The State of Bihar & Ors Vs. Rajmati Devi & Anr | the aforesaid Society were taken into government service vide order dated 25.03.2014 w.e.f. 02.03.2009. A corrigendum came to be issued by the State of Bihar amending the employment order dated 25.03.2014 substituting the word appointed with the word absorbed. Clause 6 was inserted by the corrigendum stating that prior to date of acquisition, the service would not be calculated as government service. That respondent No. 1 filed the writ petition before the High Court praying for family pension and other retiral benefits. By judgment and order dated 02.09.2015, the learned Single Judge allowed the said writ petition and directed the State to pay the family pension to respondent No. 1 from the date of her husbands death i.e., 23.03.2013. 2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge allowing the family pension, the State preferred the Letters Patent Appeal before the Division Bench of the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge, which has given rise to the present appeals. 3. Learned counsel appearing on behalf of the appellant has vehemently submitted that pension and family pension was available to the employees of the State Government who were governed by the Old Pension Rules. It is submitted that when the husband of respondent No. 1 was absorbed in the year 2014 w.e.f. 02.03.2009, the Old Pension Rules were abolished and the New Contributory Pension Scheme was replaced. It is submitted that therefore, the Old Pension Rules were not applicable to the husband of respondent No. 1 and therefore, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules. 3.1 It is submitted that the Old Pension Rules were abolished on 01.09.2005 and thereafter, the New Pension Scheme came into force, therefore, New Pension Scheme was applicable to all the employees of the State Government, who were appointed/absorbed on or after 01.09.2005. 3.2 It is submitted that a corrigendum dated 22.06.2015 was also issued by the Government making it abundantly clear that the term of Government service will be calculated only from the cut-off date i.e., 02.03.2009 and the services of the adjusted employees, prior to date of acquisition in Bihar Research Society shall not be calculated as a government service. It is submitted that in that view of the matter, the High Court has committed a grave error in allowing the family pension applying the Old Pension Rules, 1950. 3.3 Making the above submissions, it is prayed to allow the present appeals. 4. The present appeals are vehemently opposed by Ms. Rachitta Rai, learned counsel appearing on behalf of respondent No. 1. It is vehemently submitted that the husband of respondent No. 1 was absorbed in the State Government service w.e.f. 02.03.2009 by way of adjustment vide Section 5 of the Act, 2007. It is submitted that it was not a fresh appointment and therefore, his services were to be treated as continuous. 4.1 It is submitted that the husband of respondent No. 1 died in harness and while in service and therefore, as per clause 7(1) to the family pension scheme, on the death of her husband who died while in service, respondent No. 1 was entitled to the family pension and the family pension scheme being beneficial scheme, both, the learned Single Judge as well as the Division Bench of the High Court have rightly held that respondent No. 1 is entitled to the benefit of the family pension scheme. 5. We have heard learned counsel appearing on behalf of both the parties at length. 6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working. The Old Pension Rules, 1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f. 01.09.2005. Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered by the concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only. Therefore, the husband of respondent No. 1 was governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005. The aforesaid aspect has not been considered by the High Court at all and the learned Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009. | 1[ds]6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working. The Old Pension Rules, 1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f. 01.09.2005. Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered by the concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only. Therefore, the husband of respondent No. 1 was governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005. The aforesaid aspect has not been considered by the High Court at all and the learned Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009. | 1 | 1,418 | 440 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the aforesaid Society were taken into government service vide order dated 25.03.2014 w.e.f. 02.03.2009. A corrigendum came to be issued by the State of Bihar amending the employment order dated 25.03.2014 substituting the word appointed with the word absorbed. Clause 6 was inserted by the corrigendum stating that prior to date of acquisition, the service would not be calculated as government service. That respondent No. 1 filed the writ petition before the High Court praying for family pension and other retiral benefits. By judgment and order dated 02.09.2015, the learned Single Judge allowed the said writ petition and directed the State to pay the family pension to respondent No. 1 from the date of her husbands death i.e., 23.03.2013. 2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge allowing the family pension, the State preferred the Letters Patent Appeal before the Division Bench of the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge, which has given rise to the present appeals. 3. Learned counsel appearing on behalf of the appellant has vehemently submitted that pension and family pension was available to the employees of the State Government who were governed by the Old Pension Rules. It is submitted that when the husband of respondent No. 1 was absorbed in the year 2014 w.e.f. 02.03.2009, the Old Pension Rules were abolished and the New Contributory Pension Scheme was replaced. It is submitted that therefore, the Old Pension Rules were not applicable to the husband of respondent No. 1 and therefore, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules. 3.1 It is submitted that the Old Pension Rules were abolished on 01.09.2005 and thereafter, the New Pension Scheme came into force, therefore, New Pension Scheme was applicable to all the employees of the State Government, who were appointed/absorbed on or after 01.09.2005. 3.2 It is submitted that a corrigendum dated 22.06.2015 was also issued by the Government making it abundantly clear that the term of Government service will be calculated only from the cut-off date i.e., 02.03.2009 and the services of the adjusted employees, prior to date of acquisition in Bihar Research Society shall not be calculated as a government service. It is submitted that in that view of the matter, the High Court has committed a grave error in allowing the family pension applying the Old Pension Rules, 1950. 3.3 Making the above submissions, it is prayed to allow the present appeals. 4. The present appeals are vehemently opposed by Ms. Rachitta Rai, learned counsel appearing on behalf of respondent No. 1. It is vehemently submitted that the husband of respondent No. 1 was absorbed in the State Government service w.e.f. 02.03.2009 by way of adjustment vide Section 5 of the Act, 2007. It is submitted that it was not a fresh appointment and therefore, his services were to be treated as continuous. 4.1 It is submitted that the husband of respondent No. 1 died in harness and while in service and therefore, as per clause 7(1) to the family pension scheme, on the death of her husband who died while in service, respondent No. 1 was entitled to the family pension and the family pension scheme being beneficial scheme, both, the learned Single Judge as well as the Division Bench of the High Court have rightly held that respondent No. 1 is entitled to the benefit of the family pension scheme. 5. We have heard learned counsel appearing on behalf of both the parties at length. 6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working. The Old Pension Rules, 1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f. 01.09.2005. Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered by the concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only. Therefore, the husband of respondent No. 1 was governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005. The aforesaid aspect has not been considered by the High Court at all and the learned Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009.
### Response:
1
### Explanation:
6. At the outset, it is required to be noted that the husband of respondent No. 1 came to be absorbed in the government service in the year 2014 w.e.f. 02.03.2009. Till 02.03.2009, he remained the employee of the Bihar Research Society, of which he was an employee and working. The Old Pension Rules, 1950 came to be abolished and the New Contributory Pension Scheme came to be introduced w.e.f. 01.09.2005. Under the New Contributory Pension Scheme, there is no provision for pension/family pension. As per the Scheme, all those who are appointed after 31.08.2005 shall be governed by the New Contributory Pension Scheme. Therefore, at the time when the husband of respondent No. 1, who died in the year 2013, was absorbed, the Old Pension Rules were abolished and the New Contributory Pension Scheme was in existence. As per the corrigendum issued in the appointment order and as per clause 6, the prior service rendered by the concerned employee prior to his absorption shall not be treated as a government service. Therefore, the husband of respondent No. 1 can be said to be a government servant and in government service w.e.f. 02.03.2009 only. Therefore, the husband of respondent No. 1 was governed by the New Contributory Pension Scheme under which there is no provision for the pension/family pension. Therefore, the High Court has committed a grave error in directing the appellant to pay the family pension to respondent No. 1 applying the Old Pension Rules, which were appliable prior to 31.08.2005. The aforesaid aspect has not been considered by the High Court at all and the learned Single Judge simply considered that on the death of the husband of respondent No. 1, who died in harness while in service, respondent No. 1 is entitled to the family pension under family pension scheme. However, the High Court has not at all considered that on coming into force the New Contributory Pension Scheme, no government employee appointed after 31.08.2005 shall be entitled to any other benefit except under the New Contributory Pension Scheme. In that view of the matter, respondent No. 1 shall not be entitled to the family pension under the Old Pension Rules, which were not appliable at the time when the husband of respondent No. 1 came to be absorbed in the government service w.e.f. 02.03.2009.
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DHARMENDRA SINGH YADAV AND OTHERS Vs. STATE OF U.P. AND OTHERS | 1. The appellants before this Court are police personnel in different ranks, who had moved the High Court claiming out of turn promotions in accordance with the government policy circulated by Office Memorandum No.665/VI- Police-1-24/93 dated 3rd February, 1994 . The said office memorandum visualised out of turn promotions to police personnel who had to their credit acts of exemplary courage and valour while on duty. According to the appellants, while their cases were recommended and were pending for finalization, on 7th June, 2014, another office memorandum bearing No.901/6 Police/1/14-500(8)/14 was issued terminating with immediate effect the arrangement made by the office memorandum dated 3rd February, 1994 and clarifying that henceforth the police personnel, for their courageous acts and deeds, will be awarded only cash prize(s). 2. Before the High Court, two principal prayers were made. The first was with regard to the validity of the Office Memorandum No.901/6 Police/1/14-500(8)/14 dated 7th June, 2014 and the second was for a direction to consider the cases of the writ petitioners for out of turn promotion. The learned Single Judge of the High Court hearing the matter without going into the validity of the office memorandum dated 7 th June, 2014, took the view that all cases of out of turn promotions where the courageous acts or acts of bravery were prior to 7th June, 2014, had to be finalized in the light of the office memorandum dated 3rd February, 1994. The Division Bench overturned the verdict rendered by the learned Single Judge by holding that as the practice of out of turn promotions had been expressely terminated by the subsequent office memorandum dated 7th June, 2014, the learned Single Judge had fallen into error in issuing the directions as noticed above. 3. Before us, Shri Jitendra Mohan Sharma, Ms. Vibha Datta Makhija, learned senior counsel and other learned counsels appearing for the appellants, have vehemently contended that the office memorandum dated 7 th June, 2014 cannot have any retrospective effect and must be applied prospectively. The cases of the appellants, therefore, should have to be considered in terms of the office memorandum dated 3rd Feburary, 1994. It has been further urged that the appellants have a right of fair consideration of their cases for out of turn promotion which needs to be enforced as has been done by the learned Single Judge of the High Court. 4. We have considered the matter. 5. While admitting the appeal by order dated 4th April, 2016, the Bench relied on a decision of this Court in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others, (2011) 11 SCC 82. At the same time, the Bench thought it appropriate to refer the matter to a larger Bench as according to the learned Judges, the provisions of Section 24 of the General Clauses Act were overlooked while rendering the decision in Mohammad Aftab Mir vs. State of Jammu & Kashmir (supra) . 6. We have considered the provisions of Section 24 of the General Clauses Act and we are of the opinion that in view of the express contents of the office memorandum dated 7th June, 2014, by which the earlier office memorandum dated 3rd February, 1994 was negatived and cancelled and a new policy was laid to be followed for future cases, it is not necessary for this Bench to deal with Section 24 of the General Clauses Act. The decision rendered in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others (supra) turns on its own facts . The circular of 1990 on which the claim for out of turn promotion was based was continued and was in addition to a subsequent circular of 2000 (para 16). 7. The question(s) referred to lies within a short compass. The appellants do not have any vested right under any law in force for out of turn/accelerated promotions. The facility of out of turn promotion is a matter of policy which the government had thought proper to promulgate in the year 1994. This was subsequently withdrawan in 2014 by the office memorandum dated 7th June, 2014, wherein it is expressely recorded that the earlier office memorandum dated 3rd February, 1994 is determined and terminated. It is further recorded in the office memorandum dated 7th June, 2014 that henceforth all the acts of bravery etc. will be awarded with cash prize only. If the appellants do not have any vested legal right for consideration which is governed by the government policy and such policy has been altered with no trace of continuance of the old policy to pending cases, we do not see how the order of the Division Bench reversing the order of the learned Single Judge can be faulted with. The policy in terms of which the cases of the appellants have to be considered, itself, is not in force and a new policy has come into effect. We do not see how on the plea of retrospective operation of the policy, any right of the appellants can be recognized to any consideration of their cases for out of turn promotion under the superseded policy. | 0[ds]5. While admitting the appeal by order dated 4th April, 2016, the Bench relied on a decision of this Court in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others, (2011) 11 SCC 82. At the same time, the Bench thought it appropriate to refer the matter to a larger Bench as according to the learned Judges, the provisions of Section 24 of the General Clauses Act were overlooked while rendering the decision in Mohammad Aftab Mir vs. State of Jammu & Kashmir (supra) .6. We have considered the provisions of Section 24 of the General Clauses Act and we are of the opinion that in view of the express contents of the office memorandum dated 7th June, 2014, by which the earlier office memorandum dated 3rd February, 1994 was negatived and cancelled and a new policy was laid to be followed for future cases, it is not necessary for this Bench to deal with Section 24 of the General Clauses Act. The decision rendered in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others (supra) turns on its own facts . The circular of 1990 on which the claim for out of turn promotion was based was continued and was in addition to a subsequent circular of 2000 (para 16).7. The question(s) referred to lies within a short compass. The appellants do not have any vested right under any law in force for out of turn/accelerated promotions. The facility of out of turn promotion is a matter of policy which the government had thought proper to promulgate in the year 1994. This was subsequently withdrawan in 2014 by the office memorandum dated 7th June, 2014, wherein it is expressely recorded that the earlier office memorandum dated 3rd February, 1994 is determined and terminated. It is further recorded in the office memorandum dated 7th June, 2014 that henceforth all the acts of bravery etc. will be awarded with cash prize only. If the appellants do not have any vested legal right for consideration which is governed by the government policy and such policy has been altered with no trace of continuance of the old policy to pending cases, we do not see how the order of the Division Bench reversing the order of the learned Single Judge can be faulted with. The policy in terms of which the cases of the appellants have to be considered, itself, is not in force and a new policy has come into effect. We do not see how on the plea of retrospective operation of the policy, any right of the appellants can be recognized to any consideration of their cases for out of turn promotion under the superseded policy. | 0 | 948 | 497 | ### 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:
1. The appellants before this Court are police personnel in different ranks, who had moved the High Court claiming out of turn promotions in accordance with the government policy circulated by Office Memorandum No.665/VI- Police-1-24/93 dated 3rd February, 1994 . The said office memorandum visualised out of turn promotions to police personnel who had to their credit acts of exemplary courage and valour while on duty. According to the appellants, while their cases were recommended and were pending for finalization, on 7th June, 2014, another office memorandum bearing No.901/6 Police/1/14-500(8)/14 was issued terminating with immediate effect the arrangement made by the office memorandum dated 3rd February, 1994 and clarifying that henceforth the police personnel, for their courageous acts and deeds, will be awarded only cash prize(s). 2. Before the High Court, two principal prayers were made. The first was with regard to the validity of the Office Memorandum No.901/6 Police/1/14-500(8)/14 dated 7th June, 2014 and the second was for a direction to consider the cases of the writ petitioners for out of turn promotion. The learned Single Judge of the High Court hearing the matter without going into the validity of the office memorandum dated 7 th June, 2014, took the view that all cases of out of turn promotions where the courageous acts or acts of bravery were prior to 7th June, 2014, had to be finalized in the light of the office memorandum dated 3rd February, 1994. The Division Bench overturned the verdict rendered by the learned Single Judge by holding that as the practice of out of turn promotions had been expressely terminated by the subsequent office memorandum dated 7th June, 2014, the learned Single Judge had fallen into error in issuing the directions as noticed above. 3. Before us, Shri Jitendra Mohan Sharma, Ms. Vibha Datta Makhija, learned senior counsel and other learned counsels appearing for the appellants, have vehemently contended that the office memorandum dated 7 th June, 2014 cannot have any retrospective effect and must be applied prospectively. The cases of the appellants, therefore, should have to be considered in terms of the office memorandum dated 3rd Feburary, 1994. It has been further urged that the appellants have a right of fair consideration of their cases for out of turn promotion which needs to be enforced as has been done by the learned Single Judge of the High Court. 4. We have considered the matter. 5. While admitting the appeal by order dated 4th April, 2016, the Bench relied on a decision of this Court in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others, (2011) 11 SCC 82. At the same time, the Bench thought it appropriate to refer the matter to a larger Bench as according to the learned Judges, the provisions of Section 24 of the General Clauses Act were overlooked while rendering the decision in Mohammad Aftab Mir vs. State of Jammu & Kashmir (supra) . 6. We have considered the provisions of Section 24 of the General Clauses Act and we are of the opinion that in view of the express contents of the office memorandum dated 7th June, 2014, by which the earlier office memorandum dated 3rd February, 1994 was negatived and cancelled and a new policy was laid to be followed for future cases, it is not necessary for this Bench to deal with Section 24 of the General Clauses Act. The decision rendered in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others (supra) turns on its own facts . The circular of 1990 on which the claim for out of turn promotion was based was continued and was in addition to a subsequent circular of 2000 (para 16). 7. The question(s) referred to lies within a short compass. The appellants do not have any vested right under any law in force for out of turn/accelerated promotions. The facility of out of turn promotion is a matter of policy which the government had thought proper to promulgate in the year 1994. This was subsequently withdrawan in 2014 by the office memorandum dated 7th June, 2014, wherein it is expressely recorded that the earlier office memorandum dated 3rd February, 1994 is determined and terminated. It is further recorded in the office memorandum dated 7th June, 2014 that henceforth all the acts of bravery etc. will be awarded with cash prize only. If the appellants do not have any vested legal right for consideration which is governed by the government policy and such policy has been altered with no trace of continuance of the old policy to pending cases, we do not see how the order of the Division Bench reversing the order of the learned Single Judge can be faulted with. The policy in terms of which the cases of the appellants have to be considered, itself, is not in force and a new policy has come into effect. We do not see how on the plea of retrospective operation of the policy, any right of the appellants can be recognized to any consideration of their cases for out of turn promotion under the superseded policy.
### Response:
0
### Explanation:
5. While admitting the appeal by order dated 4th April, 2016, the Bench relied on a decision of this Court in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others, (2011) 11 SCC 82. At the same time, the Bench thought it appropriate to refer the matter to a larger Bench as according to the learned Judges, the provisions of Section 24 of the General Clauses Act were overlooked while rendering the decision in Mohammad Aftab Mir vs. State of Jammu & Kashmir (supra) .6. We have considered the provisions of Section 24 of the General Clauses Act and we are of the opinion that in view of the express contents of the office memorandum dated 7th June, 2014, by which the earlier office memorandum dated 3rd February, 1994 was negatived and cancelled and a new policy was laid to be followed for future cases, it is not necessary for this Bench to deal with Section 24 of the General Clauses Act. The decision rendered in Mohammad Aftab Mir vs. State of Jammu & Kashmir and Others (supra) turns on its own facts . The circular of 1990 on which the claim for out of turn promotion was based was continued and was in addition to a subsequent circular of 2000 (para 16).7. The question(s) referred to lies within a short compass. The appellants do not have any vested right under any law in force for out of turn/accelerated promotions. The facility of out of turn promotion is a matter of policy which the government had thought proper to promulgate in the year 1994. This was subsequently withdrawan in 2014 by the office memorandum dated 7th June, 2014, wherein it is expressely recorded that the earlier office memorandum dated 3rd February, 1994 is determined and terminated. It is further recorded in the office memorandum dated 7th June, 2014 that henceforth all the acts of bravery etc. will be awarded with cash prize only. If the appellants do not have any vested legal right for consideration which is governed by the government policy and such policy has been altered with no trace of continuance of the old policy to pending cases, we do not see how the order of the Division Bench reversing the order of the learned Single Judge can be faulted with. The policy in terms of which the cases of the appellants have to be considered, itself, is not in force and a new policy has come into effect. We do not see how on the plea of retrospective operation of the policy, any right of the appellants can be recognized to any consideration of their cases for out of turn promotion under the superseded policy.
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UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD | decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1 | 19,123 | 3,844 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
|
K.M.S. Reddy, Commissioner of Income Tax, Kerala , Ernakulam Vs. The West Coast Chemicals and Industries Ltd. , Alleppy | refer to a few more cases, which were cited before us. In J. & R. OKane & Co. v. The Commissioners of Inland Revenue ([1922] 12 T.C. 303), the appellants carried on business as wine and spirit merchants. They then wished to retire from the business and sent a circular letter to their customers. During the year, they sold their *bole stock to diverse customers.-, and the question was whether they were still carrying on their trade during that period, and whether the profits were thus made in the ordinary course of trade. It was held by the Kings Bench Division of the High Court of Justice in Ireland that the sales were not in the ordinary course of trade but were part of the realisation of the trading stock and winding up of the business, and thus not liable to tax. The Court of Appeal in Ireland unanimously reversed the decision of the High Court. Ronan, L. J., pointed out that though the taxpayer had retired from business and had decided not to purchase any more stock, he was still carrying on the business of trading in wines and spirits till his existing stocks were exhausted, and, therefore, the excess obtained by him represented profit. On appeal to the House of Lords, it was held that there was evidence on which the Commissioners could arrive at their finding that trading was, in fact, being carried on. Lord Buckmaster, speaking Of the facts in that case, observed as follows : "For in truth it is quite plain that right up to the en of 1917 they were engaged in trading which, so far as the external world is concerned, was the ordinary method of carrying on trade modified only by arrangements which were merely part of the machinery of business dealing adopted to effect their intention to retire. It may well be accepted that they did so intend ; yet the intention of a man cannot be considered as determining what it is that his acts amount to; and the real thing that has to be decided here is what were the acts that were done in connection with this business and whether they amount to a trading which would cause the profits that accrued to be profits arising from a trade or business The case was, therefore, decided on the finding of the special Commissioners, for which there was enough material in evidence. Similarly, the case of The Commissioner of Inland Revenue v. "Old Bashmills" Distillery Co., Ltd. (in Liquidation) ((1926) 12 T.C. 1148) was one decided on a finding, in support of which there was evidence. The two cases relied upon by the Department and the assessee Company respectively do not shed any light upon the problem before us because the central decision in both of them was whether the Commissioners finding was justified or not.In J. and M. Craig (Kilmarnock), Ltd. v. Cowperthwaite((1914) 13 T.C. 627), the question was how the opening .stock should have been valued, And whether any profit could be said to have resulted. The Privy Council in Doughtys case ((1927) A.C. 327) remarked about this case as follows: "There, on a transference from one company to another, one-third of the value of each item, other than stock in trade, as it stood in the books of the selling company, was treated as its value for transfer purpose, and the balance of a slump price, which, with an under taking to discharge liabilities, formed the consideration, was inferentially attributable to the stock. It was held, however, in that case that no sum could be pitched upon as the actual price of the stock, and no claim to assess a profit could be based upon such a foundation."7. This case shows that where a slump price is paid and no portion is attributable to the stock-iii-trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter however, is not that an extra amount has been gained by the selling out or the exchange but whether it- can fairly be said that there was a trading from which alone profits can arise in business. If this test is applied to the present case, then the true answer would be the one given by the High Court in the judgment under appeal.8. There is no doubt, in this case, that the assessee Company was wound up at least in so far as its match manufacture was concerned. That the business of the Company was sold as a going concern, and was, in fact, worked by the assessee Company on behalf of the buyer till the entire consideration was paid, makes no difference, because the agreement clearly indicated that the, assessee Company was keeping the factory going, not on its own behalf but entirely on behalf of the buyer. One cannot fairly say, therefore, that a sale of the chemicals and raw materials for match manufacture was anything more than a winding up sale, not with a view to trading in chemicals and raw material but to close down the business and to realise the assets. There was, in fact, no identifiable price for the chemicals and raw materials except by comparing the two prices offered to be paid by the buyer, that is to say, the price without the chemicals and raw materials and the price with them. From that alone, however, it is impossible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee Company was carrying on a trading busi- ness. The fact that the clause in the Memorandum gave power to the Company to Bell chemicals cannot be used in this connection, because the evidence clearly shows that that clause was never used and the two sales of chemicals through the years were too petty in themselves to afford evidence of a continued or sustained trading In chemicals. | 0[ds]This distinction, in our opinion, is a sound one. The only difficulty is in deciding whether a particular case belongs to one category or the other. In this, much support cannot be derived from observations made by learned Judges pertaining to the facts of a case, but they do guide one in a true appraisement of the case incase shows that where a slump price is paid and no portion is attributable to the stock-iii-trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter however, is not that an extra amount has been gained by the selling out or the exchange but whether it- can fairly be said that there was a trading from which alone profits can arise in business. If this test is applied to the present case, then the true answer would be the one given by the High Court in the judgment underis no doubt, in this case, that the assessee Company was wound up at least in so far as its match manufacture was concerned. That the business of the Company was sold as a going concern, and was, in fact, worked by the assessee Company on behalf of the buyer till the entire consideration was paid, makes no difference, because the agreement clearly indicated that the, assessee Company was keeping the factory going, not on its own behalf but entirely on behalf of the buyer. One cannot fairly say, therefore, that a sale of the chemicals and raw materials for match manufacture was anything more than a winding up sale, not with a view to trading in chemicals and raw material but to close down the business and to realise the assets. There was, in fact, no identifiable price for the chemicals and raw materials except by comparing the two prices offered to be paid by the buyer, that is to say, the price without the chemicals and raw materials and the price with them. From that alone, however, it is impossible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee Company was carrying on a trading busi- ness. The fact that the clause in the Memorandum gave power to the Company to Bell chemicals cannot be used in this connection, because the evidence clearly shows that that clause was never used and the two sales of chemicals through the years were too petty in themselves to afford evidence of a continued or sustained trading In chemicals. | 0 | 3,954 | 474 | ### 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:
refer to a few more cases, which were cited before us. In J. & R. OKane & Co. v. The Commissioners of Inland Revenue ([1922] 12 T.C. 303), the appellants carried on business as wine and spirit merchants. They then wished to retire from the business and sent a circular letter to their customers. During the year, they sold their *bole stock to diverse customers.-, and the question was whether they were still carrying on their trade during that period, and whether the profits were thus made in the ordinary course of trade. It was held by the Kings Bench Division of the High Court of Justice in Ireland that the sales were not in the ordinary course of trade but were part of the realisation of the trading stock and winding up of the business, and thus not liable to tax. The Court of Appeal in Ireland unanimously reversed the decision of the High Court. Ronan, L. J., pointed out that though the taxpayer had retired from business and had decided not to purchase any more stock, he was still carrying on the business of trading in wines and spirits till his existing stocks were exhausted, and, therefore, the excess obtained by him represented profit. On appeal to the House of Lords, it was held that there was evidence on which the Commissioners could arrive at their finding that trading was, in fact, being carried on. Lord Buckmaster, speaking Of the facts in that case, observed as follows : "For in truth it is quite plain that right up to the en of 1917 they were engaged in trading which, so far as the external world is concerned, was the ordinary method of carrying on trade modified only by arrangements which were merely part of the machinery of business dealing adopted to effect their intention to retire. It may well be accepted that they did so intend ; yet the intention of a man cannot be considered as determining what it is that his acts amount to; and the real thing that has to be decided here is what were the acts that were done in connection with this business and whether they amount to a trading which would cause the profits that accrued to be profits arising from a trade or business The case was, therefore, decided on the finding of the special Commissioners, for which there was enough material in evidence. Similarly, the case of The Commissioner of Inland Revenue v. "Old Bashmills" Distillery Co., Ltd. (in Liquidation) ((1926) 12 T.C. 1148) was one decided on a finding, in support of which there was evidence. The two cases relied upon by the Department and the assessee Company respectively do not shed any light upon the problem before us because the central decision in both of them was whether the Commissioners finding was justified or not.In J. and M. Craig (Kilmarnock), Ltd. v. Cowperthwaite((1914) 13 T.C. 627), the question was how the opening .stock should have been valued, And whether any profit could be said to have resulted. The Privy Council in Doughtys case ((1927) A.C. 327) remarked about this case as follows: "There, on a transference from one company to another, one-third of the value of each item, other than stock in trade, as it stood in the books of the selling company, was treated as its value for transfer purpose, and the balance of a slump price, which, with an under taking to discharge liabilities, formed the consideration, was inferentially attributable to the stock. It was held, however, in that case that no sum could be pitched upon as the actual price of the stock, and no claim to assess a profit could be based upon such a foundation."7. This case shows that where a slump price is paid and no portion is attributable to the stock-iii-trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter however, is not that an extra amount has been gained by the selling out or the exchange but whether it- can fairly be said that there was a trading from which alone profits can arise in business. If this test is applied to the present case, then the true answer would be the one given by the High Court in the judgment under appeal.8. There is no doubt, in this case, that the assessee Company was wound up at least in so far as its match manufacture was concerned. That the business of the Company was sold as a going concern, and was, in fact, worked by the assessee Company on behalf of the buyer till the entire consideration was paid, makes no difference, because the agreement clearly indicated that the, assessee Company was keeping the factory going, not on its own behalf but entirely on behalf of the buyer. One cannot fairly say, therefore, that a sale of the chemicals and raw materials for match manufacture was anything more than a winding up sale, not with a view to trading in chemicals and raw material but to close down the business and to realise the assets. There was, in fact, no identifiable price for the chemicals and raw materials except by comparing the two prices offered to be paid by the buyer, that is to say, the price without the chemicals and raw materials and the price with them. From that alone, however, it is impossible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee Company was carrying on a trading busi- ness. The fact that the clause in the Memorandum gave power to the Company to Bell chemicals cannot be used in this connection, because the evidence clearly shows that that clause was never used and the two sales of chemicals through the years were too petty in themselves to afford evidence of a continued or sustained trading In chemicals.
### Response:
0
### Explanation:
This distinction, in our opinion, is a sound one. The only difficulty is in deciding whether a particular case belongs to one category or the other. In this, much support cannot be derived from observations made by learned Judges pertaining to the facts of a case, but they do guide one in a true appraisement of the case incase shows that where a slump price is paid and no portion is attributable to the stock-iii-trade, it may not be possible to hold that there is a profit other than what results from the appreciation of capital. The essence of the matter however, is not that an extra amount has been gained by the selling out or the exchange but whether it- can fairly be said that there was a trading from which alone profits can arise in business. If this test is applied to the present case, then the true answer would be the one given by the High Court in the judgment underis no doubt, in this case, that the assessee Company was wound up at least in so far as its match manufacture was concerned. That the business of the Company was sold as a going concern, and was, in fact, worked by the assessee Company on behalf of the buyer till the entire consideration was paid, makes no difference, because the agreement clearly indicated that the, assessee Company was keeping the factory going, not on its own behalf but entirely on behalf of the buyer. One cannot fairly say, therefore, that a sale of the chemicals and raw materials for match manufacture was anything more than a winding up sale, not with a view to trading in chemicals and raw material but to close down the business and to realise the assets. There was, in fact, no identifiable price for the chemicals and raw materials except by comparing the two prices offered to be paid by the buyer, that is to say, the price without the chemicals and raw materials and the price with them. From that alone, however, it is impossible to infer that the chemicals and raw materials were sold in the ordinary way of business or that the assessee Company was carrying on a trading busi- ness. The fact that the clause in the Memorandum gave power to the Company to Bell chemicals cannot be used in this connection, because the evidence clearly shows that that clause was never used and the two sales of chemicals through the years were too petty in themselves to afford evidence of a continued or sustained trading In chemicals.
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Shama Prashant Raje Vs. Ganpatrao | respect of the orders of an inferior Tribunal are well settled by a catena of decisions of this Court. Since the conclusion of the appellate authority in the case in hand was based on misconstruction of certain documents and on misreading of relevant materials by a cryptic order without even noticing the detailed reasons given by the Controller, the learned Single Judge of the High Court was fully justified in interfering with the conclusions of the appellate authority, and as such, there is no error so far as the orders of the High Court are concerned. According to Mr. Mohta, a bare reading of the judgment of the learned Single Judge would indicate the apparent errors found by the High Court with the appellate order of the District Collector, and therefore, the High Court was well within its jurisdiction in interfering with the same. 3. In view of the rival submissions we have carefully scrutinised the orders of the Controller, that of the appellate authority under the Control Order and the order of the learned Single Judge which has been affirmed by the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal. Then again the two questions on which the Tribunal under the Rent Control Order was required to give finding, namely, habitual defaulter and sub-letting are not pure questions of fact but can be held to be mixed questions of fact and law. In this view of the matter, on going through the appellate order passed by the District Collector as well as the order of the learned Single Judge, we are not in a position to hold that the High Court exceeded the parameters prescribed for interference with the findings of an inferior Tribunal. Under Clause 13(3)(ii) the Controller has to be satisfied that the tenant is habitually in arrears with the rent. The expression "habitually" would obviously connote some act of continuity. Under the lease deed dated 8-4-1982 between the landlord and the tenant clause 4 made it obligatory for the tenant to pay the rent before 10th day of each English calendar month, and under clause 9, in the event of arrears of rent over 3 months is not paid then the landlord was entitled to give notice and then if the matter is not settled within one month from the date of the notice then the landlord is entitled to terminate the tenancy. Reading the aforesaid two clauses it would not be correct, as contended by Mr. Verma, learned Senior Counsel appearing for the appellant that under the agreement itself 4 months period has been provided to enable the tenant to pay the rent. If a tenant, notwithstanding the obligation of paying the rent by the 10th day of each English calendar month continuously makes a default of paying the rent for the first month by two months thereafter, and pays the rent in similar manner, then he must be held to be habitually in arrears with the rent in question. This being the position, the fact that the rent for September to November 1984 was paid in December only after the distress warrant was issued and that again from December 1984 to March 1985 the rent had not been paid and was deposited within the 10th of next month, as stipulated in the lease agreement, would constitute the tenant to be habitually in arrears within the meaning of Clause 13(3)(ii) of the Control Order. The appellate authority under the Control Order was obviously in error in interfering with the well-reasoned conclusion of the Controller on this score, and the High Court was fully justified in correcting the said error by interfering with the finding of the lower appellate authority on the question of applicability of Clause 13(3)(ii) to the case in hand. Similarly, on the question of sub-letting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and some consideration therefor, had to be established. The conclusion of the lower appellate authority on this score was obviously on a misconstruction of the document Exhibit N-2 and the High Court, therefore, was entitled to correct the error which was based upon a construction of the aforesaid document. The different clauses of the lease deed unequivocally indicate that the sum of Rs. 1500 p.m. was the consideration money for parting with the possession of the premises and allowing Singer Sewing Machine Company to do business in the premisesIn the aforesaid premises, we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated. In the premises, as aforesaid, | 0[ds]we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated. | 0 | 2,341 | 81 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
respect of the orders of an inferior Tribunal are well settled by a catena of decisions of this Court. Since the conclusion of the appellate authority in the case in hand was based on misconstruction of certain documents and on misreading of relevant materials by a cryptic order without even noticing the detailed reasons given by the Controller, the learned Single Judge of the High Court was fully justified in interfering with the conclusions of the appellate authority, and as such, there is no error so far as the orders of the High Court are concerned. According to Mr. Mohta, a bare reading of the judgment of the learned Single Judge would indicate the apparent errors found by the High Court with the appellate order of the District Collector, and therefore, the High Court was well within its jurisdiction in interfering with the same. 3. In view of the rival submissions we have carefully scrutinised the orders of the Controller, that of the appellate authority under the Control Order and the order of the learned Single Judge which has been affirmed by the Division Bench. Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same, on a mere perusal of the order of an inferior tribunal if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior tribunal or the inferior tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal. Then again the two questions on which the Tribunal under the Rent Control Order was required to give finding, namely, habitual defaulter and sub-letting are not pure questions of fact but can be held to be mixed questions of fact and law. In this view of the matter, on going through the appellate order passed by the District Collector as well as the order of the learned Single Judge, we are not in a position to hold that the High Court exceeded the parameters prescribed for interference with the findings of an inferior Tribunal. Under Clause 13(3)(ii) the Controller has to be satisfied that the tenant is habitually in arrears with the rent. The expression "habitually" would obviously connote some act of continuity. Under the lease deed dated 8-4-1982 between the landlord and the tenant clause 4 made it obligatory for the tenant to pay the rent before 10th day of each English calendar month, and under clause 9, in the event of arrears of rent over 3 months is not paid then the landlord was entitled to give notice and then if the matter is not settled within one month from the date of the notice then the landlord is entitled to terminate the tenancy. Reading the aforesaid two clauses it would not be correct, as contended by Mr. Verma, learned Senior Counsel appearing for the appellant that under the agreement itself 4 months period has been provided to enable the tenant to pay the rent. If a tenant, notwithstanding the obligation of paying the rent by the 10th day of each English calendar month continuously makes a default of paying the rent for the first month by two months thereafter, and pays the rent in similar manner, then he must be held to be habitually in arrears with the rent in question. This being the position, the fact that the rent for September to November 1984 was paid in December only after the distress warrant was issued and that again from December 1984 to March 1985 the rent had not been paid and was deposited within the 10th of next month, as stipulated in the lease agreement, would constitute the tenant to be habitually in arrears within the meaning of Clause 13(3)(ii) of the Control Order. The appellate authority under the Control Order was obviously in error in interfering with the well-reasoned conclusion of the Controller on this score, and the High Court was fully justified in correcting the said error by interfering with the finding of the lower appellate authority on the question of applicability of Clause 13(3)(ii) to the case in hand. Similarly, on the question of sub-letting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and some consideration therefor, had to be established. The conclusion of the lower appellate authority on this score was obviously on a misconstruction of the document Exhibit N-2 and the High Court, therefore, was entitled to correct the error which was based upon a construction of the aforesaid document. The different clauses of the lease deed unequivocally indicate that the sum of Rs. 1500 p.m. was the consideration money for parting with the possession of the premises and allowing Singer Sewing Machine Company to do business in the premisesIn the aforesaid premises, we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated. In the premises, as aforesaid,
### Response:
0
### Explanation:
we are unable to accept the contention of Mr. Verma, learned Senior Counsel appearing for the appellant that the High Court committed error in interfering with the finding of the appellate authority under the Control Order by way of reappreciating the evidence. In our considered opinion, the High Court was fully justified in interfering with the conclusion of the appellate authority and correcting the error of the said authority, as already stated.
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Mst. Dhanpatti Vs. Devi Prasad and Others | HEDGE, J.1. In this appeal by special leave the only question that falls for decision is whether the High Court was right in its conclusion that the appellant is precluded from contesting the claim of the plaintiffs on the grounds that she had earlier made an election by which she is bound.2. The suit from which this appeal arises is for partition. The facts found and undisputed at present are - that the suit house belonged to one Gokul. Her died several years back. Maharji, his wife, inherited his properties but she merely has widows estate therein. On May 1, 1934, she gifted the house inherited by her from her husband to her two daughters, Dhanpatti (the appellant herein) and Sursati, the month of the plaintiffs. The gift deed recited that the donees will enjoy the properties bequeathed to them absolutely. Sursati died on February 19, 1969. Her mother Maharji lived up to 1953. After the death of Maharji the plaintiffs brought the present suit for partition of the suit house. The appellant resisted that claim on the ground that she being the nearest heir to her mother, Maharji, is exclusively entitled to the suit house. Her contention was accepted by the Trial Court as well as by the first appellate Court but in second appeal, a single Judge of the High Court of Allahabad reversed that decision on the ground that the appellant is precluded from claiming exclusive ownership of the house in view of the election made by her while accepting the gift made by her mother. The question for decision is whether this conclusion is sustainable in law.3. The plaintiffs did not base their claim on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed executed by Maharji. No issue as regards election or estoppel was framed nor any contention in that regard urged either in the Trial Court or in the first appellate Court. The contention based on the doctrine of election appears to have been raised for the first time in the High Court. In our opinion the High Court erroneously entertained that contention.4. So far as election is concerned, the law pertaining the same is set out is Section 35(1) of the Transfer of Property Act. That section reads :"Where a person professes to transfer property which he has no right to transfer, and as part of the same transition confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of subject nevertheless .....Where the transfer is gratuitous, and the transferor has before the election died or otherwise become incapable of making a fresh transfer, ..... and in all cases where the transfer is for consideration, .....to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him."5. Before there can be an election there must be (1) a transfer of a property by a person who has no right to transfer; (2) as a part of the same transaction, he must confer some benefit on the owner of the property and (3) such owner must elect either to confirm such transfer or to dissent from it. On the date Maharji made the gift, she was the owner of the property though she had only a limited estate in that property. It is true that she purported to convey an interest larger than she possessed in that property but then on that date the appellant was not the owner of the property. Therefore when Maharji conferred some benefit on the appellant and her sister under the gift deed, she was conferring some benefit on persons who had no title to the property on that date. At that time they had at best an expectancy. Therefore there was no question of any election. That apart, there is nothing to show that the appellant agreed to an absolute gift in favour of her sister Sursati. From the fact that she knew about the gift, no inference that she concerned to the same cad be drawn. Further as mentioned earlier, there was no pleading as regards election, no issue raised, no evidence led and no arguments advanced either in the Trial Court or in the first appellate Court. Therefore, there was absolutely no basis for the finding reached by the High Court that the appellant had elected to accept half the suit property absolutely in lieu of her right to succeed to the estate as the heir of Gokul on the death of her mother. The decision of this Court in Sahu Madho Das and Others v. Pandit Mukand Ram and Another, ((1955) 2 SCR 22 ) on which the High Court has placed reliance in support of its conclusion is of no assistance in this case. Therein on the basis of the pleadings, the evidence oral and documentary and the circumstances of the case, the Court came to the conclusion that the arrangement entered into was a family arrangement. No such case is either pleaded or proved in this case. | 1[ds]3. The plaintiffs did not base their claim on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed executed by Maharji.No issue as regards election or estoppel was framed nor any contention in that regard urged either in the Trial Court or in the first appellate Court. The contention based on the doctrine of election appears to have been raised for the first time in the High Court. In our opinion the High Court erroneously entertained that contention.Before there can be an election there must be (1) a transfer of a property by a person who has no right to transfer; (2) as a part of the same transaction, he must confer some benefit on the owner of the property and (3) such owner must elect either to confirm such transfer or to dissent from it. On the date Maharji made the gift, she was the owner of the property though she had only a limited estate in that property. It is true that she purported to convey an interest larger than she possessed in that property but then on that date the appellant was not the owner of the property. Therefore when Maharji conferred some benefit on the appellant and her sister under the gift deed, she was conferring some benefit on persons who had no title to the property on that date. At that time they had at best an expectancy. Therefore there was no question of any election. That apart, there is nothing to show that the appellant agreed to an absolute gift in favour of her sister Sursati. From the fact that she knew about the gift, no inference that she concerned to the same cad be drawn. Further as mentioned earlier, there was no pleading as regards election, no issue raised, no evidence led and no arguments advanced either in the Trial Court or in the first appellate Court. Therefore, there was absolutely no basis for the finding reached by the High Court that the appellant had elected to accept half the suit property absolutely in lieu of her right to succeed to the estate as the heir of Gokul on the death of her mother. The decision of this Court in Sahu Madho Das and Others v. Pandit Mukand Ram and Another, ((1955) 2 SCR 22 ) on which the High Court has placed reliance in support of its conclusion is of no assistance in this case. Therein on the basis of the pleadings, the evidence oral and documentary and the circumstances of the case, the Court came to the conclusion that the arrangement entered into was a family arrangement. No such case is either pleaded or proved in this case. | 1 | 977 | 502 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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HEDGE, J.1. In this appeal by special leave the only question that falls for decision is whether the High Court was right in its conclusion that the appellant is precluded from contesting the claim of the plaintiffs on the grounds that she had earlier made an election by which she is bound.2. The suit from which this appeal arises is for partition. The facts found and undisputed at present are - that the suit house belonged to one Gokul. Her died several years back. Maharji, his wife, inherited his properties but she merely has widows estate therein. On May 1, 1934, she gifted the house inherited by her from her husband to her two daughters, Dhanpatti (the appellant herein) and Sursati, the month of the plaintiffs. The gift deed recited that the donees will enjoy the properties bequeathed to them absolutely. Sursati died on February 19, 1969. Her mother Maharji lived up to 1953. After the death of Maharji the plaintiffs brought the present suit for partition of the suit house. The appellant resisted that claim on the ground that she being the nearest heir to her mother, Maharji, is exclusively entitled to the suit house. Her contention was accepted by the Trial Court as well as by the first appellate Court but in second appeal, a single Judge of the High Court of Allahabad reversed that decision on the ground that the appellant is precluded from claiming exclusive ownership of the house in view of the election made by her while accepting the gift made by her mother. The question for decision is whether this conclusion is sustainable in law.3. The plaintiffs did not base their claim on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed executed by Maharji. No issue as regards election or estoppel was framed nor any contention in that regard urged either in the Trial Court or in the first appellate Court. The contention based on the doctrine of election appears to have been raised for the first time in the High Court. In our opinion the High Court erroneously entertained that contention.4. So far as election is concerned, the law pertaining the same is set out is Section 35(1) of the Transfer of Property Act. That section reads :"Where a person professes to transfer property which he has no right to transfer, and as part of the same transition confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of subject nevertheless .....Where the transfer is gratuitous, and the transferor has before the election died or otherwise become incapable of making a fresh transfer, ..... and in all cases where the transfer is for consideration, .....to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him."5. Before there can be an election there must be (1) a transfer of a property by a person who has no right to transfer; (2) as a part of the same transaction, he must confer some benefit on the owner of the property and (3) such owner must elect either to confirm such transfer or to dissent from it. On the date Maharji made the gift, she was the owner of the property though she had only a limited estate in that property. It is true that she purported to convey an interest larger than she possessed in that property but then on that date the appellant was not the owner of the property. Therefore when Maharji conferred some benefit on the appellant and her sister under the gift deed, she was conferring some benefit on persons who had no title to the property on that date. At that time they had at best an expectancy. Therefore there was no question of any election. That apart, there is nothing to show that the appellant agreed to an absolute gift in favour of her sister Sursati. From the fact that she knew about the gift, no inference that she concerned to the same cad be drawn. Further as mentioned earlier, there was no pleading as regards election, no issue raised, no evidence led and no arguments advanced either in the Trial Court or in the first appellate Court. Therefore, there was absolutely no basis for the finding reached by the High Court that the appellant had elected to accept half the suit property absolutely in lieu of her right to succeed to the estate as the heir of Gokul on the death of her mother. The decision of this Court in Sahu Madho Das and Others v. Pandit Mukand Ram and Another, ((1955) 2 SCR 22 ) on which the High Court has placed reliance in support of its conclusion is of no assistance in this case. Therein on the basis of the pleadings, the evidence oral and documentary and the circumstances of the case, the Court came to the conclusion that the arrangement entered into was a family arrangement. No such case is either pleaded or proved in this case.
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3. The plaintiffs did not base their claim on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed executed by Maharji.No issue as regards election or estoppel was framed nor any contention in that regard urged either in the Trial Court or in the first appellate Court. The contention based on the doctrine of election appears to have been raised for the first time in the High Court. In our opinion the High Court erroneously entertained that contention.Before there can be an election there must be (1) a transfer of a property by a person who has no right to transfer; (2) as a part of the same transaction, he must confer some benefit on the owner of the property and (3) such owner must elect either to confirm such transfer or to dissent from it. On the date Maharji made the gift, she was the owner of the property though she had only a limited estate in that property. It is true that she purported to convey an interest larger than she possessed in that property but then on that date the appellant was not the owner of the property. Therefore when Maharji conferred some benefit on the appellant and her sister under the gift deed, she was conferring some benefit on persons who had no title to the property on that date. At that time they had at best an expectancy. Therefore there was no question of any election. That apart, there is nothing to show that the appellant agreed to an absolute gift in favour of her sister Sursati. From the fact that she knew about the gift, no inference that she concerned to the same cad be drawn. Further as mentioned earlier, there was no pleading as regards election, no issue raised, no evidence led and no arguments advanced either in the Trial Court or in the first appellate Court. Therefore, there was absolutely no basis for the finding reached by the High Court that the appellant had elected to accept half the suit property absolutely in lieu of her right to succeed to the estate as the heir of Gokul on the death of her mother. The decision of this Court in Sahu Madho Das and Others v. Pandit Mukand Ram and Another, ((1955) 2 SCR 22 ) on which the High Court has placed reliance in support of its conclusion is of no assistance in this case. Therein on the basis of the pleadings, the evidence oral and documentary and the circumstances of the case, the Court came to the conclusion that the arrangement entered into was a family arrangement. No such case is either pleaded or proved in this case.
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Mithoolal Nayak Vs. Life Insurance Corporation Of India | unable to accept this argument as correct. It is indeed true that Mahajan Deolal was examined by as many as four doctors. It is also true that the respondent company had before it the conflicting reports of Dr. Desai and it specially asked Dr. Kapadia to examine Mahajan Deolal in view of the reports submitted by Dr. Desai. Yet, it must be pointed out that the respondent company had no means of knowing that Mahajan Deolal had been treated for the serious ailment of secondary anaemia followed by dilatation of heart, etc., in September-October, 1943 by Dr. Lakshmanan. Nor can it be said that if the respondent company had knowledge of those facts, they would not have made any difference. The principle underlying the Explanation to S. 19 of the Contract Act is that a false representation, whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other partys consent. A man who has so acted cannot afterwards turn round and say : "It could have made no difference if you had known the truth."In our opinion, no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S. 19 of the Indian Contract Act.10. Our finding on the first question makes it unnecessary for us to decide the second question, namely, whether the present appellant merely gambled on the life of Mahajan Deolal when he took the assignment on October 18, 1945. The contention of the respondent company was that the appellant had no insurable interest in the life of Mahajan Deolal and when he took the assignment of the policy on October 18, 1945 he was merely indulging in a gamble on Mahajan Deolals life; the contract was, therefore, void by reason of S. 30 of the Indian Contract Act. On behalf of the appellant, however, the contention was that S. 38 of the Insurance Act provided a complete code for assignment and transfer of insurance policies and the assignment made in favour of the appellant by Mahajan Deolal was a valid assignment in accordance with the provisions of S. 38 aforesaid. The High Court, it appears, proceeded on the footing that from the very inception the policy was taken for the benefit of the appellant on the basis of a gamble on the life of Mahajan Deolal; it said that the appellant and his brother, Dr. Motilal Nayak, knew very well that Mahajan Deolal was not likely to live very long and when the policy was taken out in 1944, it was really for the benefit of the present appellant, who soon after took an assignment on payment of the premium already paid by Mahajan Deolal and such arrears of premium as were then outstanding. It is unnecessary for us to give our decision on these contentions; because if Mahajan Deolal was himself guilty of a fraudulent suppression of material facts on which the respondent company was discharged from performing its part of the contract, the appellant who holds an assignment of the policy cannot stand on a better footing than Mahajan Deolal himself. It was argued before us that if the policy was valid in its inception, that is to say, if it was in fact effected for the use and benefit of Mahajan Deolal, who undoubtedly had an insurable interest in his own life, it could not afterwards be invalidated by assignment to a person who had no interest but who merely took it as a speculation. Our attention was drawn to several decisions on this question, American and English, noticed in para. 502 of MacGillivray on Insurance Law (Fourth Edition). We consider it unnecessary to examine those decisions or to go into the question posed therein. That question must be left to be determined in a case where it properly arises. As we have stated earlier, on our conclusion on the first question, the appellant is clearly out of Court and cannot claim the benefit if a contract which had been entered into as a result of a fraudulent suppression of material facts by Mahajan Deolal.11. This brings us to the last question, namely, whether the appellant is entitled to a refund of the money he had paid to the respondent company. Here again one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application. | 0[ds]We think that they were. We are unable to agree with the learned trial Judge that the ailments for which Mahajan Deolal was treated by Dr. Lakshmanan in September-October, 1943 were trivial or casual ailments. Nor do we think that Mahajan Deolal was likely to forget in July, 1944 that he had been treated by Dr. Lakshmanan for certain serious ailments only a few months before that date. This brings us to a consideration of the evidence of Dr. Lakshmanan. That evidence is clear and unequivocal. Dr. Lakshmanan says that Dr. Motilal Nayak brought the patient to him at Jabalpur. We have already referred to the fact that Dr. Motilal Nayak had himself made a false statement in his friends report dated July 17, 1944, when he said that he had never heard that the insured had suffered from any illness. It is impossible to believe that Dr. Motilal Nayak would not remember that he had himself taken the insured to Jabalpur for treatment by Dr. Lakshmanan who was an experienced consulting physician. Dr. Lakshmanan said that when he first examined Mahajan Deolal on September 7, 1943 he found that his condition was serious as a result of the impoverished condition of his blood, and that Mahajan Deolal was suffering from anaemia, oedema of the feet, diarrhoea and panting on exertion. The doctor asked for an examination of the blood. The pathological report supported the diagnosis that Mahajan Deolal was suffering from secondary anaemia meaning thereby that anaemia was due to lack of iron and malnutrition. Dr. Lakshmanan further found that from the symptoms disclosed the disease was a major one. Mahajan Deolal had also cardiac asthma which was a symptom of anaemia and due to dilatation of heart. Dr. Lakshmanan saw the patient again on September 9, 1943, and then again on September 16, 1943. On October 6, 1943, Mahajan Deolal himself went to Dr. Lakshmanan. On that date Dr. Lakshmanan found that anaemia had very greatly disappeared. In cross-examination Dr. Lakshmanan admitted that the anaemia, dilatation of heart and cardiac asthma from which Mahajan Deolal was suffering constituted a passing phase which might disappear by treatment. He further admitted that he did not mention cardiac asthma in his letter addressed to the respondent company. We have given our very earnest consideration to the evidence of Dr. Lakshmanan and we are unable to hold that the ailments from which Mahajan Deolal was then suffering were either trivial or casual in nature. The ailments were serious though amenable to treatment. Mahajan Deolals son gave evidence in the case and he said in his evidence that though Dr. Lakshmanan prescribed some medicine, his father did not take it. He further said that his father was a strict vegetarian. This evidence was given by the son with regard to what the doctor had said that he prescribed fresh liver juice made at home according to his directions three times a day. He also prescribed iron sulphate in tablet form with plenty of water. The son further said that during his stay at Jabalpur his father felt weakness, though he used to move about freely and was never confined to bed. The son tried to make it appear in his evidence that his father was suffering from nothing serious. Dr. Lakshmanan said in his evidence that his fees for visiting a patient at Jabalpur were Rs. 16 per visit. We agree with the High Court that if Mahajan Deolal was not suffering from any serious ailment, he would not have been taken by his physician, Dr. Motilal Nayak, from his village to Jabalpur nor would he have consulted Dr. Lakshmanan, a consulting physician of repute, for so many days on payment of Rs.16 per visit. No doubt, Mahajan Deolals son now tries to make light of the illness of his father, but Dr. Lakshmanans evidence shows clearly enough that in September-October, 1943 Mahajan Deolal was suffering from a serious type of anaemia for which he was treated by Dr. Lakshmanan. Mahajan Deolal could not have forgotten in July, 1944 that he was so treated only a few months earlier and furthermore, Mahajan Deolal must have known that it was material to disclose this fact to the respondent company. In his answers to the questions put to him he not only failed to disclose what it was material for him to disclose, but he made a false statement to the effect that he had not been treated by any doctor for any such serious ailment as anaemia or shortness of breath or asthma. In other words, there was a deliberate suppression fraudulently made by Mahajan Deolal. Fraud, according to S. 17 ofthe Indian Contract Act, 1872 (IX of 1872), means and includes inter alia any of the following acts committed by a party to a contract with intent to deceive another party or to induce him to enter into a contract-(1) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; and(2) the active concealment of a fact by one having knowledge or belief of the fact. Judged by the standard laid down in S. 17, Mahajan Deolal was clearly guilty of a fraudulent suppression of material facts when he made his statements on July 16, 1944, statements which he must have known were deliberately false. Therefore, we are in agreement with the High Court in answering the first question against theis indeed true that Mahajan Deolal was examined by as many as four doctors. It is also true that the respondent company had before it the conflicting reports of Dr. Desai and it specially asked Dr. Kapadia to examine Mahajan Deolal in view of the reports submitted by Dr. Desai. Yet, it must be pointed out that the respondent company had no means of knowing that Mahajan Deolal had been treated for the serious ailment of secondary anaemia followed by dilatation of heart, etc., in September-October, 1943 by Dr. Lakshmanan. Nor can it be said that if the respondent company had knowledge of those facts, they would not have made any difference. The principle underlying the Explanation to S. 19 of the Contract Act is that a false representation, whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other partys consent. A man who has so acted cannot afterwards turn round and say : "It could have made no difference if you had known the truth."In our opinion, no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S. 19 of the Indian ContractHigh Court, it appears, proceeded on the footing that from the very inception the policy was taken for the benefit of the appellant on the basis of a gamble on the life of Mahajan Deolal; it said that the appellant and his brother, Dr. Motilal Nayak, knew very well that Mahajan Deolal was not likely to live very long and when the policy was taken out in 1944, it was really for the benefit of the present appellant, who soon after took an assignment on payment of the premium already paid by Mahajan Deolal and such arrears of premium as were then outstanding. It is unnecessary for us to give our decision on these contentions; because if Mahajan Deolal was himself guilty of a fraudulent suppression of material facts on which the respondent company was discharged from performing its part of the contract, the appellant who holds an assignment of the policy cannot stand on a better footing than Mahajan Deolal himself. It was argued before us that if the policy was valid in its inception, that is to say, if it was in fact effected for the use and benefit of Mahajan Deolal, who undoubtedly had an insurable interest in his own life, it could not afterwards be invalidated by assignment to a person who had no interest but who merely took it as a speculation. Our attention was drawn to several decisions on this question, American and English, noticed in para. 502 of MacGillivray on Insurance Law (Fourth Edition). We consider it unnecessary to examine those decisions or to go into the question posed therein. That question must be left to be determined in a case where it properly arises. As we have stated earlier, on our conclusion on the first question, the appellant is clearly out of Court and cannot claim the benefit if a contract which had been entered into as a result of a fraudulent suppression of material facts by Mahajanagain one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application. | 0 | 5,918 | 1,866 | ### 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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unable to accept this argument as correct. It is indeed true that Mahajan Deolal was examined by as many as four doctors. It is also true that the respondent company had before it the conflicting reports of Dr. Desai and it specially asked Dr. Kapadia to examine Mahajan Deolal in view of the reports submitted by Dr. Desai. Yet, it must be pointed out that the respondent company had no means of knowing that Mahajan Deolal had been treated for the serious ailment of secondary anaemia followed by dilatation of heart, etc., in September-October, 1943 by Dr. Lakshmanan. Nor can it be said that if the respondent company had knowledge of those facts, they would not have made any difference. The principle underlying the Explanation to S. 19 of the Contract Act is that a false representation, whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other partys consent. A man who has so acted cannot afterwards turn round and say : "It could have made no difference if you had known the truth."In our opinion, no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S. 19 of the Indian Contract Act.10. Our finding on the first question makes it unnecessary for us to decide the second question, namely, whether the present appellant merely gambled on the life of Mahajan Deolal when he took the assignment on October 18, 1945. The contention of the respondent company was that the appellant had no insurable interest in the life of Mahajan Deolal and when he took the assignment of the policy on October 18, 1945 he was merely indulging in a gamble on Mahajan Deolals life; the contract was, therefore, void by reason of S. 30 of the Indian Contract Act. On behalf of the appellant, however, the contention was that S. 38 of the Insurance Act provided a complete code for assignment and transfer of insurance policies and the assignment made in favour of the appellant by Mahajan Deolal was a valid assignment in accordance with the provisions of S. 38 aforesaid. The High Court, it appears, proceeded on the footing that from the very inception the policy was taken for the benefit of the appellant on the basis of a gamble on the life of Mahajan Deolal; it said that the appellant and his brother, Dr. Motilal Nayak, knew very well that Mahajan Deolal was not likely to live very long and when the policy was taken out in 1944, it was really for the benefit of the present appellant, who soon after took an assignment on payment of the premium already paid by Mahajan Deolal and such arrears of premium as were then outstanding. It is unnecessary for us to give our decision on these contentions; because if Mahajan Deolal was himself guilty of a fraudulent suppression of material facts on which the respondent company was discharged from performing its part of the contract, the appellant who holds an assignment of the policy cannot stand on a better footing than Mahajan Deolal himself. It was argued before us that if the policy was valid in its inception, that is to say, if it was in fact effected for the use and benefit of Mahajan Deolal, who undoubtedly had an insurable interest in his own life, it could not afterwards be invalidated by assignment to a person who had no interest but who merely took it as a speculation. Our attention was drawn to several decisions on this question, American and English, noticed in para. 502 of MacGillivray on Insurance Law (Fourth Edition). We consider it unnecessary to examine those decisions or to go into the question posed therein. That question must be left to be determined in a case where it properly arises. As we have stated earlier, on our conclusion on the first question, the appellant is clearly out of Court and cannot claim the benefit if a contract which had been entered into as a result of a fraudulent suppression of material facts by Mahajan Deolal.11. This brings us to the last question, namely, whether the appellant is entitled to a refund of the money he had paid to the respondent company. Here again one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application.
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what it was material for him to disclose, but he made a false statement to the effect that he had not been treated by any doctor for any such serious ailment as anaemia or shortness of breath or asthma. In other words, there was a deliberate suppression fraudulently made by Mahajan Deolal. Fraud, according to S. 17 ofthe Indian Contract Act, 1872 (IX of 1872), means and includes inter alia any of the following acts committed by a party to a contract with intent to deceive another party or to induce him to enter into a contract-(1) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true; and(2) the active concealment of a fact by one having knowledge or belief of the fact. Judged by the standard laid down in S. 17, Mahajan Deolal was clearly guilty of a fraudulent suppression of material facts when he made his statements on July 16, 1944, statements which he must have known were deliberately false. Therefore, we are in agreement with the High Court in answering the first question against theis indeed true that Mahajan Deolal was examined by as many as four doctors. It is also true that the respondent company had before it the conflicting reports of Dr. Desai and it specially asked Dr. Kapadia to examine Mahajan Deolal in view of the reports submitted by Dr. Desai. Yet, it must be pointed out that the respondent company had no means of knowing that Mahajan Deolal had been treated for the serious ailment of secondary anaemia followed by dilatation of heart, etc., in September-October, 1943 by Dr. Lakshmanan. Nor can it be said that if the respondent company had knowledge of those facts, they would not have made any difference. The principle underlying the Explanation to S. 19 of the Contract Act is that a false representation, whether fraudulent or innocent, is irrelevant if it has not induced the party to whom it is made to act upon it by entering into a contract. We do not think that that principle applies in the present case. The terms of the policy make it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties, and the circumstance that Mahajan Deolal had taken pains to falsify or conceal that he had been treated for a serious ailment by Dr. Lakshmanan only a few months before the policy was taken shows that the falsification or concealment had an important bearing in obtaining the other partys consent. A man who has so acted cannot afterwards turn round and say : "It could have made no difference if you had known the truth."In our opinion, no question of waiver arises in the circumstances of this case, nor can the appellant take advantage of the Explanation to S. 19 of the Indian ContractHigh Court, it appears, proceeded on the footing that from the very inception the policy was taken for the benefit of the appellant on the basis of a gamble on the life of Mahajan Deolal; it said that the appellant and his brother, Dr. Motilal Nayak, knew very well that Mahajan Deolal was not likely to live very long and when the policy was taken out in 1944, it was really for the benefit of the present appellant, who soon after took an assignment on payment of the premium already paid by Mahajan Deolal and such arrears of premium as were then outstanding. It is unnecessary for us to give our decision on these contentions; because if Mahajan Deolal was himself guilty of a fraudulent suppression of material facts on which the respondent company was discharged from performing its part of the contract, the appellant who holds an assignment of the policy cannot stand on a better footing than Mahajan Deolal himself. It was argued before us that if the policy was valid in its inception, that is to say, if it was in fact effected for the use and benefit of Mahajan Deolal, who undoubtedly had an insurable interest in his own life, it could not afterwards be invalidated by assignment to a person who had no interest but who merely took it as a speculation. Our attention was drawn to several decisions on this question, American and English, noticed in para. 502 of MacGillivray on Insurance Law (Fourth Edition). We consider it unnecessary to examine those decisions or to go into the question posed therein. That question must be left to be determined in a case where it properly arises. As we have stated earlier, on our conclusion on the first question, the appellant is clearly out of Court and cannot claim the benefit if a contract which had been entered into as a result of a fraudulent suppression of material facts by Mahajanagain one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well-established principle that courts will not entertain an action for money had and received, where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High Court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application.
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V.S. Krishnan Vs. M/S Westfort Hi-Tech Hosp. Ltd. | same, the CLB accepted the case of the petitioners and found that the AGM held on 29.09.2005 was defective. Before the CLB as well as the High Court, it was demonstrated by the contesting respondents that in previous AGM also number of attendance was below 35. In the 9th AGM, the persons attended were 32 and 10th AGM, it was 35. In this regard, it is relevant to refer in the order in I.A. 4727 of 2005 in O.S. 942 of 2005 which is a suit filed by respondent No.14. The Civil Court, based on the documents produced, has concluded that proper notice was served on the shareholders with regard to AGM held on 29.09.2005. The person who filed the said suit had prayed for injunction against conducting AGM, participated in the AGM and in fact he applied for re-election. Though the shareholders voted against him and other NRI directors, the information support stand of the respondents 1 and 2. The High Court has rightly concluded that AGM held on 29.09.2005 was legal and acceptable and we agree with the same.20) It is pointed out that the CLB set aside the election of respondent Nos. 16 to 23 as directors only on the ground that there is no valid notice. The discussion in the earlier paragraphs proves that this finding is not acceptable. The High Court verified the notice dated 24.08.2005 sent for AGM dated 29.09.2005 wherein the names of the retiring directors were subsequently mentioned. It was also demonstrated before the CLB and the High Court that proper advertisement in the Indian Express and Deepika were given in terms of Section 157(1)A of the Act. Though the CLB has not accepted the same, the High Court has rightly found that the same was in compliance with the statutory provisions. There is no error or illegality in the said finding of the High Court. 21) The next issue relates to re-appointment of retired directors on the theory of legitimate expectation which we have already discussed in the earlier paragraphs. However, the High Court found that appointment of 8 directors without a "specific agenda" is irregular due to technical reason and that as per the agenda only 6 directors can be elected. We agree with the said conclusion. 22) Now coming to the next issue, namely, allotment of "right shares" to the public, the CLB has concluded that without a "special resolution" by 2/3rd majority shareholders cannot be offered to outsiders. Inasmuch as the above said conclusion is in terms of the statutory provisions, the High Court has rightly approved the same and we are also in agreement with the said conclusion. In this respect, it is useful to refer to the decision of this Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding Ltd. (supra). It was held that directors have absolute powers to issue right share provided they are acting under good faith. 23) The other issue relates to issuance of duplicate shares of Purshottaman. It is relevant to mention that the same Board approved the said action when the first petitioner also attended the meeting. On the other hand, the CLB set aside the issue of duplicate shares to Purshottaman. It was pointed out before the High Court that the said decision was not challenged in the petition by any of the petitioners and the decision was taken by the Board of Directors to issue duplicate shares in place of lost shares. As said earlier, transferring the shares of Purshottaman was approved in the same Board Meeting wherein the first petitioner attended. It is also brought to the notice of the Court that duplicate shares were issued on receipt of indemnity bond as provided under Section 84(2). In those circumstances, the High Court has concluded that indemnity bond and documents produced would show that share transfer was also effected validly. Further the decision to issue duplicate shares to Purshottaman and transfer of the same were not challenged in the company petition. In view of the same, we agree with the ultimate decision arrived by the High Court.24) Coming to the allegation as to acts of mis-management particularly regarding the arrangement with special investigating centre, it was proved that the agreement with the special investigating centre was made when the petitioners 1 to 4 as well as their supporting NRI directors were in the Board and in active management. However, the High Court has directed the company auditor to go through the agreement with the special investigating centre and also the accounts and submit a report and thereafter, the same should be placed before the Board for appropriate action. The said direction is reasonable and acceptable.25) As rightly pointed out that CLB missed a most basic principle of Section 397, namely, that mere unfairness does not constitute oppression. When the petitioners were given the right to subscribe to the rights issue along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them. It is not in dispute even by the petitioners that the need for more funds was an admitted position. In Needle Industries (supra) this Court has pointed out if there is a need for funds the fact that the directors have incidentally enriched themselves would not entail a court to set aside the issue of shares. In fact, no unfair prejudice has been caused to the petitioners. The CLB failed to take note of all these vital aspects and relied on irrelevant materials. Apart from these, it is pointed out that the company having turned the corner and doing well, it would be fair exercise of discretion by this Court not to interfere with the High Court judgment.26) In the light of the above discussion, we are of the view that the impugned judgment of the High Court is fair to both sides and safeguards the interest of the directors and shareholders; hence there is no valid ground to interfere under Article 136 of the Constitution of India. | 0[ds]From the above decisions, it is clear that oppression would be made out:(a) Where the conduct is harsh, burdensome and wrong.(b) Where the conduct is mala fide and is for a collateral purpose where although the ultimate objective may be in the interest of the company, the immediate purpose would result in an advantage for some shareholders vis-à-vis the others.(c) The action is against probity and good conduct.(d) The oppressive act complained of may be fully permissible under law but may yet be oppressive and, therefore, the test as to whether an action is oppressive or not is not based on whether it is legally permissible or not since even if legally permissible, if the action is otherwise against probity, good conduct or is burdensome, harsh or wrong or is mala fide or for a collateral purpose, it would amount to oppression under Sections 397 and 398.(e) Once conduct is found to be oppressive under Sections 397 and 398, the discretionary power given to the Company Law Board under Section 402 to set right, remedy or put an end to such oppression is very wide.(f) As to what are facts which would give rise to or constitute oppression is basically a question of fact and, therefore, whether an act is oppressive or not is fundamentally/basically a question ofmaterials placed and discussed before the CLB show that there was full disclosure of retirement of one-third directors and election to that place are in accordance with the Act and Articles of Association and theory of legitimate expectation has no application. It was also highlighted before the CLB as well as the High Court that out of eight directors elected, six were not related to Chairman. It was asserted that Chairman and his family stood personal guarantee to Rs.21.99 crores whereas NRI directors have not stood personal guarantee for any loan. Though CLB has observed that the principle of legitimate expectation is applicable in the case of the petitioners, in the light of the materials placed and the stand taken by the contesting respondents, we are of the view that the claim legitimate expectation cannot be extended to and there is no specific promise that the petitioners would be given directorship permanently. Even otherwise, the same cannot be accepted in view of the mandate of the statute that 1/3rd of the directors have to retire in a year by rotation. Accordingly, we accept the conclusion arrived at by the High Court and reject the decision of the CLB on thisis clear from the materials placed, the said Board Meeting was attended by the first petitioner. Though on the basis of the said information/knowledge it cannot be construed that the same would satisfy the mandate of Section 172 read with Section 53 (1) and (2) of the Act, the fact that a decision was taken in the Board Meeting held on 24.08.2005 that next AGM is to be held on 29.09.2005 at 11.00 AM at Casino Hotel, Trichur cannot be ignored. In addition to the same, as said earlier, respondent No.14 and 6 to 9 who are supposed to be netrual directors participated in the AGM held on 29.09.2005. It is not the case of the respondent Nos. 1 and 2 or even the petitioners that notice was dispensed with in respect of the AGM held on 29.09.2005. On the other hand, the respondents have produced certificates of posting to establish the service of notice on the directors and other shareholders. It is also demonstrated that those notices were given under certificate of posting as provided under Section 53 (1) and (2) and evidence for the same were also produced. As pointed out earlier, the first petitioner, being a party to the Board Meeting wherein date, place and agenda of the AGM were fixed, cannot make a complaint along with his supporters that they did not receive notice of the meeting. The materials placed clearly show that NRI directors participated in the meeting and respondent No.14 who was acting along with the appellants had also participated. Section 172 as well as Section 53 emphasized "giving notice". We have already adverted to how notice should be given for AGM as per Section 172 (2) and Section 53 (1) and (2) of the Act. In view of the fact that the company has placed materials to substantiate that notices, in terms of the above provisions, were given, as rightly pointed out by learned senior counsel for the contesting respondents, statutory presumption under Section 53 will apply though the said act is rebuttable. In view of the fact that there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. The High Court, on verification of those materials, has concluded that "postal receipt with post office seal was produced to show that notice was sent to all shareholders by certificate of posting in the correct address as per the report". Sub-section (2) of Section 53 makes it clear that after expiry of 48 hours a notice duly addressed and stamped and sent under certificate of posting is deemed to have been dulyIt is true that the CLB has found that only 40 out of 300 shareholders attended the meeting. Based on the same, the CLB accepted the case of the petitioners and found that the AGM held on 29.09.2005 was defective. Before the CLB as well as the High Court, it was demonstrated by the contesting respondents that in previous AGM also number of attendance was below 35. In the 9th AGM, the persons attended were 32 and 10th AGM, it was 35. In this regard, it is relevant to refer in the order in I.A. 4727 of 2005 in O.S. 942 of 2005 which is a suit filed by respondent No.14. The Civil Court, based on the documents produced, has concluded that proper notice was served on the shareholders with regard to AGM held on 29.09.2005. The person who filed the said suit had prayed for injunction against conducting AGM, participated in the AGM and in fact he applied for re-election. Though the shareholders voted against him and other NRI directors, the information support stand of the respondents 1 and 2. The High Court has rightly concluded that AGM held on 29.09.2005 was legal and acceptable and we agree with the same.20) It is pointed out that the CLB set aside the election of respondent Nos. 16 to 23 as directors only on the ground that there is no valid notice. The discussion in the earlier paragraphs proves that this finding is not acceptable. The High Court verified the notice dated 24.08.2005 sent for AGM dated 29.09.2005 wherein the names of the retiring directors were subsequently mentioned. It was also demonstrated before the CLB and the High Court that proper advertisement in the Indian Express and Deepika were given in terms of Section 157(1)A of the Act. Though the CLB has not accepted the same, the High Court has rightly found that the same was in compliance with the statutory provisions. There is no error or illegality in the said finding of the Highthe High Court found that appointment of 8 directors without a "specific agenda" is irregular due to technical reason and that as per the agenda only 6 directors can be elected. We agree with the saidCLB has concluded that without a "special resolution" by 2/3rd majority shareholders cannot be offered to outsiders. Inasmuch as the above said conclusion is in terms of the statutory provisions, the High Court has rightly approved the same and we are also in agreement with the said conclusion. In this respect, it is useful to refer to the decision of this Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding Ltd. (supra). It was held that directors have absolute powers to issue right share provided they are acting under goodis relevant to mention that the same Board approved the said action when the first petitioner also attended the meeting. On the other hand, the CLB set aside the issue of duplicate shares to Purshottaman. It was pointed out before the High Court that the said decision was not challenged in the petition by any of the petitioners and the decision was taken by the Board of Directors to issue duplicate shares in place of lost shares. As said earlier, transferring the shares of Purshottaman was approved in the same Board Meeting wherein the first petitioner attended. It is also brought to the notice of the Court that duplicate shares were issued on receipt of indemnity bond as provided under Section 84(2). In those circumstances, the High Court has concluded that indemnity bond and documents produced would show that share transfer was also effected validly. Further the decision to issue duplicate shares to Purshottaman and transfer of the same were not challenged in the company petition. In view of the same, we agree with the ultimate decision arrived by the High Court.24) Coming to the allegation as to acts of mis-management particularly regarding the arrangement with special investigating centre, it was proved that the agreement with the special investigating centre was made when the petitioners 1 to 4 as well as their supporting NRI directors were in the Board and in active management. However, the High Court has directed the company auditor to go through the agreement with the special investigating centre and also the accounts and submit a report and thereafter, the same should be placed before the Board for appropriate action. The said direction is reasonable and acceptable.25) As rightly pointed out that CLB missed a most basic principle of Section 397, namely, that mere unfairness does not constitute oppression. When the petitioners were given the right to subscribe to the rights issue along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them. It is not in dispute even by the petitioners that the need for more funds was an admitted position. In Needle Industries (supra) this Court has pointed out if there is a need for funds the fact that the directors have incidentally enriched themselves would not entail a court to set aside the issue of shares. In fact, no unfair prejudice has been caused to the petitioners. The CLB failed to take note of all these vital aspects and relied on irrelevant materials. Apart from these, it is pointed out that the company having turned the corner and doing well, it would be fair exercise of discretion by this Court not to interfere with the High Court judgment.26) In the light of the above discussion, we are of the view that the impugned judgment of the High Court is fair to both sides and safeguards the interest of the directors and shareholders; hence there is no valid ground to interfere under Article 136 of the Constitution of | 0 | 6,591 | 2,007 | ### Instruction:
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same, the CLB accepted the case of the petitioners and found that the AGM held on 29.09.2005 was defective. Before the CLB as well as the High Court, it was demonstrated by the contesting respondents that in previous AGM also number of attendance was below 35. In the 9th AGM, the persons attended were 32 and 10th AGM, it was 35. In this regard, it is relevant to refer in the order in I.A. 4727 of 2005 in O.S. 942 of 2005 which is a suit filed by respondent No.14. The Civil Court, based on the documents produced, has concluded that proper notice was served on the shareholders with regard to AGM held on 29.09.2005. The person who filed the said suit had prayed for injunction against conducting AGM, participated in the AGM and in fact he applied for re-election. Though the shareholders voted against him and other NRI directors, the information support stand of the respondents 1 and 2. The High Court has rightly concluded that AGM held on 29.09.2005 was legal and acceptable and we agree with the same.20) It is pointed out that the CLB set aside the election of respondent Nos. 16 to 23 as directors only on the ground that there is no valid notice. The discussion in the earlier paragraphs proves that this finding is not acceptable. The High Court verified the notice dated 24.08.2005 sent for AGM dated 29.09.2005 wherein the names of the retiring directors were subsequently mentioned. It was also demonstrated before the CLB and the High Court that proper advertisement in the Indian Express and Deepika were given in terms of Section 157(1)A of the Act. Though the CLB has not accepted the same, the High Court has rightly found that the same was in compliance with the statutory provisions. There is no error or illegality in the said finding of the High Court. 21) The next issue relates to re-appointment of retired directors on the theory of legitimate expectation which we have already discussed in the earlier paragraphs. However, the High Court found that appointment of 8 directors without a "specific agenda" is irregular due to technical reason and that as per the agenda only 6 directors can be elected. We agree with the said conclusion. 22) Now coming to the next issue, namely, allotment of "right shares" to the public, the CLB has concluded that without a "special resolution" by 2/3rd majority shareholders cannot be offered to outsiders. Inasmuch as the above said conclusion is in terms of the statutory provisions, the High Court has rightly approved the same and we are also in agreement with the said conclusion. In this respect, it is useful to refer to the decision of this Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding Ltd. (supra). It was held that directors have absolute powers to issue right share provided they are acting under good faith. 23) The other issue relates to issuance of duplicate shares of Purshottaman. It is relevant to mention that the same Board approved the said action when the first petitioner also attended the meeting. On the other hand, the CLB set aside the issue of duplicate shares to Purshottaman. It was pointed out before the High Court that the said decision was not challenged in the petition by any of the petitioners and the decision was taken by the Board of Directors to issue duplicate shares in place of lost shares. As said earlier, transferring the shares of Purshottaman was approved in the same Board Meeting wherein the first petitioner attended. It is also brought to the notice of the Court that duplicate shares were issued on receipt of indemnity bond as provided under Section 84(2). In those circumstances, the High Court has concluded that indemnity bond and documents produced would show that share transfer was also effected validly. Further the decision to issue duplicate shares to Purshottaman and transfer of the same were not challenged in the company petition. In view of the same, we agree with the ultimate decision arrived by the High Court.24) Coming to the allegation as to acts of mis-management particularly regarding the arrangement with special investigating centre, it was proved that the agreement with the special investigating centre was made when the petitioners 1 to 4 as well as their supporting NRI directors were in the Board and in active management. However, the High Court has directed the company auditor to go through the agreement with the special investigating centre and also the accounts and submit a report and thereafter, the same should be placed before the Board for appropriate action. The said direction is reasonable and acceptable.25) As rightly pointed out that CLB missed a most basic principle of Section 397, namely, that mere unfairness does not constitute oppression. When the petitioners were given the right to subscribe to the rights issue along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them. It is not in dispute even by the petitioners that the need for more funds was an admitted position. In Needle Industries (supra) this Court has pointed out if there is a need for funds the fact that the directors have incidentally enriched themselves would not entail a court to set aside the issue of shares. In fact, no unfair prejudice has been caused to the petitioners. The CLB failed to take note of all these vital aspects and relied on irrelevant materials. Apart from these, it is pointed out that the company having turned the corner and doing well, it would be fair exercise of discretion by this Court not to interfere with the High Court judgment.26) In the light of the above discussion, we are of the view that the impugned judgment of the High Court is fair to both sides and safeguards the interest of the directors and shareholders; hence there is no valid ground to interfere under Article 136 of the Constitution of India.
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of posting in the correct address as per the report". Sub-section (2) of Section 53 makes it clear that after expiry of 48 hours a notice duly addressed and stamped and sent under certificate of posting is deemed to have been dulyIt is true that the CLB has found that only 40 out of 300 shareholders attended the meeting. Based on the same, the CLB accepted the case of the petitioners and found that the AGM held on 29.09.2005 was defective. Before the CLB as well as the High Court, it was demonstrated by the contesting respondents that in previous AGM also number of attendance was below 35. In the 9th AGM, the persons attended were 32 and 10th AGM, it was 35. In this regard, it is relevant to refer in the order in I.A. 4727 of 2005 in O.S. 942 of 2005 which is a suit filed by respondent No.14. The Civil Court, based on the documents produced, has concluded that proper notice was served on the shareholders with regard to AGM held on 29.09.2005. The person who filed the said suit had prayed for injunction against conducting AGM, participated in the AGM and in fact he applied for re-election. Though the shareholders voted against him and other NRI directors, the information support stand of the respondents 1 and 2. The High Court has rightly concluded that AGM held on 29.09.2005 was legal and acceptable and we agree with the same.20) It is pointed out that the CLB set aside the election of respondent Nos. 16 to 23 as directors only on the ground that there is no valid notice. The discussion in the earlier paragraphs proves that this finding is not acceptable. The High Court verified the notice dated 24.08.2005 sent for AGM dated 29.09.2005 wherein the names of the retiring directors were subsequently mentioned. It was also demonstrated before the CLB and the High Court that proper advertisement in the Indian Express and Deepika were given in terms of Section 157(1)A of the Act. Though the CLB has not accepted the same, the High Court has rightly found that the same was in compliance with the statutory provisions. There is no error or illegality in the said finding of the Highthe High Court found that appointment of 8 directors without a "specific agenda" is irregular due to technical reason and that as per the agenda only 6 directors can be elected. We agree with the saidCLB has concluded that without a "special resolution" by 2/3rd majority shareholders cannot be offered to outsiders. Inasmuch as the above said conclusion is in terms of the statutory provisions, the High Court has rightly approved the same and we are also in agreement with the said conclusion. In this respect, it is useful to refer to the decision of this Court in Needle Industries (India) Ltd. vs. Needle Industries Newey (India) Holding Ltd. (supra). It was held that directors have absolute powers to issue right share provided they are acting under goodis relevant to mention that the same Board approved the said action when the first petitioner also attended the meeting. On the other hand, the CLB set aside the issue of duplicate shares to Purshottaman. It was pointed out before the High Court that the said decision was not challenged in the petition by any of the petitioners and the decision was taken by the Board of Directors to issue duplicate shares in place of lost shares. As said earlier, transferring the shares of Purshottaman was approved in the same Board Meeting wherein the first petitioner attended. It is also brought to the notice of the Court that duplicate shares were issued on receipt of indemnity bond as provided under Section 84(2). In those circumstances, the High Court has concluded that indemnity bond and documents produced would show that share transfer was also effected validly. Further the decision to issue duplicate shares to Purshottaman and transfer of the same were not challenged in the company petition. In view of the same, we agree with the ultimate decision arrived by the High Court.24) Coming to the allegation as to acts of mis-management particularly regarding the arrangement with special investigating centre, it was proved that the agreement with the special investigating centre was made when the petitioners 1 to 4 as well as their supporting NRI directors were in the Board and in active management. However, the High Court has directed the company auditor to go through the agreement with the special investigating centre and also the accounts and submit a report and thereafter, the same should be placed before the Board for appropriate action. The said direction is reasonable and acceptable.25) As rightly pointed out that CLB missed a most basic principle of Section 397, namely, that mere unfairness does not constitute oppression. When the petitioners were given the right to subscribe to the rights issue along with all others in the same proportion, no prejudice, whatsoever, could have been caused to them. It is not in dispute even by the petitioners that the need for more funds was an admitted position. In Needle Industries (supra) this Court has pointed out if there is a need for funds the fact that the directors have incidentally enriched themselves would not entail a court to set aside the issue of shares. In fact, no unfair prejudice has been caused to the petitioners. The CLB failed to take note of all these vital aspects and relied on irrelevant materials. Apart from these, it is pointed out that the company having turned the corner and doing well, it would be fair exercise of discretion by this Court not to interfere with the High Court judgment.26) In the light of the above discussion, we are of the view that the impugned judgment of the High Court is fair to both sides and safeguards the interest of the directors and shareholders; hence there is no valid ground to interfere under Article 136 of the Constitution of
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STATE OF KERALA Vs. MYTHRI VIDYA BHAVAN ENGLISH M. SCH | indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted with non-realistic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliation Bye-laws of the CBSE is arbitrary and was deservedly struck down by the High Court. Minimum enrolment of 300 students21. The second challenge is with reference to the minimum strength of students being 300 in a school that seeks affiliation with the CBSE in terms of guideline (xiv).22. At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliation Bye-laws and is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliation Bye-laws - this is merely an unwarranted imposition by Kerala on school managements. 23. The question of affiliation with the CBSE would arise only when the school reaches at least Standard VI. In this regard, clause 15.1(a) of Chapter III of the Affiliation Bye-laws is relevant and this provides as follows:“15.1.(a) The schools fulfilling the norms of Affiliation given in Chapter-II may apply ‘On-line’ to the Board for approval of Middle Class Syllabus/provisional affiliation for secondary/ upgradation of Senior Secondary Classes on the prescribed from alongwith prescribed fee given in Appendix II before 30 th June of the Year preceding the year in which Class VI/IX/XI as the case may be is proposed to be started. Application Forms, procedural details and Affiliation Bye-Laws for submission of applications ‘on line’ are available on the Boards website www.cbse.nic.in. Application submitted by post or by any other means will not be processed. All the applications which are received by CBSE on or before 30 th June every year may be processed together within a period of six months thereof. The order of granting or refusing the affiliation shall be communicated to the applicants on or before 31 st December of that year.”24. The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws.27. According to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school to pay the required wages of the staff and the teachers except by charging exorbitant fees. There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we do so.28. Another issue raised by the management of schools is with regard to the compulsory unique identification (UID) for enrolment of students. We leave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID. | 0[ds]In our opinion, all these petitions deserve to beappears to us that the rigid requirement of Kerala indicates that it is imposed upon the schools that seek affiliation with the CBSE only with a view to unnecessarily burden them with an onerous and arbitrary condition, since Kerala believes it has the authority to do so.18. Keeping all this in mind, we had required Kerala by an order dated 6 th December, 2016 to inform us the number of schools run by the State Government or aided by the State Government or affiliated with the State Board that do not comply with the guidelines of 7 th October, 2011. In response, Kerala filed an evasive affidavit to the effect that since the guidelines do not apply to such schools, there is no compulsion on such schools to comply with them. This is remarkable – guidelines are framed by Kerala for application by schools other than those run by the State Government or aided by the State Government or affiliated with the State Board. There is no reason given for this distinction drawn by Kerala which appears to be completely arbitrary.19.It was submitted on behalf of Kerala that nevertheless the State Government was well within its rights and authority to provide for a minimum of 3 acres of land for the grant of an NOC.While this may be so, the requirement must have some rational basis but we are unable to find any such rational basis. Even in the counter affidavit filed before the learned Single Judge it is stated by Kerala that restrictions have been placed on CBSE schools to prevent their mushrooming growth which would affect the public education system in the State. No details have been given for arriving at this conclusion. But the very fact that there is a mushroom growth of CBSE schools is an indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted withic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliationof the CBSE is arbitrary and was deservedly struck down by the High Court.At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliationand is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliationthis is merely an unwarranted imposition by Kerala on school managements.The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires aratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or theAccording to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school toay the required wages of the staff and the teachers except by charging exorbitant fees.There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we doleave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID. | 0 | 3,156 | 1,117 | ### Instruction:
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indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted with non-realistic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliation Bye-laws of the CBSE is arbitrary and was deservedly struck down by the High Court. Minimum enrolment of 300 students21. The second challenge is with reference to the minimum strength of students being 300 in a school that seeks affiliation with the CBSE in terms of guideline (xiv).22. At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliation Bye-laws and is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliation Bye-laws - this is merely an unwarranted imposition by Kerala on school managements. 23. The question of affiliation with the CBSE would arise only when the school reaches at least Standard VI. In this regard, clause 15.1(a) of Chapter III of the Affiliation Bye-laws is relevant and this provides as follows:“15.1.(a) The schools fulfilling the norms of Affiliation given in Chapter-II may apply ‘On-line’ to the Board for approval of Middle Class Syllabus/provisional affiliation for secondary/ upgradation of Senior Secondary Classes on the prescribed from alongwith prescribed fee given in Appendix II before 30 th June of the Year preceding the year in which Class VI/IX/XI as the case may be is proposed to be started. Application Forms, procedural details and Affiliation Bye-Laws for submission of applications ‘on line’ are available on the Boards website www.cbse.nic.in. Application submitted by post or by any other means will not be processed. All the applications which are received by CBSE on or before 30 th June every year may be processed together within a period of six months thereof. The order of granting or refusing the affiliation shall be communicated to the applicants on or before 31 st December of that year.”24. The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires a student-teacher ratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or the CBSE Affiliation Bye-laws.27. According to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school to pay the required wages of the staff and the teachers except by charging exorbitant fees. There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we do so.28. Another issue raised by the management of schools is with regard to the compulsory unique identification (UID) for enrolment of students. We leave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID.
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believes it has the authority to do so.18. Keeping all this in mind, we had required Kerala by an order dated 6 th December, 2016 to inform us the number of schools run by the State Government or aided by the State Government or affiliated with the State Board that do not comply with the guidelines of 7 th October, 2011. In response, Kerala filed an evasive affidavit to the effect that since the guidelines do not apply to such schools, there is no compulsion on such schools to comply with them. This is remarkable – guidelines are framed by Kerala for application by schools other than those run by the State Government or aided by the State Government or affiliated with the State Board. There is no reason given for this distinction drawn by Kerala which appears to be completely arbitrary.19.It was submitted on behalf of Kerala that nevertheless the State Government was well within its rights and authority to provide for a minimum of 3 acres of land for the grant of an NOC.While this may be so, the requirement must have some rational basis but we are unable to find any such rational basis. Even in the counter affidavit filed before the learned Single Judge it is stated by Kerala that restrictions have been placed on CBSE schools to prevent their mushrooming growth which would affect the public education system in the State. No details have been given for arriving at this conclusion. But the very fact that there is a mushroom growth of CBSE schools is an indication that the public education system in Kerala as managed by the State Government leaves something to be desired in terms of the quality of the education. How does the restriction imposed by Kerala benefit the children of the State?20. As mentioned above, the CBSE has done its homework well and has taken a pragmatic view of the requirement of land. We can take judicial notice of the fact that in metropolitan and capital cities as well as in hilly areas, it would be difficult to get 3 acres of land or even 2 acres of land. Similarly, due to the terrain it would perhaps be difficult to get adequate land in the North Eastern region of the country as well as in Jammu & Kashmir. This realism deserves to be contrasted withic inflexibility of Kerala which too has some hilly areas where perhaps it might be difficult to find 3 acres of land. It is this lack of pragmatism and arbitrary rigidity that has weighed with the High Court as well as with us in coming to the conclusion that guideline (iv) requiring a minimum of 3 acres of land for obtaining an NOC for getting affiliation in accordance with the Affiliationof the CBSE is arbitrary and was deservedly struck down by the High Court.At this stage, it may be mentioned that in Queen Mary Public School v. State of Kerala 1 the High Court held that the requirement of 500 students on the rolls for affiliation of the school from Standard I to Standard X is contrary of the CBSE Affiliationand is not rational or sustainable. Notwithstanding this, Kerala has insisted on the number of students on the rolls being at least 300 for the issuance of an NOC. Since there is no such requirement under the CBSE Affiliationthis is merely an unwarranted imposition by Kerala on school managements.The High Court took the view that progressive stages of affiliation has a rational basis while the prescription of having a minimum of 300 students for obtaining an NOC does not have any such basis. Again, we do not find any reason for this requirement in the counter affidavit filed by Kerala in the High Court except that it has the authority to make such a prescription.25. The illustration given by the High Court in this regard is apposite. The Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) requires aratio of 30:1. Aschool having 30 children in one class and having one division will have only 180 students upto and including Standard VI. Such a school cannot, therefore, obtain provisional affiliation for secondary or senior secondary classes. Actually, such a school would not be eligible for affiliation till Standard X when it has 300 students – and it can never reach that stage since Standard IX and X can be started only if the school has CBSE affiliation. Kerala is, therefore, expecting an impossibility from such schools that strictly conform to the provisions of the RTE Act.26. On the other hand, under the KER the minimum effective strength per standard in Lower Primary/Upper Primary and High Schools is 25 students (it would now have increased to 30 students). It is only for schools seeking CBSE affiliation that it is prescribed that the number of students should not be less than 300. We do not see how, if the number of students is less than 300, it will detract from the quality of education imparted to the students. In other words, the requirement of a minimum strength of 300 students is a completely arbitrary figure arrived at by Kerala and which has no rational nexus with quality education or theAccording to learned counsel for Kerala, if a school does not have a minimum of 300 students, it would be difficult for that school toay the required wages of the staff and the teachers except by charging exorbitant fees.There is no material on record to substantiate such a conclusion and it is based merely on the ipse dixit of the State. In the absence of any material on record justifying the fixation of a minimum of 300 students in a school seeking an NOC for affiliation to the CBSE, we must hold the requirement as arbitrary and we doleave this issue open, as suggested by learned counsel, to await the decision of Constitution Bench of this Court which is presently seized of the requirement of UID.
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Nirmala J. Jhala Vs. State Of Gujarat & Anr | to cross-examine such persons, the same cannot be relied upon. 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 26. “A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence”. (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79 ) (See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352 ; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382 ; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276 ; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570 ). 27. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay Rs. 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar, complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant contained 12 charges. Only first charge related to the incident dated 17.8.1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs etc. 28. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 ; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539 ) 29. In view of the above, we reach the following inescapable conclusions:- i) The High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant’s husband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation. 30. In view of the above, | 1[ds]The High Court has rightly disbelieved the statement of the complainant-accused that he could hear the conversation between the appellant and Shri Gajjar. The said evidence was also discarded by the Enquiry Officer. Further allegation that the appellant had threatened the said complainant-accused to withdraw the complaint was also found to be false. The entry of Shri C.B. Gajjar into the chamber of the appellant on 17.8.1993, was not corroborated by any other evidence. Shri C.B. Gajjar himself had also denied the same.More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17.8.1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the department to prove the said circumstance. The court should have also taken note of the fact, that the matter was adjourned for 28.8.1993, and being a 4th Saturday, it was a holiday. The court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17.8.1993, in respect of a demand of bribe of Rs.20,000/- fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant.18. The appellant had not married at that point of time, as per her statement. Even this fact has been admitted by Shri C.B. Gajjar, Advocate. Given the above set of facts, the complainant is seen talking abouthusband for collecting money on her behalf. The High Court had failed to notice the above fact and had been making attempts to keep aside all such relevant factors in a case, where there was no directis evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of naturalThe High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about thehusband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for | 1 | 8,941 | 832 | ### 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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to cross-examine such persons, the same cannot be relied upon. 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 26. “A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence”. (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79 ) (See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352 ; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382 ; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276 ; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570 ). 27. The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay Rs. 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar, complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant contained 12 charges. Only first charge related to the incident dated 17.8.1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs etc. 28. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 ; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539 ) 29. In view of the above, we reach the following inescapable conclusions:- i) The High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant’s husband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation. 30. In view of the above,
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The High Court has rightly disbelieved the statement of the complainant-accused that he could hear the conversation between the appellant and Shri Gajjar. The said evidence was also discarded by the Enquiry Officer. Further allegation that the appellant had threatened the said complainant-accused to withdraw the complaint was also found to be false. The entry of Shri C.B. Gajjar into the chamber of the appellant on 17.8.1993, was not corroborated by any other evidence. Shri C.B. Gajjar himself had also denied the same.More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17.8.1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the department to prove the said circumstance. The court should have also taken note of the fact, that the matter was adjourned for 28.8.1993, and being a 4th Saturday, it was a holiday. The court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17.8.1993, in respect of a demand of bribe of Rs.20,000/- fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant.18. The appellant had not married at that point of time, as per her statement. Even this fact has been admitted by Shri C.B. Gajjar, Advocate. Given the above set of facts, the complainant is seen talking abouthusband for collecting money on her behalf. The High Court had failed to notice the above fact and had been making attempts to keep aside all such relevant factors in a case, where there was no directis evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of naturalThe High Court failed to appreciate that the appellant had not granted long adjournments to the accused-complainant as the appellant wanted to conclude the trial at the earliest. The case of accused-complainant which was taking its time, had suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to notice it. The High Court erred in recording a finding that the complainant had no ill-will or motive to make any allegation against the appellant.ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice.iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about thehusband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for
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Jalpat Rai Vs. State Of Haryana | pieces. The Forensic Science Laboratory marked the above pistol `W/2 for the identification purposes. Based on the examination carried out in the Laboratory, the result of analysis is recorded as under: “7.65 mm cartridge cases and bullets marked C/1 to C/3 and BC/1 to BC/3 respectively had been fired from 7.65 mm pistol marked W/2 and not from any other firearm even of the same make and calibre because every firearm has got its own individual characteristic marks”. The ballistic evidence is clearly in conflict with the evidence of PW-1, PW-4 and PW-8 and shatters their evidence completely vis-`-vis the appellants. The testimony of PW-1, PW-4 and PW-8 about the role of appellants, thus, is not corroborated by medical and ballistic evidence. Their evidence also does not get support from the collateral circumstances that have come on record. 44. The deposition of PW-1, PW-4 and PW-8 suffers from significant improvements and omissions as well. PW-1 deposed that he did not tell the police that Satish had fired from his .12 bore licensed gun, Jalpat had fired from .22 rifle of Shyam Sunder and Purshotam had fired from .32 licensed pistol of Satish but when he was confronted with portion A to A of his statement (Ex. DA) before police, it was found that it was so recorded. He testified that he had stated in his statement to the police that A-5 had caused injuries to PW-8 but when confronted with that statement, it was found that it was not so stated. PW-4 deposed that he had told the police that A-4 had fired at Sunil from his revolver but when confronted with that statement, it transpired that it was not so stated. He also deposed that he had told the police that A-5 had given a sword blow to PW-8 on his temple but when he was confronted with that statement, it was found that it was not so stated. PW-8 deposed that he had stated before the police that the shots fired by A-3 and A-1 from their guns did not hit anyone but when confronted with that statement, it transpired that he has not so stated. 45. As regards arrival of A-5 at the place of occurrence, the evidence of PW-1 and PW-8 is not consistent. PW-1 has deposed that A-5 was also present with the other accused when the incident started; he was armed with sword and caused injuries with the sword to PW-8. PW-8, on the other hand, has stated that A-5 descended on the scene of occurrence after firing had started. 46. We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses (PW-1, PW-4 and PW-8) in order to indicate that their evidence at any rate is not wholly true and it is unsafe to act on their evidence insofar as complicity of A-1, A-3, A-4, A-5 and A-6 is concerned. Brushing the impact of these infirmities aside , the High Court erroneously treated the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. All in all, the evidence of PW-1, PW-4 and PW-8 lacks in credibility and is not of sterling worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6 in the crime beyond any reasonable doubt. As regards A-6, as a matter of fact, it was conceded by the learned senior counsel for the State that there was no reliable evidence to prove his involvement in the crime. The appellants, in our opinion, are entitled to benefit of doubt.47. Incidentally, Vinod and Sushil (sons of A-1) were also shown as assailants in the FIR. In the investigation, their presence was not established; they were not charge-sheeted. PW-1, PW-4 and PW-8, however, in their deposition before the Court made an attempt to implicate them. Based on their deposition, the public prosecutor made an application under Section 319 of Cr.P.C. for summoning those two sons of A-1 but that application was eventually withdrawn. This by itself has not much bearing in the case. What it shows is that there has been attempt by PW-1, PW-4 and PW-8 right from the inception to rope in A-1 and all his sons in the incident irrespective of whether all of them were involved in the crime or not.48. We are not oblivious of the fact that A-2 was convicted by the trial court for the offence under Section 302 IPC but the High Court has altered his conviction from Section 302 to Section 302 IPC read with Section 149 IPC and his special leave petition (SLP) against that judgment has been dismissed summarily. The dismissal of SLP summarily does not mean affirmance of the judgment of the High Court on merits. It has been repeatedly held by this Court that mere dismissal of SLP does not amount to acceptance of correctness of the High Court decision. The order of this Court in A-2s SLP is not an impediment in allowing these two appeals once it is held that prosecution has failed to prove the complicity of the appellants beyond any reasonable doubt.49. We are not impressed by the argument of Mr. Sushil Kumar, learned senior counsel, that the SLP preferred by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing the SLP preferred by A-2 is also a non- est. The judgments cited by learned Senior Counsel in support of his submission that in the event of appellants conviction being set aside, A-2 is also entitled to the same relief although his SLP has been dismissed have no application to the facts of the present case. The case against A-2 stands on a different footing. The ballistic evidence is conclusive against him and leaves no manner of doubt about his involvement in the crime. We need not say any further in this regard as SLP preferred by A-2 against his conviction has already been dismissed. 50. In view of the above discussion, | 1[ds]PW-1 and PW-4 are real brothers. PW-8 and the deceased are nephews of PW-1 and PW-4. The presence of PW-1, PW-4 and PW-8 at the time of incident, does not appear to us to be doubtful. The trial court has doubted the presence of PW-1 at the place of occurrence but we find it difficult to accept the reasoning of the trial court in this regard. Being transporter, the presence of PW-1 in his office at about 9.00 p.m. was not unnatural. It was his good luck that he did not receive any injury in the incident. We do not think that absence of any injury on his person renders his presence doubtful. The presence of PW-4 and PW-8 at the time of incident also cannot be doubted. Both of them suffered injuries. Both, PW-4 and PW-8, were medically examined by PW-6. PW-4 was examined by PW-6 immediately after the incident at about 10.15 p.m. on October 2, 2002. PW-8 was examined by PW-6 on the next day, i.e. October 3, 2002 in the afternoon. The trial court doubted that the injury suffered by PW-4 was from the firearm but the evidence of Dr. Paryesh Gupta (PW-19) leaves no manner of doubt that PW-4 received firearm injury in the incident. PW-19 deposed that PW-4 was operated upon for a firearm injury in the abdomen on October 3, 2002 in the emergency O.T. and the firearm was used from a close range.However, the presence of PW-1, PW-4 and PW-8 at the time of incident does not guarantee truthfulness. The question is whether their testimony is trustworthy and reliable insofar as complicity of the appellants with the crime is concerned or they have tried to involve the innocent along with the guilty.38. Broadly, the evidence of PW-1, PW-4 and PW-8 has been indicated by us while narrating the prosecution case and by reason therefor, we need not reiterate the same except the salient features emerging therefrom. PW-1 had a long standing rivalry with A-1 in connection with Truck Owners Union. Their rivalry has led to many criminal cases being filed against each other. PW-1 was prosecuted earlier for causing injuries to A-1 and others. On September 12, 2002, i.e., about 20 days prior to the date of present incident, an FIR was registered against PW-1 and his partner under Sections 323, 506, 148 and 454 IPC at Police Station City, Jind for causing injuries to one Shambir. In that incident, A-2 was an eye- witness. Two days later, on September 14, 2002, PW-1 reported to the police against A-2, A-3, A-4 and A-5 by way of counter case but police did not take any action. A complaint was then lodged by PW-1 party against A-2, A-3, A-4 and A-5 in the Court of Additional Chief Judicial Magistrate, Jind.39. PW-1, PW-4 and PW-8 are not only much interested in the prosecution case but they are inimically disposed towards the accused party as well. The deep rooted enmity and serious disputes between PW-1 on the one hand and A-1 and his sons on the other and their unflinching interest in the prosecution case necessitate that the evidence of PW-1, PW-4 and PW-8 is considered with care and caution. To find out intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record. There cannot be a rule of universal application that if the eye- witnesses to the incident are interested in prosecution case and/or are disposed inimically towards the accused persons, there should be corroboration to their evidence. The evidence of eye-witnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a caliber as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is reality in life, albeit unfortunate and sad, that human failing tends to exaggerate, over-implicate and distort the true version against the person/s with whom there is rivalry, hostility and enmity. Cases are not unknown where entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime. In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused party and the interestedness of PW-1, PW-4 and PW-8 in the prosecution case, it is prudent to look for corroboration of their evidence by medical/ballistic evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their evidence cannot be safely acted upon.40. Besides PW-1, PW-4 and PW-8, who are closely related to the three deceased, no other independent witness has been examined although the incident occurred in a busy market area. The place of occurrence was visited by PW-20 in the same night after the incident. He found three two- wheelers one bearing no. HR--31--A/5071, the second bearing no. RJ--13--M/7744 and the third without number lying there. One Maruti car bearing no. HR--20--D/8840 with broken glasses was also parked there. The owners of these vehicles have not been examined. At the place of occurrence, one HMT Quartz wrist watch with black strap, one belcha and four pair of chappals were also found. There is no explanation at all by the prosecution with regard to these articles. Nothing has come on record whether four pair of chappals belonged to the accused party or the complainant party or some other persons. Whether HMT Quartz wrist watch that was found at site was worn by one of the accused or one of the members of the complainant party or somebody else is not known. Then, the mystery remains about belcha that was found at site. These circumstances instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out with the true and complete disclosure of theHigh Court erroneously treated the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. All in all, the evidence of PW-1, PW-4 and PW-8 lacks in credibility and is not of sterling worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6 in the crime beyond any reasonable doubt. As regards A-6, as a matter of fact, it was conceded by the learned senior counsel for the State that there was no reliable evidence to prove his involvement in the crime. The appellants, in our opinion, are entitled to benefit of doubt.47. Incidentally, Vinod and Sushil (sons of A-1) were also shown as assailants in the FIR. In the investigation, their presence was not established; they were not charge-sheeted. PW-1, PW-4 and PW-8, however, in their deposition before the Court made an attempt to implicate them. Based on their deposition, the public prosecutor made an application under Section 319 of Cr.P.C. for summoning those two sons of A-1 but that application was eventually withdrawn. This by itself has not much bearing in the case. What it shows is that there has been attempt by PW-1, PW-4 and PW-8 right from the inception to rope in A-1 and all his sons in the incident irrespective of whether all of them were involved in the crime or not.48. We are not oblivious of the fact that A-2 was convicted by the trial court for the offence under Section 302 IPC but the High Court has altered his conviction from Section 302 to Section 302 IPC read with Section 149 IPC and his special leave petition (SLP) against that judgment has been dismissed summarily. The dismissal of SLP summarily does not mean affirmance of the judgment of the High Court on merits. It has been repeatedly held by this Court that mere dismissal of SLP does not amount to acceptance of correctness of the High Court decision. The order of this Court in A-2s SLP is not an impediment in allowing these two appeals once it is held that prosecution has failed to prove the complicity of the appellants beyond any reasonable doubt.49. We are not impressed by the argument of Mr. Sushil Kumar, learned senior counsel, that the SLP preferred by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing the SLP preferred by A-2 is also a non- est. The judgments cited by learned Senior Counsel in support of his submission that in the event of appellants conviction being set aside, A-2 is also entitled to the same relief although his SLP has been dismissed have no application to the facts of the present case. The case against A-2 stands on a different footing. The ballistic evidence is conclusive against him and leaves no manner of doubt about his involvement in the crime. We need not say any further in this regard as SLP preferred by A-2 against his conviction has already been dismissed. | 1 | 7,851 | 1,703 | ### 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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pieces. The Forensic Science Laboratory marked the above pistol `W/2 for the identification purposes. Based on the examination carried out in the Laboratory, the result of analysis is recorded as under: “7.65 mm cartridge cases and bullets marked C/1 to C/3 and BC/1 to BC/3 respectively had been fired from 7.65 mm pistol marked W/2 and not from any other firearm even of the same make and calibre because every firearm has got its own individual characteristic marks”. The ballistic evidence is clearly in conflict with the evidence of PW-1, PW-4 and PW-8 and shatters their evidence completely vis-`-vis the appellants. The testimony of PW-1, PW-4 and PW-8 about the role of appellants, thus, is not corroborated by medical and ballistic evidence. Their evidence also does not get support from the collateral circumstances that have come on record. 44. The deposition of PW-1, PW-4 and PW-8 suffers from significant improvements and omissions as well. PW-1 deposed that he did not tell the police that Satish had fired from his .12 bore licensed gun, Jalpat had fired from .22 rifle of Shyam Sunder and Purshotam had fired from .32 licensed pistol of Satish but when he was confronted with portion A to A of his statement (Ex. DA) before police, it was found that it was so recorded. He testified that he had stated in his statement to the police that A-5 had caused injuries to PW-8 but when confronted with that statement, it was found that it was not so stated. PW-4 deposed that he had told the police that A-4 had fired at Sunil from his revolver but when confronted with that statement, it transpired that it was not so stated. He also deposed that he had told the police that A-5 had given a sword blow to PW-8 on his temple but when he was confronted with that statement, it was found that it was not so stated. PW-8 deposed that he had stated before the police that the shots fired by A-3 and A-1 from their guns did not hit anyone but when confronted with that statement, it transpired that he has not so stated. 45. As regards arrival of A-5 at the place of occurrence, the evidence of PW-1 and PW-8 is not consistent. PW-1 has deposed that A-5 was also present with the other accused when the incident started; he was armed with sword and caused injuries with the sword to PW-8. PW-8, on the other hand, has stated that A-5 descended on the scene of occurrence after firing had started. 46. We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses (PW-1, PW-4 and PW-8) in order to indicate that their evidence at any rate is not wholly true and it is unsafe to act on their evidence insofar as complicity of A-1, A-3, A-4, A-5 and A-6 is concerned. Brushing the impact of these infirmities aside , the High Court erroneously treated the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. All in all, the evidence of PW-1, PW-4 and PW-8 lacks in credibility and is not of sterling worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6 in the crime beyond any reasonable doubt. As regards A-6, as a matter of fact, it was conceded by the learned senior counsel for the State that there was no reliable evidence to prove his involvement in the crime. The appellants, in our opinion, are entitled to benefit of doubt.47. Incidentally, Vinod and Sushil (sons of A-1) were also shown as assailants in the FIR. In the investigation, their presence was not established; they were not charge-sheeted. PW-1, PW-4 and PW-8, however, in their deposition before the Court made an attempt to implicate them. Based on their deposition, the public prosecutor made an application under Section 319 of Cr.P.C. for summoning those two sons of A-1 but that application was eventually withdrawn. This by itself has not much bearing in the case. What it shows is that there has been attempt by PW-1, PW-4 and PW-8 right from the inception to rope in A-1 and all his sons in the incident irrespective of whether all of them were involved in the crime or not.48. We are not oblivious of the fact that A-2 was convicted by the trial court for the offence under Section 302 IPC but the High Court has altered his conviction from Section 302 to Section 302 IPC read with Section 149 IPC and his special leave petition (SLP) against that judgment has been dismissed summarily. The dismissal of SLP summarily does not mean affirmance of the judgment of the High Court on merits. It has been repeatedly held by this Court that mere dismissal of SLP does not amount to acceptance of correctness of the High Court decision. The order of this Court in A-2s SLP is not an impediment in allowing these two appeals once it is held that prosecution has failed to prove the complicity of the appellants beyond any reasonable doubt.49. We are not impressed by the argument of Mr. Sushil Kumar, learned senior counsel, that the SLP preferred by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing the SLP preferred by A-2 is also a non- est. The judgments cited by learned Senior Counsel in support of his submission that in the event of appellants conviction being set aside, A-2 is also entitled to the same relief although his SLP has been dismissed have no application to the facts of the present case. The case against A-2 stands on a different footing. The ballistic evidence is conclusive against him and leaves no manner of doubt about his involvement in the crime. We need not say any further in this regard as SLP preferred by A-2 against his conviction has already been dismissed. 50. In view of the above discussion,
### Response:
1
### Explanation:
To find out intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record. There cannot be a rule of universal application that if the eye- witnesses to the incident are interested in prosecution case and/or are disposed inimically towards the accused persons, there should be corroboration to their evidence. The evidence of eye-witnesses, irrespective of their interestedness, kinship, standing or enmity with the accused, if found credible and of such a caliber as to be regarded as wholly reliable could be sufficient and enough to bring home the guilt of the accused. But it is reality in life, albeit unfortunate and sad, that human failing tends to exaggerate, over-implicate and distort the true version against the person/s with whom there is rivalry, hostility and enmity. Cases are not unknown where entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime. In the circumstances of the present case, to obviate any chance of false implication due to enmity of the complainant party with the accused party and the interestedness of PW-1, PW-4 and PW-8 in the prosecution case, it is prudent to look for corroboration of their evidence by medical/ballistic evidence and seek adequate assurance from the collateral and surrounding circumstances before acting on their testimony. The lack of corroboration from medical and ballistic evidence and the circumstances brought out on record may ultimately persuade that in fact their evidence cannot be safely acted upon.40. Besides PW-1, PW-4 and PW-8, who are closely related to the three deceased, no other independent witness has been examined although the incident occurred in a busy market area. The place of occurrence was visited by PW-20 in the same night after the incident. He found three two- wheelers one bearing no. HR--31--A/5071, the second bearing no. RJ--13--M/7744 and the third without number lying there. One Maruti car bearing no. HR--20--D/8840 with broken glasses was also parked there. The owners of these vehicles have not been examined. At the place of occurrence, one HMT Quartz wrist watch with black strap, one belcha and four pair of chappals were also found. There is no explanation at all by the prosecution with regard to these articles. Nothing has come on record whether four pair of chappals belonged to the accused party or the complainant party or some other persons. Whether HMT Quartz wrist watch that was found at site was worn by one of the accused or one of the members of the complainant party or somebody else is not known. Then, the mystery remains about belcha that was found at site. These circumstances instead of lending any corroboration to the evidence of those three key witnesses, rather suggest that they have not come out with the true and complete disclosure of theHigh Court erroneously treated the evidence of PW-1, PW-4 and PW-8 cogent, convincing and truthful. All in all, the evidence of PW-1, PW-4 and PW-8 lacks in credibility and is not of sterling worth to prove the involvement of A-1, A-3, A-4, A-5 and A-6 in the crime beyond any reasonable doubt. As regards A-6, as a matter of fact, it was conceded by the learned senior counsel for the State that there was no reliable evidence to prove his involvement in the crime. The appellants, in our opinion, are entitled to benefit of doubt.47. Incidentally, Vinod and Sushil (sons of A-1) were also shown as assailants in the FIR. In the investigation, their presence was not established; they were not charge-sheeted. PW-1, PW-4 and PW-8, however, in their deposition before the Court made an attempt to implicate them. Based on their deposition, the public prosecutor made an application under Section 319 of Cr.P.C. for summoning those two sons of A-1 but that application was eventually withdrawn. This by itself has not much bearing in the case. What it shows is that there has been attempt by PW-1, PW-4 and PW-8 right from the inception to rope in A-1 and all his sons in the incident irrespective of whether all of them were involved in the crime or not.48. We are not oblivious of the fact that A-2 was convicted by the trial court for the offence under Section 302 IPC but the High Court has altered his conviction from Section 302 to Section 302 IPC read with Section 149 IPC and his special leave petition (SLP) against that judgment has been dismissed summarily. The dismissal of SLP summarily does not mean affirmance of the judgment of the High Court on merits. It has been repeatedly held by this Court that mere dismissal of SLP does not amount to acceptance of correctness of the High Court decision. The order of this Court in A-2s SLP is not an impediment in allowing these two appeals once it is held that prosecution has failed to prove the complicity of the appellants beyond any reasonable doubt.49. We are not impressed by the argument of Mr. Sushil Kumar, learned senior counsel, that the SLP preferred by A-2 was non-est since he had a right of appeal under Section 2 of the 1970 Act and, therefore, the order of this Court dismissing the SLP preferred by A-2 is also a non- est. The judgments cited by learned Senior Counsel in support of his submission that in the event of appellants conviction being set aside, A-2 is also entitled to the same relief although his SLP has been dismissed have no application to the facts of the present case. The case against A-2 stands on a different footing. The ballistic evidence is conclusive against him and leaves no manner of doubt about his involvement in the crime. We need not say any further in this regard as SLP preferred by A-2 against his conviction has already been dismissed.
|
Pfizer Limited Vs. Mazdoor Congress | filed relating to unfair labour practices. Section 26 of the said Act states that unfair labour practices are those which are listed in Schedules II, III and IV of the said Act. Schedule II enumerates unfair labour practices, on the part of the employees inter alia, in relation to trade union activities. Schedule IV lists the general unfair labour practices which may be alleged against the employers. Item 1 clause (f) of the Schedule IV is as under:- ``(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste. 19. There was no justification whatsoever for the High Court to have allowed respondents 2 and 3, while hearing a petition under Article 227 of the Constitution to raise a new contention that there had been an unfair labour practice as contemplated by Item 1(f) and the appellant had acted with undue haste. No such contention was urged before the Labour Court or in revision before the Labour Tribunal. Even in the writ petition filed in the High Court under Article 227 of the Constitution, challenging the order of the Labour Court and the Industrial Court dismissing the complaints under Section 28 of the said Act, no specific contention had been raised to the effect that there was any undue haste on the part of the appellant in issuing the termination order and which could be regarded as an unfair labour practice. Merely because in an affidavit filed before the Labour Court there was a general statement of unfair labour practice covered by Items 1(a) to (f) could be no ground for the High Court to come to the conclusion that a case under Item 1(f) had been made out because respondents 2 and 3 had not led any evidence in this behalf and nor was this contention specifically raised and argued, as already noticed, before the Labour Court and the Industrial Court or even in the writ petition filed before the High Court. 20. Whether there was any undue haste on the part of the employer while discharging or dismissing an employee is a question of fact which has to be determined on the basis of evidence on record. The complaint under Section 28 of the said Act was filed by respondents 2 and 3. If it was their case that there was an unfair labour practice on the part of the appellant herein as contemplated by Item 1(f), then it was incumbent upon the said respondents to state facts on the basis of which the Labour Court could come to the conclusion that there was an undue haste as contemplated by Item 1(f). The complaints filed by the said respondents do not contain any particulars of undue haste and nor was there any evidence led on the part of the said respondents. The High Court clearly erred in making out a new case and in setting aside the concurrent findings of the Labour Court and the Industrial Court.21. It is not in dispute that on account of loss of confidence and because of the absence of respondents 2 and 3 from work without leave, the standing orders of the company did empower it to discharge the said respondents on that ground. This being so, even if the High Court could have gone into the question as to whether there was any undue haste on the part of the appellant, in our opinion, the conclusion arrived at by the High Court against the appellant herein is without any evidence or basis.22. It would depend upon the facts of each case whether an employer has acted with undue haste while discharging or dismissing an employee. It is neither possible nor desirable to lay down or spell out any general principles in this regard. Each case will have to be judged on its own facts. Keeping in mind the undisputed facts of the present case the only question is whether or when the termination letters were issued could it be said that the appellant had acted in undue haste. To recapitulate, on 7th August, 1975 the companys employee Parkar had disclosed that respondents 2 and 3 were involved in the conspiracy of theft of the companys medicines. The said respondents were arrested on 9th August, 1975 and they were absent from duty as from that date. On 10th August, 1975 the statements of said respondents are stated to have been recorded pursuant to which recovery was stated to have been made of the stolen property. Charge-sheet against the said respondents was filed alleging offence having been committed under Section 381 read with Section 34 of the Indian Penal Code. The said respondents were not ordinary clerks in the office of the appellant but they were part and parcel of the watch and ward section, respondent No. 2 being the watchman and respondent No. 3 the havaldar. These two respondents were supposed to protect the property of the appellant company and on 14th August, 1975 the appellant company had before it information regarding the alleged involvement of these two persons in the theft of its property. It is difficult for us to appreciate how, under these circumstances, the High Court could possibly have come to the conclusion that there was any undue haste on the part of the appellant company in removing these respondents from service. The order terminating the services of respondents 2 and 3 was passed nearly 5/6 days after the arrest of respondents 2 and 3 and during which period they had been absent without leave. It cannot be said that there was any undue haste on the part of the appellant company which could possibly lead to the conclusion that it was guilty of unfair labour practice. The High Court clearly erred in allowing respondents 2 and 3 to make out a new case and then in coming to a conclusion which is clearly untenable. The orders of the Labour Court and Industrial Courts did not call for any interference. | 1[ds]19. There was no justification whatsoever for the High Court to have allowed respondents 2 and 3, while hearing a petition under Article 227 of the Constitution to raise a new contention that there had been an unfair labour practice as contemplated by Item 1(f) and the appellant had acted with undue haste. No such contention was urged before the Labour Court or in revision before the Labour Tribunal. Even in the writ petition filed in the High Court under Article 227 of the Constitution, challenging the order of the Labour Court and the Industrial Court dismissing the complaints under Section 28 of the said Act, no specific contention had been raised to the effect that there was any undue haste on the part of the appellant in issuing the termination order and which could be regarded as an unfair labour practice. Merely because in an affidavit filed before the Labour Court there was a general statement of unfair labour practice covered by Items 1(a) to (f) could be no ground for the High Court to come to the conclusion that a case under Item 1(f) had been made out because respondents 2 and 3 had not led any evidence in this behalf and nor was this contention specifically raised and argued, as already noticed, before the Labour Court and the Industrial Court or even in the writ petition filed before the Highcomplaint under Section 28 of the said Act was filed by respondents 2 and 3. If it was their case that there was an unfair labour practice on the part of the appellant herein as contemplated by Item 1(f), then it was incumbent upon the said respondents to state facts on the basis of which the Labour Court could come to the conclusion that there was an undue haste as contemplated by Item 1(f). The complaints filed by the said respondents do not contain any particulars of undue haste and nor was there any evidence led on the part of the said respondents. The High Court clearly erred in making out a new case and in setting aside the concurrent findings of the Labour Court and the Industrial Court.21. It is not in dispute that on account of loss of confidence and because of the absence of respondents 2 and 3 from work without leave, the standing orders of the company did empower it to discharge the said respondents on that ground. This being so, even if the High Court could have gone into the question as to whether there was any undue haste on the part of the appellant, in our opinion, the conclusion arrived at by the High Court against the appellant herein is without any evidence or basis.22. It would depend upon the facts of each case whether an employer has acted with undue haste while discharging or dismissing an employee. It is neither possible nor desirable to lay down or spell out any general principles in this regard. Each case will have to be judged on its own facts. Keeping in mind the undisputed facts of the present case the only question is whether or when the termination letters were issued could it be said that the appellant had acted in undue haste. To recapitulate, on 7th August, 1975 the companys employee Parkar had disclosed that respondents 2 and 3 were involved in the conspiracy of theft of the companys medicines. The said respondents were arrested on 9th August, 1975 and they were absent from duty as from that date. On 10th August, 1975 the statements of said respondents are stated to have been recorded pursuant to which recovery was stated to have been made of the stolen property. Charge-sheet against the said respondents was filed alleging offence having been committed under Section 381 read with Section 34 of the Indian Penal Code. The said respondents were not ordinary clerks in the office of the appellant but they were part and parcel of the watch and ward section, respondent No. 2 being the watchman and respondent No. 3 the havaldar. These two respondents were supposed to protect the property of the appellant company and on 14th August, 1975 the appellant company had before it information regarding the alleged involvement of these two persons in the theft of its property. It is difficult for us to appreciate how, under these circumstances, the High Court could possibly have come to the conclusion that there was any undue haste on the part of the appellant company in removing these respondents from service. The order terminating the services of respondents 2 and 3 was passed nearly 5/6 days after the arrest of respondents 2 and 3 and during which period they had been absent without leave. It cannot be said that there was any undue haste on the part of the appellant company which could possibly lead to the conclusion that it was guilty of unfair labour practice. The High Court clearly erred in allowing respondents 2 and 3 to make out a new case and then in coming to a conclusion which is clearly untenable. The orders of the Labour Court and Industrial Courts did not call for any interference. | 1 | 3,886 | 930 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
filed relating to unfair labour practices. Section 26 of the said Act states that unfair labour practices are those which are listed in Schedules II, III and IV of the said Act. Schedule II enumerates unfair labour practices, on the part of the employees inter alia, in relation to trade union activities. Schedule IV lists the general unfair labour practices which may be alleged against the employers. Item 1 clause (f) of the Schedule IV is as under:- ``(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue haste. 19. There was no justification whatsoever for the High Court to have allowed respondents 2 and 3, while hearing a petition under Article 227 of the Constitution to raise a new contention that there had been an unfair labour practice as contemplated by Item 1(f) and the appellant had acted with undue haste. No such contention was urged before the Labour Court or in revision before the Labour Tribunal. Even in the writ petition filed in the High Court under Article 227 of the Constitution, challenging the order of the Labour Court and the Industrial Court dismissing the complaints under Section 28 of the said Act, no specific contention had been raised to the effect that there was any undue haste on the part of the appellant in issuing the termination order and which could be regarded as an unfair labour practice. Merely because in an affidavit filed before the Labour Court there was a general statement of unfair labour practice covered by Items 1(a) to (f) could be no ground for the High Court to come to the conclusion that a case under Item 1(f) had been made out because respondents 2 and 3 had not led any evidence in this behalf and nor was this contention specifically raised and argued, as already noticed, before the Labour Court and the Industrial Court or even in the writ petition filed before the High Court. 20. Whether there was any undue haste on the part of the employer while discharging or dismissing an employee is a question of fact which has to be determined on the basis of evidence on record. The complaint under Section 28 of the said Act was filed by respondents 2 and 3. If it was their case that there was an unfair labour practice on the part of the appellant herein as contemplated by Item 1(f), then it was incumbent upon the said respondents to state facts on the basis of which the Labour Court could come to the conclusion that there was an undue haste as contemplated by Item 1(f). The complaints filed by the said respondents do not contain any particulars of undue haste and nor was there any evidence led on the part of the said respondents. The High Court clearly erred in making out a new case and in setting aside the concurrent findings of the Labour Court and the Industrial Court.21. It is not in dispute that on account of loss of confidence and because of the absence of respondents 2 and 3 from work without leave, the standing orders of the company did empower it to discharge the said respondents on that ground. This being so, even if the High Court could have gone into the question as to whether there was any undue haste on the part of the appellant, in our opinion, the conclusion arrived at by the High Court against the appellant herein is without any evidence or basis.22. It would depend upon the facts of each case whether an employer has acted with undue haste while discharging or dismissing an employee. It is neither possible nor desirable to lay down or spell out any general principles in this regard. Each case will have to be judged on its own facts. Keeping in mind the undisputed facts of the present case the only question is whether or when the termination letters were issued could it be said that the appellant had acted in undue haste. To recapitulate, on 7th August, 1975 the companys employee Parkar had disclosed that respondents 2 and 3 were involved in the conspiracy of theft of the companys medicines. The said respondents were arrested on 9th August, 1975 and they were absent from duty as from that date. On 10th August, 1975 the statements of said respondents are stated to have been recorded pursuant to which recovery was stated to have been made of the stolen property. Charge-sheet against the said respondents was filed alleging offence having been committed under Section 381 read with Section 34 of the Indian Penal Code. The said respondents were not ordinary clerks in the office of the appellant but they were part and parcel of the watch and ward section, respondent No. 2 being the watchman and respondent No. 3 the havaldar. These two respondents were supposed to protect the property of the appellant company and on 14th August, 1975 the appellant company had before it information regarding the alleged involvement of these two persons in the theft of its property. It is difficult for us to appreciate how, under these circumstances, the High Court could possibly have come to the conclusion that there was any undue haste on the part of the appellant company in removing these respondents from service. The order terminating the services of respondents 2 and 3 was passed nearly 5/6 days after the arrest of respondents 2 and 3 and during which period they had been absent without leave. It cannot be said that there was any undue haste on the part of the appellant company which could possibly lead to the conclusion that it was guilty of unfair labour practice. The High Court clearly erred in allowing respondents 2 and 3 to make out a new case and then in coming to a conclusion which is clearly untenable. The orders of the Labour Court and Industrial Courts did not call for any interference.
### Response:
1
### Explanation:
19. There was no justification whatsoever for the High Court to have allowed respondents 2 and 3, while hearing a petition under Article 227 of the Constitution to raise a new contention that there had been an unfair labour practice as contemplated by Item 1(f) and the appellant had acted with undue haste. No such contention was urged before the Labour Court or in revision before the Labour Tribunal. Even in the writ petition filed in the High Court under Article 227 of the Constitution, challenging the order of the Labour Court and the Industrial Court dismissing the complaints under Section 28 of the said Act, no specific contention had been raised to the effect that there was any undue haste on the part of the appellant in issuing the termination order and which could be regarded as an unfair labour practice. Merely because in an affidavit filed before the Labour Court there was a general statement of unfair labour practice covered by Items 1(a) to (f) could be no ground for the High Court to come to the conclusion that a case under Item 1(f) had been made out because respondents 2 and 3 had not led any evidence in this behalf and nor was this contention specifically raised and argued, as already noticed, before the Labour Court and the Industrial Court or even in the writ petition filed before the Highcomplaint under Section 28 of the said Act was filed by respondents 2 and 3. If it was their case that there was an unfair labour practice on the part of the appellant herein as contemplated by Item 1(f), then it was incumbent upon the said respondents to state facts on the basis of which the Labour Court could come to the conclusion that there was an undue haste as contemplated by Item 1(f). The complaints filed by the said respondents do not contain any particulars of undue haste and nor was there any evidence led on the part of the said respondents. The High Court clearly erred in making out a new case and in setting aside the concurrent findings of the Labour Court and the Industrial Court.21. It is not in dispute that on account of loss of confidence and because of the absence of respondents 2 and 3 from work without leave, the standing orders of the company did empower it to discharge the said respondents on that ground. This being so, even if the High Court could have gone into the question as to whether there was any undue haste on the part of the appellant, in our opinion, the conclusion arrived at by the High Court against the appellant herein is without any evidence or basis.22. It would depend upon the facts of each case whether an employer has acted with undue haste while discharging or dismissing an employee. It is neither possible nor desirable to lay down or spell out any general principles in this regard. Each case will have to be judged on its own facts. Keeping in mind the undisputed facts of the present case the only question is whether or when the termination letters were issued could it be said that the appellant had acted in undue haste. To recapitulate, on 7th August, 1975 the companys employee Parkar had disclosed that respondents 2 and 3 were involved in the conspiracy of theft of the companys medicines. The said respondents were arrested on 9th August, 1975 and they were absent from duty as from that date. On 10th August, 1975 the statements of said respondents are stated to have been recorded pursuant to which recovery was stated to have been made of the stolen property. Charge-sheet against the said respondents was filed alleging offence having been committed under Section 381 read with Section 34 of the Indian Penal Code. The said respondents were not ordinary clerks in the office of the appellant but they were part and parcel of the watch and ward section, respondent No. 2 being the watchman and respondent No. 3 the havaldar. These two respondents were supposed to protect the property of the appellant company and on 14th August, 1975 the appellant company had before it information regarding the alleged involvement of these two persons in the theft of its property. It is difficult for us to appreciate how, under these circumstances, the High Court could possibly have come to the conclusion that there was any undue haste on the part of the appellant company in removing these respondents from service. The order terminating the services of respondents 2 and 3 was passed nearly 5/6 days after the arrest of respondents 2 and 3 and during which period they had been absent without leave. It cannot be said that there was any undue haste on the part of the appellant company which could possibly lead to the conclusion that it was guilty of unfair labour practice. The High Court clearly erred in allowing respondents 2 and 3 to make out a new case and then in coming to a conclusion which is clearly untenable. The orders of the Labour Court and Industrial Courts did not call for any interference.
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CRYPTOM CONFECTIONERIES (P.) LTD Vs. STATE OF KERALA | 1. The Appellant is the registered brand owner of CRYPTM. Pursuant to an agreement dated 01.04.1995 entered into between the Appellant and the manufacturing company viz. M/s. Bristo Foods Pvt. Ltd., the manufacturing company had license and right to use the Appellants name CRYPTM. The assessing authority had completed the assessments for the assessment years 1998-99 and 1999-2000 and had levied sales tax u/s 5(2) of the Kerala General Sales Tax Act, 1963 (for short, the Act). 2. Being aggrieved by the order passed by the assessing authority the Appellant/Assessee preferred appeal before the First Appellate Authority. The First Appellate Authority confirmed the order passed by the assessing authority holding that the Appellant was the registered owner or holder of the brand name Cryptm which are the two conditions for levy of tax u/s 5(2) of the Act. 3. Being aggrieved by the order passed by the First Appellate Authority the Appellant/Assessee preferred appeal before the Kerala Sales Tax Appellate Tribunal, (for short, the Tribunal). The Tribunal vide its order dated 25.05.2004 while partly allowing the appeal has reduced the extent of tax already paid at any previous point of sale. 4. Aggrieved by the order so passed by the Tribunal, the Appellant preferred Sales Tax Revision before the High Court. The High Court dismissed the revision petition filed by the Appellant/assessee. Being aggrieved by the impugned judgment and order, the Appellant/assessee is before us in this appeal. 5. Heard Learned Counsel for the parties to the lis. 6. The short question that arises for our consideration and decision is the interpretation of Section 5(2) of the Act. 7. Section 5(1) of the Act is the charging Section. It provides for levy of tax on sale or purchase of goods. Section 5(1) of the Act mandates that every dealer other than a casual trader or agent of an non-resident dealer whose total turnover for a year is not less than two lakh rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year. Section 5(1)(i) speaks of the goods specified in the First or Second Schedule, at the rates and only at the points specified against such goods in the said Schedules. It is an admitted position that the goods manufactured by M/s. Bristo Foods Pvt. Ltd. in the brand name holder, namely the Appellant/assessee falls under Item 39 of the First Schedule to the Act. Therefore, it is single point levy and the levy is at the point of sale. 8. Since the interpretation of Section 5(2) of the Act is required, the said section is extracted by us. It reads as under: Notwithstanding anything contained in this Act in respect of goods, other than tea sold in auction in the State, which are sold under the trade mark or brand name, the sale by the brand name holder or the trade mark holder within the State shall be the firs; sale for the purposes of this Act. In order to attract Section 5(2) of the Act, the following conditions are to be satisfied: (i) Sale of manufactured goods other than tea; (ii) Sale of the said goods is under a trade mark/brand name; and (iii) The sale is by the brand name holder or the trade mark holder within the State. If the above three conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purpose of the Act. 9. The aforesaid Sub-section commences with a non-obstante clause, i.e., irrespective of Section 5(1) of the Act or any other provision under the Act. The said Sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The Legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to Sub-section (2) of Section 5 of the Act. Keeping in view the aforesaid provision, let us once again trace the transaction between the Appellant and the licensee, namely, M/s. Bristo Foods Pvt. Ltd. 10. According to the Appellant/assessee who is a branded name holder, M/s. Bristo Foods Pvt. Ltd. has license and is permitted to use the branded name CRYPTM. The licensee manufactures the goods, namely, confectioneries and effects supply of sale to the brand name holder. It is the brand name holder, who affects the sale of the confectioneries which are to be taxed as Item 39 of the First Schedule to the Act within the State. Therefore, it is the brand name holder, who has to pay tax u/s 5(2) of the Act. If for any reason M/s. Bristo Foods Pvt. Ltd. has paid the tax while affecting the supply of the manufactured commodity to the Appellant/assessee, the Appellant/assessee and M/s. Bristo Foods Pvt. Ltd. can approach the authorities for claiming the refund of the tax paid by them. | 0[ds]It is an admitted position that the goods manufactured by M/s. Bristo Foods Pvt. Ltd. in the brand name holder, namely the Appellant/assessee falls under Item 39 of the First Schedule to the Act. Therefore, it is single point levy and the levy is at the point of sale.9. The aforesaid Sub-section commences with a non-obstante clause, i.e., irrespective of Section 5(1) of the Act or any other provision under the Act. The said Sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The Legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to Sub-section (2) of Section 5 of the Act. Keeping in view the aforesaid provision, let us once again trace the transaction between the Appellant and the licensee, namely, M/s. Bristo Foods Pvt. Ltd.The licensee manufactures the goods, namely, confectioneries and effects supply of sale to the brand name holder. It is the brand name holder, who affects the sale of the confectioneries which are to be taxed as Item 39 of the First Schedule to the Act within the State. Therefore, it is the brand name holder, who has to pay tax u/s 5(2) of the Act. If for any reason M/s. Bristo Foods Pvt. Ltd. has paid the tax while affecting the supply of the manufactured commodity to the Appellant/assessee, the Appellant/assessee and M/s. Bristo Foods Pvt. Ltd. can approach the authorities for claiming the refund of the tax paid by them. | 0 | 980 | 318 | ### 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:
1. The Appellant is the registered brand owner of CRYPTM. Pursuant to an agreement dated 01.04.1995 entered into between the Appellant and the manufacturing company viz. M/s. Bristo Foods Pvt. Ltd., the manufacturing company had license and right to use the Appellants name CRYPTM. The assessing authority had completed the assessments for the assessment years 1998-99 and 1999-2000 and had levied sales tax u/s 5(2) of the Kerala General Sales Tax Act, 1963 (for short, the Act). 2. Being aggrieved by the order passed by the assessing authority the Appellant/Assessee preferred appeal before the First Appellate Authority. The First Appellate Authority confirmed the order passed by the assessing authority holding that the Appellant was the registered owner or holder of the brand name Cryptm which are the two conditions for levy of tax u/s 5(2) of the Act. 3. Being aggrieved by the order passed by the First Appellate Authority the Appellant/Assessee preferred appeal before the Kerala Sales Tax Appellate Tribunal, (for short, the Tribunal). The Tribunal vide its order dated 25.05.2004 while partly allowing the appeal has reduced the extent of tax already paid at any previous point of sale. 4. Aggrieved by the order so passed by the Tribunal, the Appellant preferred Sales Tax Revision before the High Court. The High Court dismissed the revision petition filed by the Appellant/assessee. Being aggrieved by the impugned judgment and order, the Appellant/assessee is before us in this appeal. 5. Heard Learned Counsel for the parties to the lis. 6. The short question that arises for our consideration and decision is the interpretation of Section 5(2) of the Act. 7. Section 5(1) of the Act is the charging Section. It provides for levy of tax on sale or purchase of goods. Section 5(1) of the Act mandates that every dealer other than a casual trader or agent of an non-resident dealer whose total turnover for a year is not less than two lakh rupees and every casual trader or agent of a non-resident dealer, whatever be his total turnover for the year, shall pay tax on his taxable turnover for that year. Section 5(1)(i) speaks of the goods specified in the First or Second Schedule, at the rates and only at the points specified against such goods in the said Schedules. It is an admitted position that the goods manufactured by M/s. Bristo Foods Pvt. Ltd. in the brand name holder, namely the Appellant/assessee falls under Item 39 of the First Schedule to the Act. Therefore, it is single point levy and the levy is at the point of sale. 8. Since the interpretation of Section 5(2) of the Act is required, the said section is extracted by us. It reads as under: Notwithstanding anything contained in this Act in respect of goods, other than tea sold in auction in the State, which are sold under the trade mark or brand name, the sale by the brand name holder or the trade mark holder within the State shall be the firs; sale for the purposes of this Act. In order to attract Section 5(2) of the Act, the following conditions are to be satisfied: (i) Sale of manufactured goods other than tea; (ii) Sale of the said goods is under a trade mark/brand name; and (iii) The sale is by the brand name holder or the trade mark holder within the State. If the above three conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purpose of the Act. 9. The aforesaid Sub-section commences with a non-obstante clause, i.e., irrespective of Section 5(1) of the Act or any other provision under the Act. The said Sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The Legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to Sub-section (2) of Section 5 of the Act. Keeping in view the aforesaid provision, let us once again trace the transaction between the Appellant and the licensee, namely, M/s. Bristo Foods Pvt. Ltd. 10. According to the Appellant/assessee who is a branded name holder, M/s. Bristo Foods Pvt. Ltd. has license and is permitted to use the branded name CRYPTM. The licensee manufactures the goods, namely, confectioneries and effects supply of sale to the brand name holder. It is the brand name holder, who affects the sale of the confectioneries which are to be taxed as Item 39 of the First Schedule to the Act within the State. Therefore, it is the brand name holder, who has to pay tax u/s 5(2) of the Act. If for any reason M/s. Bristo Foods Pvt. Ltd. has paid the tax while affecting the supply of the manufactured commodity to the Appellant/assessee, the Appellant/assessee and M/s. Bristo Foods Pvt. Ltd. can approach the authorities for claiming the refund of the tax paid by them.
### Response:
0
### Explanation:
It is an admitted position that the goods manufactured by M/s. Bristo Foods Pvt. Ltd. in the brand name holder, namely the Appellant/assessee falls under Item 39 of the First Schedule to the Act. Therefore, it is single point levy and the levy is at the point of sale.9. The aforesaid Sub-section commences with a non-obstante clause, i.e., irrespective of Section 5(1) of the Act or any other provision under the Act. The said Sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The Legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to Sub-section (2) of Section 5 of the Act. Keeping in view the aforesaid provision, let us once again trace the transaction between the Appellant and the licensee, namely, M/s. Bristo Foods Pvt. Ltd.The licensee manufactures the goods, namely, confectioneries and effects supply of sale to the brand name holder. It is the brand name holder, who affects the sale of the confectioneries which are to be taxed as Item 39 of the First Schedule to the Act within the State. Therefore, it is the brand name holder, who has to pay tax u/s 5(2) of the Act. If for any reason M/s. Bristo Foods Pvt. Ltd. has paid the tax while affecting the supply of the manufactured commodity to the Appellant/assessee, the Appellant/assessee and M/s. Bristo Foods Pvt. Ltd. can approach the authorities for claiming the refund of the tax paid by them.
|
M.S. Bindra Vs. Union of India | should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity". 14. Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first is his action against M/s Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn ? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it ? Is it that he would have taken too much pain to finish his work or is it that he would have caused it to be written by somebody else ? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after conclusion of the hearing ? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitude.15. Another lacuna is that he imposed a huge penalty and fine without issuing a show cause notice. To say that he did it for helping the defaulter is too far-fetched. The appellate authority which may be persuaded to set aside such an order on that ground could as well direct the authority to pass a fresh order after issuing the show cause notice. So it is unreasonable to conclude that the imposition of penalty was made calculatedly to have it upset by the superior authority. 16. We feel that the two lacunae ferreted out from the proceeding relating to M/s Orkay Silk Mills are grossly insufficient to reach a conclusion that the delinquent officer was trying to help the defaulting manufacturer. 17. In the second instance concerning file of M/s Indian Tobacco Company the inference made against the defaulter is too tenuous. The minimum thing which should have been done was to ascertain from Shri Bhattacharjee the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what Shri Bhattacharjee had done was seemingly unfair, without adopting such a minimum precaution.18. The third is the case relating to import of spare parts which the Jain Brothers assembled for making Honda cars. In that case the ostensible role of the appellant was to detect the offence through investigation and then to follow it up seriously. When the defaulters were granted bail the appellant moved for cancellation of the bail it is prima facie a point in favour of the appellants tenacity to pursue the steps adopted. Thus far the role played by the appellant was that of a dutiful and efficient officer of the department. But the reason for the Screening Committee to doubt the integrity of the appellant in the aforesaid case is that the Jain Brothers have alleged that one Mr. Kapoor told them that appellant was to be paid Rs. 10 lakhs to save them from the proceedings.19. We perused the statement of Jains. They never said that appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If integrity of senior officers, who established unblemished reputation and earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers more so when they have to embark on hazardous operations risking their lives against big business houses ?20. Shri N.N Goswami, Senior Advocate arguing for Union of India submitted to us that members of the Screening Committee are very reputed persons and hence their conclusion must be given full weight. It is not a question of doubting calibre the members of the Screening Committee. While declining to agree with their conclusion no particle of mud is slung on any member of the Screening Committee. Even if such a conclusion was made by a judicial personage the higher court which overrules it does not cast any stigma on the judicial officer concerned.21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope. | 1[ds]13. While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente(no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first is his action against M/s Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn ? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it ? Is it that he would have taken too much pain to finish his work or is it that he would have caused it to be written by somebody else ? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after conclusion of the hearing ? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitude.15. Another lacuna is that he imposed a huge penalty and fine without issuing a show cause notice. To say that he did it for helping the defaulter is too far-fetched. The appellate authority which may be persuaded to set aside such an order on that ground could as well direct the authority to pass a fresh order after issuing the show cause notice. So it is unreasonable to conclude that the imposition of penalty was made calculatedly to have it upset by the superior authority.In the second instance concerning file of M/s Indian Tobacco Company the inference made against the defaulter is too tenuous. The minimum thing which should have been done was to ascertain from Shri Bhattacharjee the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what Shri Bhattacharjee had done was seemingly unfair, without adopting such a minimum precaution.18. The third is the case relating to import of spare parts which the Jain Brothers assembled for making Honda cars. In that case the ostensible role of the appellant was to detect the offence through investigation and then to follow it up seriously. When the defaulters were granted bail the appellant moved for cancellation of the bail it is prima facie a point in favour of the appellants tenacity to pursue the steps adopted. Thus far the role played by the appellant was that of a dutiful and efficient officer of the department. But the reason for the Screening Committee to doubt the integrity of the appellant in the aforesaid case is that the Jain Brothers have alleged that one Mr. Kapoor told them that appellant was to be paid Rs. 10 lakhs to save them from the proceedings.19. We perused the statement of Jains. They never said that appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If integrity of senior officers, who established unblemished reputation and earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers more so when they have to embark on hazardous operations risking their lives against big business houses ?20. Shri N.N Goswami, Senior Advocate arguing for Union of India submitted to us that members of the Screening Committee are very reputed persons and hence their conclusion must be given full weight. It is not a question of doubting calibre the members of the Screening Committee. While declining to agree with their conclusion no particle of mud is slung on any member of the Screening Committee. Even if such a conclusion was made by a judicial personage the higher court which overrules it does not cast any stigma on the judicial officer concerned.21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope. | 1 | 2,942 | 1,136 | ### 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:
should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity". 14. Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first is his action against M/s Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn ? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it ? Is it that he would have taken too much pain to finish his work or is it that he would have caused it to be written by somebody else ? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after conclusion of the hearing ? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitude.15. Another lacuna is that he imposed a huge penalty and fine without issuing a show cause notice. To say that he did it for helping the defaulter is too far-fetched. The appellate authority which may be persuaded to set aside such an order on that ground could as well direct the authority to pass a fresh order after issuing the show cause notice. So it is unreasonable to conclude that the imposition of penalty was made calculatedly to have it upset by the superior authority. 16. We feel that the two lacunae ferreted out from the proceeding relating to M/s Orkay Silk Mills are grossly insufficient to reach a conclusion that the delinquent officer was trying to help the defaulting manufacturer. 17. In the second instance concerning file of M/s Indian Tobacco Company the inference made against the defaulter is too tenuous. The minimum thing which should have been done was to ascertain from Shri Bhattacharjee the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what Shri Bhattacharjee had done was seemingly unfair, without adopting such a minimum precaution.18. The third is the case relating to import of spare parts which the Jain Brothers assembled for making Honda cars. In that case the ostensible role of the appellant was to detect the offence through investigation and then to follow it up seriously. When the defaulters were granted bail the appellant moved for cancellation of the bail it is prima facie a point in favour of the appellants tenacity to pursue the steps adopted. Thus far the role played by the appellant was that of a dutiful and efficient officer of the department. But the reason for the Screening Committee to doubt the integrity of the appellant in the aforesaid case is that the Jain Brothers have alleged that one Mr. Kapoor told them that appellant was to be paid Rs. 10 lakhs to save them from the proceedings.19. We perused the statement of Jains. They never said that appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If integrity of senior officers, who established unblemished reputation and earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers more so when they have to embark on hazardous operations risking their lives against big business houses ?20. Shri N.N Goswami, Senior Advocate arguing for Union of India submitted to us that members of the Screening Committee are very reputed persons and hence their conclusion must be given full weight. It is not a question of doubting calibre the members of the Screening Committee. While declining to agree with their conclusion no particle of mud is slung on any member of the Screening Committee. Even if such a conclusion was made by a judicial personage the higher court which overrules it does not cast any stigma on the judicial officer concerned.21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope.
### Response:
1
### Explanation:
officer was held till recently. The maxim "Nemo Firut Repente(no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first is his action against M/s Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn ? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it ? Is it that he would have taken too much pain to finish his work or is it that he would have caused it to be written by somebody else ? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after conclusion of the hearing ? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been frowned at, instead there is scope to pay admiration for its promptitude.15. Another lacuna is that he imposed a huge penalty and fine without issuing a show cause notice. To say that he did it for helping the defaulter is too far-fetched. The appellate authority which may be persuaded to set aside such an order on that ground could as well direct the authority to pass a fresh order after issuing the show cause notice. So it is unreasonable to conclude that the imposition of penalty was made calculatedly to have it upset by the superior authority.In the second instance concerning file of M/s Indian Tobacco Company the inference made against the defaulter is too tenuous. The minimum thing which should have been done was to ascertain from Shri Bhattacharjee the Deputy Director, the circumstances under which instructions were issued by him to keep the investigation in abeyance. Attributing a sinister motive to the appellant for what Shri Bhattacharjee had done was seemingly unfair, without adopting such a minimum precaution.18. The third is the case relating to import of spare parts which the Jain Brothers assembled for making Honda cars. In that case the ostensible role of the appellant was to detect the offence through investigation and then to follow it up seriously. When the defaulters were granted bail the appellant moved for cancellation of the bail it is prima facie a point in favour of the appellants tenacity to pursue the steps adopted. Thus far the role played by the appellant was that of a dutiful and efficient officer of the department. But the reason for the Screening Committee to doubt the integrity of the appellant in the aforesaid case is that the Jain Brothers have alleged that one Mr. Kapoor told them that appellant was to be paid Rs. 10 lakhs to save them from the proceedings.19. We perused the statement of Jains. They never said that appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If integrity of senior officers, who established unblemished reputation and earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers more so when they have to embark on hazardous operations risking their lives against big business houses ?20. Shri N.N Goswami, Senior Advocate arguing for Union of India submitted to us that members of the Screening Committee are very reputed persons and hence their conclusion must be given full weight. It is not a question of doubting calibre the members of the Screening Committee. While declining to agree with their conclusion no particle of mud is slung on any member of the Screening Committee. Even if such a conclusion was made by a judicial personage the higher court which overrules it does not cast any stigma on the judicial officer concerned.21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope.
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UNITED BANK OF INDIA Vs. BACHAN PRASAD LALL | respondent employee by that time had retired on attaining the age of superannuation in 2007. The relevant para is as under:- 3. It appears to us that the Tribunal agreed with the finding of fact recorded by the learned Inquiry Officer that had found him guilty of misappropriation of funds. However, the learned Tribunal also observed that it was perhaps a case of bona fide error leading to alteration in the punishment. We feel that the learned Tribunal was not justified in disagreeing with the finding of fact recorded by the learned Inquiry Officer. It does not appear to us to be a case of bona fide error, but was really a case of well though-out plan to divert funds from other accounts to a fictitious account opened by him. In such a situation, reduction in punishment also becomes a case of uncalled for interference. The learned Tribunal also seems to have given weightage to the domestic situation in the employees family, which we once again feel to be a wholly unjustified ground to dilute the guilt of the employee. Law is well settled that needless compassion should not be injected into judicial proceedings. We do not agree with the order of the learned Tribunal nor that of the learned Writ Court. However, we would have interfered with the order of the learned Tribunal but we refrain from doing so because the employee has already reached the age of superannuation way back in the year 2007. (emphasis supplied) 7. We have heard learned counsel for the parties and also perused the material available on record. 8. The respondent employee was served with the charge--sheet dated 2nd March, 1996 with the following allegations:- 1. The charge sheet dated 2.3.96 against Sri B.P. Lal reads as follows: (a) Sri Bachan Prasad Lal was posted as Typist-cum-Clerk in Katihar Branch from 4.12.90 to 1.7.95. During this tenure he also worked as Temporary Special Assistant & Teller Clerk. (b) During this tenure, on different dates, he prepared nine fraudulent credit transfer vouchers aggregating Rs.53,465/- without giving full details/description of F/D A/cs numbers in five vouchers and in the rest mentioning A/c no. of different F/D account holders on the pretext of payment of interest towards fixed deposit account and got the full amount credited in S/B A/c No.8762 in the name of Smt. Asha Devi. (c) It is revealed that no F/D A/c in the name of Asha Devi could be traced on the basis of available branch records/documents. In case of Transfer Credit Vouchers bearing F/D A/c No. persons other than Smt. Asha Devi no such mandate for credit of monthly interest was given by the respective account holders hence preparation of vouchers were unwarranted. (d) It is further revealed that he had irregularly opened the S.B. a/c No.8762 in the name of Smt. Asha Devi who is not ... illegible ... (e) He is a Special Assistant released/ called the credit vouchers posted by the Ledger keener to the credit of S.B. a/c no. 8762 with but ensuring that many of such transfer credit vouchers were not signed by the other Officials as second signatory. (f) The amount so credited in the S.B/ a/c no. 8762 were subsequently withdrawn by withdrawal slips on various dates. The draws signatures as appearing on the above with drawal slips as well as on the back of there slips were forged by him and the said signatures on the withdrawal slips were verified by him and also passed for payment by him. (g) Moreover, he received payment of the withdrawal slips forging the signatures of the drawer on the back of the withdrawal slips of dated 9.1.93 for Rs. 5, 100/--, 25.8.94 for Rs. 10,000/--, 3.9.94 for Rs. 9,000/-- 16.9.96. for Rs.10,000/-- & 27.1.95 for Rs. 5,000/--. (h) In order to accommodate amount of the above fraudulent credit entries he altered/adjusted & debit and credit entries in the transfer journal as well as amount of corresponding debit vouchers on 19.12.90, 20.12.90, 14.1.91 & 11.7.91 without any authentication. He also did not mention the journal number on the vouchers. Thus, by his aforesaid acts he perpetrated fraudulent misappropriation of Rs. 53,465/-- and thereby causing financial loss to the Bank. 9. The nature of allegation against the respondent employee was of fraudulently preparing nine credit transfer vouchers on various dates on the pretext of payment of interest towards fixed deposits and crediting the whole amount to one saving account opened in the name of one Smt. Asha Devi (admittedly the fake account prepared by respondent employee). In order to adjust the said amount, he manipulated the other book records of the Bank using forged signatures. After such nature of allegations stood proved, the disciplinary authority, after taking into consideration the record of inquiry and the post held by the respondent employee, punished him with the penalty of dismissal from service. 10. The finding of guilt recorded by the inquiry officer in his report was confirmed at all later stages by the disciplinary/appellate authority and even after judicial scrutiny by the Division Bench in the impugned judgment but still refrained from interference on the premise that the employee had superannuated in the year 2007. 11. In our considered view, looking into seriousness of the nature of allegations levelled against the respondent employee, the punishment of dismissal inflicted upon him in no manner could be said to be shockingly disproportionate which would have required to be interfered with by the Tribunal in exercise of its power under Section 11A of the Act 1947. At the same time, merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. The Bank employee always holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently. | 1[ds]9. The nature of allegation against the respondent employee was of fraudulently preparing nine credit transfer vouchers on various dates on the pretext of payment of interest towards fixed deposits and crediting the whole amount to one saving account opened in the name of one Smt. Asha Devi (admittedly the fake account prepared by respondent employee). In order to adjust the said amount, he manipulated the other book records of the Bank using forged signatures. After such nature of allegations stood proved, the disciplinary authority, after taking into consideration the record of inquiry and the post held by the respondent employee, punished him with the penalty of dismissal from service.10. The finding of guilt recorded by the inquiry officer in his report was confirmed at all later stages by the disciplinary/appellate authority and even after judicial scrutiny by the Division Bench in the impugned judgment but still refrained from interference on the premise that the employee had superannuated in the year 2007.11. In our considered view, looking into seriousness of the nature of allegations levelled against the respondent employee, the punishment of dismissal inflicted upon him in no manner could be said to be shockingly disproportionate which would have required to be interfered with by the Tribunal in exercise of its power under Section 11A of the Act 1947. At the same time, merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. The Bank employee always holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently. | 1 | 1,768 | 320 | ### 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:
respondent employee by that time had retired on attaining the age of superannuation in 2007. The relevant para is as under:- 3. It appears to us that the Tribunal agreed with the finding of fact recorded by the learned Inquiry Officer that had found him guilty of misappropriation of funds. However, the learned Tribunal also observed that it was perhaps a case of bona fide error leading to alteration in the punishment. We feel that the learned Tribunal was not justified in disagreeing with the finding of fact recorded by the learned Inquiry Officer. It does not appear to us to be a case of bona fide error, but was really a case of well though-out plan to divert funds from other accounts to a fictitious account opened by him. In such a situation, reduction in punishment also becomes a case of uncalled for interference. The learned Tribunal also seems to have given weightage to the domestic situation in the employees family, which we once again feel to be a wholly unjustified ground to dilute the guilt of the employee. Law is well settled that needless compassion should not be injected into judicial proceedings. We do not agree with the order of the learned Tribunal nor that of the learned Writ Court. However, we would have interfered with the order of the learned Tribunal but we refrain from doing so because the employee has already reached the age of superannuation way back in the year 2007. (emphasis supplied) 7. We have heard learned counsel for the parties and also perused the material available on record. 8. The respondent employee was served with the charge--sheet dated 2nd March, 1996 with the following allegations:- 1. The charge sheet dated 2.3.96 against Sri B.P. Lal reads as follows: (a) Sri Bachan Prasad Lal was posted as Typist-cum-Clerk in Katihar Branch from 4.12.90 to 1.7.95. During this tenure he also worked as Temporary Special Assistant & Teller Clerk. (b) During this tenure, on different dates, he prepared nine fraudulent credit transfer vouchers aggregating Rs.53,465/- without giving full details/description of F/D A/cs numbers in five vouchers and in the rest mentioning A/c no. of different F/D account holders on the pretext of payment of interest towards fixed deposit account and got the full amount credited in S/B A/c No.8762 in the name of Smt. Asha Devi. (c) It is revealed that no F/D A/c in the name of Asha Devi could be traced on the basis of available branch records/documents. In case of Transfer Credit Vouchers bearing F/D A/c No. persons other than Smt. Asha Devi no such mandate for credit of monthly interest was given by the respective account holders hence preparation of vouchers were unwarranted. (d) It is further revealed that he had irregularly opened the S.B. a/c No.8762 in the name of Smt. Asha Devi who is not ... illegible ... (e) He is a Special Assistant released/ called the credit vouchers posted by the Ledger keener to the credit of S.B. a/c no. 8762 with but ensuring that many of such transfer credit vouchers were not signed by the other Officials as second signatory. (f) The amount so credited in the S.B/ a/c no. 8762 were subsequently withdrawn by withdrawal slips on various dates. The draws signatures as appearing on the above with drawal slips as well as on the back of there slips were forged by him and the said signatures on the withdrawal slips were verified by him and also passed for payment by him. (g) Moreover, he received payment of the withdrawal slips forging the signatures of the drawer on the back of the withdrawal slips of dated 9.1.93 for Rs. 5, 100/--, 25.8.94 for Rs. 10,000/--, 3.9.94 for Rs. 9,000/-- 16.9.96. for Rs.10,000/-- & 27.1.95 for Rs. 5,000/--. (h) In order to accommodate amount of the above fraudulent credit entries he altered/adjusted & debit and credit entries in the transfer journal as well as amount of corresponding debit vouchers on 19.12.90, 20.12.90, 14.1.91 & 11.7.91 without any authentication. He also did not mention the journal number on the vouchers. Thus, by his aforesaid acts he perpetrated fraudulent misappropriation of Rs. 53,465/-- and thereby causing financial loss to the Bank. 9. The nature of allegation against the respondent employee was of fraudulently preparing nine credit transfer vouchers on various dates on the pretext of payment of interest towards fixed deposits and crediting the whole amount to one saving account opened in the name of one Smt. Asha Devi (admittedly the fake account prepared by respondent employee). In order to adjust the said amount, he manipulated the other book records of the Bank using forged signatures. After such nature of allegations stood proved, the disciplinary authority, after taking into consideration the record of inquiry and the post held by the respondent employee, punished him with the penalty of dismissal from service. 10. The finding of guilt recorded by the inquiry officer in his report was confirmed at all later stages by the disciplinary/appellate authority and even after judicial scrutiny by the Division Bench in the impugned judgment but still refrained from interference on the premise that the employee had superannuated in the year 2007. 11. In our considered view, looking into seriousness of the nature of allegations levelled against the respondent employee, the punishment of dismissal inflicted upon him in no manner could be said to be shockingly disproportionate which would have required to be interfered with by the Tribunal in exercise of its power under Section 11A of the Act 1947. At the same time, merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. The Bank employee always holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently.
### Response:
1
### Explanation:
9. The nature of allegation against the respondent employee was of fraudulently preparing nine credit transfer vouchers on various dates on the pretext of payment of interest towards fixed deposits and crediting the whole amount to one saving account opened in the name of one Smt. Asha Devi (admittedly the fake account prepared by respondent employee). In order to adjust the said amount, he manipulated the other book records of the Bank using forged signatures. After such nature of allegations stood proved, the disciplinary authority, after taking into consideration the record of inquiry and the post held by the respondent employee, punished him with the penalty of dismissal from service.10. The finding of guilt recorded by the inquiry officer in his report was confirmed at all later stages by the disciplinary/appellate authority and even after judicial scrutiny by the Division Bench in the impugned judgment but still refrained from interference on the premise that the employee had superannuated in the year 2007.11. In our considered view, looking into seriousness of the nature of allegations levelled against the respondent employee, the punishment of dismissal inflicted upon him in no manner could be said to be shockingly disproportionate which would have required to be interfered with by the Tribunal in exercise of its power under Section 11A of the Act 1947. At the same time, merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. The Bank employee always holds the position of trust where honesty and integrity are the sine qua non but it would never be advisable to deal with such matters leniently.
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SHREYAS SINHA Vs. THE WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES & ORS. | choice of admission would not be possible at such a stage because of the large number of candidates taking CLAT. Therefore, the University had decided to give the benefit of reservation in terms of the Amending Act from the next Academic Year. It was argued that even if the option for domicile for West Bengal candidates was made available to the appellant, still, he would only have a remote chance of getting admission in the University keeping his rank in the merit list. 14. Learned counsel for the respondent relied upon a judgment of this Court in P . Bhima Reddy v. State of Mysore & Ors. (1969) 1 SCC 68 to contend the expression commencement of the Amending Act at once means within a reasonable time after the commencement of the Act. The decision of the Executive Council of the University was taken within a reasonable time and cannot be said to be arbitrary as the admission process was initiated before the Amending Act came into force. Therefore, it was not possible to give effect to the provisions of the Act from the Academic Session 2019-2020. Thus, the action of the University to grant the benefit of the Amending Act from the next academic session cannot be said to be unreasonable and is a possible decision in terms of the Amending Act. 15. The Bill for amending the Act was tabled on 16 th November, 2018. The same came to be approved and published in the State Government Gazette on 21 st May 2019. The Amending Act comes into force at once i.e. on 21 st May 2019 but there is no provision in the Amending Act that it will apply to the on-going admission process. The University was mandated to provide compulsory reservation of seats to the extent of at least 30% of the total intake in the University but the year from which the said admission was to be reserved was not prescribed in the statute. The Academic Council of the University in its 36 th meeting held on 27 th July, 2019 resolved that 30% reservation for West Bengal domiciles will be implemented from the next Academic Year. Such decision of the Academic Council was approved by the Executive Council of the University on 10 th August, 2019. 16. The total seats at the University are 127 including the seats meant for State domicile candidates prior to the amendment. The additional seats reserved were required to be provided at the time of initiation of the admission process which started in January, 2019. Each of the candidates intending to appear in the CLAT is required to give three choices for admission into the National Law Universities. The candidates had given these choices keeping in view the reservation policy of each State. Since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given. The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session. We find such decision to be fair, reasonable and not arbitrary or capricious. 17. None of the judgments referred to by Mr. Vikas Singh are helpful to the arguments raised. In Anupal Singhs case, the challenge was to the bifurcation of vacancies in the cadre of subordinate agricultural service in the State of Uttar Pradesh on the ground that it amounts to changing of the rules of the game in the middle of the selection process. However, the bifurcation of seats amongst the different categories was due to the wrong calculation of seats as per the statutory provisions. It was held that such an amendment in the bifurcation of seats did not amount to change of rules of the game as it was necessitated on account of a mistaken calculation of seats in terms of the provisions of the statute. 18. S. Krishna Sradhas case is applicable only if a meritorious candidate has been denied admission. In the present case, the appellant cannot be said to be a meritorious candidate in the Academic Session 2019-2020. The benefit of reservation had been extended to the candidates by the Universities from the next Academic Session i.e. 2020-2021. Since there is no mandate in the Amending Act to grant the benefit of reservation in the Academic Year 2019-2020, therefore, the University keeping in view the entire facts and circumstances has rightly held that the benefit of reservation would be extended from the next academic year as the admission process had already been initiated before coming into force of the Amending Act. 19. We also find that the judgment referred to by Mr. Chatterji is not helpful to the arguments raised. The case pertained to a successful tenderer who was not granted a license because he had failed to furnish a statement of immovable properties and to furnish certain sureties as required by the Rules prescribed. It was in these circumstances, the Court held that the expression at once has to be interpreted as to be within a reasonable time. However, the Amending Act in the present case came into force from the date of its publication in the Official Gazette. Since the Amending Act does not contemplate that the benefit of reservation has to be granted in the ongoing academic session, therefore, the University was at liberty to decide to extend the benefit from the next academic session. 20. We do not find any error in the findings recorded by the High Court or that this decision of the University contravenes the provisions of the Amending Act, which may warrant interference in the present appeal. | 0[ds]15. The Bill for amending the Act was tabled on 16 th November, 2018. The same came to be approved and published in the State Government Gazette on 21 st May 2019. The Amending Act comes into force at once i.e. on 21 st May 2019 but there is no provision in the Amending Act that it will apply to the on-going admission process. The University was mandated to provide compulsory reservation of seats to the extent of at least 30% of the total intake in the University but the year from which the said admission was to be reserved was not prescribed in the statute. The Academic Council of the University in its 36 th meeting held on 27 th July, 2019 resolved that 30% reservation for West Bengal domiciles will be implemented from the next Academic Year. Such decision of the Academic Council was approved by the Executive Council of the University on 10 th August, 2019.16. The total seats at the University are 127 including the seats meant for State domicile candidates prior to the amendment. The additional seats reserved were required to be provided at the time of initiation of the admission process which started in January, 2019. Each of the candidates intending to appear in the CLAT is required to give three choices for admission into the National Law Universities. The candidates had given these choices keeping in view the reservation policy of each State. Since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given. The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session. We find such decision to be fair, reasonable and not arbitrary or capricious.17. None of the judgments referred to by Mr. Vikas Singh are helpful to the arguments raised. In Anupal Singhs case, the challenge was to the bifurcation of vacancies in the cadre of subordinate agricultural service in the State of Uttar Pradesh on the ground that it amounts to changing of the rules of the game in the middle of the selection process. However, the bifurcation of seats amongst the different categories was due to the wrong calculation of seats as per the statutory provisions. It was held that such an amendment in the bifurcation of seats did not amount to change of rules of the game as it was necessitated on account of a mistaken calculation of seats in terms of the provisions of the statute.18. S. Krishna Sradhas case is applicable only if a meritorious candidate has been denied admission. In the present case, the appellant cannot be said to be a meritorious candidate in the Academic Session 2019-2020. The benefit of reservation had been extended to the candidates by the Universities from the next Academic Session i.e. 2020-2021. Since there is no mandate in the Amending Act to grant the benefit of reservation in the Academic Year 2019-2020, therefore, the University keeping in view the entire facts and circumstances has rightly held that the benefit of reservation would be extended from the next academic year as the admission process had already been initiated before coming into force of the Amending Act.19. We also find that the judgment referred to by Mr. Chatterji is not helpful to the arguments raised. The case pertained to a successful tenderer who was not granted a license because he had failed to furnish a statement of immovable properties and to furnish certain sureties as required by the Rules prescribed. It was in these circumstances, the Court held that the expression at once has to be interpreted as to be within a reasonable time. However, the Amending Act in the present case came into force from the date of its publication in the Official Gazette. Since the Amending Act does not contemplate that the benefit of reservation has to be granted in the ongoing academic session, therefore, the University was at liberty to decide to extend the benefit from the next academic session.20. We do not find any error in the findings recorded by the High Court or that this decision of the University contravenes the provisions of the Amending Act, which may warrant interference in the present appeal. | 0 | 2,857 | 830 | ### 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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choice of admission would not be possible at such a stage because of the large number of candidates taking CLAT. Therefore, the University had decided to give the benefit of reservation in terms of the Amending Act from the next Academic Year. It was argued that even if the option for domicile for West Bengal candidates was made available to the appellant, still, he would only have a remote chance of getting admission in the University keeping his rank in the merit list. 14. Learned counsel for the respondent relied upon a judgment of this Court in P . Bhima Reddy v. State of Mysore & Ors. (1969) 1 SCC 68 to contend the expression commencement of the Amending Act at once means within a reasonable time after the commencement of the Act. The decision of the Executive Council of the University was taken within a reasonable time and cannot be said to be arbitrary as the admission process was initiated before the Amending Act came into force. Therefore, it was not possible to give effect to the provisions of the Act from the Academic Session 2019-2020. Thus, the action of the University to grant the benefit of the Amending Act from the next academic session cannot be said to be unreasonable and is a possible decision in terms of the Amending Act. 15. The Bill for amending the Act was tabled on 16 th November, 2018. The same came to be approved and published in the State Government Gazette on 21 st May 2019. The Amending Act comes into force at once i.e. on 21 st May 2019 but there is no provision in the Amending Act that it will apply to the on-going admission process. The University was mandated to provide compulsory reservation of seats to the extent of at least 30% of the total intake in the University but the year from which the said admission was to be reserved was not prescribed in the statute. The Academic Council of the University in its 36 th meeting held on 27 th July, 2019 resolved that 30% reservation for West Bengal domiciles will be implemented from the next Academic Year. Such decision of the Academic Council was approved by the Executive Council of the University on 10 th August, 2019. 16. The total seats at the University are 127 including the seats meant for State domicile candidates prior to the amendment. The additional seats reserved were required to be provided at the time of initiation of the admission process which started in January, 2019. Each of the candidates intending to appear in the CLAT is required to give three choices for admission into the National Law Universities. The candidates had given these choices keeping in view the reservation policy of each State. Since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given. The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session. We find such decision to be fair, reasonable and not arbitrary or capricious. 17. None of the judgments referred to by Mr. Vikas Singh are helpful to the arguments raised. In Anupal Singhs case, the challenge was to the bifurcation of vacancies in the cadre of subordinate agricultural service in the State of Uttar Pradesh on the ground that it amounts to changing of the rules of the game in the middle of the selection process. However, the bifurcation of seats amongst the different categories was due to the wrong calculation of seats as per the statutory provisions. It was held that such an amendment in the bifurcation of seats did not amount to change of rules of the game as it was necessitated on account of a mistaken calculation of seats in terms of the provisions of the statute. 18. S. Krishna Sradhas case is applicable only if a meritorious candidate has been denied admission. In the present case, the appellant cannot be said to be a meritorious candidate in the Academic Session 2019-2020. The benefit of reservation had been extended to the candidates by the Universities from the next Academic Session i.e. 2020-2021. Since there is no mandate in the Amending Act to grant the benefit of reservation in the Academic Year 2019-2020, therefore, the University keeping in view the entire facts and circumstances has rightly held that the benefit of reservation would be extended from the next academic year as the admission process had already been initiated before coming into force of the Amending Act. 19. We also find that the judgment referred to by Mr. Chatterji is not helpful to the arguments raised. The case pertained to a successful tenderer who was not granted a license because he had failed to furnish a statement of immovable properties and to furnish certain sureties as required by the Rules prescribed. It was in these circumstances, the Court held that the expression at once has to be interpreted as to be within a reasonable time. However, the Amending Act in the present case came into force from the date of its publication in the Official Gazette. Since the Amending Act does not contemplate that the benefit of reservation has to be granted in the ongoing academic session, therefore, the University was at liberty to decide to extend the benefit from the next academic session. 20. We do not find any error in the findings recorded by the High Court or that this decision of the University contravenes the provisions of the Amending Act, which may warrant interference in the present appeal.
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15. The Bill for amending the Act was tabled on 16 th November, 2018. The same came to be approved and published in the State Government Gazette on 21 st May 2019. The Amending Act comes into force at once i.e. on 21 st May 2019 but there is no provision in the Amending Act that it will apply to the on-going admission process. The University was mandated to provide compulsory reservation of seats to the extent of at least 30% of the total intake in the University but the year from which the said admission was to be reserved was not prescribed in the statute. The Academic Council of the University in its 36 th meeting held on 27 th July, 2019 resolved that 30% reservation for West Bengal domiciles will be implemented from the next Academic Year. Such decision of the Academic Council was approved by the Executive Council of the University on 10 th August, 2019.16. The total seats at the University are 127 including the seats meant for State domicile candidates prior to the amendment. The additional seats reserved were required to be provided at the time of initiation of the admission process which started in January, 2019. Each of the candidates intending to appear in the CLAT is required to give three choices for admission into the National Law Universities. The candidates had given these choices keeping in view the reservation policy of each State. Since the reservation policy of 30% seats was not available on the date when the admission process was initiated, the decision of the University to provide reservation from the next Academic Year cannot be said to be contradictory to the provisions of the Amending Act. The Act is silent in respect of Academic Year in which the benefit of reservation is to be given. The candidates have already applied and given an option for admission in the various National Law Universities before the coming into force of the Amending Act. Therefore, the University extended the benefit of the reservation from the next Academic Session. We find such decision to be fair, reasonable and not arbitrary or capricious.17. None of the judgments referred to by Mr. Vikas Singh are helpful to the arguments raised. In Anupal Singhs case, the challenge was to the bifurcation of vacancies in the cadre of subordinate agricultural service in the State of Uttar Pradesh on the ground that it amounts to changing of the rules of the game in the middle of the selection process. However, the bifurcation of seats amongst the different categories was due to the wrong calculation of seats as per the statutory provisions. It was held that such an amendment in the bifurcation of seats did not amount to change of rules of the game as it was necessitated on account of a mistaken calculation of seats in terms of the provisions of the statute.18. S. Krishna Sradhas case is applicable only if a meritorious candidate has been denied admission. In the present case, the appellant cannot be said to be a meritorious candidate in the Academic Session 2019-2020. The benefit of reservation had been extended to the candidates by the Universities from the next Academic Session i.e. 2020-2021. Since there is no mandate in the Amending Act to grant the benefit of reservation in the Academic Year 2019-2020, therefore, the University keeping in view the entire facts and circumstances has rightly held that the benefit of reservation would be extended from the next academic year as the admission process had already been initiated before coming into force of the Amending Act.19. We also find that the judgment referred to by Mr. Chatterji is not helpful to the arguments raised. The case pertained to a successful tenderer who was not granted a license because he had failed to furnish a statement of immovable properties and to furnish certain sureties as required by the Rules prescribed. It was in these circumstances, the Court held that the expression at once has to be interpreted as to be within a reasonable time. However, the Amending Act in the present case came into force from the date of its publication in the Official Gazette. Since the Amending Act does not contemplate that the benefit of reservation has to be granted in the ongoing academic session, therefore, the University was at liberty to decide to extend the benefit from the next academic session.20. We do not find any error in the findings recorded by the High Court or that this decision of the University contravenes the provisions of the Amending Act, which may warrant interference in the present appeal.
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Namdeo Lokman Lodhi Vs. Narmadabai And Others | the Court normally would grant relief against forfeiture for non-payment of rent under Section 114, T, P. Act, and that if the sum required under the section was paid or tendered to the lessor at the hearing of the suit the Court has no discretion in the matter and must grant relief to the tenant. We do not think that the learned Judges intended to lay down any hard and fast rule. Indeed the learned Judge proceeded to observe as follows:"In exercising the discretion with which it is invested under Section 114 a Court in India is not bound by the practice of a Court of Chancery in England, and I am not disposed to limit the discretion that it possesses. Those who seek equity must do equity, and I do not think merely because a tenant complies with the conditions laid down in S. l14 that he becomes entitled as of right to relief."29. In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant. This was the view taken by the Madras High Court in Appayya Shetty v. Mahammad Beari, AIR 1910 Mad. 680 (2) (U), and the matter was discussed at some length. We agree with the ratio of that decision. It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Courts hands are not tied to exercise it in his favour. Reference in this connection may also be made to AIR 1914 Mad. 706 (H) and Ramabrahmam v. Rami Reddi. AIR 1928 Mad. 250 (V).30. The argument of Mr. Daphtary that there was no real discretion in the Court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman v. Rose, (1912), A.C. 623 (W). Relief was claimed in that case under the provisions of Section 14 (2) of the Convincing Act, 1881 against forfeiture for breaches of covenant in the lease. The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former condition at the end of the term and make full restitution. It was argued that the matter was one of discretion and the Court should lean to relieve a tenant against forfeiture and it full recompense can be made to the landlord the relief should be granted. Lord Lore burn in delivering the opinion of the House observed as follows:"I desire in the first instance to point out that the discretion given by the section is very is wide. The Court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provided a wide discretion meaning no doubt, to prevent one man from forfeiting what in fair dealing belongs to someone else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not a advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decided what is the true meaning of the language contained in an Act of Parliament. It is quite different thing a place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them and the facts of some unforeseen case may make the Court with it had kept a free hand."31. With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture. | 0[ds]14. The law with regard to the determination of a lease by forfeiture is contained in S. 111 (g), T. P. Act. Under that provision a lease is determined by forfeiture in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event and a certain further act is done by the lessor as thereinafter mentioned.It is axiomatic that the Courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the. Transfer of Property Act are not made applicable to these transactions. It follows, therefore, that the provisions of the Act which are but a statutory recognition of the rules of justice, equity and good conscience also govern those transfers. If therefore, we are satisfied that the particular principle to which the legislature has now given effect by the amendment to s. 111 (g) did in fact represent a principle of justice equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in section although in express terms it has not been made applicable to leases executed prior to 1929 or even prior to the Transfer of Property Act coming intoHigh Court held, and we think rightly, that this provision in sub-s. (g) of S. 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provision of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as S. 111(g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the foot that the formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a Chancery Judge. The requirement as to written notice provided in the section, therefore, cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1-4-1930. Those leases are still governed by the unamended sub-s. (g) of Sec. 111. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub-s. (g) as it stood before 1929, and to leases executed after 1-4-1930 the principle of equity is the one stated in the sub-section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete aour opinion, the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer of Property Act, 1882, or to leases executed Prior to 1-4-1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach.On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined. The High Court was, therefore, right in the view that it took of the matter and there are no valid reasons for taking a contraryrelation of lessor and lessee is one of contract and in Bacons Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other consideration on the other. The statute has given a more comprehensive definition of the term. Section 107 makes registration of a lease compulsory. This section again does not concern itself with any principle of justice or equity. Section 108(j) enacts that the lessee may transfer absolutely by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The law in India and England on this subject is not the same and it cannot be said that this sub-section enacts or enunciates any general principle of equity.In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against theis a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Courts hands are not tied to exercise it in his favour.With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture. | 0 | 7,181 | 1,452 | ### Instruction:
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the Court normally would grant relief against forfeiture for non-payment of rent under Section 114, T, P. Act, and that if the sum required under the section was paid or tendered to the lessor at the hearing of the suit the Court has no discretion in the matter and must grant relief to the tenant. We do not think that the learned Judges intended to lay down any hard and fast rule. Indeed the learned Judge proceeded to observe as follows:"In exercising the discretion with which it is invested under Section 114 a Court in India is not bound by the practice of a Court of Chancery in England, and I am not disposed to limit the discretion that it possesses. Those who seek equity must do equity, and I do not think merely because a tenant complies with the conditions laid down in S. l14 that he becomes entitled as of right to relief."29. In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant. This was the view taken by the Madras High Court in Appayya Shetty v. Mahammad Beari, AIR 1910 Mad. 680 (2) (U), and the matter was discussed at some length. We agree with the ratio of that decision. It is a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Courts hands are not tied to exercise it in his favour. Reference in this connection may also be made to AIR 1914 Mad. 706 (H) and Ramabrahmam v. Rami Reddi. AIR 1928 Mad. 250 (V).30. The argument of Mr. Daphtary that there was no real discretion in the Court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman v. Rose, (1912), A.C. 623 (W). Relief was claimed in that case under the provisions of Section 14 (2) of the Convincing Act, 1881 against forfeiture for breaches of covenant in the lease. The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former condition at the end of the term and make full restitution. It was argued that the matter was one of discretion and the Court should lean to relieve a tenant against forfeiture and it full recompense can be made to the landlord the relief should be granted. Lord Lore burn in delivering the opinion of the House observed as follows:"I desire in the first instance to point out that the discretion given by the section is very is wide. The Court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provided a wide discretion meaning no doubt, to prevent one man from forfeiting what in fair dealing belongs to someone else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not a advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decided what is the true meaning of the language contained in an Act of Parliament. It is quite different thing a place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them and the facts of some unforeseen case may make the Court with it had kept a free hand."31. With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture.
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rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as S. 111(g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the foot that the formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a Chancery Judge. The requirement as to written notice provided in the section, therefore, cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1-4-1930. Those leases are still governed by the unamended sub-s. (g) of Sec. 111. All that was required by that sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub-s. (g) as it stood before 1929, and to leases executed after 1-4-1930 the principle of equity is the one stated in the sub-section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete aour opinion, the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer of Property Act, 1882, or to leases executed Prior to 1-4-1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach.On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined. The High Court was, therefore, right in the view that it took of the matter and there are no valid reasons for taking a contraryrelation of lessor and lessee is one of contract and in Bacons Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other consideration on the other. The statute has given a more comprehensive definition of the term. Section 107 makes registration of a lease compulsory. This section again does not concern itself with any principle of justice or equity. Section 108(j) enacts that the lessee may transfer absolutely by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The law in India and England on this subject is not the same and it cannot be said that this sub-section enacts or enunciates any general principle of equity.In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord has been put should be weighed against theis a maxim of equity that a person who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the Courts hands are not tied to exercise it in his favour.With great respect we think that the observations cited above contain sound principle of law. We are, therefore, unable to accede to the contention of Mr. Dauhtary that though Sec. 114, T.P. Act, confers a discretion on the Court, that discretion, except in cases where third party interests intervene, must always be exercised in favour of the tenant irrespective of the conduct of the tenant. It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter. For the best part of 25 years he has never paid rent without being sued in Court. Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences. No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description. He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the Court of appeal on a previous occasion. He had already had relief three times on equitable grounds and it is time that the Court withheld its bands and ordered his ejectment. In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the discretion of the Courts below in refusing to grant relief against forfeiture.
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Ashoka Viniyoga Limited Vs. Commissioner of Income Tax (Central), Calcutta | as investments as distinguished from the shares which till now had been acquired and held as stock-in-trade (the underlining is ours)The underlined expression in this resolution is not only unnecessary but also contradictory in the context of the previous resolutions on the subject. The addition of this expression undoubtedly gives the impression that it was deliberately inserted to prepare a case for the claim that the loss which had by now been sustained on the sale of the other shares should be treated as a loss in share-dealing and, perhaps, as a corollary, the word investment in the earlier resolutions for acquisition had been scored out. In any case, this specific mention can only relate to shares which were acquired and held as stock-in-trade, but so far as the shares on the sale of which the loss had been incurred were concerned, they were acquired as a measure of investment. Accordingly, the assessees contention that all the other previous holdings were as stock-in-trade cannot be accepted. The negotiations for the sale had been finalised on 12th June, 1952, and the assessee was fully aware of its position regarding the loss on the sale of these shares. From an examination of the records in the minutes books and the relevant vouchers pertaining to the transactions, we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred had been originally made as capital investment and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August, 1952, when the assessee had already incurred huge loss on the sale of the shares that the company seems to have realised the necessity of scoring out the word investments from the relevant resolutions and recording a resolution to the effect that the other shares except the shares of M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired as stock-in-trade of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."The High Court has come to the conclusion that the findings of the Tribunal that the shares in question were investment shares are essentially findings of fact and there are no justifiable grounds to interfere with those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are : (1) that the assessee had treated the shares as its investments in earlier years; (2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ; (3) that the sale vouchers showed the sales as sales of investment ; and (4) that the negotiation for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading loss 4. In our opinion, the High Court rightly approached the issue before it. The only question the High Court had to consider and that we have to consider in this appeal is whether the finding of the Tribunal that the shares in question were investment shares---a finding which is essentially finding of fact---is vitiated for any reason. In other words, we have to examine whether that finding is unsupported by any evidence on record or whether the Tribunal had relied on any irrelevant circumstance in reaching that finding. The test to be adopted in such cases is set out in the decision of this court in Commissioner of Income-tax v. Rajasthan Mines Ltd. 5. It is not disputed that the resolutions approving the purchase of shares with which we are concerned in this case described those shares as investment shares. It is seen that, at some later stage, the word " investment " was struck out. No material was placed before the assessing authority to show as to why in the original resolutions it was mentioned that the shares purchased were investment shares, and why the word " investment " was scored out later. Therefore, the Tribunal was right in placing reliance on the resolutions as originally recorded in the books of the assessee-companyNow, coming to the sale vouchers, they unequivocally describe those shares as investment shares. The Tribunal was entitled to place reliance on that evidence, as no material was placed by the assessee to show that the description of the shares given therein was a mistake. It is true that the name given to a transaction in a document is not conclusive as to its true character, but in the absence of a satisfactory explanation it was open to the Tribunal to rely on the admission of the assessee in its own record. 6. It may also be noted that the resolution of August 27, 1952, was passed only after several of the shares had been sold at losses and when the assessee had reason to think that the price of the shares is going down in the market. That being so, that resolution, instead of assisting the contention of the assessee, in our opinion, goes to show that the assessee was only making an attempt to convert its capital loss into a trading loss. 7. It is not this courts function to re-examine the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from the well-established principles in arriving at its finding. We are not satisfied that the Tribunals finding is open to correction by this court on the facts and circumstances of this case. 8. | 0[ds]So far as the first question is concerned Mr. M. C. Chagla, learned counsel for the assessee, has not challenged the correctness of the decision of the High Court. Hence, we need not go into that questionAccordingly, the assessees contention that all the other previous holdings were ase cannot be accepted. The negotiations for the sale had been finalised on 12th June, 1952, and the assessee was fully aware of its position regarding the loss on the sale of these shares. From an examination of the records in the minutes books and the relevant vouchers pertaining to the transactions, we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred had been originally made as capital investment and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August, 1952, when the assessee had already incurred huge loss on the sale of the shares that the company seems to have realised the necessity of scoring out the word investments from the relevant resolutions and recording a resolution to the effect that the other shares except the shares of M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired ase of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."The High Court has come to the conclusion that the findings of the Tribunal that the shares in question were investment shares are essentially findings of fact and there are no justifiable grounds to interfere with those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are(1) that the assessee had treated the shares as its investments in earlier years;(2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ;(3) that the sale vouchers showed the sales as sales of investment ; and(4) that the negotiation for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading lossIn our opinion, the High Court rightly approached the issue before it. The only question the High Court had to consider and that we have to consider in this appeal is whether the finding of the Tribunal that the shares in question were investment sharesa finding which is essentially finding of factis vitiated for any reason. In other words, we have to examine whether that finding is unsupported by any evidence on record or whether the Tribunal had relied on any irrelevant circumstance in reaching that finding. The test to be adopted in such cases is set out in the decision of this court in Commissioner ofx v. Rajasthan Mines LtdIt may also be noted that the resolution of August 27, 1952, was passed only after several of the shares had been sold at losses and when the assessee had reason to think that the price of the shares is going down in the market. That being so, that resolution, instead of assisting the contention of the assessee, in our opinion, goes to show that the assessee was only making an attempt to convert its capital loss into a trading lossIt is not this courts function toe the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from thed principles in arriving at its finding. We are not satisfied that the Tribunals finding is open to correction by this court on the facts and circumstances of this case | 0 | 1,934 | 739 | ### 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:
as investments as distinguished from the shares which till now had been acquired and held as stock-in-trade (the underlining is ours)The underlined expression in this resolution is not only unnecessary but also contradictory in the context of the previous resolutions on the subject. The addition of this expression undoubtedly gives the impression that it was deliberately inserted to prepare a case for the claim that the loss which had by now been sustained on the sale of the other shares should be treated as a loss in share-dealing and, perhaps, as a corollary, the word investment in the earlier resolutions for acquisition had been scored out. In any case, this specific mention can only relate to shares which were acquired and held as stock-in-trade, but so far as the shares on the sale of which the loss had been incurred were concerned, they were acquired as a measure of investment. Accordingly, the assessees contention that all the other previous holdings were as stock-in-trade cannot be accepted. The negotiations for the sale had been finalised on 12th June, 1952, and the assessee was fully aware of its position regarding the loss on the sale of these shares. From an examination of the records in the minutes books and the relevant vouchers pertaining to the transactions, we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred had been originally made as capital investment and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August, 1952, when the assessee had already incurred huge loss on the sale of the shares that the company seems to have realised the necessity of scoring out the word investments from the relevant resolutions and recording a resolution to the effect that the other shares except the shares of M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired as stock-in-trade of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."The High Court has come to the conclusion that the findings of the Tribunal that the shares in question were investment shares are essentially findings of fact and there are no justifiable grounds to interfere with those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are : (1) that the assessee had treated the shares as its investments in earlier years; (2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ; (3) that the sale vouchers showed the sales as sales of investment ; and (4) that the negotiation for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading loss 4. In our opinion, the High Court rightly approached the issue before it. The only question the High Court had to consider and that we have to consider in this appeal is whether the finding of the Tribunal that the shares in question were investment shares---a finding which is essentially finding of fact---is vitiated for any reason. In other words, we have to examine whether that finding is unsupported by any evidence on record or whether the Tribunal had relied on any irrelevant circumstance in reaching that finding. The test to be adopted in such cases is set out in the decision of this court in Commissioner of Income-tax v. Rajasthan Mines Ltd. 5. It is not disputed that the resolutions approving the purchase of shares with which we are concerned in this case described those shares as investment shares. It is seen that, at some later stage, the word " investment " was struck out. No material was placed before the assessing authority to show as to why in the original resolutions it was mentioned that the shares purchased were investment shares, and why the word " investment " was scored out later. Therefore, the Tribunal was right in placing reliance on the resolutions as originally recorded in the books of the assessee-companyNow, coming to the sale vouchers, they unequivocally describe those shares as investment shares. The Tribunal was entitled to place reliance on that evidence, as no material was placed by the assessee to show that the description of the shares given therein was a mistake. It is true that the name given to a transaction in a document is not conclusive as to its true character, but in the absence of a satisfactory explanation it was open to the Tribunal to rely on the admission of the assessee in its own record. 6. It may also be noted that the resolution of August 27, 1952, was passed only after several of the shares had been sold at losses and when the assessee had reason to think that the price of the shares is going down in the market. That being so, that resolution, instead of assisting the contention of the assessee, in our opinion, goes to show that the assessee was only making an attempt to convert its capital loss into a trading loss. 7. It is not this courts function to re-examine the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from the well-established principles in arriving at its finding. We are not satisfied that the Tribunals finding is open to correction by this court on the facts and circumstances of this case. 8.
### Response:
0
### Explanation:
So far as the first question is concerned Mr. M. C. Chagla, learned counsel for the assessee, has not challenged the correctness of the decision of the High Court. Hence, we need not go into that questionAccordingly, the assessees contention that all the other previous holdings were ase cannot be accepted. The negotiations for the sale had been finalised on 12th June, 1952, and the assessee was fully aware of its position regarding the loss on the sale of these shares. From an examination of the records in the minutes books and the relevant vouchers pertaining to the transactions, we have not the least doubt in our mind that the purchase of the shares on the sale of which the loss occurred had been originally made as capital investment and we agree with the observation of the Appellate Assistant Commissioner that it was only at the end of August, 1952, when the assessee had already incurred huge loss on the sale of the shares that the company seems to have realised the necessity of scoring out the word investments from the relevant resolutions and recording a resolution to the effect that the other shares except the shares of M/s. Rohtas Industries Ltd. and M/s. S.K.G. Sugar Ltd. has been acquired ase of the company. The resolution dated 27th August, 1952, relating to the sales of shares in M/s. Punjab National Bank Ltd. also shows that these shares were liquidated in view of the difficult financial position of the company."The High Court has come to the conclusion that the findings of the Tribunal that the shares in question were investment shares are essentially findings of fact and there are no justifiable grounds to interfere with those findings. The High Courts summary of the reasons which persuaded the Tribunal to come to the conclusion that those shares are investment shares is found at pages 81 and 82 of the print. They are(1) that the assessee had treated the shares as its investments in earlier years;(2) that even in the year of account, the resolutions of the assessees board of directors approved the purchases of the shares, on the sale of which the loss arose, as investments ;(3) that the sale vouchers showed the sales as sales of investment ; and(4) that the negotiation for the sale of these shares were completed in June and the assessee was aware of the loss arising from such sales and that the resolution of the 27th August, l952, was an attempt by the assessee to convert a capital loss into a trading lossIn our opinion, the High Court rightly approached the issue before it. The only question the High Court had to consider and that we have to consider in this appeal is whether the finding of the Tribunal that the shares in question were investment sharesa finding which is essentially finding of factis vitiated for any reason. In other words, we have to examine whether that finding is unsupported by any evidence on record or whether the Tribunal had relied on any irrelevant circumstance in reaching that finding. The test to be adopted in such cases is set out in the decision of this court in Commissioner ofx v. Rajasthan Mines LtdIt may also be noted that the resolution of August 27, 1952, was passed only after several of the shares had been sold at losses and when the assessee had reason to think that the price of the shares is going down in the market. That being so, that resolution, instead of assisting the contention of the assessee, in our opinion, goes to show that the assessee was only making an attempt to convert its capital loss into a trading lossIt is not this courts function toe the evidence on record. That was the function of the Tribunal. All that we have to see is whether the Tribunal had departed from thed principles in arriving at its finding. We are not satisfied that the Tribunals finding is open to correction by this court on the facts and circumstances of this case
|
LILAVATI KIRTILAL MEHTA MEDICAL TRUST Vs. M/S UNIQUE SHANTI DEVELOPERS | and therefore improve the employing entity?s overall productivity. However this is a duty to be shared by all employer organisations and not merely those looking to increase their productivity/profits. This obligation exists irrespective of how much profit or turnover the organization generates in a year, though the degree to which it extends may differ depending upon the financial capacity of the employer. Hence private corporate bodies such as the Appellant trust may engage the services of third parties for the purpose of providing perquisites to their employees. For example, an employer may book flight tickets or train tickets for an employee so as to facilitate their travel in the ordinary course of business. If any negligence occurs resulting in injury to the employee or their property, the airline/railway company cannot disclaim liability on the ground that the activity was carried out for a ‘commercial purpose?. As discussed earlier, if in all such cases the third party service-provider disclaims liability before consumer forums on the ground that the hirer of the service is engaged in trade and commerce, it will open a Pandora?s box wherein the employer as well as the employees will not have any remedy. This would defeat the object of providing a speedy remedy to consumers, as outlined in the provisions of the 1986 Act. Further, setting such a precedent may discourage employers from undertaking to provide any facilities for their employees. Hence, it is necessary to clarify that the provision of such services would not usually be included in the definition of ‘commercial purpose.? 7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose?: (i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. (ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity. (iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. (iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked into.8. Applying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flats. It may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profits. The decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of facts. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital. The present case does not involve any such purchase. Further, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? care. Nurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illness. Hence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d). 9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration. | 1[ds]In the present case, it is not denied that the Appellant has validly taken possession of the flats constructed by Respondent No. 1 and paid consideration for the same, and can therefore be said to have availed of its housing construction services4. Taking into account the material on record and the relevant jurisprudence on this issue, we are of the considered opinion that the purchase of flats by the Appellant for the purpose of providing hostel facilities to the hospital nurses does not qualify as meant for a ‘commercial purpose?. Though the term ‘commercial purpose? as referred to under Section 2(1)(d) has nowhere been defined under the provisions of the 1986 Act, this Court has expounded upon it based on its lateral dictionary meaning in various decisionsApplying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flatsIt may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profitsThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of factsThe present case does not involve any such purchaseFurther, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? careNurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illnessHence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d)9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked intoThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital.The present case does not involve any such | 1 | 4,682 | 997 | ### 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:
and therefore improve the employing entity?s overall productivity. However this is a duty to be shared by all employer organisations and not merely those looking to increase their productivity/profits. This obligation exists irrespective of how much profit or turnover the organization generates in a year, though the degree to which it extends may differ depending upon the financial capacity of the employer. Hence private corporate bodies such as the Appellant trust may engage the services of third parties for the purpose of providing perquisites to their employees. For example, an employer may book flight tickets or train tickets for an employee so as to facilitate their travel in the ordinary course of business. If any negligence occurs resulting in injury to the employee or their property, the airline/railway company cannot disclaim liability on the ground that the activity was carried out for a ‘commercial purpose?. As discussed earlier, if in all such cases the third party service-provider disclaims liability before consumer forums on the ground that the hirer of the service is engaged in trade and commerce, it will open a Pandora?s box wherein the employer as well as the employees will not have any remedy. This would defeat the object of providing a speedy remedy to consumers, as outlined in the provisions of the 1986 Act. Further, setting such a precedent may discourage employers from undertaking to provide any facilities for their employees. Hence, it is necessary to clarify that the provision of such services would not usually be included in the definition of ‘commercial purpose.? 7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose?: (i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. (ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity. (iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. (iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked into.8. Applying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flats. It may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profits. The decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of facts. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital. The present case does not involve any such purchase. Further, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? care. Nurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illness. Hence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d). 9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration.
### Response:
1
### Explanation:
In the present case, it is not denied that the Appellant has validly taken possession of the flats constructed by Respondent No. 1 and paid consideration for the same, and can therefore be said to have availed of its housing construction services4. Taking into account the material on record and the relevant jurisprudence on this issue, we are of the considered opinion that the purchase of flats by the Appellant for the purpose of providing hostel facilities to the hospital nurses does not qualify as meant for a ‘commercial purpose?. Though the term ‘commercial purpose? as referred to under Section 2(1)(d) has nowhere been defined under the provisions of the 1986 Act, this Court has expounded upon it based on its lateral dictionary meaning in various decisionsApplying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flatsIt may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profitsThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of factsThe present case does not involve any such purchaseFurther, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? careNurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illnessHence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d)9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked intoThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital.The present case does not involve any such
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Commissioner Of Income-Tax Vs. Jawahar Lal Rastogi | Seth Brothers, (1969) 74 ITR 836 = (AIR 1970 SC 292 ) and on the account the judgment under appeal is liable to be set aside. In Seth Brothers case, (1969) 74 ITR 836 = (AIR 1970 SC 292 ) this Court examined the scheme of S. 132 in some detail and observed:"The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for, or relevant to, any proceeding under the Act may he found. If the Officer has reason to believe that any books of account or other documents would be useful for, or relevant to, any proceedings under the Act, he is authorised by law to seize those books of account or other documents, and to place marks of identification therein, to make extracts or copies therefrom and also to make a note or an inventory of any articles or other things found in the course of the search. Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorises it to be exercised x x x x x If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed, x x xThe Act and the Rules do not require that the warrant of authorisation should specify the particulars of documents and books of account a general authorisation to search for and seize documents and books of account relevant to or useful for any proceeding complies with the requirements of the Act and the Rules. It is for the officer making the search to exercise his judgment and seize or not to seize any documents or books of account. x x x xThe aggrieved party may undoubtedly move a competent court for an order releasing the documents seized. In such a proceeding the Officer who has made the search will be called upon to prove how the documents seized are likely to be useful for or relevant to a proceeding under the Act. If he is unable to do so, the court may order that those documents be released. But the circumstance that a large number of documents seized is not a ground for holding that all documents seized are irrelevant or the action of the officer is mala fide."It must, however, be stated that the findings that the action of the Commissioner of Income-tax and the Income-tax Officer amounted to "indiscriminate search" and was beyond the "legitimate scope of S. 132" depends upon the evidence in each case and no general rule can be laid down in that behalf.6. In the present case the High Court has noticed two important circumstances: (1) that whereas the notice dated September 14, 1964, required the assessee to furnish statements relating to the four assessment years ending on March 31, 1960,the Commissioner of Income-tax authorised search for a period of nine assessment years even before the period fixed by the notice had expired;and (2) that contrary to the plain terms of Section 132 (8) the Income-tax Officer retained with him the books of account for a period exceeding 180 days.7. Section 132 (2) as in force on the date on which the search and seizure took place stood as follows:"The books of account or other documents seized under sub-section (1) shall not be retained by the Inspecting Assistant Commissioner or the Income-tax Officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained:Provided x x x"By the Finance Act of 1965, sub-section (2) was re-enacted as sub-s. (8) with the modification that for the words "Inspecting Assistant Commissioner or the Income-tax Officer" the words "authorised officer" be substituted.8. In the present case the premises of the assessee were searched on September 21 and 22, 1964, and the documents were retained till May 1966, i.e. for a period of 19 months. Our attention has not been invited to any order of the authorities recording reasons for retaining the documents seized after the expiry of 180 days, nor is there any approval of the Commissioner for retaining such documents. The retention of the documents without complying with the requirements of the statute after expiry of the period of 180 days would be plainly contrary to law.9. The Solicitor-General said that it was not urged before the High Court that because the authorised officer did not record reasons and the Commissioner did not approve the retention of the documents after 180 days, the revenue authorities were bound to release the documents. Counsel submitted that failure to produce evidence on a matter nor put in issue may not be regarded as a ground in support of an order releasing documents. But the High Court has found that the documents seized during the raid were detained by the authorised officer for 19 months before the application was filed. If it was the case of the Department that detention of the documents after the expiry of 180 days was supported by good and adequate reasons recorded by the Income-tax Officer and the approval of the Commissioner as required by the Act was obtained, such record of reasons and approval would have been tendered in evidence. It cannot be said that the attention of the parties was not directed to the circumstance that the Income-tax Officer had failed to comply with the requirements of the Act.10.The order recorded by the High Court must be sustained on the ground that the documents taken possession of were retained without authority of law for a period exceeding 180 days contrary to the terms of Section 132 (8) as amended by the Income-tax (Amendment) Act, 1965. | 0[ds]6. In the present case the High Court has noticed two important circumstances: (1) that whereas the notice dated September 14, 1964, required the assessee to furnish statements relating to the four assessment years ending on March 31, 1960,the Commissioner of Income-tax authorised search for a period of nine assessment years even before the period fixed by the notice had expired;and (2) that contrary to the plain terms of Section 132 (8) the Income-tax Officer retained with him the books of account for a period exceeding 180 days.In the present case the premises of the assessee were searched on September 21 and 22, 1964, and the documents were retained till May 1966, i.e. for a period of 19 months. Our attention has not been invited to any order of the authorities recording reasons for retaining the documents seized after the expiry of 180 days, nor is there any approval of the Commissioner for retaining such documents. The retention of the documents without complying with the requirements of the statute after expiry of the period of 180 days would be plainly contrary to law.9. The Solicitor-General said that it was not urged before the High Court that because the authorised officer did not record reasons and the Commissioner did not approve the retention of the documents after 180 days, the revenue authorities were bound to release the documents. Counsel submitted that failure to produce evidence on a matter nor put in issue may not be regarded as a ground in support of an order releasing documents. But the High Court has found that the documents seized during the raid were detained by the authorised officer for 19 months before the application was filed. If it was the case of the Department that detention of the documents after the expiry of 180 days was supported by good and adequate reasons recorded by the Income-tax Officer and the approval of the Commissioner as required by the Act was obtained, such record of reasons and approval would have been tendered in evidence. It cannot be said that the attention of the parties was not directed to the circumstance that the Income-tax Officer had failed to comply with the requirements of theorder recorded by the High Court must be sustained on the ground that the documents taken possession of were retained without authority of law for a period exceeding 180 days contrary to the terms of Section 132 (8) as amended by the Income-tax (Amendment) Act, 1965. | 0 | 1,782 | 452 | ### Instruction:
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Seth Brothers, (1969) 74 ITR 836 = (AIR 1970 SC 292 ) and on the account the judgment under appeal is liable to be set aside. In Seth Brothers case, (1969) 74 ITR 836 = (AIR 1970 SC 292 ) this Court examined the scheme of S. 132 in some detail and observed:"The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for, or relevant to, any proceeding under the Act may he found. If the Officer has reason to believe that any books of account or other documents would be useful for, or relevant to, any proceedings under the Act, he is authorised by law to seize those books of account or other documents, and to place marks of identification therein, to make extracts or copies therefrom and also to make a note or an inventory of any articles or other things found in the course of the search. Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorises it to be exercised x x x x x If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed, x x xThe Act and the Rules do not require that the warrant of authorisation should specify the particulars of documents and books of account a general authorisation to search for and seize documents and books of account relevant to or useful for any proceeding complies with the requirements of the Act and the Rules. It is for the officer making the search to exercise his judgment and seize or not to seize any documents or books of account. x x x xThe aggrieved party may undoubtedly move a competent court for an order releasing the documents seized. In such a proceeding the Officer who has made the search will be called upon to prove how the documents seized are likely to be useful for or relevant to a proceeding under the Act. If he is unable to do so, the court may order that those documents be released. But the circumstance that a large number of documents seized is not a ground for holding that all documents seized are irrelevant or the action of the officer is mala fide."It must, however, be stated that the findings that the action of the Commissioner of Income-tax and the Income-tax Officer amounted to "indiscriminate search" and was beyond the "legitimate scope of S. 132" depends upon the evidence in each case and no general rule can be laid down in that behalf.6. In the present case the High Court has noticed two important circumstances: (1) that whereas the notice dated September 14, 1964, required the assessee to furnish statements relating to the four assessment years ending on March 31, 1960,the Commissioner of Income-tax authorised search for a period of nine assessment years even before the period fixed by the notice had expired;and (2) that contrary to the plain terms of Section 132 (8) the Income-tax Officer retained with him the books of account for a period exceeding 180 days.7. Section 132 (2) as in force on the date on which the search and seizure took place stood as follows:"The books of account or other documents seized under sub-section (1) shall not be retained by the Inspecting Assistant Commissioner or the Income-tax Officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained:Provided x x x"By the Finance Act of 1965, sub-section (2) was re-enacted as sub-s. (8) with the modification that for the words "Inspecting Assistant Commissioner or the Income-tax Officer" the words "authorised officer" be substituted.8. In the present case the premises of the assessee were searched on September 21 and 22, 1964, and the documents were retained till May 1966, i.e. for a period of 19 months. Our attention has not been invited to any order of the authorities recording reasons for retaining the documents seized after the expiry of 180 days, nor is there any approval of the Commissioner for retaining such documents. The retention of the documents without complying with the requirements of the statute after expiry of the period of 180 days would be plainly contrary to law.9. The Solicitor-General said that it was not urged before the High Court that because the authorised officer did not record reasons and the Commissioner did not approve the retention of the documents after 180 days, the revenue authorities were bound to release the documents. Counsel submitted that failure to produce evidence on a matter nor put in issue may not be regarded as a ground in support of an order releasing documents. But the High Court has found that the documents seized during the raid were detained by the authorised officer for 19 months before the application was filed. If it was the case of the Department that detention of the documents after the expiry of 180 days was supported by good and adequate reasons recorded by the Income-tax Officer and the approval of the Commissioner as required by the Act was obtained, such record of reasons and approval would have been tendered in evidence. It cannot be said that the attention of the parties was not directed to the circumstance that the Income-tax Officer had failed to comply with the requirements of the Act.10.The order recorded by the High Court must be sustained on the ground that the documents taken possession of were retained without authority of law for a period exceeding 180 days contrary to the terms of Section 132 (8) as amended by the Income-tax (Amendment) Act, 1965.
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6. In the present case the High Court has noticed two important circumstances: (1) that whereas the notice dated September 14, 1964, required the assessee to furnish statements relating to the four assessment years ending on March 31, 1960,the Commissioner of Income-tax authorised search for a period of nine assessment years even before the period fixed by the notice had expired;and (2) that contrary to the plain terms of Section 132 (8) the Income-tax Officer retained with him the books of account for a period exceeding 180 days.In the present case the premises of the assessee were searched on September 21 and 22, 1964, and the documents were retained till May 1966, i.e. for a period of 19 months. Our attention has not been invited to any order of the authorities recording reasons for retaining the documents seized after the expiry of 180 days, nor is there any approval of the Commissioner for retaining such documents. The retention of the documents without complying with the requirements of the statute after expiry of the period of 180 days would be plainly contrary to law.9. The Solicitor-General said that it was not urged before the High Court that because the authorised officer did not record reasons and the Commissioner did not approve the retention of the documents after 180 days, the revenue authorities were bound to release the documents. Counsel submitted that failure to produce evidence on a matter nor put in issue may not be regarded as a ground in support of an order releasing documents. But the High Court has found that the documents seized during the raid were detained by the authorised officer for 19 months before the application was filed. If it was the case of the Department that detention of the documents after the expiry of 180 days was supported by good and adequate reasons recorded by the Income-tax Officer and the approval of the Commissioner as required by the Act was obtained, such record of reasons and approval would have been tendered in evidence. It cannot be said that the attention of the parties was not directed to the circumstance that the Income-tax Officer had failed to comply with the requirements of theorder recorded by the High Court must be sustained on the ground that the documents taken possession of were retained without authority of law for a period exceeding 180 days contrary to the terms of Section 132 (8) as amended by the Income-tax (Amendment) Act, 1965.
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Bombay Panjrapole, Bhuleshwar Vs. The Workmen And Another | 22. The net result of the above scents to be, that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so as to render the institution as then organised an industry within the meaning of the Act. Further according to the Bench individual units of the organisation (like the district dairy farm) might constitute an industry though the society itself may not be one. 23. The matter came up again before the Madras High Court (see 1967-2 Lab. L. J. 399 = 1968 Lab IC 65 (Mad) ). The Tribunal held in favour of the workman and the learned Judge dismissed the application for the issue of a writ by the Panjrapole. The learned Judge referred to the reports of the institution in several years past from 1937 to 1957. He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners. The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding. The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957. The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only subsidiary in nature to the humane activity of the society, namely, to provide shelter for the decrepit and useless and infirm animals. The learned Judge held that "if the Madras Pinjrapole had confined itself to the objectives at its inception namely, to give protection to the old, infirm and decrepit animals, it could well be contended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus consider cow protection as one of their religious duties.... If the Madras Ponjrapole had not extended its activities, following the authorities cited above, I would have had no hesitation in holding that it is not an industry.... A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were purchased by the society and due to the successful working of the dairy farm the Pinjrapole was able to supply milk to various institutions...The reports show that considerable profits were made by the Pinjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957." In the result the petition was dismissed and the labour court was directed to determine the other issues. 24. We have referred at some length to the Madras Panjrapole case to show the analogy of the activities of the Madras Panjrapole to the Bombay Panjrapole.Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing milch cows and stud bulls there is very little difference between the facts of the case before us from that in the Madras Panjrapole case. In the present case only one stud bull there is purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years from 1958 to 1962 the number of milch cows was always considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundated by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals were also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjrapole never purchased milch cow and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rupees 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as possible. 25. In this view of the matter, it is hardly necessary to consider the other cases which were cited at the Bar, namely, Gymkhana Club Union case, AIR 1968 SC 554 (supra), Cricket Club v. Labour Union, (1969) 1 SCR 600 = (AIR 1969 SC 276 ) and Harinagar Cane Farm v. State of Bihar, (1964) 2 SCR 458 = (AIR 1964 SC 903 ). It was remarked in the Gymkhana Club case that the activity of the club is conducted with the aid of employees who follow callings or avocations and that the activities of the club was not a calling or business of its members of Managing Committee and there was no undertaking analogous to trade or business. In the Cricket Clubs case, (supra) the Court examined the different activities of the club and came to the conclusion that they did not lead to the inference that the club was carrying on an industry. | 0[ds]In our view, the facts justifiably lead to the conclusion that the institution deliberately diversified its objects from only tending to the sick, infirm or unwanted cattle by adopting the policy of keeping cattle not merely for their own sake but for the sake of improving the cattle population committed to its care with an eye to serve human beings by making large quantities of good milk available to them and thereby getting an income which would augment its resources. It pursued its policy just as any dairy owner would by having a few good quality bulls to impregnate the cows and thereby ensuring a steady production of milk and also improve the quality of the progeny24. We have referred at some length to the Madras Panjrapole case to show the analogy of the activities of the Madras Panjrapole to the Bombay Panjrapole.Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing milch cows and stud bulls there is very little difference between the facts of the case before us from that in the Madras Panjrapole case. In the present case only one stud bull there is purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years from 1958 to 1962 the number of milch cows was always considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundated by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals were also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjrapole never purchased milch cow and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rupees 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as possibleIt is not necessary to go through the plethora of cases decided by this Court to find out whether the Tribunal had come to a proper conclusion. Although there is no decision of this Court arising out of the affairs of a Panjrapole, there are several dealings with the question as to whether hospitals constituted industriesIf the activities relating to the production of milk could be said to be incidental to the maintaining of sick, infirm and diseased or rejected cattle, the argument would, in our opinion, rest on solid foundationSo far as the activities of the Madras Panjrapole and Bombay Panjrapole are concerned they are practically identical except that in the present case the maintenance of a dairy farm is not explicitly referred to anywhere but the facts as culled from the evidence make the same only too obvious. There was however a certain difference in the case of the Madras Panjrapole inasmuch as the Madras High Court22. The net result of the above scents to be, that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so as to render the institution as then organised an industry within the meaning of the Act. Further according to the Bench individual units of the organisation (like the district dairy farm) might constitute an industry though the society itself may not be one23. The matter came up again before the Madras High Court (see2 Lab. L. J. 399 = 1968 Lab IC 65 (Mad) ). The Tribunal held in favour of the workman and the learned Judge dismissed the application for the issue of a writ by the Panjrapole. The learned Judge referred to the reports of the institution in several years past from 1937 to 1957. He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners. The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding. The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957. The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only subsidiary in nature to the humane activity of the society, namely, to provide shelter for the decrepit and useless and infirm animals. The learned Judge held that "if the Madras Pinjrapole had confined itself to the objectives at its inception namely, to give protection to the old, infirm and decrepit animals, it could well be contended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus consider cow protection as one of their religious duties.... If the Madras Ponjrapole had not extended its activities, following the authorities cited above, I would have had no hesitation in holding that it is not an industry.... A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were purchased by the society and due to the successful working of the dairy farm the Pinjrapole was able to supply milk to various institutions...The reports show that considerable profits were made by the Pinjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957." In the result the petition was dismissed and the labour court was directed to determine the other issues24. We have referred at some length to the Madras Panjrapole case to show the analogy of the activities of the Madras Panjrapole to the Bombay Panjrapole.Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing milch cows and stud bulls there is very little difference between the facts of the case before us from that in the Madras Panjrapole case. In the present case only one stud bull there is purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years from 1958 to 1962 the number of milch cows was always considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundated by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals were also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjrapole never purchased milch cow and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rupees 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as | 0 | 8,108 | 1,591 | ### 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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22. The net result of the above scents to be, that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so as to render the institution as then organised an industry within the meaning of the Act. Further according to the Bench individual units of the organisation (like the district dairy farm) might constitute an industry though the society itself may not be one. 23. The matter came up again before the Madras High Court (see 1967-2 Lab. L. J. 399 = 1968 Lab IC 65 (Mad) ). The Tribunal held in favour of the workman and the learned Judge dismissed the application for the issue of a writ by the Panjrapole. The learned Judge referred to the reports of the institution in several years past from 1937 to 1957. He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners. The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding. The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957. The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only subsidiary in nature to the humane activity of the society, namely, to provide shelter for the decrepit and useless and infirm animals. The learned Judge held that "if the Madras Pinjrapole had confined itself to the objectives at its inception namely, to give protection to the old, infirm and decrepit animals, it could well be contended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus consider cow protection as one of their religious duties.... If the Madras Ponjrapole had not extended its activities, following the authorities cited above, I would have had no hesitation in holding that it is not an industry.... A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were purchased by the society and due to the successful working of the dairy farm the Pinjrapole was able to supply milk to various institutions...The reports show that considerable profits were made by the Pinjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957." In the result the petition was dismissed and the labour court was directed to determine the other issues. 24. We have referred at some length to the Madras Panjrapole case to show the analogy of the activities of the Madras Panjrapole to the Bombay Panjrapole.Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing milch cows and stud bulls there is very little difference between the facts of the case before us from that in the Madras Panjrapole case. In the present case only one stud bull there is purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years from 1958 to 1962 the number of milch cows was always considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundated by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals were also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjrapole never purchased milch cow and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rupees 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as possible. 25. In this view of the matter, it is hardly necessary to consider the other cases which were cited at the Bar, namely, Gymkhana Club Union case, AIR 1968 SC 554 (supra), Cricket Club v. Labour Union, (1969) 1 SCR 600 = (AIR 1969 SC 276 ) and Harinagar Cane Farm v. State of Bihar, (1964) 2 SCR 458 = (AIR 1964 SC 903 ). It was remarked in the Gymkhana Club case that the activity of the club is conducted with the aid of employees who follow callings or avocations and that the activities of the club was not a calling or business of its members of Managing Committee and there was no undertaking analogous to trade or business. In the Cricket Clubs case, (supra) the Court examined the different activities of the club and came to the conclusion that they did not lead to the inference that the club was carrying on an industry.
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them as possibleIt is not necessary to go through the plethora of cases decided by this Court to find out whether the Tribunal had come to a proper conclusion. Although there is no decision of this Court arising out of the affairs of a Panjrapole, there are several dealings with the question as to whether hospitals constituted industriesIf the activities relating to the production of milk could be said to be incidental to the maintaining of sick, infirm and diseased or rejected cattle, the argument would, in our opinion, rest on solid foundationSo far as the activities of the Madras Panjrapole and Bombay Panjrapole are concerned they are practically identical except that in the present case the maintenance of a dairy farm is not explicitly referred to anywhere but the facts as culled from the evidence make the same only too obvious. There was however a certain difference in the case of the Madras Panjrapole inasmuch as the Madras High Court22. The net result of the above scents to be, that although the Bench was inclined to hold that the Madras Panjrapole at its inception was not an industry the complexion of its activities might have been altered by later developments so as to render the institution as then organised an industry within the meaning of the Act. Further according to the Bench individual units of the organisation (like the district dairy farm) might constitute an industry though the society itself may not be one23. The matter came up again before the Madras High Court (see2 Lab. L. J. 399 = 1968 Lab IC 65 (Mad) ). The Tribunal held in favour of the workman and the learned Judge dismissed the application for the issue of a writ by the Panjrapole. The learned Judge referred to the reports of the institution in several years past from 1937 to 1957. He found that the object of the society had been amended in 1937 to enable it to receive young cows and charge fees from the owners. The idea of starting a dairy farm was for supporting the infirm cows, bullocks and horses and in pursuance of that idea stud bulls were acquired for improving the cattle breeding. The income from the sale of milk rose phenomenally reaching the figure of Rs. 60,000 in the year 1957. The learned Judge found himself unable to hold that maintaining cows and stud bulls and selling milk were only subsidiary in nature to the humane activity of the society, namely, to provide shelter for the decrepit and useless and infirm animals. The learned Judge held that "if the Madras Pinjrapole had confined itself to the objectives at its inception namely, to give protection to the old, infirm and decrepit animals, it could well be contended that it was only for the purpose of satisfying purely spiritual needs, as it is common knowledge that Hindus consider cow protection as one of their religious duties.... If the Madras Ponjrapole had not extended its activities, following the authorities cited above, I would have had no hesitation in holding that it is not an industry.... A reading of the annual reports show that a large number of high milk yielding cows and buffaloes were purchased by the society and due to the successful working of the dairy farm the Pinjrapole was able to supply milk to various institutions...The reports show that considerable profits were made by the Pinjrapole, the sale of milk fetching a sum of Rs. 60,000 in the year 1957." In the result the petition was dismissed and the labour court was directed to determine the other issues24. We have referred at some length to the Madras Panjrapole case to show the analogy of the activities of the Madras Panjrapole to the Bombay Panjrapole.Save for the fact that the Madras Panjrapole definitely and expressly changed its objective by starting a dairy farm and purchasing milch cows and stud bulls there is very little difference between the facts of the case before us from that in the Madras Panjrapole case. In the present case only one stud bull there is purchased but the activities pursued by the Bombay Panjrapole make it clear that they were pursuing the same kind of activity, namely, that of using stud bulls for the purpose of breeding healthy cattle including cows so as to be able to make a very sizable income from the sale of milk. For the last few years from 1958 to 1962 the number of milch cows was always considerable which could only be accounted for by the fact that from time to time the place of cows which had become dry was being taken up by cows fecundated by the bulls maintained for the purpose of keeping up a steady supply of milk. We have already referred to the fact that the value of milk supplied to the sick and infirm cattle was infinitesimal compared to that sold in the market. The expenses incurred in connection with the treatment of sick and infirm animals were also negligible compared to the total expenses of the institution. The number of men employed for such treatment was very small at all times. The mere fact therefore that the Panjrapole never purchased milch cow and never purchased stud bulls except once makes no difference to the question as to whether their activity of maintaining cows and bulls could only be considered as an investment. It was certainly carried on as a business although it was not pursued in the same way as astute businessmen only out to make profit would, namely, get rid of the animals which were no longer fit for any use. The value of the milk supplied for the last 3 or 4 years was well in excess of Rupees 2 lakhs per annum and this could only be possible if the cows and buffaloes had been kept and maintained not merely to keep them alive but with the idea of getting as much production out of them as
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Bali Ahir and Others Vs. State of Bihar | the head.4. From the first information report it appears that the dacoits were unknown persons. Therefore, two identification parades were held, one on May 8, 1968 by Shri Yogendra Nath Jha, PW 7, and the other on May 24, 1968 by Shri S. M. Mukherjee, PW 6. In the first identification parade constable Moinuddin Khan, PW 3, identified Ramadhar Ahir, appellant 3. In the second identification parade Harihar Prasad Singh, PW 2, identified Bali Ahir and Chain Ahir, appellants 1 and 2 respectively. Khaderan Prasad Singh, PW 4, identified Bali Ahir, Chain Ahir and Ramadhar Ahir, appellants 1, 2 and 3 respectively as the persons who were seen running away from the place of occurrence. Moinuddin Khan, PW 3, identified Bali Ahir and Chain Ahir, appellants 1 and 2. Prosecution witnesses 2, 3 and 4 identified the appellants in court also.5. The trial court relying on the evidence of identification by the aforesaid witnesses convicted the appellants under Section 395, IPC and sentenced them to rigorous imprisonment for eight years. It, however, gave benefit of doubt to the remaining three accused and acquitted them.6. On appeal by the appellants the High Court set aside the conviction and sentence of the appellants under Section 395, IPC and instead convicted them under Section 394, IPC and sentenced them to rigorous imprisonment for four years. The appellants have now come to challenge the judgment of the High Court by filing the present appeal by special leave, as stated earlier.7. The conviction of the appellants is based upon evidence of identification. It may be pointed out at the very outset that except Harihar Prasad Singh, PW 2, the other witnesses, namely Moinuddin Khan, PW 3, Khaderan Prasad Singh, PW 4, Ganesh Singh, PW 8, and Ganga Singh, PW 9 had seen the accused from behind only when they were running away from the scene of occurrence. They chased the dacoits for some distance but could not succeed in arresting any of them.8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence. He clearly admitted so in the cross-examination :I remember that I had gone to Bajruhatola for investigation prior to the occurrence. I do not remember how many times I had gone. I had gone to Bajruhatola in connection with the case of Bali Ahir. It relates to an affair within a year from the occurrence. Bali Ahir also was an accused in a theft case and I had arrested him at Tetaria. It was I who had sent him up. I had issued a forwarding letter in that connection.He, therefore, fully knew Bali Ahir of Bajruhatola and there is no question of identification by him when he personally knew Bali Ahir. Bajruhatola is about a mile from the police quarters and Udwantnagar is about half a mile from the police quarters. Bali Ahir is a resident of Bajruhatola, Police Station Udwantnagar. Ramadhar is also a resident of village Bajruhatola, Police Station Udwantnagar. Chain Ahir is a resident of Udwantnagar Tola, Police Station Udwantnagar. So all the three appellants are residents of the vicinity within one or one-half of a mile from the Police quarters and, therefore, the possibility of seeing and knowing them by the witnesses who were either constables or officers of the police station, Udwantnagar, cannot be weeded out.9. There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in his cross-examination said that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself. | 1[ds]8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence.There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in hissaid that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself. | 1 | 1,665 | 507 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the head.4. From the first information report it appears that the dacoits were unknown persons. Therefore, two identification parades were held, one on May 8, 1968 by Shri Yogendra Nath Jha, PW 7, and the other on May 24, 1968 by Shri S. M. Mukherjee, PW 6. In the first identification parade constable Moinuddin Khan, PW 3, identified Ramadhar Ahir, appellant 3. In the second identification parade Harihar Prasad Singh, PW 2, identified Bali Ahir and Chain Ahir, appellants 1 and 2 respectively. Khaderan Prasad Singh, PW 4, identified Bali Ahir, Chain Ahir and Ramadhar Ahir, appellants 1, 2 and 3 respectively as the persons who were seen running away from the place of occurrence. Moinuddin Khan, PW 3, identified Bali Ahir and Chain Ahir, appellants 1 and 2. Prosecution witnesses 2, 3 and 4 identified the appellants in court also.5. The trial court relying on the evidence of identification by the aforesaid witnesses convicted the appellants under Section 395, IPC and sentenced them to rigorous imprisonment for eight years. It, however, gave benefit of doubt to the remaining three accused and acquitted them.6. On appeal by the appellants the High Court set aside the conviction and sentence of the appellants under Section 395, IPC and instead convicted them under Section 394, IPC and sentenced them to rigorous imprisonment for four years. The appellants have now come to challenge the judgment of the High Court by filing the present appeal by special leave, as stated earlier.7. The conviction of the appellants is based upon evidence of identification. It may be pointed out at the very outset that except Harihar Prasad Singh, PW 2, the other witnesses, namely Moinuddin Khan, PW 3, Khaderan Prasad Singh, PW 4, Ganesh Singh, PW 8, and Ganga Singh, PW 9 had seen the accused from behind only when they were running away from the scene of occurrence. They chased the dacoits for some distance but could not succeed in arresting any of them.8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence. He clearly admitted so in the cross-examination :I remember that I had gone to Bajruhatola for investigation prior to the occurrence. I do not remember how many times I had gone. I had gone to Bajruhatola in connection with the case of Bali Ahir. It relates to an affair within a year from the occurrence. Bali Ahir also was an accused in a theft case and I had arrested him at Tetaria. It was I who had sent him up. I had issued a forwarding letter in that connection.He, therefore, fully knew Bali Ahir of Bajruhatola and there is no question of identification by him when he personally knew Bali Ahir. Bajruhatola is about a mile from the police quarters and Udwantnagar is about half a mile from the police quarters. Bali Ahir is a resident of Bajruhatola, Police Station Udwantnagar. Ramadhar is also a resident of village Bajruhatola, Police Station Udwantnagar. Chain Ahir is a resident of Udwantnagar Tola, Police Station Udwantnagar. So all the three appellants are residents of the vicinity within one or one-half of a mile from the Police quarters and, therefore, the possibility of seeing and knowing them by the witnesses who were either constables or officers of the police station, Udwantnagar, cannot be weeded out.9. There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in his cross-examination said that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself.
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8. So far as Harihar Prasad Singh, PW 2, is concerned he appears to have investigated a case against Bali Ahir of village Bajruhatola prior to the occurrence.There is yet another circumstance which must be taken into consideration. Ganesh Singh, PW 8, in hissaid that accused Dowarika (since acquitted) and Ramadhar were brought to Arrah Mofussil Police Station in the course of investigation. He took them under his charge and he had forwarded and sent them up from the said police station. He had forwarded both of them through his staff or through the staff of the mofussil police station. He also admitted that for requisitioning staff from any other place requisition is made in writing; verbal requisition is also made. Nothing is, however, recorded in his diary about the requisition. No staff of mofussil police station had been made a witness. In his diary also there is no mention of such a witness who had taken charge of both the accused from the mofussil police station. Therefore, the possibility of the constable witnesses taking them from the mofussil police station to the Udwantnagar Police Station cannot be overruled.10. Witnesses other than Harihar Prasad Singh, PW 2, as pointed out earlier, had seen the dacoits only from behind and that too from a distance of more than fifty yards. It is very difficult to recognise persons at night from behind specially when they are running. Even if they turn their faces towards back for a second or so it would be very difficulty in the night to recognise the face within that short gap.11. Even the identification parade appears to be suspicious, as will be evident from the deposition of Shri Yogendra Nath Jha, Assistant Settlement Officer (Consolidation) who conducted the identification parade on May 8, 1968. He stated that constable Moinuddin Khan at the time of identification of the suspects had twice moved forward and backward seeing them. Shri S. M. Mukherjee, PW 6 in his deposition said that he did not mark if the witnesses were at the jail gate or not at the time when he arrived at the jail. This indicates that all was not well with the identification. The fact that the appellants belong to the neighbouring village at a distance of less than a mile, that the witnesses who came to identify the appellants had seen the accused from behind while escaping, that PW 2, had known Bali Ahir from before yet he did not name him in the first information report and went to identify him when he fully knew Bali Ahir, that the identification of the two of the appellants took place after a gap of four days after their arrest, without explaining the cause for the delay, speaks for itself.
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KARUNA KANSAL Vs. HEMANT KANSAL | Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are filed against the final judgment and order dated 17.10.2014 passed by the Division Bench of the High Court of Madhya Pradesh at Indore in Review Petition No.48 of 2014 whereby the Division Bench of the High Court dismissed the said Review Petition filed by the appellant herein and upheld the order dated 09.08.2011 passed by the Single Judge of the High Court in Miscellaneous Appeal No.709 of 2005.3. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point.4. The dispute, which is the subject matter of these appeals, is between the husband (respondent No.1) and his two wives (appellant and respondent No.2). It arises out of the matrimonial suit decided by the Family Court between respondent Nos. 1 and 2.5. By impugned order dated 09.08.2011, the High Court disposed of the appeal (M.A. No.709/2005) filed by respondent No.2 (first wife) against respondent No.1 (husband) under Order 43 Rule 1 (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) against the order dated 10.12.2004 passed by the Additional District Judge, Kukshi in MJC No. 35 of 2003.6. By order dated 10.12.2004, the ADJ had declined to condone the delay in filing the application filed by respondent No.2 under Order 9 Rule 13 of the CPC and thereby declined to set aside the ex parte decree dated 23.08.2003 passed in C.S. No. 09-A/02 by the said Court.7. The appellant herein is the second wife of respondent No.1 (husband). It is the case of the appellant that after passing of the ex parte decree for dissolution of marriage of respondent No.1 with respondent No.2 and expiry of period of limitation for filing appeal, respondent No.1(husband) entered into matrimony with her (appellant). On the other hand, respondent No.2 (first wife of respondent No.1) filed the aforesaid appeal of which the appellant had no knowledge, but the fact of respondent No.1 having married the appellant was indeed stated before the High Court. However, when respondent No.1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No.09-A of 2002 and directed that, “the parties shall live together as husband and wife.” The appellant herein (second wife of respondent No.1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No.709/2005, filed review petition (R.P. No.48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the appellant has filed the present appeals by way of special leave in this Court.8. Heard Mr. A.K. Chitale, learned senior counsel for the appellant and Ms. Pankhuri and Mr. S.K. Verma, learned counsel for the respondents.9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals, set aside the impugned orders and remand the case to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law.10. The need to remand the case has occasioned because we find that the appellant was not made a party to the appeal and nor she was heard by the High Court.11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.12. In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.13. It is apart from the fact as to whether such directions could at all be issued; and secondly, whether such directions were necessary in an appeal between the respondents inter se for its disposal wherein the only question involved was as to whether the Family Court (ADJ) was justified in declining to condone the delay in filing the application filed by respondent No.1 herein under Order 9 Rule 13 of the CPC and, if so, on what grounds. | 1[ds]9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals, set aside the impugned orders and remand the case to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law.10. The need to remand the case has occasioned because we find that the appellant was not made a party to the appeal and nor she was heard by the High Court.11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.12. In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.13. It is apart from the fact as to whether such directions could at all be issued; and secondly, whether such directions were necessary in an appeal between the respondents inter se for its disposal wherein the only question involved was as to whether the Family Court (ADJ) was justified in declining to condone the delay in filing the application filed by respondent No.1 herein under Order 9 Rule 13 of the CPC and, if so, on what grounds. | 1 | 848 | 299 | ### 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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Abhay Manohar Sapre, J.1. Leave granted.2. These appeals are filed against the final judgment and order dated 17.10.2014 passed by the Division Bench of the High Court of Madhya Pradesh at Indore in Review Petition No.48 of 2014 whereby the Division Bench of the High Court dismissed the said Review Petition filed by the appellant herein and upheld the order dated 09.08.2011 passed by the Single Judge of the High Court in Miscellaneous Appeal No.709 of 2005.3. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point.4. The dispute, which is the subject matter of these appeals, is between the husband (respondent No.1) and his two wives (appellant and respondent No.2). It arises out of the matrimonial suit decided by the Family Court between respondent Nos. 1 and 2.5. By impugned order dated 09.08.2011, the High Court disposed of the appeal (M.A. No.709/2005) filed by respondent No.2 (first wife) against respondent No.1 (husband) under Order 43 Rule 1 (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) against the order dated 10.12.2004 passed by the Additional District Judge, Kukshi in MJC No. 35 of 2003.6. By order dated 10.12.2004, the ADJ had declined to condone the delay in filing the application filed by respondent No.2 under Order 9 Rule 13 of the CPC and thereby declined to set aside the ex parte decree dated 23.08.2003 passed in C.S. No. 09-A/02 by the said Court.7. The appellant herein is the second wife of respondent No.1 (husband). It is the case of the appellant that after passing of the ex parte decree for dissolution of marriage of respondent No.1 with respondent No.2 and expiry of period of limitation for filing appeal, respondent No.1(husband) entered into matrimony with her (appellant). On the other hand, respondent No.2 (first wife of respondent No.1) filed the aforesaid appeal of which the appellant had no knowledge, but the fact of respondent No.1 having married the appellant was indeed stated before the High Court. However, when respondent No.1 stated that she was having no problem with the appellant, the High Court set aside the ex parte decree passed on 23.08.2003 in C.S. No.09-A of 2002 and directed that, “the parties shall live together as husband and wife.” The appellant herein (second wife of respondent No.1), on coming to know of the aforesaid order dated 09.08.2011 passed by the Single Judge of the High Court in M.A. No.709/2005, filed review petition (R.P. No.48 of 2014) before the High Court. The Division Bench of the High Court, by order dated 17.10.2014, dismissed the said review petition. Challenging both the orders, the appellant has filed the present appeals by way of special leave in this Court.8. Heard Mr. A.K. Chitale, learned senior counsel for the appellant and Ms. Pankhuri and Mr. S.K. Verma, learned counsel for the respondents.9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals, set aside the impugned orders and remand the case to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law.10. The need to remand the case has occasioned because we find that the appellant was not made a party to the appeal and nor she was heard by the High Court.11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.12. In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.13. It is apart from the fact as to whether such directions could at all be issued; and secondly, whether such directions were necessary in an appeal between the respondents inter se for its disposal wherein the only question involved was as to whether the Family Court (ADJ) was justified in declining to condone the delay in filing the application filed by respondent No.1 herein under Order 9 Rule 13 of the CPC and, if so, on what grounds.
### Response:
1
### Explanation:
9. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals, set aside the impugned orders and remand the case to the High Court for deciding the miscellaneous appeal afresh on merits in accordance with law.10. The need to remand the case has occasioned because we find that the appellant was not made a party to the appeal and nor she was heard by the High Court.11. On perusal of the impugned order dated 09.08.2011, we find that the High Court, even after taking note of the factum of the marriage of the appellant with respondent No.1, has not adverted to the consequences thereof and has given such directions, which may not be capable of due performance.12. In such a situation, where the impugned order was passed without hearing the appellant and not issuing any notice of the appeal to her and yet giving such directions, which may not be capable of being carried out, the impugned order, in our view, is wholly without jurisdiction and legally unsustainable and it has to be set aside on this short ground alone.13. It is apart from the fact as to whether such directions could at all be issued; and secondly, whether such directions were necessary in an appeal between the respondents inter se for its disposal wherein the only question involved was as to whether the Family Court (ADJ) was justified in declining to condone the delay in filing the application filed by respondent No.1 herein under Order 9 Rule 13 of the CPC and, if so, on what grounds.
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Mahadev Tukaram Vetale & Others Vs. Sugandha & Another | Hegde, J. 1. This appeal by special leave is directed against the decision of the High Court of Bombay summarily dismissing the appellants first appeal without assigning any reason.2. The facts of the case are as follows. Dadu and Tukaram were brothers. The appellant Mahadev is the son of Tukaram. The first plaintiff Sugandha is the daughter of Kisabai. Kisabai claims to be the wife of Dadu. Dadu died at a ripe old age of over 80 years, on October 26, 1968. It is said that on July 24, 1968, he had executed a will in favour of the plaintiffs bequeathing his interest in his family properties. On the strength of that will the plaintiffs have brought the present suit for partition as well as other incidental reliefs. The suit was resisted mainly by the first defendant on the ground that the will put forward is not a genuine will and the deceased Dadus mental condition, on the date he is said to have executed the will, was such that he could not have been in a sound disposing state of mind. Further plea of the first defendant was that Kisabai was not the wife of Dadu and Sugandha was not his daughter. 3. The Trial Court rejected the contention of the first defendant. It first examined the genuineness of the will. It came to the conclusion that the will in question was a genuine will and thereafter partly relying on the recitals in the will and partly on other evidence came to the conclusion that Kisabai was the wife of Dadu and Sugandha was his daughter. Aggrieved by the decision of the Trial Court the first defendant went up in appeal to the High Court of Bombay. The High Court summarily dismissed the appeal with one word "dismissed". The question for decision is whether the appeal raised by any triable issue. If the appeal did raise any triable issue then the High Court was not justified in summarily dismissing the appeal. 4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his thumb-impression. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put his thumb-impression for any other document it was difficult for the first defendant to prove that the thumb-impression in question was not his thumb-impression. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court. | 1[ds]4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put hisn for any other document it was difficult for the first defendant to prove that then in question was not his. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court. | 1 | 591 | 229 | ### 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:
Hegde, J. 1. This appeal by special leave is directed against the decision of the High Court of Bombay summarily dismissing the appellants first appeal without assigning any reason.2. The facts of the case are as follows. Dadu and Tukaram were brothers. The appellant Mahadev is the son of Tukaram. The first plaintiff Sugandha is the daughter of Kisabai. Kisabai claims to be the wife of Dadu. Dadu died at a ripe old age of over 80 years, on October 26, 1968. It is said that on July 24, 1968, he had executed a will in favour of the plaintiffs bequeathing his interest in his family properties. On the strength of that will the plaintiffs have brought the present suit for partition as well as other incidental reliefs. The suit was resisted mainly by the first defendant on the ground that the will put forward is not a genuine will and the deceased Dadus mental condition, on the date he is said to have executed the will, was such that he could not have been in a sound disposing state of mind. Further plea of the first defendant was that Kisabai was not the wife of Dadu and Sugandha was not his daughter. 3. The Trial Court rejected the contention of the first defendant. It first examined the genuineness of the will. It came to the conclusion that the will in question was a genuine will and thereafter partly relying on the recitals in the will and partly on other evidence came to the conclusion that Kisabai was the wife of Dadu and Sugandha was his daughter. Aggrieved by the decision of the Trial Court the first defendant went up in appeal to the High Court of Bombay. The High Court summarily dismissed the appeal with one word "dismissed". The question for decision is whether the appeal raised by any triable issue. If the appeal did raise any triable issue then the High Court was not justified in summarily dismissing the appeal. 4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his thumb-impression. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put his thumb-impression for any other document it was difficult for the first defendant to prove that the thumb-impression in question was not his thumb-impression. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court.
### Response:
1
### Explanation:
4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put hisn for any other document it was difficult for the first defendant to prove that then in question was not his. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court.
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Payment Of Wages Inspector Vs. Surajmal Mehta & Anr | the Authority under the Act had no jurisdiction to enter into a question of potential wages, i. e., where the workman pleads that he ought to have been up-graded as persons junior to him were up-graded and that he ought to have been paid wages on a scale paid to those so up-grade . This Court held that the Authority had jurisdiction to interpret the terms of a contract of employment to find out the actual wages payable to the workmen where deduction from or delay in payment of such wages is alleged, but not to enter into the question whether the workman should have been up-graded from being a daily rated worker to a monthly rated workman. In Shri Ambica Mills Co. Ltd. v. S. B. Bhatt, 1961-3 SCR 220 = (AIR 1961 SC 970 ) this Court again examined the scheme of the Act and held that the only claims which could be entertained by the Authority were claims arising out of deductions or delay made in the payment of wages. The Court, however, observed that in dealing with claims arising out of deductions or delay made in payment of wages the Authority inevitably would have to consider questions incidental to these matters, but in determining the scope of these incidental matters care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction was not unreasonably or unduly expanded. Equally, care must also be taken to see that the scope of these incidental matters was not unduly curtailed so as to affect or impair the limited jurisdiction conferred on the Authority. The Court declined to lay down any hard and fast rule which would afford a determining test to demarcate the field of incidental facts which could be legitimately considered by the Authority and those which could not be so considered.10. It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed Section 15 (1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages. It is also true that while deciding whether a particular matter is incidental to claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. But it has at the same time to be kept in mind that the jurisdiction under Section 15 is a special jurisdiction. The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under Section 20.11. The question, therefore, is whether on the footing that compensation payable under Sections 25FF and 25FFF of the Industrial Disputes Act being wages within the meaning of Section 2 (vi) (d) of the Act, a claim for it on the ground that its payment was delayed by an employer could be entertained under Section 15 (2) of the Act. In our view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Act. In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future. Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by Ss. 4 and 5 of the Act.It may be that there may conceivably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine. But we do not think that a claim for compensation under Section 25FF which is denied by the employer on the ground that it was defeated by the proviso to that Section, of which all the conditions were fulfilled, is one such claim which can fall within the ambit of Section 15 (2).When the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the Authority under Section 15. Nor could the Authority have been intended to try as matters incidental to such a claim questions arising under the proviso to Section 25FF. In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under Section 33C(2) of the Industrial Disputes Act which also possesses power to appoint a commissioner to take evidence where questions of facts require detailed evidence.Mr. Shroff, however, drew our attention to the decision in Uttam Chand v. Kartar Singh, 1967-1 Lab LJ 232 (Punj) a decision of a learned Single Judge of the High Court of Punjab, taking a view contrary to the one which we are inclined to take. But that decision contains no reasons and is, therefore, hardly of any assistance. | 0[ds]The High Court thought that it was not but Mr. Shroff relied on certain decisions of this Court to contest that part of the conclusion of the High Court. The Industrial Disputes Act, which as enacted in 1947 was a piece of legislation which mainly provided machinery for investigation and settlement of industrial disputes, has since then undergone frequent modifications. In 1953, by Act 43 of that year Chapter VA consisting of Sections 25A to 25J was incorporated providing therein compensation for layoff and retrenchment. It also provided a definition of retrenchment in Sec. 2 (oo). Chapter VA, as it then stood, did not expressly provide for compensation for termination of service on account of transfer of an undertaking by an agreement or as a result of operation of law or the closure of the undertaking.It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages.In the present case, for instance, the defence taken by respondent 1 was that he was not the person responsible for payment of compensation and that the right of the workmen was defeated by reason of the proviso to Section 25FF being, according to him, applicable inasmuch as these workmen were continued in the employment by the said Board, the new employer, that therefore there had been no interruption in their employment, that the terms and conditions of service given to them by the new employer were in no way less favourable than those they had when the company was the employer, and that the new employer was responsible for payment of compensation if any retrenchment took place in future. The question, therefore, is whether in view of the limited jurisdiction of the Authority under Section 15 (2) of the Act, it was intended to deal with such questions, which in some cases might well raise complicated problems of both fact and law.It is explicit from the terms of Section 15 (2) that the Authority appointed under sub-section (1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under Sections 7 to 13 and of delay in payment of wages beyond the wage periods fixed under Section 4 and the time of payment laid down in Section 5. This is clear from the opening words of sub-section (2) of Section 15, namely, "where contrary to the provisions of this Act any deduction has been made or any payment of wages has been delayed. These being the governing words in the sub-section the only applications which the Authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under Sections 4 and 5 of the Act. Section 15 (2) postulates that the wages payable by the person responsible for payment under Section 3 are certain and such that they cannot be disputed.It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed Section 15 (1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages. It is also true that while deciding whether a particular matter is incidental to claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. But it has at the same time to be kept in mind that the jurisdiction under Section 15 is a special jurisdiction. The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under Sectionour view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Act. In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future. Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by Ss. 4 and 5 of the Act. | 0 | 4,261 | 917 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the Authority under the Act had no jurisdiction to enter into a question of potential wages, i. e., where the workman pleads that he ought to have been up-graded as persons junior to him were up-graded and that he ought to have been paid wages on a scale paid to those so up-grade . This Court held that the Authority had jurisdiction to interpret the terms of a contract of employment to find out the actual wages payable to the workmen where deduction from or delay in payment of such wages is alleged, but not to enter into the question whether the workman should have been up-graded from being a daily rated worker to a monthly rated workman. In Shri Ambica Mills Co. Ltd. v. S. B. Bhatt, 1961-3 SCR 220 = (AIR 1961 SC 970 ) this Court again examined the scheme of the Act and held that the only claims which could be entertained by the Authority were claims arising out of deductions or delay made in the payment of wages. The Court, however, observed that in dealing with claims arising out of deductions or delay made in payment of wages the Authority inevitably would have to consider questions incidental to these matters, but in determining the scope of these incidental matters care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction was not unreasonably or unduly expanded. Equally, care must also be taken to see that the scope of these incidental matters was not unduly curtailed so as to affect or impair the limited jurisdiction conferred on the Authority. The Court declined to lay down any hard and fast rule which would afford a determining test to demarcate the field of incidental facts which could be legitimately considered by the Authority and those which could not be so considered.10. It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed Section 15 (1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages. It is also true that while deciding whether a particular matter is incidental to claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. But it has at the same time to be kept in mind that the jurisdiction under Section 15 is a special jurisdiction. The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under Section 20.11. The question, therefore, is whether on the footing that compensation payable under Sections 25FF and 25FFF of the Industrial Disputes Act being wages within the meaning of Section 2 (vi) (d) of the Act, a claim for it on the ground that its payment was delayed by an employer could be entertained under Section 15 (2) of the Act. In our view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Act. In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future. Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by Ss. 4 and 5 of the Act.It may be that there may conceivably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine. But we do not think that a claim for compensation under Section 25FF which is denied by the employer on the ground that it was defeated by the proviso to that Section, of which all the conditions were fulfilled, is one such claim which can fall within the ambit of Section 15 (2).When the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the Authority under Section 15. Nor could the Authority have been intended to try as matters incidental to such a claim questions arising under the proviso to Section 25FF. In our view it would be the Labour Court in such cases which would be the proper forum which can determine such questions under Section 33C(2) of the Industrial Disputes Act which also possesses power to appoint a commissioner to take evidence where questions of facts require detailed evidence.Mr. Shroff, however, drew our attention to the decision in Uttam Chand v. Kartar Singh, 1967-1 Lab LJ 232 (Punj) a decision of a learned Single Judge of the High Court of Punjab, taking a view contrary to the one which we are inclined to take. But that decision contains no reasons and is, therefore, hardly of any assistance.
### Response:
0
### Explanation:
The High Court thought that it was not but Mr. Shroff relied on certain decisions of this Court to contest that part of the conclusion of the High Court. The Industrial Disputes Act, which as enacted in 1947 was a piece of legislation which mainly provided machinery for investigation and settlement of industrial disputes, has since then undergone frequent modifications. In 1953, by Act 43 of that year Chapter VA consisting of Sections 25A to 25J was incorporated providing therein compensation for layoff and retrenchment. It also provided a definition of retrenchment in Sec. 2 (oo). Chapter VA, as it then stood, did not expressly provide for compensation for termination of service on account of transfer of an undertaking by an agreement or as a result of operation of law or the closure of the undertaking.It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages.In the present case, for instance, the defence taken by respondent 1 was that he was not the person responsible for payment of compensation and that the right of the workmen was defeated by reason of the proviso to Section 25FF being, according to him, applicable inasmuch as these workmen were continued in the employment by the said Board, the new employer, that therefore there had been no interruption in their employment, that the terms and conditions of service given to them by the new employer were in no way less favourable than those they had when the company was the employer, and that the new employer was responsible for payment of compensation if any retrenchment took place in future. The question, therefore, is whether in view of the limited jurisdiction of the Authority under Section 15 (2) of the Act, it was intended to deal with such questions, which in some cases might well raise complicated problems of both fact and law.It is explicit from the terms of Section 15 (2) that the Authority appointed under sub-section (1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under Sections 7 to 13 and of delay in payment of wages beyond the wage periods fixed under Section 4 and the time of payment laid down in Section 5. This is clear from the opening words of sub-section (2) of Section 15, namely, "where contrary to the provisions of this Act any deduction has been made or any payment of wages has been delayed. These being the governing words in the sub-section the only applications which the Authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under Sections 4 and 5 of the Act. Section 15 (2) postulates that the wages payable by the person responsible for payment under Section 3 are certain and such that they cannot be disputed.It is true, as stated above, that the Authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed Section 15 (1) itself provides that the Authority has the power to determine all matters incidental to the claim arising from deductions from or delay in payment of wages. It is also true that while deciding whether a particular matter is incidental to claim or not care should be taken neither to unduly expand nor curtail the jurisdiction of the Authority. But it has at the same time to be kept in mind that the jurisdiction under Section 15 is a special jurisdiction. The Authority is conferred with the power to award compensation over and above the liability for penalty of fine which an employer is liable to incur under Sectionour view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Act. In the second place, in view of the defence taken by Respondent 1, the Authority would inevitably have to enter into questions arising under the proviso to Section 25FF, viz., whether there was any interruption in the employment of the workmen, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workmen if there was retrenchment in the future. Such an inquiry would necessarily be a prolonged inquiry involving questions of fact and of law. Besides, the failure to pay compensation on the ground of such a plea cannot be said to be either a deduction which is unauthorised under the Act, nor can it fall under the class of delayed wages as envisaged by Ss. 4 and 5 of the Act.
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TRUSTEES OF H.C.DHANDA TRUST Vs. THE STATE OF MADHYA PRADESH & ORS. | respect of such instrument. Section 38 Sub-section (1) again uses the expression if he thinks fit. Thus, in cases where penalty of 10 times has been imposed, Deputy Commissioner has discretion to direct the refund of the penalty in facts of a particular case. The power to refund the penalty Under Section 38 clearly indicates that legislature have never contemplated that in all cases penalty to the extent of 10 times should be ultimately realised. Although the procedural part which provides for impounding and realisation of duty and penalty does not give any discretion Under Section 33 for imposing any lesser penalty than 10 times, however, when provision of Section 38 is read, the discretion given to Deputy Commissioner to refund the penalty is akin to exercise of the jurisdiction Under Section 39 where while determining the penalty he can impose the penalty lesser than 10 times. 20. The expression if he thinks fit also occurs in Section 40 sub-clause (b). The same legislative scheme as occurring in Section 39 is also discernible in Section 40(b), there is no legislative intentment that in all cases penalty to the extent of ten times the amount of proper stamp duty or deficient portion should be realised. The discretion given to Collector by use of expression if he thinks fit gives ample latitude to Collector to apply his mind on the relevant factors to determine the extent of penalty to be imposed for a case where instrument is not duly stamped. Unavoidable circumstances including the conduct of the party, his intent are the relevant factors to come to a decision. 21. The purpose of penalty generally is a deterrence and not retribution. When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. The reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b). 22. We may refer to judgment of this Court in Peteti Subba Rao vs. Anumala S. Narendra, 2002 (10) SCC 427. This Court had occasion to consider in the above case provisions of Section 40 of the Indian Stamp Act, 1899. Referring to Section 40 this Court made following observation in paragraph 6: 6………The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned. 23. This Court in the above case categorically held that it is only in the very extreme situation that penalty needs to be imposed to the extent of ten times. 24. The Collector by imposing ten times penalty in his order has given the reason for imposition as the party has not mentioned the actual nature of the document with the intention to escape the duty . When the Collector found intention to escape the duty, it was the case of imposition of penalty but whether the reason given by the Collector is sufficient for imposition of extreme penalty of ten times is the question which needs to be further considered. The High Court while considering the question of imposition of penalty of ten times has also given almost same reason in following words: ………But in the present case the complete title has been transferred by Trust to Jogesh Dhanda and Ishan Dhanda in the name of Deed of Assent. Therefore, there was intention to evade the heavy stamp duty on such transaction. Therefore, the Collector of Stamp has rightly imposed 10 times penalty which is maximum under the Act. In view of the above, I do not find any merit in this writ petition. The same is hereby dismissed. 25. No other reasons have been given either by the Collector or by the High Court justifying the imposition of maximum penalty of ten times. It is not the case of Collector that the conduct of the appellant was dishonest or contumacious. The High Court in its judgment has noticed that although the resolution was passed on 06.04.2005 to execute the Deed of Transfer by Trustees in favour of Jogesh Dhanda and Ishan Dhanda, but later on they deliberately executed the deed in the name of Deed of Assent on a stamp paper of Rs.200/-. For the reason given by the Collector as well as by the High Court that there was intention to evade the stamp duty in describing the document as Deed of Assent the imposition of the penalty was called for but in the facts and circumstances and the reasons which have been given by the Collector of Stamps as noticed above we are satisfied that this was not a case of imposition of extreme penalty of ten times of deficiency of stamp duty. Taking into consideration all facts and circumstances of the case, we are of view that ends of justice will be served in reducing the penalty imposed to the extent of the half i.e. five times of deficiency in the stamp duty. | 1[ds]16. According to Section 40(1)(b) if the Collector is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. The statutory scheme of Section 40(1)(b) as noticed above indicates that when the Collector is satisfied that instrument is not duly stamped, he shall require the payment of proper duty together with a penalty of the five rupees. The relevant part of Section 40(1)(b) which falls for consideration in these appeals is: or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or deficient portion thereof.17. The amount of penalty thus can be an amount not exceeding ten times. The expression an amount not exceeding ten times is preceded by expression if he thinks fit. The statutory scheme, thus, vest the discretion to the Collector to impose the penalty amount not exceeding ten times. Whenever statute transfers discretion to an authority the discretion is to be exercised in furtherance of objects of the enactment. The discretion is to be exercised not on whims or fancies rather the discretion is to be exercised on rational basis in a fair manner. The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of force. Neither imposition of penalty of ten times under Section 40(1) (b) is automatic nor can be mechanically imposed. The concept of imposition of penalty of ten times of a sum equal to ten times of the proper duty or deficiency thereof has occurred in other provisions of the Act as well.18. It is relevant to notice that Section 35 contemplates that when ten times the amount of the proper duty of or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion is required to be deposited. Under Section 39 Collector is empowered to refund penalty. As noticed above under Section 35(a) there is no option except to pay sum equal to ten times of such duty or deficient portion but Section 39 empowers the Collector to refund any portion of the penalty in excess of five rupees which is expressed in following words: if he thinks fit refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.19. The legislative intent which is clear from reading of Sections 33,35,38 and 39 indicates that with respect to the instrument not duly stamped, ten times penalty is not always retained and power can be exercised under Section 39 to reduce penalty in regard to that there is a statutory discretion in Collector to refund penalty.21. The purpose of penalty generally is a deterrence and not retribution. When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. The reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b).24. The Collector by imposing ten times penalty in his order has given the reason for imposition as the party has not mentioned the actual nature of the document with the intention to escape the duty . When the Collector found intention to escape the duty, it was the case of imposition of penalty but whether the reason given by the Collector is sufficient for imposition of extreme penalty of ten times is the question which needs to be further considered. The High Court while considering the question of imposition of penalty of ten times has also given almost same reason in following words:………But in the present case the complete title has been transferred by Trust to Jogesh Dhanda and Ishan Dhanda in the name of Deed of Assent. Therefore, there was intention to evade the heavy stamp duty on such transaction. Therefore, the Collector of Stamp has rightly imposed 10 times penalty which is maximum under the Act.In view of the above, I do not find any merit in this writ petition. The same is hereby dismissed.25. No other reasons have been given either by the Collector or by the High Court justifying the imposition of maximum penalty of ten times. It is not the case of Collector that the conduct of the appellant was dishonest or contumacious. The High Court in its judgment has noticed that although the resolution was passed on 06.04.2005 to execute the Deed of Transfer by Trustees in favour of Jogesh Dhanda and Ishan Dhanda, but later on they deliberately executed the deed in the name of Deed of Assent on a stamp paper of Rs.200/-. For the reason given by the Collector as well as by the High Court that there was intention to evade the stamp duty in describing the document as Deed of Assent the imposition of the penalty was called for but in the facts and circumstances and the reasons which have been given by the Collector of Stamps as noticed above we are satisfied that this was not a case of imposition of extreme penalty of ten times of deficiency of stamp duty. Taking into consideration all facts and circumstances of the case, we are of view that ends of justice will be served in reducing the penalty imposed to the extent of the half i.e. five times of deficiency in the stamp duty. | 1 | 3,789 | 1,093 | ### 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:
respect of such instrument. Section 38 Sub-section (1) again uses the expression if he thinks fit. Thus, in cases where penalty of 10 times has been imposed, Deputy Commissioner has discretion to direct the refund of the penalty in facts of a particular case. The power to refund the penalty Under Section 38 clearly indicates that legislature have never contemplated that in all cases penalty to the extent of 10 times should be ultimately realised. Although the procedural part which provides for impounding and realisation of duty and penalty does not give any discretion Under Section 33 for imposing any lesser penalty than 10 times, however, when provision of Section 38 is read, the discretion given to Deputy Commissioner to refund the penalty is akin to exercise of the jurisdiction Under Section 39 where while determining the penalty he can impose the penalty lesser than 10 times. 20. The expression if he thinks fit also occurs in Section 40 sub-clause (b). The same legislative scheme as occurring in Section 39 is also discernible in Section 40(b), there is no legislative intentment that in all cases penalty to the extent of ten times the amount of proper stamp duty or deficient portion should be realised. The discretion given to Collector by use of expression if he thinks fit gives ample latitude to Collector to apply his mind on the relevant factors to determine the extent of penalty to be imposed for a case where instrument is not duly stamped. Unavoidable circumstances including the conduct of the party, his intent are the relevant factors to come to a decision. 21. The purpose of penalty generally is a deterrence and not retribution. When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. The reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b). 22. We may refer to judgment of this Court in Peteti Subba Rao vs. Anumala S. Narendra, 2002 (10) SCC 427. This Court had occasion to consider in the above case provisions of Section 40 of the Indian Stamp Act, 1899. Referring to Section 40 this Court made following observation in paragraph 6: 6………The Collector has the power to require the person concerned to pay the proper duty together with a penalty amount which the Collector has to fix in consideration of all aspects involved. The restriction imposed on the Collector in imposing the penalty amount is that under no circumstances the penalty amount shall go beyond ten times the duty or the deficient portion thereof. That is the farthest limit which meant only in very extreme situations the penalty need be imposed up to that limit. It is unnecessary for us to say that the Collector is not required by law to impose the maximum rate of penalty as a matter of course whenever an impounded document is sent to him. He has to take into account various aspects including the financial position of the person concerned. 23. This Court in the above case categorically held that it is only in the very extreme situation that penalty needs to be imposed to the extent of ten times. 24. The Collector by imposing ten times penalty in his order has given the reason for imposition as the party has not mentioned the actual nature of the document with the intention to escape the duty . When the Collector found intention to escape the duty, it was the case of imposition of penalty but whether the reason given by the Collector is sufficient for imposition of extreme penalty of ten times is the question which needs to be further considered. The High Court while considering the question of imposition of penalty of ten times has also given almost same reason in following words: ………But in the present case the complete title has been transferred by Trust to Jogesh Dhanda and Ishan Dhanda in the name of Deed of Assent. Therefore, there was intention to evade the heavy stamp duty on such transaction. Therefore, the Collector of Stamp has rightly imposed 10 times penalty which is maximum under the Act. In view of the above, I do not find any merit in this writ petition. The same is hereby dismissed. 25. No other reasons have been given either by the Collector or by the High Court justifying the imposition of maximum penalty of ten times. It is not the case of Collector that the conduct of the appellant was dishonest or contumacious. The High Court in its judgment has noticed that although the resolution was passed on 06.04.2005 to execute the Deed of Transfer by Trustees in favour of Jogesh Dhanda and Ishan Dhanda, but later on they deliberately executed the deed in the name of Deed of Assent on a stamp paper of Rs.200/-. For the reason given by the Collector as well as by the High Court that there was intention to evade the stamp duty in describing the document as Deed of Assent the imposition of the penalty was called for but in the facts and circumstances and the reasons which have been given by the Collector of Stamps as noticed above we are satisfied that this was not a case of imposition of extreme penalty of ten times of deficiency of stamp duty. Taking into consideration all facts and circumstances of the case, we are of view that ends of justice will be served in reducing the penalty imposed to the extent of the half i.e. five times of deficiency in the stamp duty.
### Response:
1
### Explanation:
16. According to Section 40(1)(b) if the Collector is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. The statutory scheme of Section 40(1)(b) as noticed above indicates that when the Collector is satisfied that instrument is not duly stamped, he shall require the payment of proper duty together with a penalty of the five rupees. The relevant part of Section 40(1)(b) which falls for consideration in these appeals is: or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or deficient portion thereof.17. The amount of penalty thus can be an amount not exceeding ten times. The expression an amount not exceeding ten times is preceded by expression if he thinks fit. The statutory scheme, thus, vest the discretion to the Collector to impose the penalty amount not exceeding ten times. Whenever statute transfers discretion to an authority the discretion is to be exercised in furtherance of objects of the enactment. The discretion is to be exercised not on whims or fancies rather the discretion is to be exercised on rational basis in a fair manner. The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of force. Neither imposition of penalty of ten times under Section 40(1) (b) is automatic nor can be mechanically imposed. The concept of imposition of penalty of ten times of a sum equal to ten times of the proper duty or deficiency thereof has occurred in other provisions of the Act as well.18. It is relevant to notice that Section 35 contemplates that when ten times the amount of the proper duty of or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion is required to be deposited. Under Section 39 Collector is empowered to refund penalty. As noticed above under Section 35(a) there is no option except to pay sum equal to ten times of such duty or deficient portion but Section 39 empowers the Collector to refund any portion of the penalty in excess of five rupees which is expressed in following words: if he thinks fit refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.19. The legislative intent which is clear from reading of Sections 33,35,38 and 39 indicates that with respect to the instrument not duly stamped, ten times penalty is not always retained and power can be exercised under Section 39 to reduce penalty in regard to that there is a statutory discretion in Collector to refund penalty.21. The purpose of penalty generally is a deterrence and not retribution. When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The responsibility to exercise the discretion in reasonable manner lies more in cases where discretion vested by the statute is unfettered. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. The reason such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under Section 40(1)(b).24. The Collector by imposing ten times penalty in his order has given the reason for imposition as the party has not mentioned the actual nature of the document with the intention to escape the duty . When the Collector found intention to escape the duty, it was the case of imposition of penalty but whether the reason given by the Collector is sufficient for imposition of extreme penalty of ten times is the question which needs to be further considered. The High Court while considering the question of imposition of penalty of ten times has also given almost same reason in following words:………But in the present case the complete title has been transferred by Trust to Jogesh Dhanda and Ishan Dhanda in the name of Deed of Assent. Therefore, there was intention to evade the heavy stamp duty on such transaction. Therefore, the Collector of Stamp has rightly imposed 10 times penalty which is maximum under the Act.In view of the above, I do not find any merit in this writ petition. The same is hereby dismissed.25. No other reasons have been given either by the Collector or by the High Court justifying the imposition of maximum penalty of ten times. It is not the case of Collector that the conduct of the appellant was dishonest or contumacious. The High Court in its judgment has noticed that although the resolution was passed on 06.04.2005 to execute the Deed of Transfer by Trustees in favour of Jogesh Dhanda and Ishan Dhanda, but later on they deliberately executed the deed in the name of Deed of Assent on a stamp paper of Rs.200/-. For the reason given by the Collector as well as by the High Court that there was intention to evade the stamp duty in describing the document as Deed of Assent the imposition of the penalty was called for but in the facts and circumstances and the reasons which have been given by the Collector of Stamps as noticed above we are satisfied that this was not a case of imposition of extreme penalty of ten times of deficiency of stamp duty. Taking into consideration all facts and circumstances of the case, we are of view that ends of justice will be served in reducing the penalty imposed to the extent of the half i.e. five times of deficiency in the stamp duty.
|
Subodh Gopal Bose Vs. Ajit Kumar Haldar And Others | There cannot be the least doubt that the suit was pending in the High Court on appeal at the commencement of the Amending Act, it being well settled that an appeal is a continuation of the original suit. That being so, the question is whether the suit could have been validly instituted had the Amending Act been in operation at the date of the institution of the suit. That brings in the provisions of S. 4. The relevant provisions of that Section are as follows :"4. For 37 of the said Act, the following Section shall he substituted namely :-"37. (1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures holdings and leases with the following exceptions:-(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent, or fixed rate of rent, and(b) (i) tenures and holdings not included in exception (a) above made, and(ii) other leases of land whether or not for purposes connected with agriculture or horticulture,existing at the date of issue of the notification for sale of the estate under this Act:* * * *(2) For the purposes of this Section:(a) (1) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885,* * * *"7. By virtue of S. 37 (I), as amended, the plaintiff as the purchaser of the entire estate, Touzi No. 6, sold for recovery of arrears on account of that Touzi had acquired the estate free from all encumbrances and was entitled to avoid and annul all tenures, except those detailed in (a) and (b) of that Section. Section 37(1) (a) would not come into operation in this case because the finding is that the defendants had failed to prove the existence of the tenure since the time of the Permanent Settlement. But C1. (b) (i) would apply if it was a tenure in existence at the date of the issue of the notification for the sale of the estate. The defendants property was a tenure so in existence, on the finding by the High Court that the tenure had been in existence from before 1910.8. On the facts so found, what is the legal position? The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 18.59, if those tenures had not been wiped out as a result of annulment under S. 37 of the old Act, and those annulments had become (sic) accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of S. 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).9. Under which category would the suit in the instant case come? It is well settled that a pending appeal is a continuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will come within the purview of S. 7 (l) (a). It will not come under the second category because it is not on appeal by an unsuccessful plaintiff, nor will it come under category 3 above, because the decree passed against the defendant had not become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under Section 7 (1) (a) as soon as the Amending Act came into force. In this view of the matter, it is not necessary to consider the effect of the delivery of possession, given as aforesaid, during the pendency of the appeal in the High Court. | 0[ds]The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 18.59, if those tenures had not been wiped out as a result of annulment under S. 37 of the old Act, and those annulments had become (sic) accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of S. 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).9. Under which category would the suit in the instant case come? It is well settled that a pending appeal is a continuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will come within the purview of S. 7 (l) (a). It will not come under the second category because it is not on appeal by an unsuccessful plaintiff, nor will it come under category 3 above, because the decree passed against the defendant had not become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under Section 7 (1) (a) as soon as the Amending Act came into force. In this view of the matter, it is not necessary to consider the effect of the delivery of possession, given as aforesaid, during the pendency of the appeal in the High Court. | 0 | 2,902 | 679 | ### 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:
There cannot be the least doubt that the suit was pending in the High Court on appeal at the commencement of the Amending Act, it being well settled that an appeal is a continuation of the original suit. That being so, the question is whether the suit could have been validly instituted had the Amending Act been in operation at the date of the institution of the suit. That brings in the provisions of S. 4. The relevant provisions of that Section are as follows :"4. For 37 of the said Act, the following Section shall he substituted namely :-"37. (1) The purchaser of an entire estate in the permanently settled districts of West Bengal sold under this Act for the recovery of arrears due on account of the same, shall acquire the estate free from all encumbrances which may have been imposed after the time of settlement and shall be entitled to avoid and annul all tenures holdings and leases with the following exceptions:-(a) tenures and holdings which have been held from the time of the permanent settlement either free of rent or at a fixed rent, or fixed rate of rent, and(b) (i) tenures and holdings not included in exception (a) above made, and(ii) other leases of land whether or not for purposes connected with agriculture or horticulture,existing at the date of issue of the notification for sale of the estate under this Act:* * * *(2) For the purposes of this Section:(a) (1) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885,* * * *"7. By virtue of S. 37 (I), as amended, the plaintiff as the purchaser of the entire estate, Touzi No. 6, sold for recovery of arrears on account of that Touzi had acquired the estate free from all encumbrances and was entitled to avoid and annul all tenures, except those detailed in (a) and (b) of that Section. Section 37(1) (a) would not come into operation in this case because the finding is that the defendants had failed to prove the existence of the tenure since the time of the Permanent Settlement. But C1. (b) (i) would apply if it was a tenure in existence at the date of the issue of the notification for the sale of the estate. The defendants property was a tenure so in existence, on the finding by the High Court that the tenure had been in existence from before 1910.8. On the facts so found, what is the legal position? The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 18.59, if those tenures had not been wiped out as a result of annulment under S. 37 of the old Act, and those annulments had become (sic) accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of S. 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).9. Under which category would the suit in the instant case come? It is well settled that a pending appeal is a continuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will come within the purview of S. 7 (l) (a). It will not come under the second category because it is not on appeal by an unsuccessful plaintiff, nor will it come under category 3 above, because the decree passed against the defendant had not become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under Section 7 (1) (a) as soon as the Amending Act came into force. In this view of the matter, it is not necessary to consider the effect of the delivery of possession, given as aforesaid, during the pendency of the appeal in the High Court.
### Response:
0
### Explanation:
The Amending Act of 1950 was intended to grant relief to tenure holders under proprietors whose estates had been sold under the Act of 18.59, if those tenures had not been wiped out as a result of annulment under S. 37 of the old Act, and those annulments had become (sic) accomplished facts before the Amending Act came into force on March 15, 1950. Section 4 grants relief to tenure-holders even in respect of revenue sales held before that date, if the provisions of S. 7 which give retrospective operation as aforesaid to the substantive provisions of the Amending Act, which had extensively cut down the rigours of the old S. 37 are attracted. Section 7 contemplates three kinds of cases, namely, (1) a pending suit or proceeding for the ejectment of any person in respect of his tenure or lease-hold, irrespective of whether or not the lease was for purposes connected with agriculture or horticulture; (2) pending appeal or application for review or application for revision arising out of (l) above, this appeal or application being one by an unsuccessful plaintiff and not by all unsuccessful defendant, because the abatement contemplated by the Section intended to close the door against an attack on preexisting title and not against defence of such a title, and (3) a final decree or order made for ejectment. A decree or order against which an appeal has been filed and has been pending on the date of the commencement of the Act, if it is by the unsuccessful plaintiff or applicant, would be covered by S. 7 (1) (b); whereas a decree or order for ejectment which has become final because either no appeal was preferred against it, or if there had been one, it has been finally decided, would be within the purview of S. 7 (2). If such a final decree for ejectment has been executed by delivery of possession of the land in question, before the commencement of the Amending Act, the legislature did not intend to reopen such closed transactions. But except those, in all the categories (1) to (3) above, if the suit, appeal, or proceeding could not have been validly instituted, preferred or made, in terms of the Amending Act, all those pending suits or appeals or applications would abate according to S. 7 (l) (a) and (b); and the decrees would become void according to S. 7 (2).9. Under which category would the suit in the instant case come? It is well settled that a pending appeal is a continuation of the suit out of which it arises. In other words, the suit is pending on appeal. Hence, the present suit, which was pending in the High Court on the date the Amending Act came into force, will come within the purview of S. 7 (l) (a). It will not come under the second category because it is not on appeal by an unsuccessful plaintiff, nor will it come under category 3 above, because the decree passed against the defendant had not become final in the sense already indicated. Hence, in partial disagreement with the High Court, we hold that the suit pending in the High Court on appeal had abated on March 15, 1950, under Section 7 (1) (a) as soon as the Amending Act came into force. In this view of the matter, it is not necessary to consider the effect of the delivery of possession, given as aforesaid, during the pendency of the appeal in the High Court.
|
THE DIRECTOR OF HORTICULTURE Vs. PRAVAT KUMAR DASH | Administrative Tribunal including OA No. 1510 of 2012 which was allowed on June 27, 2014 and the writ petitions filed by the State stand dismissed vide order dated December 22, 2017. This order is impugned in the present appeal. 12) In this factual background and the number of orders passed by Odisha Administrative Tribunal, the argument of Mr. Vikas Singh, learned senior counsel for the appellant is that 362 persons were selected in wholly irregular manner to undergo training in Departmental farms other than training by the Director of Horticulture. Out of 1359 applications, 362 were selected without any criteria. The circular of the State Government was categorically to the effect that undergoing training will not ensure an appointment. The training of Gardener was only an eligibility qualification and not a guarantee for the appointment. It is, thus, argued that training was not as per the decision of Director of Horticulture communicated on April 16, 1998 but in the departmental farms without a transparent selection process, 362 candidates out of 1359 candidates were selected to undergo training. Still, further, six candidates were appointed surreptitiously, therefore, it was decided to terminate their services. The appointment was dehors any selection procedure known for making employment against the public post, therefore, such appointments cannot be said to be protected by Article 311 or by the Orissa Civil Services Rules. 13) It is alternatively contended that even if six candidates have been appointed illegally, such illegality cannot be claimed to be perpetuated by the other candidates by seeking parity with six illegally appointed candidates. It is pointed out that the posts of Gardener were never advertised even when six candidates were appointed, therefore, the direction of the Tribunal as maintained by the High Court to make appointments is contrary to the statutory rules and the procedure for appointment against the public post, therefore, such directions cannot be sustained in law. 14) It is also argued that the findings recorded by the Tribunal, as affirmed by the High Court, that similarly situated Gardeners have been appointed are factually incorrect as some vacancies in the cadre of Gardener were filled in the rehabilitation scheme from amongst the attendants who have completed six years? service for promotion to the post or rank of Gardener on the basis of seniority-cum-merit. 15) On the other hand, the argument of Mr. Guru Krishnakumar as well as Mr. R. Basant, learned senior counsels appearing on behalf of some of the respondents, is that the action of the State is wholly arbitrary as similarly situated candidates have been appointed. It is further argued that the stand that post of Gardener stands abolished and the post of Horticulture Extension Worker has been created is only a ruse as it is nomenclature of the same post. The stand of the State that Horticulture Extension Worker is a promo- tion post from the post of Gardener is not correct. 16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified in law. 17) The respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come on record. 18) We find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for the post. 19) The services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532. 20) In view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a manner. | 1[ds]16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified inThe respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come onWe find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for theThe services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCCIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such aIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a | 1 | 2,634 | 612 | ### 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:
Administrative Tribunal including OA No. 1510 of 2012 which was allowed on June 27, 2014 and the writ petitions filed by the State stand dismissed vide order dated December 22, 2017. This order is impugned in the present appeal. 12) In this factual background and the number of orders passed by Odisha Administrative Tribunal, the argument of Mr. Vikas Singh, learned senior counsel for the appellant is that 362 persons were selected in wholly irregular manner to undergo training in Departmental farms other than training by the Director of Horticulture. Out of 1359 applications, 362 were selected without any criteria. The circular of the State Government was categorically to the effect that undergoing training will not ensure an appointment. The training of Gardener was only an eligibility qualification and not a guarantee for the appointment. It is, thus, argued that training was not as per the decision of Director of Horticulture communicated on April 16, 1998 but in the departmental farms without a transparent selection process, 362 candidates out of 1359 candidates were selected to undergo training. Still, further, six candidates were appointed surreptitiously, therefore, it was decided to terminate their services. The appointment was dehors any selection procedure known for making employment against the public post, therefore, such appointments cannot be said to be protected by Article 311 or by the Orissa Civil Services Rules. 13) It is alternatively contended that even if six candidates have been appointed illegally, such illegality cannot be claimed to be perpetuated by the other candidates by seeking parity with six illegally appointed candidates. It is pointed out that the posts of Gardener were never advertised even when six candidates were appointed, therefore, the direction of the Tribunal as maintained by the High Court to make appointments is contrary to the statutory rules and the procedure for appointment against the public post, therefore, such directions cannot be sustained in law. 14) It is also argued that the findings recorded by the Tribunal, as affirmed by the High Court, that similarly situated Gardeners have been appointed are factually incorrect as some vacancies in the cadre of Gardener were filled in the rehabilitation scheme from amongst the attendants who have completed six years? service for promotion to the post or rank of Gardener on the basis of seniority-cum-merit. 15) On the other hand, the argument of Mr. Guru Krishnakumar as well as Mr. R. Basant, learned senior counsels appearing on behalf of some of the respondents, is that the action of the State is wholly arbitrary as similarly situated candidates have been appointed. It is further argued that the stand that post of Gardener stands abolished and the post of Horticulture Extension Worker has been created is only a ruse as it is nomenclature of the same post. The stand of the State that Horticulture Extension Worker is a promo- tion post from the post of Gardener is not correct. 16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified in law. 17) The respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come on record. 18) We find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for the post. 19) The services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532. 20) In view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a manner.
### Response:
1
### Explanation:
16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified inThe respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come onWe find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for theThe services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCCIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such aIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a
|
Chander Pal Vs. State Of Haryana | malign the prosecution. Assuming that this explanation of the prosecution is plausible, but then we cannot brush aside a positive statement made by PW-2 to which a brief reference has already been made by us earlier in this judgment. As stated above, this witness PW-2, Ashok Kumar, has stated in his cross-examination thus: "I had seen Chander Pal accused in the custody of Police at the premises of Police Station. He was seen in the custody of Police by me on 2.8.1992. His photographs were not taken by the Police in my presence". This evidence of PW-2 is neither clarified in the re-examination nor any explanation has been given by PW-11 or any other prosecution witness. That being so, we will have to accept that it is a fact and that this accused was an matter of fact arrested by the Police on 2.8.1992 itself. This is somewhat corroborated by the defence evidence wherein the timesheet of Kelvinator factory reflecting the entry and exist of first accused to the said factory in the course of his work was produced through DW-1 and the said timesheets are kept on record by the Sessions Court. A perusal of this timesheet shows that this accused had marked his presence in the factory in the forenoon of 31.7.1992. PW-1 has stated in his evidence that the accused was to have joined duty again on 1.8.1992 in the afternoon but since then he was marked absent because he had not reported for duty. This fits in with the theory of the defence that this accused person was arrested by the Police on 1.8.1992, and was seen by PW-2 in their custody. In our opinion if as a matter of fact the first accused was arrested and was kept in custody from 2.8.1992, it becomes abundantly clear how PWs. 1 and 2 so easily identified the first appellant with whom they were not familiar till then. 14. We will not briefly examine the approach of the learned Sessions Judge in regard to the prosecution evidence as pointed out to us by learned counsel for the appellants. While discussing the evidence of the prosecution with reference to the acquitted accused, this is how learned Judge considered the prosecution evidence: "However, the case of prosecution against Dharambir and Dharam Singh was of course symptomatic of deficiencies owing to failure on its (prosecution) part to lead positive and concrete evidence on the point of identity of these two assailants. In the first information report, Ex. PA, Dharam Singh accused was not named as assailant. The name of that assailant was described therein as Biru. It was not at all the case of prosecution that Dharam Singh accused was also addressed by the name of Biru. Both of them were described therein as belonging to Thakur community and residents of Asaoti. However, that version has convincingly been demonstrated on record to be factually incorrect. On the own telling of Bhim Sen (PW1), he had not mentioned the father’s name of either that person named Biru or other accused appellant Dharambir. In his deposition in Court, he (PW1) had disowned the fact that he had described both the assailants as belonging to Thakur community and residents of village Aasoti but he was duly confronted with that statement, Ex. PA, where they were described as such. Admittedly, he had never visited the house of either Dharam Singh or Dharambir accused and had also no business dealings with them. He was also frank enough to concede that he had no dealings of any kind with Dharambir-accused. In his statement before the Court, he has no doubt asserted that he had been seeing Dharambir playing Ludo in the company of Chander Pal and Ravinder but had to admit that he had not made any such statement before the police. No evidenciary value could, thus, be attached to the vague and bald statement made by him that he knew both these accused from before. Had that been so, there was no question of his having made an apparent mistake in describing their names, parentage, community or place of residence." 15. If the learned Sessions Judge was justified in rejecting the prosecution evidence based on the reasoning found in the paragraph extracted hereinabove, we fail to understand how the very same evidence could be accepted in regard to the appellants herein. Every one of the reasoning mentioned in the above paragraph of the judgment of learned Sessions Judge, if applied on the same yardstick to the prosecution evidence in regard to the appellants herein, we do not find any symptomatic differences in regard to applying the said evidence to the appellants herein and rejecting the same with reference to the acquitted accused. In our opinion, on the parity of the reasoning adopted by learned Sessions Judge, the case of the appellants could not have been distinguished from those of the acquitted accused persons. If it is this fundamental error in the judgment of learned Sessions Judge which has denied the appellants herein the benefit of doubt which should have been made available to the appellants. We need not dwell upon the confirming judgment of the High Court in this regard very much because in our opinion it has merely accepted and confirmed the judgment of learned Sessions Judge without noticing the material discrepancies in evidence of PWs. 1 and 2, without noticing the effect of non-examination of Subhash Baweja and Mohan Lal and without taking into consideration the effect of illegal detention or arrest of first appellant on 2.8.1992 itself or the reasoning of the learned Sessions Judge while rejecting the prosecution case is regard to the acquitted accused. 16. For the reasons stated above, we on a re-appreciation of the entire material on record and taking into consideration the arguments addressed on behalf of the parties, are satisfied that the prosecution has failed to prove beyond all reasonable doubt that these appellants are the assailants of deceased Ravinder and are responsible for his murder. Therefore, | 1[ds]the non-examination of Subhash Baweja throws considerable doubt on this part of the prosecution case as to where exactly the incident in question took place and why Subhash Baweja whose presence was not mentioned by PWs. 1 and 2 at the time place of the incident or in the hospital came to pick up the deceased and bring him to the hospital and also give a different version as to the place of incident then the one put forth by the prosecution. PW-11 who was the investigating officer in his evidence before the court has given no explanation whatsoever as to why Subhash Baweja was not examined even though his complete address was mentioned in Ex. PE recorded by the doctor. This lapse on the part of the prosecution also gives rise to a doubt as to the fact whether PWs. 1 and 2 did at all witness the incident in question or the same actually took place near the tea stall of PW-2. At this point, it is also relevant to notice the fact that according to the evidence of PW-1, there was another eye-witness to the incident, namely, Mohan Lal who according to this witness, witnessed the attack on the deceased and also accompanied the deceased to the hospital and that Mohan Lal was also present in the hospital when the Police came there. This witness is also not examined and from the records, we find that he was given up as "unnecessary". We find it extremely difficult to accept this explanation and non-examination of both Subhash Baweja and Mohan Lal, in our opinion further throws very strong doubt on the prosecution case. As a matter of fact Mohan Lal played a very important role as a Panch witness in the seizure of the blood stained earth from a place where the deceased was attacked, and according to the Panchnama of seizure, the seal put on the package in which the earth was packed, was given to the possession of Mohan Lal. Thus Mohan Lal seems to have played an important role even in the investigation and still the prosecution has failed to examine this witness. There is one more reason why we are hesitant to accept the evidence of PW-1. That is because of the fact that PW-1 was not familiar with the first appellant Chander Pal and the defence has suggested to this witness that he could not have identified A-1 because he was really not known to him. It is also suggested that this witness while mentioning the names of other accused persons in the complaint, this witness has mentioned either the name of their fathers or at least their caste and place of residence while in regard to the appellant Chander Pal he has neither mentioned the name of his father nor the place of the incident. The explanation given by PW-1 to the suggestion made in this regard to him by the defence is that he used to visit the Kelvinator factory where A-1 was working for the purpose of procuring business from the factory and during those visits he had seen Chander Pal, hence he was able to identify the accused. We notice that his visit to Kelvinator factory on previous occasions is not corroborated by any other evidence; be it oral or documentary. It has also come in evidence that the said factory engages about 5,000 to 7,000/ workmen and this witness has not given any special reason why he specifically noticed Chander Pal so as to remember his name and identify him at the time of the assault out of those many employees of the Kelvinator factory. In the background of the interestedness of this witness, and the material contradiction in his evidence even this suggestion of his not knowing Chander Pal becomes relevant. Therefore, we find it difficult to place reliance on the evidence of thisour opinion, on the parity of the reasoning adopted by learned Sessions Judge, the case of the appellants could not have been distinguished from those of the acquitted accused persons. If it is this fundamental error in the judgment of learned Sessions Judge which has denied the appellants herein the benefit of doubt which should have been made available to the appellants. We need not dwell upon the confirming judgment of the High Court in this regard very much because in our opinion it has merely accepted and confirmed the judgment of learned Sessions Judge without noticing the material discrepancies in evidence of PWs. 1 and 2, without noticing the effect of non-examination of Subhash Baweja and Mohan Lal and without taking into consideration the effect of illegal detention or arrest of first appellant on 2.8.1992 itself or the reasoning of the learned Sessions Judge while rejecting the prosecution case is regard to the acquittedon a re-appreciation of the entire material on record and taking into consideration the arguments addressed on behalf of the parties, are satisfied that the prosecution has failed to prove beyond all reasonable doubt that these appellants are the assailants of deceased Ravinder and are responsible for his murder. | 1 | 6,850 | 896 | ### 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:
malign the prosecution. Assuming that this explanation of the prosecution is plausible, but then we cannot brush aside a positive statement made by PW-2 to which a brief reference has already been made by us earlier in this judgment. As stated above, this witness PW-2, Ashok Kumar, has stated in his cross-examination thus: "I had seen Chander Pal accused in the custody of Police at the premises of Police Station. He was seen in the custody of Police by me on 2.8.1992. His photographs were not taken by the Police in my presence". This evidence of PW-2 is neither clarified in the re-examination nor any explanation has been given by PW-11 or any other prosecution witness. That being so, we will have to accept that it is a fact and that this accused was an matter of fact arrested by the Police on 2.8.1992 itself. This is somewhat corroborated by the defence evidence wherein the timesheet of Kelvinator factory reflecting the entry and exist of first accused to the said factory in the course of his work was produced through DW-1 and the said timesheets are kept on record by the Sessions Court. A perusal of this timesheet shows that this accused had marked his presence in the factory in the forenoon of 31.7.1992. PW-1 has stated in his evidence that the accused was to have joined duty again on 1.8.1992 in the afternoon but since then he was marked absent because he had not reported for duty. This fits in with the theory of the defence that this accused person was arrested by the Police on 1.8.1992, and was seen by PW-2 in their custody. In our opinion if as a matter of fact the first accused was arrested and was kept in custody from 2.8.1992, it becomes abundantly clear how PWs. 1 and 2 so easily identified the first appellant with whom they were not familiar till then. 14. We will not briefly examine the approach of the learned Sessions Judge in regard to the prosecution evidence as pointed out to us by learned counsel for the appellants. While discussing the evidence of the prosecution with reference to the acquitted accused, this is how learned Judge considered the prosecution evidence: "However, the case of prosecution against Dharambir and Dharam Singh was of course symptomatic of deficiencies owing to failure on its (prosecution) part to lead positive and concrete evidence on the point of identity of these two assailants. In the first information report, Ex. PA, Dharam Singh accused was not named as assailant. The name of that assailant was described therein as Biru. It was not at all the case of prosecution that Dharam Singh accused was also addressed by the name of Biru. Both of them were described therein as belonging to Thakur community and residents of Asaoti. However, that version has convincingly been demonstrated on record to be factually incorrect. On the own telling of Bhim Sen (PW1), he had not mentioned the father’s name of either that person named Biru or other accused appellant Dharambir. In his deposition in Court, he (PW1) had disowned the fact that he had described both the assailants as belonging to Thakur community and residents of village Aasoti but he was duly confronted with that statement, Ex. PA, where they were described as such. Admittedly, he had never visited the house of either Dharam Singh or Dharambir accused and had also no business dealings with them. He was also frank enough to concede that he had no dealings of any kind with Dharambir-accused. In his statement before the Court, he has no doubt asserted that he had been seeing Dharambir playing Ludo in the company of Chander Pal and Ravinder but had to admit that he had not made any such statement before the police. No evidenciary value could, thus, be attached to the vague and bald statement made by him that he knew both these accused from before. Had that been so, there was no question of his having made an apparent mistake in describing their names, parentage, community or place of residence." 15. If the learned Sessions Judge was justified in rejecting the prosecution evidence based on the reasoning found in the paragraph extracted hereinabove, we fail to understand how the very same evidence could be accepted in regard to the appellants herein. Every one of the reasoning mentioned in the above paragraph of the judgment of learned Sessions Judge, if applied on the same yardstick to the prosecution evidence in regard to the appellants herein, we do not find any symptomatic differences in regard to applying the said evidence to the appellants herein and rejecting the same with reference to the acquitted accused. In our opinion, on the parity of the reasoning adopted by learned Sessions Judge, the case of the appellants could not have been distinguished from those of the acquitted accused persons. If it is this fundamental error in the judgment of learned Sessions Judge which has denied the appellants herein the benefit of doubt which should have been made available to the appellants. We need not dwell upon the confirming judgment of the High Court in this regard very much because in our opinion it has merely accepted and confirmed the judgment of learned Sessions Judge without noticing the material discrepancies in evidence of PWs. 1 and 2, without noticing the effect of non-examination of Subhash Baweja and Mohan Lal and without taking into consideration the effect of illegal detention or arrest of first appellant on 2.8.1992 itself or the reasoning of the learned Sessions Judge while rejecting the prosecution case is regard to the acquitted accused. 16. For the reasons stated above, we on a re-appreciation of the entire material on record and taking into consideration the arguments addressed on behalf of the parties, are satisfied that the prosecution has failed to prove beyond all reasonable doubt that these appellants are the assailants of deceased Ravinder and are responsible for his murder. Therefore,
### Response:
1
### Explanation:
the non-examination of Subhash Baweja throws considerable doubt on this part of the prosecution case as to where exactly the incident in question took place and why Subhash Baweja whose presence was not mentioned by PWs. 1 and 2 at the time place of the incident or in the hospital came to pick up the deceased and bring him to the hospital and also give a different version as to the place of incident then the one put forth by the prosecution. PW-11 who was the investigating officer in his evidence before the court has given no explanation whatsoever as to why Subhash Baweja was not examined even though his complete address was mentioned in Ex. PE recorded by the doctor. This lapse on the part of the prosecution also gives rise to a doubt as to the fact whether PWs. 1 and 2 did at all witness the incident in question or the same actually took place near the tea stall of PW-2. At this point, it is also relevant to notice the fact that according to the evidence of PW-1, there was another eye-witness to the incident, namely, Mohan Lal who according to this witness, witnessed the attack on the deceased and also accompanied the deceased to the hospital and that Mohan Lal was also present in the hospital when the Police came there. This witness is also not examined and from the records, we find that he was given up as "unnecessary". We find it extremely difficult to accept this explanation and non-examination of both Subhash Baweja and Mohan Lal, in our opinion further throws very strong doubt on the prosecution case. As a matter of fact Mohan Lal played a very important role as a Panch witness in the seizure of the blood stained earth from a place where the deceased was attacked, and according to the Panchnama of seizure, the seal put on the package in which the earth was packed, was given to the possession of Mohan Lal. Thus Mohan Lal seems to have played an important role even in the investigation and still the prosecution has failed to examine this witness. There is one more reason why we are hesitant to accept the evidence of PW-1. That is because of the fact that PW-1 was not familiar with the first appellant Chander Pal and the defence has suggested to this witness that he could not have identified A-1 because he was really not known to him. It is also suggested that this witness while mentioning the names of other accused persons in the complaint, this witness has mentioned either the name of their fathers or at least their caste and place of residence while in regard to the appellant Chander Pal he has neither mentioned the name of his father nor the place of the incident. The explanation given by PW-1 to the suggestion made in this regard to him by the defence is that he used to visit the Kelvinator factory where A-1 was working for the purpose of procuring business from the factory and during those visits he had seen Chander Pal, hence he was able to identify the accused. We notice that his visit to Kelvinator factory on previous occasions is not corroborated by any other evidence; be it oral or documentary. It has also come in evidence that the said factory engages about 5,000 to 7,000/ workmen and this witness has not given any special reason why he specifically noticed Chander Pal so as to remember his name and identify him at the time of the assault out of those many employees of the Kelvinator factory. In the background of the interestedness of this witness, and the material contradiction in his evidence even this suggestion of his not knowing Chander Pal becomes relevant. Therefore, we find it difficult to place reliance on the evidence of thisour opinion, on the parity of the reasoning adopted by learned Sessions Judge, the case of the appellants could not have been distinguished from those of the acquitted accused persons. If it is this fundamental error in the judgment of learned Sessions Judge which has denied the appellants herein the benefit of doubt which should have been made available to the appellants. We need not dwell upon the confirming judgment of the High Court in this regard very much because in our opinion it has merely accepted and confirmed the judgment of learned Sessions Judge without noticing the material discrepancies in evidence of PWs. 1 and 2, without noticing the effect of non-examination of Subhash Baweja and Mohan Lal and without taking into consideration the effect of illegal detention or arrest of first appellant on 2.8.1992 itself or the reasoning of the learned Sessions Judge while rejecting the prosecution case is regard to the acquittedon a re-appreciation of the entire material on record and taking into consideration the arguments addressed on behalf of the parties, are satisfied that the prosecution has failed to prove beyond all reasonable doubt that these appellants are the assailants of deceased Ravinder and are responsible for his murder.
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Commissioner of Central Excise Vs. M/S. Goa Bottling Company Private Limited, & Others | Oral Judgment:1. The appellant Commissioner of Central Excise, Goa applied to this Court U/s.35(H) of the Central Excise Act, 1944 to direct the Appellate Tribunal to refer to the High Court the following question of law arising from the order of the Tribunal: Whether Tribunal is empowered to over ride the power of Commissioner, conferred by legislation under Rule 173E of Central Excise Rules, 1944 to fix up the production norms that too based on the formula disclosed by the assessee during inquiry under sub-rule (20 ) of the Rule 173E, 1944.2. The controversy in the case does not really give rise to the question which the Commissioner applied for framing U/s.35(H) of Central Excise Act. The facts are: That in pursuance of a raid, the Commissioner of Central Excise confirmed the demand of Rs.4,21,448.43/- and penalty of Rs. 1 Lac and another penalty of Rs.10,000/- in respect of the unit of the respondent M/s. Goa Bottling Company. The Commissioner came to the conclusion that the figures of sales in the R.G. 1 Register which was submitted by the assessee to the Excise Department, was lower than the figures mentioned in the Sales Managers report i.e. S.M.R. submitted by the Company to its franchiser. After considering the view, in such discrepancy, the Commissioner came to the aforesaid conclusion.3. In appeal by the respondent M/s. Goa Bottling Company, the CEGAT reversed the order of the Commissioner. The CEGAT took the view that essentially the commissioner had confirmed the demands on the basis of theoretical ratio of production between raw material and finished product and that in earlier case such as Parle Baverages Ltd. & Others Versus CCE 1994(114) ELT 872, it is held that it is not possible to sustain the demand of duty issued to manufacturers of the beverages, arrived at only by applying the theoretical ratio. The CEGAT further observed that applying such a theoretical formula would mean applying rule 173E which reads as follows:RULE 173E. - Determination of normal production (1) Any officer duly empowered by the [Commissioner] in this behalf may fix the quantum and period of time when the production in the assessees factory was considered normal by such officer having regard to the installed capacity of the factory, raw material utilization, labour employed, power consumed and such other relevant factors as he may deem appropriate. The normal quantum of production during a given time so determined by such officer shall form the norm. The assessee shall, if so required by the said officer, be called upon to explain any shortfall in production during any time, as compared to the norm. If the shortfall is not accounted for to the satisfaction of the said officer, he may assess the duty due thereon to the best of his judgment, after giving the assessee a reasonable opportunity of being heard.(2) The officer empowered as aforesaid may revise the norm as determined by him at any time, if after such further inquiry as he may consider necessary, he has reason to believe that any factor affecting the production of the factory, has undergone a material change:[Provided that the norm as determined by the officer empowered as aforesaid shall not be revised to the disadvantage of the assessee unless such assessee has been given a reasonable opportunity of being heard.]4. Reverting to the facts of the present case, the Tribunal came to the conclusion that in fact there were instances where the R.G.1 Register showed a higher quantity than the quantity shown in the S.M.R. vide para. 4 of the order and going by that line of reasoning it would, therefore, mean that the manufacturer has deliberately maintained a record which makes it liable to a higher duty. The CEGAT also referred to specific instances arising out of present case. Thus, the order of the Commissioner has been set aside by the CEGAT. 5. Thereupon, as stated earlier, the Commissioner applied to this Court for directing the Tribunal to refer the aforesaid question. Now it must be noticed at once that reference to Section 173E of the Central Excise Act, 1944 was made by the CEGAT only for the purpose of pointing out that applying any notional figure of production would mean applying rule 173E. In fact, there does not appear to be any evidence of the Commissioner having applied Rule 173E in the present case. The observation of the CEGAT was only made to point out the error in the argument on behalf of the Commissioner. The Construction of Rule 173E does not, therefore, strictly fall for consideration and is not determinative of real controversy in the case. It is obvious that the power to fix the norms of the production under Rule 173E is conferred on the Commissioner only and the CEGAT has not in any way interfered with such a power. In fact it does not even appear that the Commissioner has exercised such a power in the present case or in relation to the factory of the respondent. 6. In this view of the matter, we find no merit whatsoever in the appeal. | 0[ds]5. Thereupon, as stated earlier, the Commissioner applied to this Court for directing the Tribunal to refer the aforesaid question. Now it must be noticed at once that reference to Section 173E of the Central Excise Act, 1944 was made by the CEGAT only for the purpose of pointing out that applying any notional figure of production would mean applying rule 173E. In fact, there does not appear to be any evidence of the Commissioner having applied Rule 173E in the present case. The observation of the CEGAT was only made to point out the error in the argument on behalf of the Commissioner. The Construction of Rule 173E does not, therefore, strictly fall for consideration and is not determinative of real controversy in the case. It is obvious that the power to fix the norms of the production under Rule 173E is conferred on the Commissioner only and the CEGAT has not in any way interfered with such a power. In fact it does not even appear that the Commissioner has exercised such a power in the present case or in relation to the factory of the respondent.In this view of the matter, we find no merit whatsoever in the appeal. | 0 | 942 | 221 | ### 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:
Oral Judgment:1. The appellant Commissioner of Central Excise, Goa applied to this Court U/s.35(H) of the Central Excise Act, 1944 to direct the Appellate Tribunal to refer to the High Court the following question of law arising from the order of the Tribunal: Whether Tribunal is empowered to over ride the power of Commissioner, conferred by legislation under Rule 173E of Central Excise Rules, 1944 to fix up the production norms that too based on the formula disclosed by the assessee during inquiry under sub-rule (20 ) of the Rule 173E, 1944.2. The controversy in the case does not really give rise to the question which the Commissioner applied for framing U/s.35(H) of Central Excise Act. The facts are: That in pursuance of a raid, the Commissioner of Central Excise confirmed the demand of Rs.4,21,448.43/- and penalty of Rs. 1 Lac and another penalty of Rs.10,000/- in respect of the unit of the respondent M/s. Goa Bottling Company. The Commissioner came to the conclusion that the figures of sales in the R.G. 1 Register which was submitted by the assessee to the Excise Department, was lower than the figures mentioned in the Sales Managers report i.e. S.M.R. submitted by the Company to its franchiser. After considering the view, in such discrepancy, the Commissioner came to the aforesaid conclusion.3. In appeal by the respondent M/s. Goa Bottling Company, the CEGAT reversed the order of the Commissioner. The CEGAT took the view that essentially the commissioner had confirmed the demands on the basis of theoretical ratio of production between raw material and finished product and that in earlier case such as Parle Baverages Ltd. & Others Versus CCE 1994(114) ELT 872, it is held that it is not possible to sustain the demand of duty issued to manufacturers of the beverages, arrived at only by applying the theoretical ratio. The CEGAT further observed that applying such a theoretical formula would mean applying rule 173E which reads as follows:RULE 173E. - Determination of normal production (1) Any officer duly empowered by the [Commissioner] in this behalf may fix the quantum and period of time when the production in the assessees factory was considered normal by such officer having regard to the installed capacity of the factory, raw material utilization, labour employed, power consumed and such other relevant factors as he may deem appropriate. The normal quantum of production during a given time so determined by such officer shall form the norm. The assessee shall, if so required by the said officer, be called upon to explain any shortfall in production during any time, as compared to the norm. If the shortfall is not accounted for to the satisfaction of the said officer, he may assess the duty due thereon to the best of his judgment, after giving the assessee a reasonable opportunity of being heard.(2) The officer empowered as aforesaid may revise the norm as determined by him at any time, if after such further inquiry as he may consider necessary, he has reason to believe that any factor affecting the production of the factory, has undergone a material change:[Provided that the norm as determined by the officer empowered as aforesaid shall not be revised to the disadvantage of the assessee unless such assessee has been given a reasonable opportunity of being heard.]4. Reverting to the facts of the present case, the Tribunal came to the conclusion that in fact there were instances where the R.G.1 Register showed a higher quantity than the quantity shown in the S.M.R. vide para. 4 of the order and going by that line of reasoning it would, therefore, mean that the manufacturer has deliberately maintained a record which makes it liable to a higher duty. The CEGAT also referred to specific instances arising out of present case. Thus, the order of the Commissioner has been set aside by the CEGAT. 5. Thereupon, as stated earlier, the Commissioner applied to this Court for directing the Tribunal to refer the aforesaid question. Now it must be noticed at once that reference to Section 173E of the Central Excise Act, 1944 was made by the CEGAT only for the purpose of pointing out that applying any notional figure of production would mean applying rule 173E. In fact, there does not appear to be any evidence of the Commissioner having applied Rule 173E in the present case. The observation of the CEGAT was only made to point out the error in the argument on behalf of the Commissioner. The Construction of Rule 173E does not, therefore, strictly fall for consideration and is not determinative of real controversy in the case. It is obvious that the power to fix the norms of the production under Rule 173E is conferred on the Commissioner only and the CEGAT has not in any way interfered with such a power. In fact it does not even appear that the Commissioner has exercised such a power in the present case or in relation to the factory of the respondent. 6. In this view of the matter, we find no merit whatsoever in the appeal.
### Response:
0
### Explanation:
5. Thereupon, as stated earlier, the Commissioner applied to this Court for directing the Tribunal to refer the aforesaid question. Now it must be noticed at once that reference to Section 173E of the Central Excise Act, 1944 was made by the CEGAT only for the purpose of pointing out that applying any notional figure of production would mean applying rule 173E. In fact, there does not appear to be any evidence of the Commissioner having applied Rule 173E in the present case. The observation of the CEGAT was only made to point out the error in the argument on behalf of the Commissioner. The Construction of Rule 173E does not, therefore, strictly fall for consideration and is not determinative of real controversy in the case. It is obvious that the power to fix the norms of the production under Rule 173E is conferred on the Commissioner only and the CEGAT has not in any way interfered with such a power. In fact it does not even appear that the Commissioner has exercised such a power in the present case or in relation to the factory of the respondent.In this view of the matter, we find no merit whatsoever in the appeal.
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