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J. N. Sharma Vs. H.H. Vijayakuverba Maharani Of Morvi And Others
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would, if he had not died, have been liable to pay expenditure tax. This is not denied. But counsel for the respondent said that S. 18 of the Expenditure-tax Act does not bring within the net of taxation cases of persons who died before the Act was brought into force: it only sets up machinery for enforcing liability against the estate of a person dying after the Act is brought into force. Counsel placed strong reliance upon Income-tax Commissioner, Bombay v. D.N. Mehta, 1935-3 ITR 147 : (AIR 1935 Bom 167 ) decided by the Bombay High Court, and submitted that Parliament having adopted the same phraseology as was used in S. 24B(1) of the Income-tax Act it may be inferred that it was intended to give legislative recognition to the interpretation of S. 24B insofar as it is applicable to the Expenditure-tax Act. In D. N. Mehtas case, 1935-3 ITR 147 : (AIR 1935 Bom 167 ) one Avabai died on May 6, 1932 after she was served with a notice requiring her to make a return of her income under S. 22(2) of the Indian Income-tax Act. 1922. Section 24B was thereafter inserted in the Income-tax Act on September 11, 1933. In proceedings for assessment of income-tax against her legal representatives it was contended that Avabai had died before the date on which the amendment was made, her estate was not liable to be taxed under the machinery incorporated in the Act in S. 24B. This contention found favour with the Bombay High Court in D. N. Mehtas case. 1935-3 ITR 147 : (AIR 1935 Bom 167 ). Beaumont, C J., delivering the judgment of the Court observed:"........that S. 3 of the Income-tax Act charges the tax upon every one coming within the purview of the Act who was alive at the beginning of the financial year, but in the case of a person dying before assessment, that liability was inchoate only and crystallized into an enforceable liability for the first time on the passing of the Amendment Act. It is therefore not quite accurate to say that the Amendment Act merely deals with machinery: it does for the first time impose an enforceable liability. The principle which must always be applied in construing a taxing Act is that the Government must show that the tax sought to be recovered has been imposed in language which admits of no reasonable doubt. The opening words of each sub-section to S. 24B: "where a person dies", though the use of the present tense is not altogether appropriate on any reading of the Act, seem to me more appropriate to future than to past deaths. If the Legislature had intended the Act to have a retrospective effect, it would have been very easy to have said, "dies whether before or after the passing of this Act." Inconvenience and hardship might be caused by making the tax payable out of an estate which has been distributed on the basis of the then existing law."8. Counsel for the respondents maintained that as with this judicial interpretation of S. 24B before it, the Parliament adopted the same phraseology and scheme in enacting S. 18(1) of the Expenditure. Tax Act, Parliament must be deemed to have intended to enact the rule laid by the Bombay High Court in its application to the Expenditure Tax Act. It was open to the Parliament, said counsel, to use adequate phraseology such as "dies whether before or after the passing of this Act" and the Parliament not having done so, it must be deemed to have accepted the interpretation placed by the Bombay High Court and to have evinced an intention not to render the estate of the person, who died before the date on which the Act was brought into force, liable to expenditure tax.9. We are unable to agree with this contention. The expression "where a person dies" standing by itself in S. 18 does not suggest that thereby it was intended to refer only to death of the person liable after the Act was brought into force and read with the remaining clauses in the context of sub-sections (2) and (3) it is clear that the Parliament intended to attract the entire charge to tax and machinery prescribed by Ss. 13 and 15 so as to render the estate of a person dying before the Act liable to satisfy the tax or other liability which could have been assessed or imposed upon him if he had not died. In the context of the declared liability under sub-section (1) and the provisions of sub-section (3) of S. 18, which make Ss. 13, 14 and 15 of the Expenditure Tax Act applicable to the executor, administrator or legal representative, as they apply to any person, it would be difficult to hold that the Legislature has not expressed its intention clearly so as to render the estate of a deceased person liable to be assessed to expenditure tax merely because he had died before the date on which the Act was brought into force.10. The argument of inconvenience has no substance. A person who has rendered himself liable to pay tax on the expenditure incurred by him in the previous year may, not being aware of the proposal to enact a statute like the Expenditure Tax Act, part with his estate. But on that account he cannot set up a defence against the levy of the tax that he has parted with the estate. Nor can the legal representative of a deceased person set up a plea that because the estate is distributed, he should not be rendered liable to pay the expenditure tax which has been imposed by the statute.11. We are unable therefore to agree with the High Court that by enacting S. 18 of the Act the Parliament has not rendered the estate of a person liable to expenditure tax, if such person had died before the date on which the Act was brought into force.12
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1[ds]9. We are unable to agree with this contention. The expression "where a person dies" standing by itself in S. 18 does not suggest that thereby it was intended to refer only to death of the person liable after the Act was brought into force and read with the remaining clauses in the context of sub-sections (2) and (3) it is clear that the Parliament intended to attract the entire charge to tax and machinery prescribed by Ss. 13 and 15 so as to render the estate of a person dying before the Act liable to satisfy the tax or other liability which could have been assessed or imposed upon him if he had not died. In the context of the declared liability under sub-section (1) and the provisions of sub-section (3) of S. 18, which make Ss. 13, 14 and 15 of the Expenditure Tax Act applicable to the executor, administrator or legal representative, as they apply to any person, it would be difficult to hold that the Legislature has not expressed its intention clearly so as to render the estate of a deceased person liable to be assessed to expenditure tax merely because he had died before the date on which the Act was brought into force.10. The argument of inconvenience has no substance. A person who has rendered himself liable to pay tax on the expenditure incurred by him in the previous year may, not being aware of the proposal to enact a statute like the Expenditure Tax Act, part with his estate. But on that account he cannot set up a defence against the levy of the tax that he has parted with the estate. Nor can the legal representative of a deceased person set up a plea that because the estate is distributed, he should not be rendered liable to pay the expenditure tax which has been imposed by the statute.We are unable therefore to agree with the High Court that by enacting S. 18 of the Act the Parliament has not rendered the estate of a person liable to expenditure tax, if such person had died before the date on which the Act was brought into force.
| 1 | 3,313 |
### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
### Input:
would, if he had not died, have been liable to pay expenditure tax. This is not denied. But counsel for the respondent said that S. 18 of the Expenditure-tax Act does not bring within the net of taxation cases of persons who died before the Act was brought into force: it only sets up machinery for enforcing liability against the estate of a person dying after the Act is brought into force. Counsel placed strong reliance upon Income-tax Commissioner, Bombay v. D.N. Mehta, 1935-3 ITR 147 : (AIR 1935 Bom 167 ) decided by the Bombay High Court, and submitted that Parliament having adopted the same phraseology as was used in S. 24B(1) of the Income-tax Act it may be inferred that it was intended to give legislative recognition to the interpretation of S. 24B insofar as it is applicable to the Expenditure-tax Act. In D. N. Mehtas case, 1935-3 ITR 147 : (AIR 1935 Bom 167 ) one Avabai died on May 6, 1932 after she was served with a notice requiring her to make a return of her income under S. 22(2) of the Indian Income-tax Act. 1922. Section 24B was thereafter inserted in the Income-tax Act on September 11, 1933. In proceedings for assessment of income-tax against her legal representatives it was contended that Avabai had died before the date on which the amendment was made, her estate was not liable to be taxed under the machinery incorporated in the Act in S. 24B. This contention found favour with the Bombay High Court in D. N. Mehtas case. 1935-3 ITR 147 : (AIR 1935 Bom 167 ). Beaumont, C J., delivering the judgment of the Court observed:"........that S. 3 of the Income-tax Act charges the tax upon every one coming within the purview of the Act who was alive at the beginning of the financial year, but in the case of a person dying before assessment, that liability was inchoate only and crystallized into an enforceable liability for the first time on the passing of the Amendment Act. It is therefore not quite accurate to say that the Amendment Act merely deals with machinery: it does for the first time impose an enforceable liability. The principle which must always be applied in construing a taxing Act is that the Government must show that the tax sought to be recovered has been imposed in language which admits of no reasonable doubt. The opening words of each sub-section to S. 24B: "where a person dies", though the use of the present tense is not altogether appropriate on any reading of the Act, seem to me more appropriate to future than to past deaths. If the Legislature had intended the Act to have a retrospective effect, it would have been very easy to have said, "dies whether before or after the passing of this Act." Inconvenience and hardship might be caused by making the tax payable out of an estate which has been distributed on the basis of the then existing law."8. Counsel for the respondents maintained that as with this judicial interpretation of S. 24B before it, the Parliament adopted the same phraseology and scheme in enacting S. 18(1) of the Expenditure. Tax Act, Parliament must be deemed to have intended to enact the rule laid by the Bombay High Court in its application to the Expenditure Tax Act. It was open to the Parliament, said counsel, to use adequate phraseology such as "dies whether before or after the passing of this Act" and the Parliament not having done so, it must be deemed to have accepted the interpretation placed by the Bombay High Court and to have evinced an intention not to render the estate of the person, who died before the date on which the Act was brought into force, liable to expenditure tax.9. We are unable to agree with this contention. The expression "where a person dies" standing by itself in S. 18 does not suggest that thereby it was intended to refer only to death of the person liable after the Act was brought into force and read with the remaining clauses in the context of sub-sections (2) and (3) it is clear that the Parliament intended to attract the entire charge to tax and machinery prescribed by Ss. 13 and 15 so as to render the estate of a person dying before the Act liable to satisfy the tax or other liability which could have been assessed or imposed upon him if he had not died. In the context of the declared liability under sub-section (1) and the provisions of sub-section (3) of S. 18, which make Ss. 13, 14 and 15 of the Expenditure Tax Act applicable to the executor, administrator or legal representative, as they apply to any person, it would be difficult to hold that the Legislature has not expressed its intention clearly so as to render the estate of a deceased person liable to be assessed to expenditure tax merely because he had died before the date on which the Act was brought into force.10. The argument of inconvenience has no substance. A person who has rendered himself liable to pay tax on the expenditure incurred by him in the previous year may, not being aware of the proposal to enact a statute like the Expenditure Tax Act, part with his estate. But on that account he cannot set up a defence against the levy of the tax that he has parted with the estate. Nor can the legal representative of a deceased person set up a plea that because the estate is distributed, he should not be rendered liable to pay the expenditure tax which has been imposed by the statute.11. We are unable therefore to agree with the High Court that by enacting S. 18 of the Act the Parliament has not rendered the estate of a person liable to expenditure tax, if such person had died before the date on which the Act was brought into force.12
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THE PROJECT OFFICER, SINGARENI COLLERIES COMPANY LTD Vs. B. KOMARAIAH AND OTHERS
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Rajendra Babu, J. 1. Leave granted. In respect of certain lands acquired for the purpose of Singareni Colleries Company Limited, a Government company, the Land Acquisition Officer fixed the market value at Rs. 4,000/- per acre for dry land and Rs. 6,000/- per acre for wet land. The aggrieved claimants obtained a reference to civil court for enhancement of compensation which was granted by fixing the rate at Rs. 40,000/-per acre. On coming to know of the judgment made by the Civil Court enhancing the compensation, the appellants filed a writ petition in the High Court seeking for quashing of the order and decree made in the reference principally on the ground that they were not made parties to the proceedings. The appellants also filed another writ petition seeking stay of the operation of the order and decree of the civil court. In the latter petition while directing issue of notice to the claimants the learned single Judge of the High Court granted interim stay of the operation of the order made by the civil court. In the meanwhile, the Land Acquisition Officer preferred an appeal against the order of the civil court in which an application was also filed seeking interim stay. The Division Bench of the High Court in the appeal preferred by the Land Acquisition Officer directed issuance of notice to the respondents with an order of stay of the execution of the decree on the condition that the appellants in the said appeal, namely, the Land Acquisition Officer, was to deposit a sum of Rs. 20,000/-per acre and proportionate statutory benefits within ten weeks from that date and in the event of the appellants failing to deposit, the order would stand vacated. The learned single Judge of the High Court, however, did not find any reason to vacate the interim stay granted by him earlier in the writ proceedings initiated by the appellants. On a representation being made on behalf of the claimants that the writ petition be heard along with the said appeal, the two matters were directed to be clubbed together. The respondents preferred a writ appeal against the order made by the learned single judge granting the interim stay of the order made by the civil court. The said writ appeal was dismissed on July 18, 2000 by the Division Bench of the High Court on merit. Thereafter, on November 18, 2000, another Division Bench made another order directing the appellants to deposit the compensation as directed in the appeal filed against the order of the civil court within two months from the date of the order failing which the interim stay granted in the earlier writ petition would stand vacated. It is against this order that this appeal is preferred by special leave. 2. The basic question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose of the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
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1[ds]When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose of the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
| 1 | 684 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
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Rajendra Babu, J. 1. Leave granted. In respect of certain lands acquired for the purpose of Singareni Colleries Company Limited, a Government company, the Land Acquisition Officer fixed the market value at Rs. 4,000/- per acre for dry land and Rs. 6,000/- per acre for wet land. The aggrieved claimants obtained a reference to civil court for enhancement of compensation which was granted by fixing the rate at Rs. 40,000/-per acre. On coming to know of the judgment made by the Civil Court enhancing the compensation, the appellants filed a writ petition in the High Court seeking for quashing of the order and decree made in the reference principally on the ground that they were not made parties to the proceedings. The appellants also filed another writ petition seeking stay of the operation of the order and decree of the civil court. In the latter petition while directing issue of notice to the claimants the learned single Judge of the High Court granted interim stay of the operation of the order made by the civil court. In the meanwhile, the Land Acquisition Officer preferred an appeal against the order of the civil court in which an application was also filed seeking interim stay. The Division Bench of the High Court in the appeal preferred by the Land Acquisition Officer directed issuance of notice to the respondents with an order of stay of the execution of the decree on the condition that the appellants in the said appeal, namely, the Land Acquisition Officer, was to deposit a sum of Rs. 20,000/-per acre and proportionate statutory benefits within ten weeks from that date and in the event of the appellants failing to deposit, the order would stand vacated. The learned single Judge of the High Court, however, did not find any reason to vacate the interim stay granted by him earlier in the writ proceedings initiated by the appellants. On a representation being made on behalf of the claimants that the writ petition be heard along with the said appeal, the two matters were directed to be clubbed together. The respondents preferred a writ appeal against the order made by the learned single judge granting the interim stay of the order made by the civil court. The said writ appeal was dismissed on July 18, 2000 by the Division Bench of the High Court on merit. Thereafter, on November 18, 2000, another Division Bench made another order directing the appellants to deposit the compensation as directed in the appeal filed against the order of the civil court within two months from the date of the order failing which the interim stay granted in the earlier writ petition would stand vacated. It is against this order that this appeal is preferred by special leave. 2. The basic question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose of the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
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302 |
Punjab State Civil Supplies Corporation Ltd & Anr Vs. M/s Ramesh Kumar and Company & Ors
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In the written statement filed by the appellants, the defence was that the supply effected by the respondents was sub-standard and not in accordance with the specifications of the tender. After recording evidence, the sole arbitrator rejected the claim. After considering the evidence of the witness for the claimant and for the appellants, the sole arbitrator arrived at the conclusion that the material which had been supplied was defective and that the forfeiture of the security deposit was valid. 6. In appeal, the High Court has set aside the judgment of the District Judge on the basis of the following reasoning: I have heard the learned counsel for the parties and appraised the paper book and of the view that the findings arrived at by the Arbitrator for justifying the withholding of the payment for accepted wooden battons and security is highly erroneous and not in consonance with the provisions of the 1996 Act and thus, the Award suffers from the vice of the provisions of sub-section 3 of Section 28 of the 1996 Act. Reasoning assigned for withholding of the security is allegedly fortified as per the Clause 8 of the Agreement, whereas, Clause 8 says that only the charges of transportation to be borne by the appellant-contractor, but not with regard to withholding of the security. The Arbitrator did not examine the acceptance letter dated 04.04.2002 acknowledging the receipt of 22389 wooden battons which were confirming to the specification of the Contract. The claim was only with regard to the payment of the aforementioned battons and refμnd of the security. The award lacks reasons, much less, not in consonance with the provisions of the 1996 Act and the same is not sustainable. The. reasons assigned by the Arbitrator is not only fallacious and arbitrary, much less, erroneous. No reasons have been assigned to the acceptance letter dated 04.04.2002. This aspect was required to be noticed by the Objecting Court, which is, in my view, committed fallacy in not appreciating the aforementioned facts and law. 7. The High Court not only set aside the judgment of the District Judge rejecting the petition under Section 34 of the 1996 Act, but also awarded the claim of the respondents, together with interest. 8. Mr Himanshu Upadhyay, counsel appearing on behalf of the appellants, submits that the High Court, while exercising its jurisdiction under Section 37 of the 1996 Act, arising from the rejection of an arbitration petition under Section 34, has transgressed the limits of the jurisdiction. Counsel submitted that: (i) The arbitral award, contrary to the finding of the High Court, is not unreasoned, but contains elaborate reasons after an evaluation of the evidence which was adduced by the rival parties; (ii) The High Court could not have set aside the award merely on the basis of the acceptance letter dated 4 April 2002. The award does contain a reference to the fact that as far as the supply of batons after the expiry of the period on 4 April 2002 was concerned, a deduction and is required to be made in terms of the relevant clauses of the tender document; and (iii) The High Court was not exercising its jurisdiction as a first appellate court in a civil suit and could not have awarded the claim. 9. The respondents have been served. No appearance has been entered on their behalf. 10. The Single Judge of the High Court was exercising jurisdiction under Section 37 of the 1996 Act. The award of the sole arbitrator dated 20 December 2005 contains an analysis of the evidence. Both the respondents as well as the appellants adduced evidence before the arbitral tribunal. It was on the basis of the evidence that the sole arbitrator upheld the defence of the appellants on the ground that right from the inception the respondents had been mixing sub-standard material with goods in accordance with the tender specifications. As a consequence of this, the loss and damage which has been caused to the appellants was duly quantified and in this backdrop, the sole arbitrator held that the respondents were not entitled to the payment of the balance of the principal or to recover the security deposit. 11. While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34. The District Judge had correctly come to the conclusion that there was no warrant for interference with the arbitral award under Section 34. The High Court seems to have proceeded as if it was exercising jurisdiction in a regular first appeal from a decree in a civil suit. The jurisdiction in a first appeal arising out of a decree in a civil suit is distinct from the jurisdiction of the High Court under Section 37 of the 1996 Act arising from the disposal of a petition challenging an arbitral award under Section 34 of the 1996 Act. 12. In the present case, the High Court was required to determine as to whether the District Judge had acted contrary to the provisions of Section 34 of the 1996 Act in rejecting the challenge to the arbitral award. Apart from its failure to do so, the High Court went one step further while reversing the judgment of the District Judge in decreeing the claim in its entirety. This exercise was clearly impermissible. The arbitrator was entitled to draw relevant findings of fact on the basis of the evidence which was adduced by the parties. This was exactly what was done in the arbitral award. The award of the arbitrator was challenged unsuccessfully by the respondents under Section 34 of the 1996 Act. In this backdrop, there was no basis in law for the High Court to interfere with the judgment of the District Judge and, as we have noted earlier, to even go a step further by decreeing the claim.
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1[ds]10. The Single Judge of the High Court was exercising jurisdiction under Section 37 of the 1996 Act. The award of the sole arbitrator dated 20 December 2005 contains an analysis of the evidence. Both the respondents as well as the appellants adduced evidence before the arbitral tribunal. It was on the basis of the evidence that the sole arbitrator upheld the defence of the appellants on the ground that right from the inception the respondents had been mixing sub-standard material with goods in accordance with the tender specifications. As a consequence of this, the loss and damage which has been caused to the appellants was duly quantified and in this backdrop, the sole arbitrator held that the respondents were not entitled to the payment of the balance of the principal or to recover the security deposit.11. While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34. The District Judge had correctly come to the conclusion that there was no warrant for interference with the arbitral award under Section 34. The High Court seems to have proceeded as if it was exercising jurisdiction in a regular first appeal from a decree in a civil suit. The jurisdiction in a first appeal arising out of a decree in a civil suit is distinct from the jurisdiction of the High Court under Section 37 of the 1996 Act arising from the disposal of a petition challenging an arbitral award under Section 34 of the 1996 Act.12. In the present case, the High Court was required to determine as to whether the District Judge had acted contrary to the provisions of Section 34 of the 1996 Act in rejecting the challenge to the arbitral award. Apart from its failure to do so, the High Court went one step further while reversing the judgment of the District Judge in decreeing the claim in its entirety. This exercise was clearly impermissible. The arbitrator was entitled to draw relevant findings of fact on the basis of the evidence which was adduced by the parties. This was exactly what was done in the arbitral award. The award of the arbitrator was challenged unsuccessfully by the respondents under Section 34 of the 1996 Act. In this backdrop, there was no basis in law for the High Court to interfere with the judgment of the District Judge and, as we have noted earlier, to even go a step further by decreeing the claim.
| 1 | 1,504 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
In the written statement filed by the appellants, the defence was that the supply effected by the respondents was sub-standard and not in accordance with the specifications of the tender. After recording evidence, the sole arbitrator rejected the claim. After considering the evidence of the witness for the claimant and for the appellants, the sole arbitrator arrived at the conclusion that the material which had been supplied was defective and that the forfeiture of the security deposit was valid. 6. In appeal, the High Court has set aside the judgment of the District Judge on the basis of the following reasoning: I have heard the learned counsel for the parties and appraised the paper book and of the view that the findings arrived at by the Arbitrator for justifying the withholding of the payment for accepted wooden battons and security is highly erroneous and not in consonance with the provisions of the 1996 Act and thus, the Award suffers from the vice of the provisions of sub-section 3 of Section 28 of the 1996 Act. Reasoning assigned for withholding of the security is allegedly fortified as per the Clause 8 of the Agreement, whereas, Clause 8 says that only the charges of transportation to be borne by the appellant-contractor, but not with regard to withholding of the security. The Arbitrator did not examine the acceptance letter dated 04.04.2002 acknowledging the receipt of 22389 wooden battons which were confirming to the specification of the Contract. The claim was only with regard to the payment of the aforementioned battons and refμnd of the security. The award lacks reasons, much less, not in consonance with the provisions of the 1996 Act and the same is not sustainable. The. reasons assigned by the Arbitrator is not only fallacious and arbitrary, much less, erroneous. No reasons have been assigned to the acceptance letter dated 04.04.2002. This aspect was required to be noticed by the Objecting Court, which is, in my view, committed fallacy in not appreciating the aforementioned facts and law. 7. The High Court not only set aside the judgment of the District Judge rejecting the petition under Section 34 of the 1996 Act, but also awarded the claim of the respondents, together with interest. 8. Mr Himanshu Upadhyay, counsel appearing on behalf of the appellants, submits that the High Court, while exercising its jurisdiction under Section 37 of the 1996 Act, arising from the rejection of an arbitration petition under Section 34, has transgressed the limits of the jurisdiction. Counsel submitted that: (i) The arbitral award, contrary to the finding of the High Court, is not unreasoned, but contains elaborate reasons after an evaluation of the evidence which was adduced by the rival parties; (ii) The High Court could not have set aside the award merely on the basis of the acceptance letter dated 4 April 2002. The award does contain a reference to the fact that as far as the supply of batons after the expiry of the period on 4 April 2002 was concerned, a deduction and is required to be made in terms of the relevant clauses of the tender document; and (iii) The High Court was not exercising its jurisdiction as a first appellate court in a civil suit and could not have awarded the claim. 9. The respondents have been served. No appearance has been entered on their behalf. 10. The Single Judge of the High Court was exercising jurisdiction under Section 37 of the 1996 Act. The award of the sole arbitrator dated 20 December 2005 contains an analysis of the evidence. Both the respondents as well as the appellants adduced evidence before the arbitral tribunal. It was on the basis of the evidence that the sole arbitrator upheld the defence of the appellants on the ground that right from the inception the respondents had been mixing sub-standard material with goods in accordance with the tender specifications. As a consequence of this, the loss and damage which has been caused to the appellants was duly quantified and in this backdrop, the sole arbitrator held that the respondents were not entitled to the payment of the balance of the principal or to recover the security deposit. 11. While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34. The District Judge had correctly come to the conclusion that there was no warrant for interference with the arbitral award under Section 34. The High Court seems to have proceeded as if it was exercising jurisdiction in a regular first appeal from a decree in a civil suit. The jurisdiction in a first appeal arising out of a decree in a civil suit is distinct from the jurisdiction of the High Court under Section 37 of the 1996 Act arising from the disposal of a petition challenging an arbitral award under Section 34 of the 1996 Act. 12. In the present case, the High Court was required to determine as to whether the District Judge had acted contrary to the provisions of Section 34 of the 1996 Act in rejecting the challenge to the arbitral award. Apart from its failure to do so, the High Court went one step further while reversing the judgment of the District Judge in decreeing the claim in its entirety. This exercise was clearly impermissible. The arbitrator was entitled to draw relevant findings of fact on the basis of the evidence which was adduced by the parties. This was exactly what was done in the arbitral award. The award of the arbitrator was challenged unsuccessfully by the respondents under Section 34 of the 1996 Act. In this backdrop, there was no basis in law for the High Court to interfere with the judgment of the District Judge and, as we have noted earlier, to even go a step further by decreeing the claim.
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303 |
K. P. Chowdhary Vs. State Of Madhya Pradesh & Ors
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provision was that the State should not be burdened with liability based on unauthorised contracts. The provision was made in public interest and so the word "shall" used therein must be held to make it obligatory and not directory. Further the case of Chaturbhuj Vithaldas Jasani v. Moreshwar Prashram, 1954 SCR 817 : (AIR l954 SC 236), was explained in that decision and it was held that it should be confined to its own facts in the context of the Representation of the People Act. Finally it was held in that case that S. 70 of the Indian Contract Act (No. 9 of 1872) could be invoked against the Government if the person invoking it could show that he had acted lawfully and had not intended to act gratuitously and the State had enjoyed the benefit. 9. Lastly this Court had occasion to consider the matter again in Union of India v. A. L. Rallia Ram, 1964-3 SCR 164 : (AIR 1963 SC 1685 ), and it was held that so long as all the requirements of S. 175 (3) of the Government of India Act were fulfilled and were clear from the correspondence, S. 175 (3) did not necessarily require the execution of any formal document. 10. What was said in these cases with respect to S. 175 (3) of the Government of India Act, 1935, applies with equal force to Article 299 (1) of the Constitution. Two consequences follow from these decisions. The first is that in view of Article 299 (1) there can be no implied contract between the Government and another person, the reason being that if such implied contracts between the Government and another person were allowed, they would in effect make Article 299 (1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299 (1) could get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. This is of course not to say that if there is a valid contract as envisaged by Article 299 (1), there may not be implications arising out of such a contract. The second consequence which follows from these decisions is that if the contract between Government and another person is not in full compliance with Article 299 (1) it would be no contract at all and could not be enforced either by the Government or by the other person as a contract. In the present case it is not in dispute that there never was a contract as required by Article 299 (1) of the Constitution. Nor can the fact that the appellant bid at the auction and signed the bid-sheet at the close thereof or signed the declaration necessary before he could bid at the auction amount to a contract between him and the Government satisfying all the conditions of Article 299 (1). 11. The position therefore is that there was no contract between the appellant and the Government before he bid at the auction, nor was there any contract between him and the Government after the auction was over as required by Article 299 (l) of the Constitution. Further in view of the mandatory terms of Article 299 (1) no implied contract could be spelled out between the Government and the appellant at the stage of bidding for Article 299 in effect rules out all implied contracts between Government and another person. The view taken by the High Court that S. 155 (b) of the Madhya Pradesh Land Revenue Code which provides for recovery of money as arrears of land revenue would therefore ensure in favour of the Government and enable it to recover the deficiency cannot be sustained. That clause provides for recovery of all moneys falling due to the State Government under any grant, lease or contract and says that they shall be recoverable in the same manner as arrears of land revenue. The High Court was of the view that the word "contract in this clause includes an implied contract. But if there can be no implied contract between the Government and another person in view of the mandatory provision of Article 299 (1) of the Constitution there can be no question of recovery of any money under an implied contract under Cl. (b) of S. 155.The view therefore taken by the High Court that this amount could be recovered under S. 155 (b) is not correct. 12. This brings us to the second question, namely, whether the amount can be recovered under any other provision of law as arrears of land revenue. In this connection learned counsel for the State has referred us to S. 82 and S. 85 of the Indian Forest Act. The question whether the amount can be recovered either under S. 82 or under S. 85 of the Indian Forest Act read with the rules framed thereunder has not been investigated by the High Court. The view of the High Court that Rr. 28 and 29 of the Forest Contract Rules apply after a contract in writing has been executed appears to be correct. But the question whether the State can still recover the amount as arrears of land revenue by virtue of the conditions of auction, even though Rr. 28 and 29 do not apply has not been investigated. This question will require investigation before the petition can be finally disposed of. The appellant had claimed in para 17 of the petition that the claim of the State for recovery of the deficiency on re-sale was not covered under any other provision of law so as to make it recoverable as arrears of land revenue. That question has still to be investigated and it would be for the State to show whether the amount can be recovered under any provision of law or rules relating to forest contracts. So the matter will have to be remanded for further investigation on these dines. 13.
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1[ds]10. What was said in these cases with respect to S. 175 (3) ofthe Government of India Act, 1935, applies with equal force to Article 299 (1) of the Constitution. Two consequences follow from these decisions. The first is that in view of Article 299 (1) there can be no implied contract between the Government and another person, the reason being that if such implied contracts between the Government and another person were allowed, they would in effect make Article 299 (1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299 (1) could get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. This is of course not to say that if there is a valid contract as envisaged by Article 299 (1), there may not be implications arising out of such a contract. The second consequence which follows from these decisions is that if the contract between Government and another person is not in full compliance with Article 299 (1) it would be no contract at all and could not be enforced either by the Government or by the other person as a contract. In the present case it is not in dispute that there never was a contract as required by Article 299 (1) of the Constitution. Nor can the fact that the appellant bid at the auction and signed the bid-sheet at the close thereof or signed the declaration necessary before he could bid at the auction amount to a contract between him and the Government satisfying all the conditions of Article 299 (1).The position therefore is that there was no contract between the appellant and the Government before he bid at the auction, nor was there any contract between him and the Government after the auction was over as required by Article 299 (l) of the Constitution. Further in view of the mandatory terms of Article 299 (1) no implied contract could be spelled out between the Government and the appellant at the stage of bidding for Article 299 in effect rules out all implied contracts between Government and another person. The view taken by the High Court that S. 155 (b) of the Madhya Pradesh Land Revenue Code which provides for recovery of money as arrears of land revenue would therefore ensure in favour of the Government and enable it to recover the deficiency cannot be sustained. That clause provides for recovery of all moneys falling due to the State Government under any grant, lease or contract and says that they shall be recoverable in the same manner as arrears of land revenue. The High Court was of the view that the word "contract in this clause includes an implied contract. But if there can be no implied contract between the Government and another person in view of the mandatory provision of Article 299 (1) of the Constitution there can be no question of recovery of any money under an implied contract under Cl. (b) of S. 155.The view therefore taken by the High Court that this amount could be recovered under S. 155 (b) is not correctThe question whether the amount can be recovered either under S. 82 or under S. 85 of the Indian Forest Act read with the rules framed thereunder has not been investigated by the High Court. The view of the High Court that Rr. 28 and 29 of the Forest Contract Rules apply after a contract in writing has been executed appears to be correct. But the question whether the State can still recover the amount as arrears of land revenue by virtue of the conditions of auction, even though Rr. 28 and 29 do not apply has not been investigated. This question will require investigation before the petition can be finally disposed of. The appellant had claimed in para 17 of the petition that the claim of the State for recovery of the deficiency on re-sale was not covered under any other provision of law so as to make it recoverable as arrears of land revenue. That question has still to be investigated and it would be for the State to show whether the amount can be recovered under any provision of law or rules relating to forest contracts. So the matter will have to be remanded for further investigation on these dines.
| 1 | 2,838 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
provision was that the State should not be burdened with liability based on unauthorised contracts. The provision was made in public interest and so the word "shall" used therein must be held to make it obligatory and not directory. Further the case of Chaturbhuj Vithaldas Jasani v. Moreshwar Prashram, 1954 SCR 817 : (AIR l954 SC 236), was explained in that decision and it was held that it should be confined to its own facts in the context of the Representation of the People Act. Finally it was held in that case that S. 70 of the Indian Contract Act (No. 9 of 1872) could be invoked against the Government if the person invoking it could show that he had acted lawfully and had not intended to act gratuitously and the State had enjoyed the benefit. 9. Lastly this Court had occasion to consider the matter again in Union of India v. A. L. Rallia Ram, 1964-3 SCR 164 : (AIR 1963 SC 1685 ), and it was held that so long as all the requirements of S. 175 (3) of the Government of India Act were fulfilled and were clear from the correspondence, S. 175 (3) did not necessarily require the execution of any formal document. 10. What was said in these cases with respect to S. 175 (3) of the Government of India Act, 1935, applies with equal force to Article 299 (1) of the Constitution. Two consequences follow from these decisions. The first is that in view of Article 299 (1) there can be no implied contract between the Government and another person, the reason being that if such implied contracts between the Government and another person were allowed, they would in effect make Article 299 (1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299 (1) could get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. This is of course not to say that if there is a valid contract as envisaged by Article 299 (1), there may not be implications arising out of such a contract. The second consequence which follows from these decisions is that if the contract between Government and another person is not in full compliance with Article 299 (1) it would be no contract at all and could not be enforced either by the Government or by the other person as a contract. In the present case it is not in dispute that there never was a contract as required by Article 299 (1) of the Constitution. Nor can the fact that the appellant bid at the auction and signed the bid-sheet at the close thereof or signed the declaration necessary before he could bid at the auction amount to a contract between him and the Government satisfying all the conditions of Article 299 (1). 11. The position therefore is that there was no contract between the appellant and the Government before he bid at the auction, nor was there any contract between him and the Government after the auction was over as required by Article 299 (l) of the Constitution. Further in view of the mandatory terms of Article 299 (1) no implied contract could be spelled out between the Government and the appellant at the stage of bidding for Article 299 in effect rules out all implied contracts between Government and another person. The view taken by the High Court that S. 155 (b) of the Madhya Pradesh Land Revenue Code which provides for recovery of money as arrears of land revenue would therefore ensure in favour of the Government and enable it to recover the deficiency cannot be sustained. That clause provides for recovery of all moneys falling due to the State Government under any grant, lease or contract and says that they shall be recoverable in the same manner as arrears of land revenue. The High Court was of the view that the word "contract in this clause includes an implied contract. But if there can be no implied contract between the Government and another person in view of the mandatory provision of Article 299 (1) of the Constitution there can be no question of recovery of any money under an implied contract under Cl. (b) of S. 155.The view therefore taken by the High Court that this amount could be recovered under S. 155 (b) is not correct. 12. This brings us to the second question, namely, whether the amount can be recovered under any other provision of law as arrears of land revenue. In this connection learned counsel for the State has referred us to S. 82 and S. 85 of the Indian Forest Act. The question whether the amount can be recovered either under S. 82 or under S. 85 of the Indian Forest Act read with the rules framed thereunder has not been investigated by the High Court. The view of the High Court that Rr. 28 and 29 of the Forest Contract Rules apply after a contract in writing has been executed appears to be correct. But the question whether the State can still recover the amount as arrears of land revenue by virtue of the conditions of auction, even though Rr. 28 and 29 do not apply has not been investigated. This question will require investigation before the petition can be finally disposed of. The appellant had claimed in para 17 of the petition that the claim of the State for recovery of the deficiency on re-sale was not covered under any other provision of law so as to make it recoverable as arrears of land revenue. That question has still to be investigated and it would be for the State to show whether the amount can be recovered under any provision of law or rules relating to forest contracts. So the matter will have to be remanded for further investigation on these dines. 13.
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Laxman Lal(Dead)Through Lrs. Vs. State Of Rajasthan
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We find that a very valuable right conferred on the land owner/person interested under Section 5-A has been taken away without any justification. It is so because the bus stand construction would have taken some time. The exercise of the power by the state government under section 17(1) read with Section 17(4) of the 1953 Act and dispensation of inquiry under Section 5-A can not be legally sustained and has to be declared as such. 29. Now, coming to the first question, it will be seen that preliminary notification under Section 4 was issued on 01.05.1980. At the time of issuance of the preliminary notification, the 1953 Act did not prescribe any time limit for issuance of declaration under Section 6. However, with effect from 27.06.1981 by the 1981 Amendment Act, Section 6 was amended and a proviso was inserted that no declaration in respect of any land covered by notice under Section 4, sub-section (5), given after the commencement of the 1981 Amendment Act shall be made after the expiry of three years from the date of giving of such notice. This proviso is obviously applicable to the acquisition proceedings initiated after coming into force of the 1981 Amendment Act and has no application to the present fact situation. As regards the acquisition proceedings which had already commenced by issuance of preliminary notification before coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981 Amendment Act, inter alia, provides that acquisition pursuant to such preliminary notification may be completed after commencement of the 1981 Amendment Act and no such acquisition and no action taken or thing done including any order made, agreement entered into or notice given, whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981 Amendment Act, however, provides that notwithstanding anything contained in clause (b) of sub-section (1), no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under sub-section (5) of Section 4 has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act. Sub-section (2) of Section 5 of the 1981 Amendment Act begins with non obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates that no declaration under Section 6 in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act shall be made after expiry of two years from the commencement of the said Act. The provision leaves no manner of doubt that two years time prescribed for making declaration under Section 6 in respect of the notice issued under Section 4(5) prior to the commencement of the 1981 Amendment Act is mandatory and permits no departure. This is clear from the words no declaration and shall be made used in Section 5(2). The intention of the legislature admits of no ambiguity and it is clear that in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act, it is obligatory on the state government to make declaration on or before the expiry of two years from the commencement of the 1981 Amendment Act. The provision is imperative in nature and has to be followed as it lays down the maximum time limit within which the declaration under Section 6 of the 1953 Act can be made in respect of the notice under Section 4(5) issued before the commencement of the 1981 Amendment Act. 30. On behalf of the respondents, two decisions of the Rajasthan High Court, one, Indrapuri Grah Nirman Sahakari Samiti Ltd. v. State of Rajasthan and others [2002 (3) WLN 122 ] and the other, Chain Singh and etc., v. State of Rajasthan and others [AIR 1991 Rajasthan 17] were cited. We are afraid insofar as Indrapuri Grah Nirman Sahakari Samiti Ltd. is concerned, it has no application whatsoever. As regards Chain Singh, the Division Bench of the Rajasthan High Court was concerned with the provisions of the Land Acquisition (Rajasthan Amendment) Act, 1987 amending the 1894 Act. The provisions under consideration before the Rajasthan High Court in Chain Singh19 were materially different and, therefore, that decision is of no help to the respondents. 31. Learned counsel for the respondents also cited a decision of this Court in Pesara Pushapmala Reddy v. G. Veera Swamy and Others [(2011) 4 SCC 306] . In Pesara Pushpamala Reddy, this Court was concerned with the questions whether it was mandatory for the special tribunal or the special court to call for a report of the Mandal Revenue Officer before taking cognizance of a case under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short, Land Grabbing Act) and whether it was mandatory for the special tribunal or the special court to publish a notification in the gazette notifying the fact of cognizance of a case under the Act. This Court considered the provisions of the Land Grabbing Act. In our view, Pesara Pushpamala Reddy is not even remotely relevant for the present case and has no application at all. 32. Having regard to clear and unambiguous mandate of Section 5(2) of the 1981 Amendment Act that no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under Section 4(5) has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act, it has to be held and we hold that preliminary notification dated 01.05.1980, which was followed by notice under Section 4(5) before the commencement of the 1981 Amendment Act, has lapsed and does not survive since declaration under Section 6 has been made much beyond the time limit prescribed in law.
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1[ds]23. In light of the above legal position which is equally applicable to Section 17(1) and (4) of the 1953 Act, we may turn to the fact situation of the present matter. Section 4(5) notice under the 1953 Act was issued by the state government in 1980. For almost seven years, no steps were taken in taking the acquisition proceedings pursuant to the Section 4(5) notice to the logical conclusion. Even inquiry under Section 5-A was not commenced, much less completed. Abruptly on 19.03.1987, without following the procedure contemplated in Section 5-A, the declaration under Section 6 was made and in that notification the state government stated that it has invoked its power of urgency under Section 17(1) and dispensed with inquiry under Section 5-A in exercise of its power under Section 17(4). Can it be said that an inquiry under Section 5-A could not have been completed in all these years? We think that it could have been done easily and conveniently in few months leave aside few years. There were not large number of owners or persons interested in respect of the subject land. Section 5-A, which gives a very limited right to an owner/person interested, is not an empty formality. The substantial right under Section 5-A is the only right given to an owner/person interested to object to the acquisition proceedings. Such right ought not to be taken away by the State Government sans real urgency. The strong arm of the government is not meant to be used nor it should be used against a citizen in appropriating the property against his consent without giving him right to file objections as incorporated under Section 5-A on any ostensible ground. The dispensation of enquiry under Section 17(4) has to be founded on considerations germane to the purpose and not in a routine manner. Unless the circumstances warrant immediate possession, there cannot be any justification in dispensing with an enquiry under Section 5-A. As has been stated by this Court in Anand Singh4, elimination of enquiry under Section 5-A must only be in deserving and in the cases of real urgency. Being an exceptional power, the government must be circumspect in exercising power of urgency28. In this case, as noted above, the preliminary notification under Section 4 was issued on 01.5.1980. After lapse of about 7 years on 19.03.1987, one fine morning the state government issued declaration under Section 6 without complying with the mandate of Section 5-A and in that declaration it was stated that it has invoked its powers conferred under Section 17(1) read with Section 17 (4) of the 1953 Act and dispensed with the provisions of Section 5-A. Had the state government intended to hold and complete the inquiry under Section 5-A, it could have been done in few months. However, no steps for commencement of the inquiry under Section 5-A were even taken by the state government. We find that a very valuable right conferred on the land owner/person interested under Section 5-A has been taken away without any justification. It is so because the bus stand construction would have taken some time. The exercise of the power by the state government under section 17(1) read with Section 17(4) of the 1953 Act and dispensation of inquiry under Section 5-A can not be legally sustained and has to be declared as such29. Now, coming to the first question, it will be seen that preliminary notification under Section 4 was issued on 01.05.1980. At the time of issuance of the preliminary notification, the 1953 Act did not prescribe any time limit for issuance of declaration under Section 6. However, with effect from 27.06.1981 by the 1981 Amendment Act, Section 6 was amended and a proviso was inserted that no declaration in respect of any land covered by notice under Section 4, sub-section (5), given after the commencement of the 1981 Amendment Act shall be made after the expiry of three years from the date of giving of such notice. This proviso is obviously applicable to the acquisition proceedings initiated after coming into force of the 1981 Amendment Act and has no application to the present fact situation. As regards the acquisition proceedings which had already commenced by issuance of preliminary notification before coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981 Amendment Act, inter alia, provides that acquisition pursuant to such preliminary notification may be completed after commencement of the 1981 Amendment Act and no such acquisition and no action taken or thing done including any order made, agreement entered into or notice given, whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981 Amendment Act, however, provides that notwithstanding anything contained in clause (b) of sub-section (1), no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under sub-section (5) of Section 4 has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act. Sub-section (2) of Section 5 of the 1981 Amendment Act begins with non obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates that no declaration under Section 6 in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act shall be made after expiry of two years from the commencement of the said Act. The provision leaves no manner of doubt that two years time prescribed for making declaration under Section 6 in respect of the notice issued under Section 4(5) prior to the commencement of the 1981 Amendment Act is mandatory and permits no departure. This is clear from the words no declaration and shall be made used in Section 5(2). The intention of the legislature admits of no ambiguity and it is clear that in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act, it is obligatory on the state government to make declaration on or before the expiry of two years from the commencement of the 1981 Amendment Act. The provision is imperative in nature and has to be followed as it lays down the maximum time limit within which the declaration under Section 6 of the 1953 Act can be made in respect of the notice under Section 4(5) issued before the commencement of the 1981 Amendment Act32. Having regard to clear and unambiguous mandate of Section 5(2) of the 1981 Amendment Act that no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under Section 4(5) has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act, it has to be held and we hold that preliminary notification dated 01.05.1980, which was followed by notice under Section 4(5) before the commencement of the 1981 Amendment Act, has lapsed and does not survive since declaration under Section 6 has been made much beyond the time limit prescribed in law.
| 1 | 7,024 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
We find that a very valuable right conferred on the land owner/person interested under Section 5-A has been taken away without any justification. It is so because the bus stand construction would have taken some time. The exercise of the power by the state government under section 17(1) read with Section 17(4) of the 1953 Act and dispensation of inquiry under Section 5-A can not be legally sustained and has to be declared as such. 29. Now, coming to the first question, it will be seen that preliminary notification under Section 4 was issued on 01.05.1980. At the time of issuance of the preliminary notification, the 1953 Act did not prescribe any time limit for issuance of declaration under Section 6. However, with effect from 27.06.1981 by the 1981 Amendment Act, Section 6 was amended and a proviso was inserted that no declaration in respect of any land covered by notice under Section 4, sub-section (5), given after the commencement of the 1981 Amendment Act shall be made after the expiry of three years from the date of giving of such notice. This proviso is obviously applicable to the acquisition proceedings initiated after coming into force of the 1981 Amendment Act and has no application to the present fact situation. As regards the acquisition proceedings which had already commenced by issuance of preliminary notification before coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981 Amendment Act, inter alia, provides that acquisition pursuant to such preliminary notification may be completed after commencement of the 1981 Amendment Act and no such acquisition and no action taken or thing done including any order made, agreement entered into or notice given, whether before or after such commencement, in connection with such acquisition shall be deemed to be invalid merely on the grounds referred to in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981 Amendment Act, however, provides that notwithstanding anything contained in clause (b) of sub-section (1), no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under sub-section (5) of Section 4 has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act. Sub-section (2) of Section 5 of the 1981 Amendment Act begins with non obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates that no declaration under Section 6 in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act shall be made after expiry of two years from the commencement of the said Act. The provision leaves no manner of doubt that two years time prescribed for making declaration under Section 6 in respect of the notice issued under Section 4(5) prior to the commencement of the 1981 Amendment Act is mandatory and permits no departure. This is clear from the words no declaration and shall be made used in Section 5(2). The intention of the legislature admits of no ambiguity and it is clear that in respect of the notice issued under Section 4(5) before the commencement of the 1981 Amendment Act, it is obligatory on the state government to make declaration on or before the expiry of two years from the commencement of the 1981 Amendment Act. The provision is imperative in nature and has to be followed as it lays down the maximum time limit within which the declaration under Section 6 of the 1953 Act can be made in respect of the notice under Section 4(5) issued before the commencement of the 1981 Amendment Act. 30. On behalf of the respondents, two decisions of the Rajasthan High Court, one, Indrapuri Grah Nirman Sahakari Samiti Ltd. v. State of Rajasthan and others [2002 (3) WLN 122 ] and the other, Chain Singh and etc., v. State of Rajasthan and others [AIR 1991 Rajasthan 17] were cited. We are afraid insofar as Indrapuri Grah Nirman Sahakari Samiti Ltd. is concerned, it has no application whatsoever. As regards Chain Singh, the Division Bench of the Rajasthan High Court was concerned with the provisions of the Land Acquisition (Rajasthan Amendment) Act, 1987 amending the 1894 Act. The provisions under consideration before the Rajasthan High Court in Chain Singh19 were materially different and, therefore, that decision is of no help to the respondents. 31. Learned counsel for the respondents also cited a decision of this Court in Pesara Pushapmala Reddy v. G. Veera Swamy and Others [(2011) 4 SCC 306] . In Pesara Pushpamala Reddy, this Court was concerned with the questions whether it was mandatory for the special tribunal or the special court to call for a report of the Mandal Revenue Officer before taking cognizance of a case under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short, Land Grabbing Act) and whether it was mandatory for the special tribunal or the special court to publish a notification in the gazette notifying the fact of cognizance of a case under the Act. This Court considered the provisions of the Land Grabbing Act. In our view, Pesara Pushpamala Reddy is not even remotely relevant for the present case and has no application at all. 32. Having regard to clear and unambiguous mandate of Section 5(2) of the 1981 Amendment Act that no declaration under Section 6 of the 1953 Act in respect of any land for the acquisition of which notice under Section 4(5) has been given before the commencement of the 1981 Amendment Act shall be made after the expiry of two years from the commencement of the 1981 Amendment Act, it has to be held and we hold that preliminary notification dated 01.05.1980, which was followed by notice under Section 4(5) before the commencement of the 1981 Amendment Act, has lapsed and does not survive since declaration under Section 6 has been made much beyond the time limit prescribed in law.
### Response:
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Manish Mohan Sharma Vs. Ram Bahadur Thakur Ltd.
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Kale vs. Deputy Director of Consolidation 1976 (1) SCR 202, 122, 123, 125). The courts lean heavily in favour of family arrangements and, "matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements". This view has been reiterated recently in Amteshwar Anand vs. Virender Mohan Singh & Ors., (2006) 1 SCC 148. 34. In our opinion both the Company Law Board and the High Court erred in refusing to execute the order dated 19th August, 1999 under Section 634A of the Companies Act. They have thereby failed to exercise the jurisdiction with which they were vested. The failure is heightened given the nature of the order which they were bound to execute. They have erroneously proceeded upon principles applicable to contracts alone and have ignored the fact that the agreement between the parties had culminated in a consent order of the Company Law Board. The plea of the respondents that this Court should not interfere in the matter under Article 136 by reason of any alleged misconduct on the part of the appellants in managing the 5 estates is unacceptable. The appellants alleged lack of efficiency in running of the five tea estates is not a material consideration for deciding whether the order dated 19th August, 1999 should be enforced. 35. The respondents contention that the appellants were not themselves willing to abide by the terms of the consent order appears to us to be erroneous. The application under Section 634A was for implementation of the order dated 19th August, 1999 if necessary by appointing a Special Officer to carry it into completion. In fact even while the application under Section 634A was pending in the Company Law Board, the Vice Chairman had suggested to the appellants that they waive their claim in respect of the accrued gratuity under clause 4.1.1.11 of the Transfer Document and a certain portion of the interest claimed under the Transfer Document. The appellants confirmed that they would accept the Vice Chairmans suggestion but would do so on the basis that a consent order was passed in terms thereof on the same date. This was recorded by the appellants advocates in their letter dated 19th December, 2000 addressed to the Company Law Board and its Members and the Advocate for the respondents and has not been disputed before us as not reflecting the correct position. This is not the conduct of a party which is not willing to abide by the terms of the decree. 36. On the question whether the appellants had defaulted in payment of purchase price simultaneously with the completion in terms of Clause 4 of the Transfer Document, this again relates to an interpretation of the terms of the MOFA and the Transfer Document. According to the respondents, there was no default on their part as the respondents were required not only to settle all outstanding claims relating to the five estates prior to giving of the completion Notice but also to annex the necessary documents evidencing that the sale estates could be transferred free from all encumbrances to the MMS group by the respondent No. 1. The Company Law Board and the High Court have proceeded on the basis that the only dispute between the parties was as to the interpretation of Clause 4.1.1.11. Elaborate arguments have however been addressed to us on the merits of the four contentions noted by us earlier by both parties. We were initially of the view that the dispute should be resolved by us finally. However on a reconsideration, we deem it fit to remand this issues for determination by the Company Law Board if it is satisfied that the issues could be said to have been fairly raised by the parties before it. We make it clear that whatever interpretation may be put by the Company Law Board on the clauses of the MOFA and Transfer Document, the Board must implement the clauses as interpreted. 37. Moreover Clause 4 which relates to the payment of the purchase price by the MMS group specifically mentions the total amount payable by them to the respondent No. 1 namely Rs. 7,24,67,708.90 less certain deductions. As far as the deductions are concerned, some of the clauses have quantified the deductions, whereas others have left them undetermined in the sense that no quantum has been mentioned. In the first category are Clause 4.1.1.1 to Clause 4.1.1.5. Under Clauses 4.1.1.6 to 4.1.1.11 the amounts were required to be determined. This exercise will have to be carried out by the Board. The figures mentioned in Clauses 4.1.1.1 to 4.1.1.5 and 4.1.1.11 were also subject to verification under Clause 4.1.1.12 by the independent auditor appointed by the Company Law Board. The Company Law Board had by order dated 19th August, 1999 appointed Mr. M.C. Joseph, Chartered Accountant. We have not been told whether the independent auditor has carried out the verification. 38. We ourselves do not propose to go into the issues raised by the parties, namely whether the completion notice was valid nor the quantification of the deductions under Clause 4 of the Transfer Document. These are issues that must be worked out by the Company Law Board in executing the consent order in terms of the MOFA and Transfer Document. It is unnecessary for us to go into the powers of the parties to rescind the settlement (assuming that such rescission were at all possible at this stage) as neither of the groups have taken any steps to issue any notice of rescission till today. 39. We note that the MOFA and Transfer Document were the outcome of the commendable and determined efforts on the part of the Company Law Board to bring to an end disputes between the parties in a manner which would have been in the interest of the respondent No. 1 given the impasse between the two blocks of shareholders and saved the parties a lot of unnecessary harassment, expenditure and acrimony.
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1[ds]34. In our opinion both the Company Law Board and the High Court erred in refusing to execute the order dated 19th August, 1999 under Section 634A of the Companies Act. They have thereby failed to exercise the jurisdiction with which they were vested. The failure is heightened given the nature of the order which they were bound to execute. They have erroneously proceeded upon principles applicable to contracts alone and have ignored the fact that the agreement between the parties had culminated in a consent order of the Company Law Board. The plea of the respondents that this Court should not interfere in the matter under Article 136 by reason of any alleged misconduct on the part of the appellants in managing the 5 estates is unacceptable. The appellants alleged lack of efficiency in running of the five tea estates is not a material consideration for deciding whether the order dated 19th August, 1999 should be enforced35. The respondents contention that the appellants were not themselves willing to abide by the terms of the consent order appears to us to be erroneous. The application under Section 634A was for implementation of the order dated 19th August, 1999 if necessary by appointing a Special Officer to carry it into completion. In fact even while the application under Section 634A was pending in the Company Law Board, the Vice Chairman had suggested to the appellants that they waive their claim in respect of the accrued gratuity under clause 4.1.1.11 of the Transfer Document and a certain portion of the interest claimed under the Transfer Document. The appellants confirmed that they would accept the Vice Chairmans suggestion but would do so on the basis that a consent order was passed in terms thereof on the same date. This was recorded by the appellants advocates in their letter dated 19th December, 2000 addressed to the Company Law Board and its Members and the Advocate for the respondents and has not been disputed before us as not reflecting the correct position. This is not the conduct of a party which is not willing to abide by the terms of the decree36. On the question whether the appellants had defaulted in payment of purchase price simultaneously with the completion in terms of Clause 4 of the Transfer Document, this again relates to an interpretation of the terms of the MOFA and the Transfer Document. According to the respondents, there was no default on their part as the respondents were required not only to settle all outstanding claims relating to the five estates prior to giving of the completion Notice but also to annex the necessary documents evidencing that the sale estates could be transferred free from all encumbrances to the MMS group by the respondent No. 1. The Company Law Board and the High Court have proceeded on the basis that the only dispute between the parties was as to the interpretation of Clause 4.1.1.11. Elaborate arguments have however been addressed to us on the merits of the four contentions noted by us earlier by both parties. We were initially of the view that the dispute should be resolved by us finally. However on a reconsideration, we deem it fit to remand this issues for determination by the Company Law Board if it is satisfied that the issues could be said to have been fairly raised by the parties before it. We make it clear that whatever interpretation may be put by the Company Law Board on the clauses of the MOFA and Transfer Document, the Board must implement the clauses as interpreted37. Moreover Clause 4 which relates to the payment of the purchase price by the MMS group specifically mentions the total amount payable by them to the respondent No. 1 namely Rs. 7,24,67,708.90 less certain deductions. As far as the deductions are concerned, some of the clauses have quantified the deductions, whereas others have left them undetermined in the sense that no quantum has been mentioned. In the first category are Clause 4.1.1.1 to Clause 4.1.1.5. Under Clauses 4.1.1.6 to 4.1.1.11 the amounts were required to be determined. This exercise will have to be carried out by the Board. The figures mentioned in Clauses 4.1.1.1 to 4.1.1.5 and 4.1.1.11 were also subject to verification under Clause 4.1.1.12 by the independent auditor appointed by the Company Law Board. The Company Law Board had by order dated 19th August, 1999 appointed Mr. M.C. Joseph, Chartered Accountant. We have not been told whether the independent auditor has carried out the verification38. We ourselves do not propose to go into the issues raised by the parties, namely whether the completion notice was valid nor the quantification of the deductions under Clause 4 of the Transfer Document. These are issues that must be worked out by the Company Law Board in executing the consent order in terms of the MOFA and Transfer Document. It is unnecessary for us to go into the powers of the parties to rescind the settlement (assuming that such rescission were at all possible at this stage) as neither of the groups have taken any steps to issue any notice of rescission till today39. We note that the MOFA and Transfer Document were the outcome of the commendable and determined efforts on the part of the Company Law Board to bring to an end disputes between the parties in a manner which would have been in the interest of the respondent No. 1 given the impasse between the two blocks of shareholders and saved the parties a lot of unnecessary harassment, expenditure and acrimony.
| 1 | 6,066 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
Kale vs. Deputy Director of Consolidation 1976 (1) SCR 202, 122, 123, 125). The courts lean heavily in favour of family arrangements and, "matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements". This view has been reiterated recently in Amteshwar Anand vs. Virender Mohan Singh & Ors., (2006) 1 SCC 148. 34. In our opinion both the Company Law Board and the High Court erred in refusing to execute the order dated 19th August, 1999 under Section 634A of the Companies Act. They have thereby failed to exercise the jurisdiction with which they were vested. The failure is heightened given the nature of the order which they were bound to execute. They have erroneously proceeded upon principles applicable to contracts alone and have ignored the fact that the agreement between the parties had culminated in a consent order of the Company Law Board. The plea of the respondents that this Court should not interfere in the matter under Article 136 by reason of any alleged misconduct on the part of the appellants in managing the 5 estates is unacceptable. The appellants alleged lack of efficiency in running of the five tea estates is not a material consideration for deciding whether the order dated 19th August, 1999 should be enforced. 35. The respondents contention that the appellants were not themselves willing to abide by the terms of the consent order appears to us to be erroneous. The application under Section 634A was for implementation of the order dated 19th August, 1999 if necessary by appointing a Special Officer to carry it into completion. In fact even while the application under Section 634A was pending in the Company Law Board, the Vice Chairman had suggested to the appellants that they waive their claim in respect of the accrued gratuity under clause 4.1.1.11 of the Transfer Document and a certain portion of the interest claimed under the Transfer Document. The appellants confirmed that they would accept the Vice Chairmans suggestion but would do so on the basis that a consent order was passed in terms thereof on the same date. This was recorded by the appellants advocates in their letter dated 19th December, 2000 addressed to the Company Law Board and its Members and the Advocate for the respondents and has not been disputed before us as not reflecting the correct position. This is not the conduct of a party which is not willing to abide by the terms of the decree. 36. On the question whether the appellants had defaulted in payment of purchase price simultaneously with the completion in terms of Clause 4 of the Transfer Document, this again relates to an interpretation of the terms of the MOFA and the Transfer Document. According to the respondents, there was no default on their part as the respondents were required not only to settle all outstanding claims relating to the five estates prior to giving of the completion Notice but also to annex the necessary documents evidencing that the sale estates could be transferred free from all encumbrances to the MMS group by the respondent No. 1. The Company Law Board and the High Court have proceeded on the basis that the only dispute between the parties was as to the interpretation of Clause 4.1.1.11. Elaborate arguments have however been addressed to us on the merits of the four contentions noted by us earlier by both parties. We were initially of the view that the dispute should be resolved by us finally. However on a reconsideration, we deem it fit to remand this issues for determination by the Company Law Board if it is satisfied that the issues could be said to have been fairly raised by the parties before it. We make it clear that whatever interpretation may be put by the Company Law Board on the clauses of the MOFA and Transfer Document, the Board must implement the clauses as interpreted. 37. Moreover Clause 4 which relates to the payment of the purchase price by the MMS group specifically mentions the total amount payable by them to the respondent No. 1 namely Rs. 7,24,67,708.90 less certain deductions. As far as the deductions are concerned, some of the clauses have quantified the deductions, whereas others have left them undetermined in the sense that no quantum has been mentioned. In the first category are Clause 4.1.1.1 to Clause 4.1.1.5. Under Clauses 4.1.1.6 to 4.1.1.11 the amounts were required to be determined. This exercise will have to be carried out by the Board. The figures mentioned in Clauses 4.1.1.1 to 4.1.1.5 and 4.1.1.11 were also subject to verification under Clause 4.1.1.12 by the independent auditor appointed by the Company Law Board. The Company Law Board had by order dated 19th August, 1999 appointed Mr. M.C. Joseph, Chartered Accountant. We have not been told whether the independent auditor has carried out the verification. 38. We ourselves do not propose to go into the issues raised by the parties, namely whether the completion notice was valid nor the quantification of the deductions under Clause 4 of the Transfer Document. These are issues that must be worked out by the Company Law Board in executing the consent order in terms of the MOFA and Transfer Document. It is unnecessary for us to go into the powers of the parties to rescind the settlement (assuming that such rescission were at all possible at this stage) as neither of the groups have taken any steps to issue any notice of rescission till today. 39. We note that the MOFA and Transfer Document were the outcome of the commendable and determined efforts on the part of the Company Law Board to bring to an end disputes between the parties in a manner which would have been in the interest of the respondent No. 1 given the impasse between the two blocks of shareholders and saved the parties a lot of unnecessary harassment, expenditure and acrimony.
### Response:
1
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306 |
SHRI RAM MANDIR INDORE Vs. THE STATE OF MADHYA PRADESH
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right has been shown as Shri Ram Mandir Devsthan. As per Ex.-P19, land of Mundala Sondhiya has been given to the pujari of Shri Ram Mandir Devsthan. As per Ex.-P18, the land of Pipalya Dhuma is the land of Inam Devsthan Shri Ram Mandir. As per Ex.-P17, the land of village Rabaniya has been given to Devsthan Shri Ram Mandir as Inam right. According to Ex.-P16, the land of Bolkheda has been given to Devsthan as Inam right. As per Ex.-P15, the land of village Kankalkhdea has been given to Shri Ram Mandir Inam Devsthan. As per Ex.-P14, the land of Indoukh has been given to tenant Shri Ram Mandir Pujari Kanvsidas on the rights of Inam Shri Ram Mandir. 21. The First Appellate Court referred to various documents in particular pattas and held that all the lands have been given to Shri Ram Mandir Devsthan by way of Inam. The number of documents produced by the appellant clearly show that the lands are Inam lands of Shri Ram Mandir and that the status of Ram Das and Bajrang Das were only pujaris. In number of other documents also, Shri Ram Mandir is recorded as Bhumiswami for the suit property and the names of specific individuals are recorded only as pujaris. In the light of various documents and the formidable entries made thereon, there is no merit in the contention of the appellant that they have become Mahant of Shri Ram Mandir and that they are entitled to manage the affairs of the temple and the Mandirs properties. 22. Ex.-P2 is the copy of Kishtbandi Khatauni of the year 1971-72 in which, rights of land of Indoukh are recorded as Shri Ram Mandir as Bhumiswami. Pujari Ram Bali Das, Guru Ganga Das Bairagi resident of Deh Bhumi Swami have been described only as pujaris. Likewise, in Ex.-P4 relating to the land of village Bolkheda Ghat, Shri Ram Mandir has been recorded as Bhumiswami and Ram Bali Das has been mentioned only as a priest. For the land of village Pipalya Dhuna, Bhumiswami rights are recorded in favour of Shri Ram Mandir and Ganpati Mandir of which Ram Bali Das has been recorded as pujari. Likewise, as per Ex.-P7, Shri Ram Mandir, Indoukh has been recorded as Bhumiswami for the land of village Mundala Sondhiya. Though, the appellant got certified copies of these documents on various dates viz. 12.08.1972, 16.09.1970 and 27.09.1970 and in spite of knowledge of the entry Ram Mandir as Bhumiswami, it was not challenged till the filing of suit. For the land of Pipalya Dhuma, Ganpati Maruti Mandir has been recorded as Bhumiswami along with Shri Ram Mandir and Collector, Ujjain has been recorded as Manager. The appellant did not challenge the rights of Ganpati Maruti Mandir which was recorded as Bhumiswami for the lands of the village Pipalya Dhuma. Be it noted that, Ganpati Maruti Mandir has not even been impleaded as a party. 23. The Collector was recorded as Manager for the lands of Shri Ram Mandir since the year 1975 and the same was not challenged. According to the respondent-State, the entry of the name of the District Collector as Manager of the temple properties dated 12.04.1974 has been done to curb the mismanagement of the temple properties at the hands of the pujaris. The learned counsel appearing for the State submitted that the circular dated 12.04.1974 was upheld by the High Court of Madhya Pradesh in Sadashiv Giri and others v. Commissioner, Ujjain and others 1985 RN 371 insofar as it applied to public temples. 24. The First Appellate Court has referred to the order of the High Court in LPA No.36/94 (27.07.1995) in and by which the High Court has directed to cancel the executive orders dated 18.11.1992 by which the names of the priests were removed from revenue records. As pointed out by the First Appellate Court, pendency of such matters would not in any way affect the rights of Deity of Shri Ram Mandir in the suit properties as Shri Ram Mandir has been recorded as Bhumiswami for the suit properties. As discussed earlier, appellant Ram Bali Das was continued to be recorded only as pujari of Shri Ram Mandir. As discussed infra, on the application filed by pujari Ram Das, Bajrang Das has been appointed as pujari by SDO. 25. Plaintiff Ram Das himself got the land in the year 1985-86 on lease for Rs.860/- from the Government and in this respect, he has signed on the order sheet in case No.93B/121-85-86. An amount of Rs.600/- was deposited on 31.07.1986. Thereafter, in the year 1986-87, pujari Ram Das got the lease renewed for one year at Rs.860/- out of which he has deposited Rs.460/- on 11.11.1987 for which a receipt has been issued to pujari Ram Das. The fact that the appellant having taken the Mandir lands on lease from the Government clearly shows that the properties were never owned by the pujaris in their individual capacity. Having taken the Mandir property on lease from the Government, the appellant is estopped from denying that the temple properties are under the management and control of the Government. The suit lands have been given in the name of Shri Ram Mandir and few other lands in the name of Ganesh Mandir for the arrangement of pooja, archana, naivedya, etc. for the public temple and the pujari has no right to interfere in the management of these lands as his status is only that of pujari. 26. The finding of the first appellate court and the High Court that Shri Ram Mandir is a public temple and not a private one is based upon the appreciation of oral and documentary evidence. Bajrang Das (PW-1) himself has been appointed as pujari by the Government and the appellant/plaintiff has not adduced any evidence showing that the temple belonged to one particular family. By oral and documentary evidence, it is clearly established that the suit lands are recorded in the name of Shri Ram Mandir.
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0[ds]11. Even at the outset, it is to be pointed out that the very cause title of the plaint is misleading. The description of the appellant temple Shri Ram Mandir is couched in such a manner as if Shri Ram Mandir is represented by its Manager Ram Das. The respondent-State claims that Shri Ram Mandir is a public temple and Ram Das and then Bajrang Das are only pujaris performing pooja-archana in the temple. It is in this context and the auction conducted by the State for leasing the temple properties, the appellant-plaintiff filed the suit seeking declaration that Shri Ram Mandir is a private temple and permanent injunction restraining the respondents/defendants from interfering with the appellants possession of the temple properties12. Shri Ram Mandir is a public temple:- The onus of proving that the appellant-Shri Ram Mandir falls within the description of private temple is on the appellant who is asserting that the temple is a private temple and that he is the Mahant of the temple. In State of Uttarakhand and another v. Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC 579 , it was held that the necessary material pleadings ought to have been made to show as to how and on what basis, the plaintiff claimed his ownership over such a famous heritage temple and the land surrounding the temple. Thus, in the absence of any pleadings in the plaint that the pujari built the temple, they cannot claim the temple to be a private temple. In the case in hand, plaint lacks pleadings regarding who constructed the temple and how he raised the funds. The name of Gulab Das who allegedly constructed the temple is not mentioned in the plaint. No evidence was adduced by the appellant to show as to how Gulab Das constructed the temple and whether personal funds were used by Gulab Das to establish the temple or whether there was contribution from the public. In his evidence, Bajrang Das (PW-1) has stated that the temple was constructed by Gulab Das. On the other hand, Bheru Lal (PW-2) has stated that the temple was constructed by Sewa Das and Gulab Das. In the absence of pleadings and evidence that the temple was constructed by Gulab Das, the First Appellate Court rightly held that based on the evidence of PW-1, it cannot be held that Shri Ram Mandir is a private temple13. According to the respondent-State, Shri Ram Mandir has always been a part of the list of public temples. In 2013, Madhya Pradesh Government published a Directory containing names of all public temples in District Ujjain updating till 31.12.2012. Shri Ram Mandir is mentioned therein in the List as Entry 135 which clearly shows that the temple has been recognized as a public temple. Though, this document – List of public temples is subsequent to the suit, the entry of Shri Ram Mandir as the public temple in the register is a strong piece of evidence to hold that Shri Ram Mandir is a public temple. Be it noted that Bajrang Das and Ram Das are only shown to be the pujaris14. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas and others (1969) 2 SCC 853 , the Supreme Court held that the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, are relevant factors to establish whether a temple is a public temple or a private temple. Likewise, as held in Tilkayat Shri Govindlalji Maharaj Etc. v. State of Rajasthan and others [1964] 1 SCR 561 , the participation of the members of the public in the Darshan in the temple and in the daily acts of worship or in the celebrations may be a very important factor to consider in determining the character of the temple. In the present case, the appellant has not adduced any evidence to show that there is restricted participation of the public for darshan15. It is to be pointed out that in the same premises, apart from, Shri Ram Mandir, there is a Ganesh temple which has a different pujari and there is also a Maruthi Mandir. In their evidence, Bheru Lal (PW-2) and Poor Singh (PW-3) have stated that the pooja at Ganesh Mandir is performed by Satyanarayan-brother of Bheru Lal (PW-2). There are thus two different pujaris who perform pooja for two separate idols situated in the same premises and they have been so performing pooja for generations. Contention of PW-1 that no outsider can come and perform pooja and archana in the premises of Shri Ram Mandir was rightly rejected by the first appellate court as the very premises has three Deities16. Another important aspect which indicates the public character of the temple is that there is no blood-relationship between the successive pujaris. In the present case, no evidence has been adduced to show that the temple belonged to one family and that there was blood-relations between the successive pujaris. If the temple was a private temple, the succession would have been hereditary and would be governed by the principles of Hindu succession i.e. by blood, marriage and adoption. In the case in hand, succession is admittedly governed by Guru-shishya relationship. Each pujari is not having blood relation with his predecessor pujari. When the pujariship is not hereditary, as rightly held by the High Court, Shri Ram Mandir cannot be held to be a private temple17. PW-1 has admitted that the pujaris have been continuing according to Guru-shishya tradition of Naga Babas. Admittedly, Naga Babas followed different tradition from family persons i.e. they followed the tradition that during the period of management of the temple, they did not have any grihashtha-household life. Admittedly, the tradition of Naga Babas of not having a household life has been broken by Bajrang Das (PW-1). In his evidence, PW-1 admitted that the temple is a seat of Nagas; but he is a married person and a householder. The first appellate court has rightly held that the temple established by Naga Babas cannot be treated as a private temple as there was no interest of a particular person in the temple18. Even the appointment of Bajrang Das (PW-1) as pujari of Shri Ram Mandir was done by the Sub-Divisional Officer, Tehsil Mahidpur, on the application filed by Bajrang Das. In his application before the Sub-Divisional Officer, Tehsil Mahidpur, Bajrang Das (PW-1) stated that Guru Ram Das is aged about eighty years and suffering from paralysis and Bajrang Das has been performing the pooja since last ten years and therefore, prayed for entering him as pujari of Shri Ram Mandir. Ram Das had also given statement before the Sub-Divisional Officer stating that he is suffering from the ailment of paralysis and that he is not in a position to continue the work of pujari and that Bajrang Das may be appointed as pujari. The said application was registered as 10/98-99 Pujari Nomination and after calling for objection from the public, Sub-Divisional Officer, Tehsil Mahidpur had passed a detailed order on 01.06.1999 appointing Bajrang Das as the pujari of Shri Ram Mandir. In the said order of Sub-Divisional Officer dated 01.06.1999, it is made clear that the Collector is the administrator in respect of lands entered in the name of Shri Ram Mandir situated in villages Indokh, Mundla Sodhya, Pipaliya Bhooma, Rajdhani and Bolkheda Dhar. The said order contains the Khata numbers of the lands and the extent of the lands. The Sub-Divisional Officer had passed further order dated 08.06.1999 mutating the name of Ram Das and entering the name of Bajrang Das as pujari. Ex.-D4 and Ex.-D5 – statements of Bajrang Das and Ram Das and the order passed by the Sub-Divisional Officer clearly show that Shri Ram Mandir is a public temple and that the Mandir and the properties are under the control and administration of the State through District Collector. Having been appointed the pujari of the temple by the Government, Bajrang Das and Ram Das are estopped from contending that Shri Ram Mandir is a private temple. Considering the evidence and the fact that Bajrang Das himself has been appointed as pujari by the State, the first appellate court and the High Court rightly held that Shri Ram Mandir is a public temple. We found no ground to interfere with the said concurrent findingReferring to Ex.-P20, the first appellate court held that the land was bestowed on the temple for Nevaidya etc. There is nothing to indicate that Gulab Das has established the temple from out of his personal funds and that he has become Inamdar of the property21. The First Appellate Court referred to various documents in particular pattas and held that all the lands have been given to Shri Ram Mandir Devsthan by way of Inam. The number of documents produced by the appellant clearly show that the lands are Inam lands of Shri Ram Mandir and that the status of Ram Das and Bajrang Das were only pujaris. In number of other documents also, Shri Ram Mandir is recorded as Bhumiswami for the suit property and the names of specific individuals are recorded only as pujaris. In the light of various documents and the formidable entries made thereon, there is no merit in the contention of the appellant that they have become Mahant of Shri Ram Mandir and that they are entitled to manage the affairs of the temple and the Mandirs properties23. The Collector was recorded as Manager for the lands of Shri Ram Mandir since the year 1975 and the same was not challenged. According to the respondent-State, the entry of the name of the District Collector as Manager of the temple properties dated 12.04.1974 has been done to curb the mismanagement of the temple properties at the hands of the pujaris. The learned counsel appearing for the State submitted that the circular dated 12.04.1974 was upheld by the High Court of Madhya Pradesh in Sadashiv Giri and others v. Commissioner, Ujjain and others 1985 RN 371 insofar as it applied to public temples24. The First Appellate Court has referred to the order of the High Court in LPA No.36/94 (27.07.1995) in and by which the High Court has directed to cancel the executive orders dated 18.11.1992 by which the names of the priests were removed from revenue records. As pointed out by the First Appellate Court, pendency of such matters would not in any way affect the rights of Deity of Shri Ram Mandir in the suit properties as Shri Ram Mandir has been recorded as Bhumiswami for the suit properties. As discussed earlier, appellant Ram Bali Das was continued to be recorded only as pujari of Shri Ram Mandir. As discussed infra, on the application filed by pujari Ram Das, Bajrang Das has been appointed as pujari by SDO25. Plaintiff Ram Das himself got the land in the year 1985-86 on lease for Rs.860/- from the Government and in this respect, he has signed on the order sheet in case No.93B/121-85-86. An amount of Rs.600/- was deposited on 31.07.1986. Thereafter, in the year 1986-87, pujari Ram Das got the lease renewed for one year at Rs.860/- out of which he has deposited Rs.460/- on 11.11.1987 for which a receipt has been issued to pujari Ram Das. The fact that the appellant having taken the Mandir lands on lease from the Government clearly shows that the properties were never owned by the pujaris in their individual capacity. Having taken the Mandir property on lease from the Government, the appellant is estopped from denying that the temple properties are under the management and control of the Government. The suit lands have been given in the name of Shri Ram Mandir and few other lands in the name of Ganesh Mandir for the arrangement of pooja, archana, naivedya, etc. for the public temple and the pujari has no right to interfere in the management of these lands as his status is only that of pujari26. The finding of the first appellate court and the High Court that Shri Ram Mandir is a public temple and not a private one is based upon the appreciation of oral and documentary evidence. Bajrang Das (PW-1) himself has been appointed as pujari by the Government and the appellant/plaintiff has not adduced any evidence showing that the temple belonged to one particular family. By oral and documentary evidence, it is clearly established that the suit lands are recorded in the name of Shri Ram Mandir.
| 0 | 4,786 |
### Instruction:
Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal?
### Input:
right has been shown as Shri Ram Mandir Devsthan. As per Ex.-P19, land of Mundala Sondhiya has been given to the pujari of Shri Ram Mandir Devsthan. As per Ex.-P18, the land of Pipalya Dhuma is the land of Inam Devsthan Shri Ram Mandir. As per Ex.-P17, the land of village Rabaniya has been given to Devsthan Shri Ram Mandir as Inam right. According to Ex.-P16, the land of Bolkheda has been given to Devsthan as Inam right. As per Ex.-P15, the land of village Kankalkhdea has been given to Shri Ram Mandir Inam Devsthan. As per Ex.-P14, the land of Indoukh has been given to tenant Shri Ram Mandir Pujari Kanvsidas on the rights of Inam Shri Ram Mandir. 21. The First Appellate Court referred to various documents in particular pattas and held that all the lands have been given to Shri Ram Mandir Devsthan by way of Inam. The number of documents produced by the appellant clearly show that the lands are Inam lands of Shri Ram Mandir and that the status of Ram Das and Bajrang Das were only pujaris. In number of other documents also, Shri Ram Mandir is recorded as Bhumiswami for the suit property and the names of specific individuals are recorded only as pujaris. In the light of various documents and the formidable entries made thereon, there is no merit in the contention of the appellant that they have become Mahant of Shri Ram Mandir and that they are entitled to manage the affairs of the temple and the Mandirs properties. 22. Ex.-P2 is the copy of Kishtbandi Khatauni of the year 1971-72 in which, rights of land of Indoukh are recorded as Shri Ram Mandir as Bhumiswami. Pujari Ram Bali Das, Guru Ganga Das Bairagi resident of Deh Bhumi Swami have been described only as pujaris. Likewise, in Ex.-P4 relating to the land of village Bolkheda Ghat, Shri Ram Mandir has been recorded as Bhumiswami and Ram Bali Das has been mentioned only as a priest. For the land of village Pipalya Dhuna, Bhumiswami rights are recorded in favour of Shri Ram Mandir and Ganpati Mandir of which Ram Bali Das has been recorded as pujari. Likewise, as per Ex.-P7, Shri Ram Mandir, Indoukh has been recorded as Bhumiswami for the land of village Mundala Sondhiya. Though, the appellant got certified copies of these documents on various dates viz. 12.08.1972, 16.09.1970 and 27.09.1970 and in spite of knowledge of the entry Ram Mandir as Bhumiswami, it was not challenged till the filing of suit. For the land of Pipalya Dhuma, Ganpati Maruti Mandir has been recorded as Bhumiswami along with Shri Ram Mandir and Collector, Ujjain has been recorded as Manager. The appellant did not challenge the rights of Ganpati Maruti Mandir which was recorded as Bhumiswami for the lands of the village Pipalya Dhuma. Be it noted that, Ganpati Maruti Mandir has not even been impleaded as a party. 23. The Collector was recorded as Manager for the lands of Shri Ram Mandir since the year 1975 and the same was not challenged. According to the respondent-State, the entry of the name of the District Collector as Manager of the temple properties dated 12.04.1974 has been done to curb the mismanagement of the temple properties at the hands of the pujaris. The learned counsel appearing for the State submitted that the circular dated 12.04.1974 was upheld by the High Court of Madhya Pradesh in Sadashiv Giri and others v. Commissioner, Ujjain and others 1985 RN 371 insofar as it applied to public temples. 24. The First Appellate Court has referred to the order of the High Court in LPA No.36/94 (27.07.1995) in and by which the High Court has directed to cancel the executive orders dated 18.11.1992 by which the names of the priests were removed from revenue records. As pointed out by the First Appellate Court, pendency of such matters would not in any way affect the rights of Deity of Shri Ram Mandir in the suit properties as Shri Ram Mandir has been recorded as Bhumiswami for the suit properties. As discussed earlier, appellant Ram Bali Das was continued to be recorded only as pujari of Shri Ram Mandir. As discussed infra, on the application filed by pujari Ram Das, Bajrang Das has been appointed as pujari by SDO. 25. Plaintiff Ram Das himself got the land in the year 1985-86 on lease for Rs.860/- from the Government and in this respect, he has signed on the order sheet in case No.93B/121-85-86. An amount of Rs.600/- was deposited on 31.07.1986. Thereafter, in the year 1986-87, pujari Ram Das got the lease renewed for one year at Rs.860/- out of which he has deposited Rs.460/- on 11.11.1987 for which a receipt has been issued to pujari Ram Das. The fact that the appellant having taken the Mandir lands on lease from the Government clearly shows that the properties were never owned by the pujaris in their individual capacity. Having taken the Mandir property on lease from the Government, the appellant is estopped from denying that the temple properties are under the management and control of the Government. The suit lands have been given in the name of Shri Ram Mandir and few other lands in the name of Ganesh Mandir for the arrangement of pooja, archana, naivedya, etc. for the public temple and the pujari has no right to interfere in the management of these lands as his status is only that of pujari. 26. The finding of the first appellate court and the High Court that Shri Ram Mandir is a public temple and not a private one is based upon the appreciation of oral and documentary evidence. Bajrang Das (PW-1) himself has been appointed as pujari by the Government and the appellant/plaintiff has not adduced any evidence showing that the temple belonged to one particular family. By oral and documentary evidence, it is clearly established that the suit lands are recorded in the name of Shri Ram Mandir.
### Response:
0
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307 |
Oriental Insurance Co. Ltd Vs. Deo Patodi
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Bidya Dhar Dutta & Ors. [(2006) 3 SCC 242] this court deducted 1/3rd from the earnings of the deceased inter alia holding: "...It is by now well settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a "multiplier". The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to ones earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs.8000 to Rs.10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years old at the time of the accident. MACT has accepted Rs.4000 per month, as the earning of the deceased and after deducting Rs .400 per month for his pocket expenses, the remaining sum of Rs. 3600 has been divided into three equal shares, out of which two shares i.e. Rs.2400 per month or Rs.28,800 (wrongly mentioned as Rs.28,000 in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs 28,800 x 12 = Rs.3,45,600 was awarded as compensation." In Bilkish vs. United India Insurance Co. Ltd. [(2008) 4 SCC 259] , this Court held: "4. After hearing learned Counsel for the parties, we are of the opinion that the view taken by the High Court & Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family....." Yet again in Bangalore Metropolitan Transport Corporation vs. Sarojamma & Anr. [(2008) 5 SCC 142] , this Court held: "9. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof......" In Syed Basheer Ahamed & Ors. vs. Mohammed Jameel & Anr. [(2009) 2 SCC 225] , one-half (50%) of the income was held to be deductible if the deceased was a bachelor. 14. Indisputably, deduction of 1/3rd towards personal expenses is the ordinary rule in India. We think that in the facts and circumstances of the case, the same should be applied. The concept of joint family unlike the western countries where it has been wholly evaporated, although on the decline, should also be taken into consideration. The deceaseds father was a Doctor working in a Government Hospital; he was aged about 51 years at the time of the accident; he would have retired from the Government job after a few years. He might not, therefore, be completely dependent upon his son. We, therefore, are of the opinion that having regard to his age as also the age of his wife multiplier of 10 should be applied. We do so keeping in view the fact that the Court has a duty to grant a just and reasonable compensation. What would, however, be a just and reasonable compensation depends upon the fact situation obtaining in each case. No hard and fast rule therefore can be laid down. The Court must also bear in mind that compensation should not be treated to be wind-fall.15. We are not oblivious of the fact that the multiplier referred to in the Second Schedule in the Act may not automatically be applied in a case initiated under Section 166 of the Act. We have applied the aforementioned multiplier keeping in view the fact that the multiplier specified in the Second Schedule would not ordinarily be applicable in a case under Section 166 of the Act.16. The finding required to be arrived at by the choice of multiplicand as also the multiplier would depend upon a large number of factors as this aspect of the matter has been considered in various judgments, the same need not be reiterated.17. The question, in an appropriate case, may require consideration by a larger Bench.
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0[ds]10. The Tribunal and the High Court, however, in our opinion, keeping in view the aforementioned backdrop might not be correct in holding that he would have earned only Rs.18,000/per month. It is true that the cost of living in the western countries would be higher. The standard of living in the western countries cannot be followed; in the absence of any material placed before this Court it should not be followed in India. Even in a case where the victim of an accident was earning salary in U.S. Dollars, this Court opined that a lower multiplier should be applied.Indisputably, deduction of 1/3rd towards personal expenses is the ordinary rule in India. We think that in the facts and circumstances of the case, the same should be applied. The concept of joint family unlike the western countries where it has been wholly evaporated, although on the decline, should also be taken into consideration. The deceaseds father was a Doctor working in a Government Hospital; he was aged about 51 years at the time of the accident; he would have retired from the Government job after a few years. He might not, therefore, be completely dependent upon his son. We, therefore, are of the opinion that having regard to his age as also the age of his wife multiplier of 10 should be applied. We do so keeping in view the fact that the Court has a duty to grant a just and reasonable compensation. What would, however, be a just and reasonable compensation depends upon the fact situation obtaining in each case. No hard and fast rule therefore can be laid down. The Court must also bear in mind that compensation should not be treated to be wind-fall.15. We are not oblivious of the fact that the multiplier referred to in the Second Schedule in the Act may not automatically be applied in a case initiated under Section 166 of the Act. We have applied the aforementioned multiplier keeping in view the fact that the multiplier specified in the Second Schedule would not ordinarily be applicable in a case under Section 166 of the Act.16. The finding required to be arrived at by the choice of multiplicand as also the multiplier would depend upon a large number of factors as this aspect of the matter has been considered in various judgments, the same need not be reiterated.17. The question, in an appropriate case, may require consideration by a larger Bench.
| 0 | 3,608 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
Bidya Dhar Dutta & Ors. [(2006) 3 SCC 242] this court deducted 1/3rd from the earnings of the deceased inter alia holding: "...It is by now well settled that the compensation should be the pecuniary loss to the dependants by the death of a person concerned. While calculating the compensation, annual dependency of the dependants should be determined in terms of the annual loss, according to them, due to the abrupt termination of life. To determine the quantum of compensation, the earnings of the deceased at the time of the accident and the amount, which the deceased was spending for the dependants, are the basic determinative factors. The resultant figure should then be multiplied by a "multiplier". The multiplier is applied not for the entire span of life of a person, but it is applied taking into consideration the imponderables in life, immediate availability of the amount to the dependants, the expectancy of the period of dependency of the claimants and so many other factors. Contribution towards the expenses of the family, naturally is in proportion to ones earning capacity. In the present case, the earning of the deceased and consequently the amount which he was spending over the members of his family i.e. dependency is to be worked out on the basis of the earnings of the deceased at the time of the accident. The mere assertion of the claimants that the deceased would have earned more than Rs.8000 to Rs.10,000 per month in the span of his lifetime cannot be accepted as legitimate income unless all the relevant facts are proved by leading cogent and reliable evidence before MACT. The claimants have to prove that the deceased was in a trade where he would have earned more from time to time or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. There is no evidence produced on record by the claimants regarding future prospects of increase of income in the course of employment or business or profession, as the case may be. It is stated that the deceased was about 24 years old at the time of the accident. MACT has accepted Rs.4000 per month, as the earning of the deceased and after deducting Rs .400 per month for his pocket expenses, the remaining sum of Rs. 3600 has been divided into three equal shares, out of which two shares i.e. Rs.2400 per month or Rs.28,800 (wrongly mentioned as Rs.28,000 in the award), were assessed as loss to both the claimants, who were the parents of the deceased. The ages of the claimants are stated to be between 45 and 50 years and accordingly multiplier of 12 was applied. Thus, a sum of Rs 28,800 x 12 = Rs.3,45,600 was awarded as compensation." In Bilkish vs. United India Insurance Co. Ltd. [(2008) 4 SCC 259] , this Court held: "4. After hearing learned Counsel for the parties, we are of the opinion that the view taken by the High Court & Tribunal is not correct. The incumbent was a bachelor and he could not have spent more than 1/3rd of his total income for personal use and rest of the amount earned by him would certainly go to the family kitty. Therefore, determining the loss of dependency by 50% was not correct. Therefore, we assess that he must be spending 1/3rd towards personal use and contributing 2/3rd of his income to his family....." Yet again in Bangalore Metropolitan Transport Corporation vs. Sarojamma & Anr. [(2008) 5 SCC 142] , this Court held: "9. Whereas in determining an application for grant of compensation under Section 166 of the Act, the Tribunal may be entitled to find out actual loss of damages suffered by the claimants, the formula having not envisaged such a contingency, we are of the opinion that ordinarily one-third should be deducted from the income of the deceased and not the half thereof......" In Syed Basheer Ahamed & Ors. vs. Mohammed Jameel & Anr. [(2009) 2 SCC 225] , one-half (50%) of the income was held to be deductible if the deceased was a bachelor. 14. Indisputably, deduction of 1/3rd towards personal expenses is the ordinary rule in India. We think that in the facts and circumstances of the case, the same should be applied. The concept of joint family unlike the western countries where it has been wholly evaporated, although on the decline, should also be taken into consideration. The deceaseds father was a Doctor working in a Government Hospital; he was aged about 51 years at the time of the accident; he would have retired from the Government job after a few years. He might not, therefore, be completely dependent upon his son. We, therefore, are of the opinion that having regard to his age as also the age of his wife multiplier of 10 should be applied. We do so keeping in view the fact that the Court has a duty to grant a just and reasonable compensation. What would, however, be a just and reasonable compensation depends upon the fact situation obtaining in each case. No hard and fast rule therefore can be laid down. The Court must also bear in mind that compensation should not be treated to be wind-fall.15. We are not oblivious of the fact that the multiplier referred to in the Second Schedule in the Act may not automatically be applied in a case initiated under Section 166 of the Act. We have applied the aforementioned multiplier keeping in view the fact that the multiplier specified in the Second Schedule would not ordinarily be applicable in a case under Section 166 of the Act.16. The finding required to be arrived at by the choice of multiplicand as also the multiplier would depend upon a large number of factors as this aspect of the matter has been considered in various judgments, the same need not be reiterated.17. The question, in an appropriate case, may require consideration by a larger Bench.
### Response:
0
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308 |
Union of India & Ors Vs. Ashish Agarwal
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M. R. Shah, J. Leave granted in SLP (C) Nos. 6448/2022, 5381/2022, 5079/2022, 6092/2022, 6534/2022, 6158/2022, 6316/2022, 6281/2022, 6545/2022, 6038/2022. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court of Judicature at Allahabad in Writ Tax No. 524/2021 and other allied writ tax petitions, by which the High Court has allowed the said writ petitions and has quashed several reassessment notices issued by the Revenue, issued under section 148 of the Income Tax Act, 1961, on the ground that the same are bad in law in view of the amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing new provisions i.e. sections 147 to 151 w.e.f. 1st April, 2021, the Revenue has preferred the present appeals. 2. Similar judgments and orders are passed by various other High Courts including High Court of Delhi; High Court of Rajasthan; High Court of Calcutta; High Court of Madras; High Court of Bombay, the particulars of which are as under: - Sl. No. Particulars 1. Ashok Kumar Agarwal Vs. UOI (Allahabad HC) Judgment passed by the Honble High Court of Allahabad at Allahabad in Writ Tax No. 524/2021 dated 30.09.2021 2. Bpip Infra Pvt. Ltd. Vs. Income Tax Officer & Others (Rajasthan HC) Judgment in S.B. Civil Writ Petition No. 13297/2021 passed by the Honble High Court of Rajasthan at Jaipur dated 25.11.2021 3. Mon Mohan Kohli Vs. ACIT (Delhi HC) Judgment passed by the Honble High Court of Delhi in W.P.(C) No. 6176/2021 dated 15.12.2021 4. Bagaria Properties & Investment Pvt. Ltd. Vs. UOI (Calcutta HC) Judgment passed by the Honble High Court of Calcutta in W.P.O No. 244/2021 dated 17.01.2022 5. Manoj Jain Vs. UOI (Calcutta HC) Judgment passed by the Honble High Court of Calcutta in W.P.A. No. 11950 of 2021 dated 17.01.2022 6. Sudesh Taneja Vs. ITO (Rajasthan HC) Judgment passed by the Honble High Court of Rajasthan in D.B. Civil Writ Petition No. 969 of 2022 dated 27.01.2022 7. Vellore Institute of Technology Vs. CBDT (Madras HC) Judgment passed by the Honble High Court of Madras in W.P. No. 15019/2021 dated 04.02.2022. 8. Tata Communications Transformation Services Vs. ACIT (Bombay HC) Judgment passed by the Honble High Court of Bombay in Writ Petition No. 1334 of 2021 dated 29.03.2022 At this stage, it is required to be noted that approximately 90,000 such reassessment notices under section 148 of the unamended Income Tax Act were issued by the Revenue after 01.04.2021, which were the subject matter of more than 9000 writ petitions before various High Courts across the country and by different judgments and orders, the particulars of which are as above, the High Courts have taken a similar view and have set aside the respective reassessment notices issued under section 148 on similar grounds. 2.1 The common judgment and order passed by the Allahabad High Court is the subject matter of the present appeals. Shri N. Venkataraman, learned ASG, stated at the bar that the Revenue is contemplating to prefer appeals against the similar judgments and orders passed by various High Courts.
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1[ds]7. Thus, the new provisions substituted by the Finance Act, 2021 being remedial and benevolent in nature and substituted with a specific aim and object to protect the rights and interest of the assessee as well as and the same being in public interest, the respective High Courts have rightly held that the benefit of new provisions shall be made available even in respect of the proceedings relating to past assessment years, provided section 148 notice has been issued on or after 1st April, 2021. We are in complete agreement with the view taken by the various High Courts in holding so.8. However, at the same time, the judgments of the several High Courts would result in no reassessment proceedings at all, even if the same are permissible under the Finance Act, 2021 and as per substituted sections 147 to 151 of the IT Act. The Revenue cannot be made remediless and the object and purpose of reassessment proceedings cannot be frustrated. It is true that due to a bonafide mistake and in view of subsequent extension of time vide various notifications, the Revenue issued the impugned notices under section 148 after the amendment was enforced w.e.f. 01.04.2021, under the unamended section 148. In our view the same ought not to have been issued under the unamended Act and ought to have been issued under the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021. There appears to be genuinen of the amendments as the officers of the Revenue may have been under a bonafide belief that the amendments may not yet have been enforced. Therefore, we are of the opinion that some leeway must be shown in that regard which the High Courts could have done so. Therefore, instead of quashing and setting aside the reassessment notices issued under the unamended provision of IT Act, the High Courts ought to have passed an order construing the notices issued under unamended Act/unamended provision of the IT Act as those deemed to have been issued under section 148A of the IT Act as per the new provision section 148A and the Revenue ought to have been permitted to proceed further with the reassessment proceedings as per the substituted provisions of sections 147 to 151 of the IT Act as per the Finance Act, 2021, subject to compliance of all the procedural requirements and the defences, which may be available to the assessee under the substituted provisions of sections 147 to 151 of the IT Act and which may be available under the Finance Act, 2021 and in law.
| 1 | 606 |
### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
### Input:
M. R. Shah, J. Leave granted in SLP (C) Nos. 6448/2022, 5381/2022, 5079/2022, 6092/2022, 6534/2022, 6158/2022, 6316/2022, 6281/2022, 6545/2022, 6038/2022. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court of Judicature at Allahabad in Writ Tax No. 524/2021 and other allied writ tax petitions, by which the High Court has allowed the said writ petitions and has quashed several reassessment notices issued by the Revenue, issued under section 148 of the Income Tax Act, 1961, on the ground that the same are bad in law in view of the amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing new provisions i.e. sections 147 to 151 w.e.f. 1st April, 2021, the Revenue has preferred the present appeals. 2. Similar judgments and orders are passed by various other High Courts including High Court of Delhi; High Court of Rajasthan; High Court of Calcutta; High Court of Madras; High Court of Bombay, the particulars of which are as under: - Sl. No. Particulars 1. Ashok Kumar Agarwal Vs. UOI (Allahabad HC) Judgment passed by the Honble High Court of Allahabad at Allahabad in Writ Tax No. 524/2021 dated 30.09.2021 2. Bpip Infra Pvt. Ltd. Vs. Income Tax Officer & Others (Rajasthan HC) Judgment in S.B. Civil Writ Petition No. 13297/2021 passed by the Honble High Court of Rajasthan at Jaipur dated 25.11.2021 3. Mon Mohan Kohli Vs. ACIT (Delhi HC) Judgment passed by the Honble High Court of Delhi in W.P.(C) No. 6176/2021 dated 15.12.2021 4. Bagaria Properties & Investment Pvt. Ltd. Vs. UOI (Calcutta HC) Judgment passed by the Honble High Court of Calcutta in W.P.O No. 244/2021 dated 17.01.2022 5. Manoj Jain Vs. UOI (Calcutta HC) Judgment passed by the Honble High Court of Calcutta in W.P.A. No. 11950 of 2021 dated 17.01.2022 6. Sudesh Taneja Vs. ITO (Rajasthan HC) Judgment passed by the Honble High Court of Rajasthan in D.B. Civil Writ Petition No. 969 of 2022 dated 27.01.2022 7. Vellore Institute of Technology Vs. CBDT (Madras HC) Judgment passed by the Honble High Court of Madras in W.P. No. 15019/2021 dated 04.02.2022. 8. Tata Communications Transformation Services Vs. ACIT (Bombay HC) Judgment passed by the Honble High Court of Bombay in Writ Petition No. 1334 of 2021 dated 29.03.2022 At this stage, it is required to be noted that approximately 90,000 such reassessment notices under section 148 of the unamended Income Tax Act were issued by the Revenue after 01.04.2021, which were the subject matter of more than 9000 writ petitions before various High Courts across the country and by different judgments and orders, the particulars of which are as above, the High Courts have taken a similar view and have set aside the respective reassessment notices issued under section 148 on similar grounds. 2.1 The common judgment and order passed by the Allahabad High Court is the subject matter of the present appeals. Shri N. Venkataraman, learned ASG, stated at the bar that the Revenue is contemplating to prefer appeals against the similar judgments and orders passed by various High Courts.
### Response:
1
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309 |
B.L. PASSI Vs. COMMISSIONER OF INCOME TAX (XI)
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facts of the case at hand, it is evident from record that the major information sent by the Appellant to the Sumitomo Corporation was in the form of blue prints for the manufacture of dies for stamping of doors. Several letters were exchanged between the parties but there is nothing on record as to how this blue print was obtained and dispatched to the aforesaid company. It is also evident on record that the Appellant has not furnished the copy of the blue print which was sent to the Sumitomo Corporation neither before the Assessing Officer nor before the Appellate authority nor before the Tribunal. The provisions of Section 80-O of the IT Act mandate the production of document in respect of which relief has been sought. We, therefore, have to examine whether the services rendered in the form of blue prints and information provided by the Appellant fall within the ambit of Section 80-O of the IT Act or any of the conditions stipulated therein in order to entitle the assessee to claim deduction.14. In New Encyclopaedia Britannica, where the term?technical assistance?had been considered, it has been stated that technical assistance may involve sending experts into the field to teach skills and to help solve problems in their areas of specialisation, such as irrigation, agriculture, fisheries, education, public health, or forestry. In New Webster?s Dictionary of the English Language the word?technical?means what is characteristic of a particular art, science, profession, or trade and the word?technology?means the branch of knowledge that deals with the industrial arts and sciences; utilisation of such knowledge; the knowledge and means used to produce the material necessities of a society.15. In J.K. (Bombay) Ltd. vs. Central Board of Direct Taxes and Another (1979) 118 ITR 312 (Del.) , the interpretation of technical assistance has been described as under:-?We have shown above that adopting the wider meaning of the word?technical?would defeat the object of Section 80-O by enabling the remuneration for management or running of a foreign company to be eligible for deduction under Section 80-O. On the other hand, the narrower meaning of the word?technical?seems to be more in keeping with the object of the section. It has to be remembered that the word?technology?,which has affinity with the word?technical?is concerned with the control of material environment by man. This is done by two means. Firstly, by the use of tools, and, secondly, by the application of reason to the properties of matter and secondly, by the application of reason to the properties of matter and energy. It would appear, therefore, that it would be reasonable to think that technical services should include the use of tools and machinery in addition to the use of reason. Managerial services which do not include any use of tools and machinery may not be regarded as technical services.?16. The blue prints made available by the Appellant to the Corporation can be considered as technical assistance provided by the Appellant to the Corporation in the circumstances if the description of the blue prints is available on record. The said blue prints were not even produced before the lower authorities. In such scenario, when the claim of the Appellant is solely relying upon the technical assistance rendered to the Corporation in the form of blue prints, its unavailability creates a doubt and burden of proof is on the Appellant to prove that on the basis of those blue prints, the Corporation was able to start up their business in India and he was paid the amount as service charge.17. Further, with regard to the remuneration to be paid to the Appellant for the services rendered, in terms of the letter dated 25.01.1995, it has been specifically referred that the remuneration would be payable for the commercial and industrial information supplied only if the business plans prepared by the Appellant results positively. Sumitomo Corporation will pay to PASCO International service charges equivalent to 5% (per cent) of the contractual amount between Sumitomo and its customers in India on sales of its products so developed. From a perusal of the above, it is clear that the Appellant was entitled to service charges at the rate of 5% (per cent) of the contractual amount between Sumitomo Corporation and its customers in India on sales of its products so developed but there is nothing on record to prove that any product was so developed by the Sumitomo Corporation on the basis of the blue prints supplied by the Appellant as also that the Sumitomo Corporation was able to sell any product developed by it by using the information supplied by the Appellant. Meaning thereby, there is no material on record to prove the sales effected by Sumitomo Corporation to its customers in India in respect of any product developed with the assistance of Appellant?s information and also on as to how the service charges payable to Appellant were computed.18. In view of the foregoing discussion, we are of the considered opinion that in the present facts and circumstances of the case, the services of managing agent, i.e., the Appellant, rendered to a foreign company, are not technical services within the meaning of Section 80-O of the IT Act. The Appellant failed to prove that he rendered technical services to the Sumitomo Corporation and also the relevant documents to prove the basis for alleged payment by the Corporation to him. The letters exchanged between the parties cannot be claimed for getting deduction under Section 80-O of the IT Act.19. Before parting with the appeal, it is pertinent to mention here that it is settled law that the expressions used in a taxing statute would ordinarily be understood in the sense in which it is harmonious with the object of the Statute to effectuate the legislative animation. The Appellant was a managing agent and the High Court was right in holding the principal agent relationship between the parties and there is no basis for grant of deduction to the Appellant under Section 80-O of the IT Act.20.
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0[ds]The blue prints made available by the Appellant to the Corporation can be considered as technical assistance provided by the Appellant to the Corporation in the circumstances if the description of the blue prints is available on record. The said blue prints were not even produced before the lower authorities. In such scenario, when the claim of the Appellant is solely relying upon the technical assistance rendered to the Corporation in the form of blue prints, its unavailability creates a doubt and burden of proof is on the Appellant to prove that on the basis of those blue prints, the Corporation was able to start up their business in India and he was paid the amount as serviceFurther, with regard to the remuneration to be paid to the Appellant for the services rendered, in terms of the letter dated 25.01.1995, it has been specifically referred that the remuneration would be payable for the commercial and industrial information supplied only if the business plans prepared by the Appellant results positively. Sumitomo Corporation will pay to PASCO International service charges equivalent to 5% (per cent) of the contractual amount between Sumitomo and its customers in India on sales of its products so developed. From a perusal of the above, it is clear that the Appellant was entitled to service charges at the rate of 5% (per cent) of the contractual amount between Sumitomo Corporation and its customers in India on sales of its products so developed but there is nothing on record to prove that any product was so developed by the Sumitomo Corporation on the basis of the blue prints supplied by the Appellant as also that the Sumitomo Corporation was able to sell any product developed by it by using the information supplied by the Appellant. Meaning thereby, there is no material on record to prove the sales effected by Sumitomo Corporation to its customers in India in respect of any product developed with the assistance of Appellant?s information and also on as to how the service charges payable to Appellant wereIn view of the foregoing discussion, we are of the considered opinion that in the present facts and circumstances of the case, the services of managing agent, i.e., the Appellant, rendered to a foreign company, are not technical services within the meaning of Sectionof the IT Act. The Appellant failed to prove that he rendered technical services to the Sumitomo Corporation and also the relevant documents to prove the basis for alleged payment by the Corporation to him. The letters exchanged between the parties cannot be claimed for getting deduction under Sectionof the ITBefore parting with the appeal, it is pertinent to mention here that it is settled law that the expressions used in a taxing statute would ordinarily be understood in the sense in which it is harmonious with the object of the Statute to effectuate the legislative animation. The Appellant was a managing agent and the High Court was right in holding the principal agent relationship between the parties and there is no basis for grant of deduction to the Appellant under Sectionof the IT
| 0 | 3,225 |
### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
### Input:
facts of the case at hand, it is evident from record that the major information sent by the Appellant to the Sumitomo Corporation was in the form of blue prints for the manufacture of dies for stamping of doors. Several letters were exchanged between the parties but there is nothing on record as to how this blue print was obtained and dispatched to the aforesaid company. It is also evident on record that the Appellant has not furnished the copy of the blue print which was sent to the Sumitomo Corporation neither before the Assessing Officer nor before the Appellate authority nor before the Tribunal. The provisions of Section 80-O of the IT Act mandate the production of document in respect of which relief has been sought. We, therefore, have to examine whether the services rendered in the form of blue prints and information provided by the Appellant fall within the ambit of Section 80-O of the IT Act or any of the conditions stipulated therein in order to entitle the assessee to claim deduction.14. In New Encyclopaedia Britannica, where the term?technical assistance?had been considered, it has been stated that technical assistance may involve sending experts into the field to teach skills and to help solve problems in their areas of specialisation, such as irrigation, agriculture, fisheries, education, public health, or forestry. In New Webster?s Dictionary of the English Language the word?technical?means what is characteristic of a particular art, science, profession, or trade and the word?technology?means the branch of knowledge that deals with the industrial arts and sciences; utilisation of such knowledge; the knowledge and means used to produce the material necessities of a society.15. In J.K. (Bombay) Ltd. vs. Central Board of Direct Taxes and Another (1979) 118 ITR 312 (Del.) , the interpretation of technical assistance has been described as under:-?We have shown above that adopting the wider meaning of the word?technical?would defeat the object of Section 80-O by enabling the remuneration for management or running of a foreign company to be eligible for deduction under Section 80-O. On the other hand, the narrower meaning of the word?technical?seems to be more in keeping with the object of the section. It has to be remembered that the word?technology?,which has affinity with the word?technical?is concerned with the control of material environment by man. This is done by two means. Firstly, by the use of tools, and, secondly, by the application of reason to the properties of matter and secondly, by the application of reason to the properties of matter and energy. It would appear, therefore, that it would be reasonable to think that technical services should include the use of tools and machinery in addition to the use of reason. Managerial services which do not include any use of tools and machinery may not be regarded as technical services.?16. The blue prints made available by the Appellant to the Corporation can be considered as technical assistance provided by the Appellant to the Corporation in the circumstances if the description of the blue prints is available on record. The said blue prints were not even produced before the lower authorities. In such scenario, when the claim of the Appellant is solely relying upon the technical assistance rendered to the Corporation in the form of blue prints, its unavailability creates a doubt and burden of proof is on the Appellant to prove that on the basis of those blue prints, the Corporation was able to start up their business in India and he was paid the amount as service charge.17. Further, with regard to the remuneration to be paid to the Appellant for the services rendered, in terms of the letter dated 25.01.1995, it has been specifically referred that the remuneration would be payable for the commercial and industrial information supplied only if the business plans prepared by the Appellant results positively. Sumitomo Corporation will pay to PASCO International service charges equivalent to 5% (per cent) of the contractual amount between Sumitomo and its customers in India on sales of its products so developed. From a perusal of the above, it is clear that the Appellant was entitled to service charges at the rate of 5% (per cent) of the contractual amount between Sumitomo Corporation and its customers in India on sales of its products so developed but there is nothing on record to prove that any product was so developed by the Sumitomo Corporation on the basis of the blue prints supplied by the Appellant as also that the Sumitomo Corporation was able to sell any product developed by it by using the information supplied by the Appellant. Meaning thereby, there is no material on record to prove the sales effected by Sumitomo Corporation to its customers in India in respect of any product developed with the assistance of Appellant?s information and also on as to how the service charges payable to Appellant were computed.18. In view of the foregoing discussion, we are of the considered opinion that in the present facts and circumstances of the case, the services of managing agent, i.e., the Appellant, rendered to a foreign company, are not technical services within the meaning of Section 80-O of the IT Act. The Appellant failed to prove that he rendered technical services to the Sumitomo Corporation and also the relevant documents to prove the basis for alleged payment by the Corporation to him. The letters exchanged between the parties cannot be claimed for getting deduction under Section 80-O of the IT Act.19. Before parting with the appeal, it is pertinent to mention here that it is settled law that the expressions used in a taxing statute would ordinarily be understood in the sense in which it is harmonious with the object of the Statute to effectuate the legislative animation. The Appellant was a managing agent and the High Court was right in holding the principal agent relationship between the parties and there is no basis for grant of deduction to the Appellant under Section 80-O of the IT Act.20.
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310 |
National Insurance Co.Ltd Vs. Rattani
|
company to prove breach of conditions of the insurance policy and the same having not been done, the judgment of the Tribunal cannot be assailed.In this connection our attention has been drawn to the following findings of the Tribunal :- "In the present case the evidence on record indicates that deceased Sunil Kumar and other injured were occupying the offending vehicle as being representative of the owner of the goods. No evidence was produced on behalf of the Insurance Company to the effect that deceased and injured were gratuitous passengers.......All the injured petitioners were cross examined at length but nothing useful to the case of Insurance Company could be exacted from them. They deposed that for carrying members of marriage party there was one bus. Hence it is observed that Insurance Company failed to prove that insured had violated the terms and conditions of the Insurance Policy. Deceased Sunil and injured Maru and Rameshwar were not gratuitous passengers in the offending vehicle being representative of the owner of the goods." 11. Ordinarily we would not have entered into the realm of appreciation of evidence but as the High Court failed and/or neglected to do so, we have no other option but to undertake the job of the High Court. The first information report which was brought on record, clearly proceeded on the basis that the deceased and the other injured persons were members of the marriage party. 12. Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Even otherwise in view of the averments made in the claim petition and the first information report the said contention cannot be accepted. Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 - 40 persons were traveling in the tempo truck. All 30 - 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift. 13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. 14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable. Reliance placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] is misplaced. The question which arose for consideration therein was as to whether the words "any person" shall include a gratuitous passenger despite the amendment made in Section 147 of the Act by reason of the Motor Vehicles (Amendment) Act, 1994. Following New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223] , it was categorically held: "20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." In National Insurance Co. Ltd. v. Cholleti Bharatamma and Others [(2008) 1 SCC 423] , this Court categorically held: "27. The learned counsel appearing for the respondent, submitted that from the aforementioned finding, it is evident that the respondent was travelling as the owner of the goods. We do not think that the said submission is correct. PW 2, in his evidence, stated:"I am doing tamarind business. I witnessed the accident which took place about 3 years back at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of the driver. Myself and 6 others were carrying tamarind in that lorry belonging to us. We boarded the lorry along with our load of tamarind at Dharamavaram to go to Rajanagaram. We were selling the tamarind at Rajanagaram in retail by taking the tamarind there in our lorry from our village of Dharamavaram."28. The Tribunal, therefore, correctly recorded that according to PW 2, he was travelling with his goods as owner thereof and not the deceased." We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants. 15. For the reasons aforementioned, the
|
1[ds]Ordinarily we would not have entered into the realm of appreciation of evidence but as the High Court failed and/or neglected to do so, we have no other option but to undertake the job of the High Court. The first information report which was brought on record, clearly proceeded on the basis that the deceased and the other injured persons were members of the marriagequestion as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitousindicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementionedadmission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable.
| 1 | 2,025 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
company to prove breach of conditions of the insurance policy and the same having not been done, the judgment of the Tribunal cannot be assailed.In this connection our attention has been drawn to the following findings of the Tribunal :- "In the present case the evidence on record indicates that deceased Sunil Kumar and other injured were occupying the offending vehicle as being representative of the owner of the goods. No evidence was produced on behalf of the Insurance Company to the effect that deceased and injured were gratuitous passengers.......All the injured petitioners were cross examined at length but nothing useful to the case of Insurance Company could be exacted from them. They deposed that for carrying members of marriage party there was one bus. Hence it is observed that Insurance Company failed to prove that insured had violated the terms and conditions of the Insurance Policy. Deceased Sunil and injured Maru and Rameshwar were not gratuitous passengers in the offending vehicle being representative of the owner of the goods." 11. Ordinarily we would not have entered into the realm of appreciation of evidence but as the High Court failed and/or neglected to do so, we have no other option but to undertake the job of the High Court. The first information report which was brought on record, clearly proceeded on the basis that the deceased and the other injured persons were members of the marriage party. 12. Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Even otherwise in view of the averments made in the claim petition and the first information report the said contention cannot be accepted. Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 - 40 persons were traveling in the tempo truck. All 30 - 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift. 13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. 14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable. Reliance placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] is misplaced. The question which arose for consideration therein was as to whether the words "any person" shall include a gratuitous passenger despite the amendment made in Section 147 of the Act by reason of the Motor Vehicles (Amendment) Act, 1994. Following New India Assurance Co. Ltd. v. Asha Rani [(2003) 2 SCC 223] , it was categorically held: "20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people." In National Insurance Co. Ltd. v. Cholleti Bharatamma and Others [(2008) 1 SCC 423] , this Court categorically held: "27. The learned counsel appearing for the respondent, submitted that from the aforementioned finding, it is evident that the respondent was travelling as the owner of the goods. We do not think that the said submission is correct. PW 2, in his evidence, stated:"I am doing tamarind business. I witnessed the accident which took place about 3 years back at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of the driver. Myself and 6 others were carrying tamarind in that lorry belonging to us. We boarded the lorry along with our load of tamarind at Dharamavaram to go to Rajanagaram. We were selling the tamarind at Rajanagaram in retail by taking the tamarind there in our lorry from our village of Dharamavaram."28. The Tribunal, therefore, correctly recorded that according to PW 2, he was travelling with his goods as owner thereof and not the deceased." We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants. 15. For the reasons aforementioned, the
### Response:
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311 |
Saran Dass and Others Vs. Chief Settlement Commissioner, Punjab and Others
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units of lands in village Mallewala, Tehsil Sirsa, District Hissar, in lieu of lands abandoned by him in five villages in Tehsil Depalpur, District Montgomery. This was done on this application as Mahant Gaddinashin of an institution known as "Gaddi Kacha Pacca" in Tehsil Depalpur. According to him, he had re-established that institution in village Mallewala after the partition of India and was therefore, entitled to get lands in lieu of lands which the institution had lot across the border. Later the Chief Settlement Commissioner considered the entire matter and held that the lands could not have been allotted to the appellant in lieu of lands which belong to "Gaddi Kacha Pacca" presumably because the Gaddi Kacha Pacca was incapable of being moved to another place an established there. The Settlement Commissioner in dealing with the matter observed that the institution was historical one and was, therefore, incapable of moving from a place in Pakistan to a place in India. The High Court as moved by a writ. The Writ Petition failed and this appeal is the result.2. In Samadh Parshotam Dass v. The Union of India and Others, (reported in 1962 PLR 1086), the High Court had ruled that Samadhis were not capable of being moved from one place to another and, therefore, no allotment of land could take place in lieu of lands lost across the border. That case came to this Court by way of appeal and the decision of this Court is reported in Civil Appeal No. 358 of 1965, decided on 26th February, 1968. Although the appeal and the Writ Petitions were allowed to be withdrawn by this Court, there is a clear statement of the fact that Samadhs were incapable of being shifted from one place to another and that, therefore, no allotment of land could take place.3. It appears that the institution had lands in more than one place one such being at village Kacha Pacca and the other in three different villages in which the name of the Mahant was recorded as Muafidar. The case could have been argued in the High Court that in respect of the lands which were recorded in his name as Muafidar, he was entitled to be rehabilitated by grant of lands in India. This plea, however, was not taken in the High Court and we may extract from the High Court judgment what exactly the case of the appellant was. The learned Judges in the High Court observed :"Following the above instructions, it was held in Samadh Parshotam Dass alias Jowand Singh v. The Union of India and Others, reported in 1962 PLR 1086 that in order to prove that an institution had moved to India under Paragraph 34 of the Land Resettlement Manual the institution had to establish itself in East Punjab within a reasonable time. It was also held that the Samadhs were not entitled at all to the allotments as they were incapable of moving into India and that the allotments made in favour of the Samadhs were rightly cancelled. In view of the above decision of a Division Bench of this Court, the only ground which has been taken by Mr. Wasu at the time of arguments is that this Court should apply the Doctrine of Cypres and that even if an institution is destroyed or otherwise it has become impossible to fulfil its objects the same institution may be set up at a new place and the property attached to the former institution should vest in the newly established institution."4. It is needless to say that the Doctrine of Cypres was completely misconceived in this case in connection with the law of rehabilitation of displaces person and, therefore, it was rightly disallowed by the High Court. The questions that has been debated before us by Mr. Bindra after mentioning the earlier case of the High Court is that the institution could have been re-established in India and further that apart from the institution, the lands which stood in the name of Mahant himself could be compensated for allotment of other lands in India. If this express argument had been made in the High Court then the earlier case of Punjab High Court on which reliance was placed, was perhaps distinguishable since it was a case of a Samadhi which would not be shifted. According to Mr. Bindra, the institution was not more than a carpet and portrait of Mahant Baba Siri Chand and that the institution followed the carpet and the portrait wherever the portrait and the carpet were installed. This argument was not considered in the High Court at all presumably because Mr. Wasu did not raise it. In fact, in the written statement filed on behalf of the respondents in the Writ Petition, it was quite clearly stated in Paragraph 3 that the institution was not capable of moving and could not be re-established in India and had actually not been re-established. If this lea had been taken by the respondents, it was all the more necessary for Mr. Wasu to reserved this point by arguing a distinction between the institution and a Samadhi with which our ruling was concerned. But Mr. Wasu did not mention the point and reserve it for a future appeal to this Court. Indeed it seems that Mr. Wasu was completely at a loss in the face of the ruling and that in pressing the Doctrine of Cypres before the High Court, he even forgot to mention the distinction between the two sets of land and did not make out a case that the other lands being the personal property of the appellant must be distinguished from the public property which were those of the institution at Kacha Pacca. These points apparently were not mooted in the High Court at all. It is too late now to revive the case here in this Court because by ignoring this point in the High Court, the appellant has lost his opportunity and has to thank himself.
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0[ds]3. It appears that the institution had lands in more than one place one such being at village Kacha Pacca and the other in three different villages in which the name of the Mahant was recorded as Muafidar. The case could have been argued in the High Court that in respect of the lands which were recorded in his name as Muafidar, he was entitled to be rehabilitated by grant of lands in India. This plea, however, was not taken in the High Court and we may extract from the High Court judgment what exactly the case of the appellant was. The learned Judges in the High Court observed :"Following the above instructions, it was held in Samadh Parshotam Dass alias Jowand Singh v. The Union of India and Others, reported in 1962 PLR 1086 that in order to prove that an institution had moved to India under Paragraph 34 of the Land Resettlement Manual the institution had to establish itself in East Punjab within a reasonable time. It was also held that the Samadhs were not entitled at all to the allotments as they were incapable of moving into India and that the allotments made in favour of the Samadhs were rightly cancelled. In view of the above decision of a Division Bench of this Court, the only ground which has been taken by Mr. Wasu at the time of arguments is that this Court should apply the Doctrine of Cypres and that even if an institution is destroyed or otherwise it has become impossible to fulfil its objects the same institution may be set up at a new place and the property attached to the former institution should vest in the newly established institution."4. It is needless to say that the Doctrine of Cypres was completely misconceived in this case in connection with the law of rehabilitation of displaces person and, therefore, it was rightly disallowed by the High Court. The questions that has been debated before us by Mr. Bindra after mentioning the earlier case of the High Court is that the institution could have beenin India and further that apart from the institution, the lands which stood in the name of Mahant himself could be compensated for allotment of other lands in India. If this express argument had been made in the High Court then the earlier case of Punjab High Court on which reliance was placed, was perhaps distinguishable since it was a case of a Samadhi which would not be shifted. According to Mr. Bindra, the institution was not more than a carpet and portrait of Mahant Baba Siri Chand and that the institution followed the carpet and the portrait wherever the portrait and the carpet were installed. This argument was not considered in the High Court at all presumably because Mr. Wasu did not raise it. In fact, in the written statement filed on behalf of the respondents in the Writ Petition, it was quite clearly stated in Paragraph 3 that the institution was not capable of moving and could not bein India and had actually not beenIf this lea had been taken by the respondents, it was all the more necessary for Mr. Wasu to reserved this point by arguing a distinction between the institution and a Samadhi with which our ruling was concerned. But Mr. Wasu did not mention the point and reserve it for a future appeal to this Court. Indeed it seems that Mr. Wasu was completely at a loss in the face of the ruling and that in pressing the Doctrine of Cypres before the High Court, he even forgot to mention the distinction between the two sets of land and did not make out a case that the other lands being the personal property of the appellant must be distinguished from the public property which were those of the institution at Kacha Pacca. These points apparently were not mooted in the High Court at all. It is too late now to revive the case here in this Court because by ignoring this point in the High Court, the appellant has lost his opportunity and has to thank himself.
| 0 | 1,114 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
### Input:
units of lands in village Mallewala, Tehsil Sirsa, District Hissar, in lieu of lands abandoned by him in five villages in Tehsil Depalpur, District Montgomery. This was done on this application as Mahant Gaddinashin of an institution known as "Gaddi Kacha Pacca" in Tehsil Depalpur. According to him, he had re-established that institution in village Mallewala after the partition of India and was therefore, entitled to get lands in lieu of lands which the institution had lot across the border. Later the Chief Settlement Commissioner considered the entire matter and held that the lands could not have been allotted to the appellant in lieu of lands which belong to "Gaddi Kacha Pacca" presumably because the Gaddi Kacha Pacca was incapable of being moved to another place an established there. The Settlement Commissioner in dealing with the matter observed that the institution was historical one and was, therefore, incapable of moving from a place in Pakistan to a place in India. The High Court as moved by a writ. The Writ Petition failed and this appeal is the result.2. In Samadh Parshotam Dass v. The Union of India and Others, (reported in 1962 PLR 1086), the High Court had ruled that Samadhis were not capable of being moved from one place to another and, therefore, no allotment of land could take place in lieu of lands lost across the border. That case came to this Court by way of appeal and the decision of this Court is reported in Civil Appeal No. 358 of 1965, decided on 26th February, 1968. Although the appeal and the Writ Petitions were allowed to be withdrawn by this Court, there is a clear statement of the fact that Samadhs were incapable of being shifted from one place to another and that, therefore, no allotment of land could take place.3. It appears that the institution had lands in more than one place one such being at village Kacha Pacca and the other in three different villages in which the name of the Mahant was recorded as Muafidar. The case could have been argued in the High Court that in respect of the lands which were recorded in his name as Muafidar, he was entitled to be rehabilitated by grant of lands in India. This plea, however, was not taken in the High Court and we may extract from the High Court judgment what exactly the case of the appellant was. The learned Judges in the High Court observed :"Following the above instructions, it was held in Samadh Parshotam Dass alias Jowand Singh v. The Union of India and Others, reported in 1962 PLR 1086 that in order to prove that an institution had moved to India under Paragraph 34 of the Land Resettlement Manual the institution had to establish itself in East Punjab within a reasonable time. It was also held that the Samadhs were not entitled at all to the allotments as they were incapable of moving into India and that the allotments made in favour of the Samadhs were rightly cancelled. In view of the above decision of a Division Bench of this Court, the only ground which has been taken by Mr. Wasu at the time of arguments is that this Court should apply the Doctrine of Cypres and that even if an institution is destroyed or otherwise it has become impossible to fulfil its objects the same institution may be set up at a new place and the property attached to the former institution should vest in the newly established institution."4. It is needless to say that the Doctrine of Cypres was completely misconceived in this case in connection with the law of rehabilitation of displaces person and, therefore, it was rightly disallowed by the High Court. The questions that has been debated before us by Mr. Bindra after mentioning the earlier case of the High Court is that the institution could have been re-established in India and further that apart from the institution, the lands which stood in the name of Mahant himself could be compensated for allotment of other lands in India. If this express argument had been made in the High Court then the earlier case of Punjab High Court on which reliance was placed, was perhaps distinguishable since it was a case of a Samadhi which would not be shifted. According to Mr. Bindra, the institution was not more than a carpet and portrait of Mahant Baba Siri Chand and that the institution followed the carpet and the portrait wherever the portrait and the carpet were installed. This argument was not considered in the High Court at all presumably because Mr. Wasu did not raise it. In fact, in the written statement filed on behalf of the respondents in the Writ Petition, it was quite clearly stated in Paragraph 3 that the institution was not capable of moving and could not be re-established in India and had actually not been re-established. If this lea had been taken by the respondents, it was all the more necessary for Mr. Wasu to reserved this point by arguing a distinction between the institution and a Samadhi with which our ruling was concerned. But Mr. Wasu did not mention the point and reserve it for a future appeal to this Court. Indeed it seems that Mr. Wasu was completely at a loss in the face of the ruling and that in pressing the Doctrine of Cypres before the High Court, he even forgot to mention the distinction between the two sets of land and did not make out a case that the other lands being the personal property of the appellant must be distinguished from the public property which were those of the institution at Kacha Pacca. These points apparently were not mooted in the High Court at all. It is too late now to revive the case here in this Court because by ignoring this point in the High Court, the appellant has lost his opportunity and has to thank himself.
### Response:
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312 |
M/s. Gem Granites Vs. Commissioner of Income Tax, Tamil Nadu
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There was no ambiguity in Sec. 80-HHC (2)(b) prior to its amendment. It does not in any event appear that the Government had sought to grant blanket incentive to all exports. There is in the circumstances no warrant for reading the word minerals as occurring in Section 80 HHC in any other manner or in any restricted sense on the basis of any policy of the Government at the relevant point of time. On the contrary of history of Section 80 HHC as narrated by us would show that there has been a cautious and gradual extension of the field of operation of Section 80 HHC. The 1994 circular also speaks of the Finance Act 1991 extending the benefit of Section 80 HHC to export of processed minerals and ores mentioned in the 12th Schedule to the Act. 17. No support to the appellants contention can also be drawn from the 1984 circular which reads thus:- "Export of cut and polished diamonds and gem stones - Whether eligible for deduction under section 80 HHC"Section 80HHC has been inserted in the Income-tax Act, 1961, by the Finance Act, 1983, and the deduction under this provision is admissible in relation to assessment year 1983-84 and subsequent years. The tax concession is, however, not admissible in relation to export of, inter alia, minerals and ores.2. The Board has received a large number of references on whether the export of cut and polished diamonds and gem stones will qualify for deduction under section 80HHC. The Board are advised of the following features in the export of cut and polished diamonds and gem stones:(i) No export of raw diamonds is permitted under the import and export regulations.(ii) Export from India takes place of cut and polished diamonds.(iii) Raw diamonds imported from abroad after being cut and polished are exported in the processed form and this will be supported by documents scrutinized and certified by the Customs Department.(iv) Import of rough diamonds is allowed as replenishment against the actual exports of cut and polished diamonds, after the actual exports take place, not necessarily in the previous year.(v) Import of rough diamonds is allowed as replenishment on the basis of licences issued by the Joint Chief Controller of Imports and Exports, on the basis of the requisite documents produced by the exporters.Rough diamonds are also allowed to be imported on the basis of import licence issued by the licencing authorities for which the importer has to execute a bond with the Government of India for re-export after cutting and polishing within a prescribed time for a value worked out on a given formula. Detailed procedure in this regard is explained in the Import-Export Policy.3. In view of the position brought by the above features, the export of cut and polished diamonds and gem stones will not amount to export of minerals and ores and hence will qualify for relief under section 80HHC of the Income-tax Act, 1961." (Source: Circular letter F.No.178/206/83-IT(A-I) dated 22nd May, 1984.) 18. It is clear from the language used that the CBDT gave its understanding of sub-section 2(b) of Section 80HHC as it stood prior to the 1991 amendment with regard to diamonds and gem stones alone having regard to the peculiar facts and features relating to the export and import of diamonds. Apart from the fact that the circular contains no reference to granite at all, we are not prepared to extend the understanding of the Board with regard to exclusion of cut and polished gems from the word minerals to granite in the absence of the special features mentioned in the 1984 Circular, more so when the statute itself has not drawn any such distinction.19. The 1994 and 1995 notifications both relate to the interpretation of item No. (x) in the Twelfth Schedule read with Section 80HHC as amended in 1991. They are confined to an exposition of the phrase of cut and polished used in Item No. (x) and do not seek to interpret the word minerals in general. The 1994 circular clarified that the phrase cut and polished minerals meant exactly that and could not be extended to any other process. The 1995 circular modified the rigour of the 1994 circular to the extent that it recognized some other processes as falling within the phrase cut and polished. Both circulars clearly state that benefit of Section 80 HHC was available to cut and polished granite only with effect from 1.4.91 by virtue of insertion of item (x) in the Twelfth Schedule to the Act.20. Doubtless, the Customs Tariff Act and the Central Excise Tariff Act both draw a distinction between minerals and processed minerals. For example in Chapter 27 of the Customs Tariff, a distinction has been drawn between mineral fuels, mineral oils and mineral products. However a classification which is relevant for the purpose of determination of rate of duty cannot be imported into the Income Tax Act which makes no such distinction.21. Consequently, even if the concession of the appellant before the High Court is ignored, the benefit of Section 80 HHC cannot be granted to the appellant for the Assessment Year in question. The appeal is accordingly dismissed without any order as to costs. Civil Appeal No. 3962 of 2003 22. In this case, the High Court has clearly proceeded on a mis-reading of the 1984 circular by holding that the circular expressly provided that polished and processed granite did not fall within the meaning of the word minerals occurring in sub-clause (b) of sub-section (2) of Section 80 HHC as it stood before 1991. It did nothing of the sort. The judgment cannot, therefore, be sustained. In view of our conclusion in Civil Appeal No. 319 of 2004 - M/s. Gem Granites vs. Commnr. of Income Tax, Tamil Nadu, we set aside the decision of the High Court and allow the Departments appeal. Civil Appeal No. 7574 & 7573 of 2004 (Arising out of SLPs. 11251/03 & 8382 of 2004 23. Leave granted. 24. Fo
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0[ds]16. An argument founded on what is claimed to be the intention of Parliament may have appeal but a Court of law has to gather the object of the Statute from the language used. What one may believe or think to be the intention of Parliament cannot prevail if the language of the Statute does not support that view. It may be that the object of the introduction of Section 80 HHC was to encourage export and as an incentive to exporters to increase exports for the purpose of earning foreign exchange to bolster up the countrys exports. But the object can be given effect to only if the statutory expression is ambiguous. There was no ambiguity in Sec. 80-HHC (2)(b) prior to its amendment. It does not in any event appear that the Government had sought to grant blanket incentive to all exports. There is in the circumstances no warrant for reading the word minerals as occurring in Section 80 HHC in any other manner or in any restricted sense on the basis of any policy of the Government at the relevant point of time. On the contrary of history of Section 80 HHC as narrated by us would show that there has been a cautious and gradual extension of the field of operation of Section 80 HHC. The 1994 circular also speaks of the Finance Act 1991 extending the benefit of Section 80 HHC to export of processed minerals and ores mentioned in the 12th Schedule to the Act.It is clear from the language used that the CBDT gave its understanding of sub-section 2(b) of Section 80HHC as it stood prior to the 1991 amendment with regard to diamonds and gem stones alone having regard to the peculiar facts and features relating to the export and import of diamonds. Apart from the fact that the circular contains no reference to granite at all, we are not prepared to extend the understanding of the Board with regard to exclusion of cut and polished gems from the word minerals to granite in the absence of the special features mentioned in the 1984 Circular, more so when the statute itself has not drawn any such distinction.19. The 1994 and 1995 notifications both relate to the interpretation of item No. (x) in the Twelfth Schedule read with Section 80HHC as amended in 1991. They are confined to an exposition of the phrase of cut and polished used in Item No. (x) and do not seek to interpret the word minerals in general. The 1994 circular clarified that the phrase cut and polished minerals meant exactly that and could not be extended to any other process. The 1995 circular modified the rigour of the 1994 circular to the extent that it recognized some other processes as falling within the phrase cut and polished. Both circulars clearly state that benefit of Section 80 HHC was available to cut and polished granite only with effect from 1.4.91 by virtue of insertion of item (x) in the Twelfth Schedule to the Act.20. Doubtless, the Customs Tariff Act and the Central Excise Tariff Act both draw a distinction between minerals and processed minerals. For example in Chapter 27 of the Customs Tariff, a distinction has been drawn between mineral fuels, mineral oils and mineral products. However a classification which is relevant for the purpose of determination of rate of duty cannot be imported into the Income Tax Act which makes no such distinction.21. Consequently, even if the concession of the appellant before the High Court is ignored, the benefit of Section 80 HHC cannot be granted to the appellant for the Assessment Year in question. The appeal is accordingly dismissed without any order as to costs.In this case, the High Court has clearly proceeded on a mis-reading of the 1984 circular by holding that the circular expressly provided that polished and processed granite did not fall within the meaning of the word minerals occurring in sub-clause (b) of sub-section (2) of Section 80 HHC as it stood before 1991. It did nothing of the sort. The judgment cannot, therefore, be sustained. In view of our conclusion in Civil Appeal No. 319 of 2004 - M/s. Gem Granites vs. Commnr. of Income Tax, Tamil Nadu, we set aside the decision of the High Court and allow the Departments appeal.
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Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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There was no ambiguity in Sec. 80-HHC (2)(b) prior to its amendment. It does not in any event appear that the Government had sought to grant blanket incentive to all exports. There is in the circumstances no warrant for reading the word minerals as occurring in Section 80 HHC in any other manner or in any restricted sense on the basis of any policy of the Government at the relevant point of time. On the contrary of history of Section 80 HHC as narrated by us would show that there has been a cautious and gradual extension of the field of operation of Section 80 HHC. The 1994 circular also speaks of the Finance Act 1991 extending the benefit of Section 80 HHC to export of processed minerals and ores mentioned in the 12th Schedule to the Act. 17. No support to the appellants contention can also be drawn from the 1984 circular which reads thus:- "Export of cut and polished diamonds and gem stones - Whether eligible for deduction under section 80 HHC"Section 80HHC has been inserted in the Income-tax Act, 1961, by the Finance Act, 1983, and the deduction under this provision is admissible in relation to assessment year 1983-84 and subsequent years. The tax concession is, however, not admissible in relation to export of, inter alia, minerals and ores.2. The Board has received a large number of references on whether the export of cut and polished diamonds and gem stones will qualify for deduction under section 80HHC. The Board are advised of the following features in the export of cut and polished diamonds and gem stones:(i) No export of raw diamonds is permitted under the import and export regulations.(ii) Export from India takes place of cut and polished diamonds.(iii) Raw diamonds imported from abroad after being cut and polished are exported in the processed form and this will be supported by documents scrutinized and certified by the Customs Department.(iv) Import of rough diamonds is allowed as replenishment against the actual exports of cut and polished diamonds, after the actual exports take place, not necessarily in the previous year.(v) Import of rough diamonds is allowed as replenishment on the basis of licences issued by the Joint Chief Controller of Imports and Exports, on the basis of the requisite documents produced by the exporters.Rough diamonds are also allowed to be imported on the basis of import licence issued by the licencing authorities for which the importer has to execute a bond with the Government of India for re-export after cutting and polishing within a prescribed time for a value worked out on a given formula. Detailed procedure in this regard is explained in the Import-Export Policy.3. In view of the position brought by the above features, the export of cut and polished diamonds and gem stones will not amount to export of minerals and ores and hence will qualify for relief under section 80HHC of the Income-tax Act, 1961." (Source: Circular letter F.No.178/206/83-IT(A-I) dated 22nd May, 1984.) 18. It is clear from the language used that the CBDT gave its understanding of sub-section 2(b) of Section 80HHC as it stood prior to the 1991 amendment with regard to diamonds and gem stones alone having regard to the peculiar facts and features relating to the export and import of diamonds. Apart from the fact that the circular contains no reference to granite at all, we are not prepared to extend the understanding of the Board with regard to exclusion of cut and polished gems from the word minerals to granite in the absence of the special features mentioned in the 1984 Circular, more so when the statute itself has not drawn any such distinction.19. The 1994 and 1995 notifications both relate to the interpretation of item No. (x) in the Twelfth Schedule read with Section 80HHC as amended in 1991. They are confined to an exposition of the phrase of cut and polished used in Item No. (x) and do not seek to interpret the word minerals in general. The 1994 circular clarified that the phrase cut and polished minerals meant exactly that and could not be extended to any other process. The 1995 circular modified the rigour of the 1994 circular to the extent that it recognized some other processes as falling within the phrase cut and polished. Both circulars clearly state that benefit of Section 80 HHC was available to cut and polished granite only with effect from 1.4.91 by virtue of insertion of item (x) in the Twelfth Schedule to the Act.20. Doubtless, the Customs Tariff Act and the Central Excise Tariff Act both draw a distinction between minerals and processed minerals. For example in Chapter 27 of the Customs Tariff, a distinction has been drawn between mineral fuels, mineral oils and mineral products. However a classification which is relevant for the purpose of determination of rate of duty cannot be imported into the Income Tax Act which makes no such distinction.21. Consequently, even if the concession of the appellant before the High Court is ignored, the benefit of Section 80 HHC cannot be granted to the appellant for the Assessment Year in question. The appeal is accordingly dismissed without any order as to costs. Civil Appeal No. 3962 of 2003 22. In this case, the High Court has clearly proceeded on a mis-reading of the 1984 circular by holding that the circular expressly provided that polished and processed granite did not fall within the meaning of the word minerals occurring in sub-clause (b) of sub-section (2) of Section 80 HHC as it stood before 1991. It did nothing of the sort. The judgment cannot, therefore, be sustained. In view of our conclusion in Civil Appeal No. 319 of 2004 - M/s. Gem Granites vs. Commnr. of Income Tax, Tamil Nadu, we set aside the decision of the High Court and allow the Departments appeal. Civil Appeal No. 7574 & 7573 of 2004 (Arising out of SLPs. 11251/03 & 8382 of 2004 23. Leave granted. 24. Fo
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Gurcharan Prasad & Ors Vs. P.Krishnanand Giri & Anr. Etc
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was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90- D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that the predecessors-in-interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195 ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lending money-occupations which he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued a money-lending business, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject-matter of an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No. 42/90-D were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject-matter of the appeals before us.
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1[ds]14. A scrutiny of the above document would lead to the inference that the Mahant was treating himself as the absolute owner of all the properties admitting no claim thereto by any one excepting his disciples and their disciples of the same status as Gauri Gir, the donee. The Math and the grove alone were to be treated as inalienable.This document shows that the usage or custom relating to the disciples of a Mahant getting part of the properties left by him was enforced by a decree of court. This goes very much against the inalienability of the properties of a Mahant. If they were math properties or endowed properties belonging to the Math, a question of division could hardly have arisen. Such partition or division is more consistent with the properties being the personal properties of the Mahant, descending from him to the heir nominated by him but subject to the claims of others who were his disciples or disciples of his disciples.17. The next document of importance is a deed executed by Prem Gir on December 2, 1839. This document starts with a recital that the executant had been in proprietary possession and occupation of cash etc. and the estate received by him from Gangot Gir, and that he was nominating Uttam Gir who stood in the relation of a grand chela to him as his successor. The deed is in almost similar terms with regard to the ownership of Uttam Gir in respect of "movable and immovable, houses in Mohalla Tripura Bhairavi, groves in Tulshipur Kotwa and Kamali in Benaras district, cash, kind, outstanding debts and ornaments detailed in the account books" Uttam Gir is being made the absolute and permanent owner of everything mentioned with a direction that Ram Lal Gir, Gayan Gir and Debi Dayal Gir who had claims on the executant were to he paid the diverse sums mentioned in the document upon executing farighkhatis. The executant directedGir should like myself, remain in proprietary possession of theestate. keep the reputation of the family and the estate permanent and make the management of the affairs. Uttam Gir shall be the owner of the big Math, houses and groves etc.18. The next important document is an agreement executed by Debi Dayal Gir, a grand disciple of Bhonder Gir and himself a disciple of Prem Gir, wrongly described in the document as Bhim Gir. It recites that the executant had purchased Mouza Narina and having no disciple other than Uttam Gir, the owner of Kharkhana and Gaddinashin at Benaras, was making over "all the goods and property, household goods, decree debts and liability and Mouza Narina aforesaid which are owned by me, the executant, to the Math at Benaras". The document further goes on to state that on his death Uttam Gir or his heirs who might be Gaddinashin of the Math "shall have power in compliance with all the conditions of the above to consider himself as permanent owner of my property." This document shows that the Math occupied by Uttam Gir had become fairly well known and the village Narina was being endowed by the executant to the said Math.19. There is a document which was marked as Ex.referred to both in the judgment of this Court in 1954 and the High Court on remand which has not been included in the paper books. This document dated May 21, 1865 was a deed of endowment executed by Uttam Gir establishing a Dharamshala in Terhineem for the maintenance and imparting of spiritual knowledge to Sadhus and Sanyasis and endowing the income of the village Mowgarh.20. The last two documents show that gift of properties to a math or creation of an endowment for a specific charitable purpose were known to the Sanyasis of this math. It does not appear that Uttam Gir nominated his successor or execute any Tamliknama in favour of anybody. On the 1st day of July, 1865 Udaya Gir, disciple of Uttam Gir and Sheodat Gir, disciple of Hira Gir andof Uttam Gir entered into an agreement of arbitration with regard to disputes between them as to how the management and work relating to the Math Ilakas and other things should be done and what would be the share of the disputants in the movable and immovable property, zamindari etc. left by Uttam Gir, the common ancestor in case of disagreement between them.21. This was followed by another agreement between the same persons arrived at on August 23, 1865. Under this document parties were arranging about the management of the affairs of the estate of Uttam Gir, namely, "the business of the math, ilaqas and other things relating to business." It was provided therein that Udai Gir would be "entitled to 81/2 annas share and owner and Gaddinashin of the Kothi" and Sheo Dat Gir to "71/2 annas share out of the entire movable and immovable property" by Uttam Gir. Parties agreed to obtain a succession certificate in respect of the entire estate of the deceased according to the above shares, viz., 81/2 annas and 71/2 annas. Further, they were to get mutation of names effected similarly in respect of the ilaqas and houses. Cl. 3 providedbusiness of the "Kothi" which was carried on in the name of Goshain Uttam Gir, our ancestor, shall, as usual, continue to be carried on in his name. But the signature etc. of the owner on the hundis shall he made by any one of us who will be present at the Kothi. If both of us are present the signature shall be made by Goshain Udai Gir."Under Cl. 7 the parties agreed to carry on the business on money dealings in consultation with each other and "if any one of them wanted to carry onbusiness or any other business separately, he might do so after taking money from the Kothi in his name". Under Clause 11 the parties were to render accounts of the expenses incurred by him to the other every three months. By Cl. 12 it was provided that ifbetween them was not possible the parties would get "the entire movable and immovable property partitioned according to the above shares. Thereafter, one shall have nothing to do with the other." This document again throws a good deal of light on the question of the ownership of the properties left by Uttam Gir. The parties agreed that if joint management was not possible they would exercise the right to partition and sever connection from each other. The two persons appear to have proceeded on the basis that they were both entitled to the properties left by Uttam Gir which were to be divided in almost equal shares failing an amicable arrangement for management thereof. It also brings into prominence the business of Kothi which might either be abusiness pure and simlpe or a banking business as the reference to the hundis suggests.We next proceed to note the contents of Ex.the will of Sheodat Gir dated 16th June, 1887. This document for the first time tries to enumerate and specify at least some of the properties which the executant thought were endowed properties. The executant described himself as "proprietor of the Karbar of Goshain Uttam Girji, resident of Mohalla Tripura Bhairavi, the exclusive owner of the entire ancestral estate of Goshain Uttam Girji and of other property acquired thereafter. The document recites that the executant had no other coparcener orand had absolute rights in respect of the entire property aforesaid to do whatever he liked. After noting that his only disciple, Narotam Gir, had died leaving Sukhdeo Gir and the latters disciple Kashi Gir, the will proceeds to note that the executant, deeming it prudent to nominate his heir who was to be governed by the conditions given below was setting forth the same. The important things to note in this document are as below :24. By Clause (3) the executant was laying down the line of succession after him to the effect that he was to be succeeded by Sukhdeo Gir and after him Kashi Gir and that Kashi Gir would have power to initiate after him only one person as his disciple so that disputes of joint rights might be avoided.25. By Clause (4) the executant was providing that expenses should neverthe income.25A. Clause (5) may be quoted verbatim ;"My subsequent heirs or their heirs shall not have the right to mortgage, sell or donate or make a gift of any property in existence at any time, or which might be acquired in future. If they do so, their heirs shall, at all events, have right to have the transaction cancelled. But as regards the property acquired as a result of their personal, efforts or purchased or acquired from the profits of the ancestral property, they shall have power to do anything they like."Clause (8) which too is of great importance may be noted in contrast. By this clause the executant was noting that "The properties given below have been made waqf of, in the time of my ancestor, for charitable purposes, while certain properties in my time. No one has any proprietary title to them. My heirs should use a particular property for the purpose for which it has been allotted and the charities should continue as before. My heirs should continue the supervision, repairs and cleanliness as it has been done all along. None of the heirs shall have any right to act to the(i) of this clause notes that Uttam Gir had given 6 out of 7 pucca andhouses situated in Mohalla Bisheshar Nath to Brahmins by way of charity and made a waqf of one house to remain as Dharamshala for residence of Vidyarthis. The terms relating thereto were given in the registered Danpatra dated 14th June. 1861.(ii) mentions a house situated in Mohalla Tehri Nib, known as Dharamshala allotted by way of charity forIt shall always continue as it is. The charges for the repairs of Dharamshala and the maintenance of the Chattra for feeding Sanyasis as laid down in the registered agreement dated 21st May 1865 continuing all the conditions shall continue to be met as heretofore from the profits and produce of mauza Mahogarh, district Mirzapur.26. By(iii) the executant directed that the income of the Dharamshala known as Baba Ridh Nath situate in Mohalla Misir Pokhra, known as Asthan Dharbeshar to which are attached three houses in the same mohalla and 5 bighas 3 biswas of land in mauza Kanauta, district Benaras under a deed of gift executed by Kashi Gir dated 4th December, 1879 was utilised towards the worship of Mahadeo known as Ridh Nath the repairs of all the four houses aforesaid and the expenses relating thereto. The will directed that the same should be continued.(v) relates to a Dharamshala constructed by Sheodat Gir situate in mauza Solak Ram, district Barara in the Province of Punjab. By Clause (9) the testator was laying down a condition that if any one of his Gaddinashin heirs, contrary to the customs of the line, forsakes the right path and the society of sages and the wise and takes to debauchery or gambling or any other sort of immorality, his disciple or subsequent heir should, in consultation with the members of the sect, have the power to stop the Gaddinashin from his improper conduct and also have the power to deprive him of the Gaddi and the property and take charge thereof.27. In the earlier judgment this Court had occasion to refer more than once to this document and in particular to Cls. 5 and 8. Counsel for Krishnanand Giri who succeeded Purushottam Giri, the original plaintiff, relied very strongly on the observations made in the earlier judgment that there was a definite finding that the properties left at the date of death of Sheodat Gir were to be held as math properties because Sheodat Gir had sought to make them "specifically inalienable in the hands of his successors. presumably for the use of the spiritual brotherhood" But this Court was careful to add :"This document no doubt, in terms, did not refer to a mutt or provide that the mutt was to be inalienable while it enumerated certain other items of property as waqf."28. We have already referred to the observations of this Court in the judgment of 1954 which counsel for Krishnanand Giri cited in aid of his proposition that all the properties covered by the will of Sheodat Gir were math properties but in our opinion this Court merely indicated that there was a strong presumption created by this document in favour of the properties being math properties; but thatthe High Court, on remand, was free to consider the evidence on the record and come to its own finding as to which of the properties other thanwere math properties.29. This Court had noted in the earlier judgment, as we do so again, that the documents which preceded the will of Sheodat Gir do not tend to show that the properties in the possession of the Mahants were ever treated by them except with regard to 2 or 3 items to be endowed properties not capble of alienation by a Mahant. The property which Prem Gir got was undoubtedly his personal property as a result of the Tamliknama of Gangot Gir: From the time of Prem Gir the successive Mahants always treated the properties as personal properties. They all carried on abusiness and there can be little doubt that this business accounted for the considerable acquisition of properties by the Mahants. We find ourselves unable to come to the conclusion that by Clause 5 of his will Sheodat Gir was creating any endowment of properties in his possession. The first sentence of Clause 5 shows that there was an interdict against any heir mortgaging, selling or making gift of any property i. e. not only those in existence at the time or which might he acquired in future. It is difficult to see how an endowment could be made of properties not yet acquired. Almost in the same breath the testator was saying that as regards properties acquired from the profits of the ancestral property, the heir was free to do what he liked therewith, as also any property acquired as a result of the personal efforts of the heir. This suggests that the profits of the ancestral property were to be considered as the personal property of the Mahant. Reading clauses 1 to 7 together, we have no doubt that Sheodat Gir wanted that the properties should be preserved and properly managed and not frittered away. He was not thinking of endowing any property or putting the same beyond alienation because of any such endowment. He was trying to limit the expenses to make provision for proper accounts being kept and strict surveillance of the cash in hand, income and expenditure. Clause 8 shows that the testator knew that certain properties had been made "a waqf of" in the time of his ancestors for charitable purposes. If he was so minded, he could have in his turn used the word waqf in respect of other properties but he did not do so. With regard to the properties which were to be used for particular charitable purposes the testator takes great care in laying down what was to be done. He is also careful to note that "no one had any proprietary title to the properties which were theof the waqf. But he does not use any such expression with regard to the other properties. In(b) of Clause 8 he mentions specifically a Dharamshala constructed by him in the district of Barara in the Province of Punjab. But with regard to the properties covered by Clause 5 he does not say anything as to what has to be done with the income thereof. In C1. 9 the testator lays down the condition that if any Gaddinashin Mahant acted contrary to the custom of the line or pursuit of the right path it would be open to his disciple and others in consultation with the members of the sect, to deprive him of the Gaddi and the property and take charge thereof. This does not, in our opinion, lead to the inference that the Gaddinashin heir was not to have any proprietary interest in any property left by him. But this is only in keeping with the custom and practice of the particular brotherhood that they should keep to the right path and not deviatethe facts of this case it is not possible to hold that the mahants blended theirself acquired and personal property with math property so as to make the whole partake of the character of the latter class of property A Mahant is undoubtedly competent to endow the property acquired by him, but merly because in the Tamliknamas he makes no distinction between property acquired by him personally and property which undoubtedly formed theof a prior endowment, the personally acquired properties cannot be said to be math property when the evidence on record establishes that all the mahants were holding themselves out as absolute owners of the property and were transferring various items of property from time to time albeit to persons of the same brotherhood.31. Exhibitestablishes that various items of property mentioned in Cl. 8 thereof had been made waqf property in the time of the ancestors of Sheodat Gir and Sheodat Gir himself declared that "no one had any proprietary title thereto." At the bottom of paragraph 125 of his judgment the Subordinate Judge appended a table of the properties of which there was cogent evidence of endowment. Besides the twelve items of property tabulated therein, he has mentioned in paragraph 187 of his judgment that item No. 5 of Schedule II to the Plaint was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premisesappears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that theof Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195 ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lendingwhich he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued abusiness, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was theof an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No.were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they areof the appeals before us.Appeal No. 213 of 1965 was filed by Mayanand Giri, defendant No. 1, Bishwanath Prasad and Mahadeo, defendants 15 and2 and 3one Uma Pado Banerjee, defendant No. 42. Uma Pado Banerjee died during the pendency of the appeal and his widow, Smt. Shantimai Devi and sons and daughters, Birendra Kumar and Binaya Kumar, Smt. Jayantika, Kumari Parantika and Kumari Mainatika, the last four being minors though their mother, Shantimai Devi, were substituted by an order of Court dated 25th February, 1960. Uma Pado Banerjee is now represented by appellants 4 to 9. Mayanand Giri also died in 1965 and his widow was substituted in his place by an order of the Allahabad High Court. We were shown a copy of the petition of Smt. Gajeshwari Devi, widow of Mayanand Giri, to the effect that Mayanand Giri had died leaving besides her, a son by name Anand Deo and two daughters named Indu Devi and Manjiri Devi and that the son and daughters were not interested in prosecuting the appeal. According to the copy of the petition of Gajeshwari Devi, a prayer was made that the son and daughters should be added as pro forma respondents. The son and daughters do not appear to have been brought on the record in terms of the petition, but we are not aware as to whether it was a mere omission or done at the suggestion of the other parties appearing before the High Court. It would therefore appear that the application made by the widow was a bona fide one and no objection appears to have been taken to the course put forward on her behalf. This appeal of the first appellant which arises out of F. A. No. 523 of 1933 is allowed in part with respect to properties other than (a) the 15 items of math properties already mentioned and (b) the properties which were alienated by Mayanand to the defendants who have not appealed and against whom the High Court decree has become final. The High Court decree will stand confirmed with respect to the aforesaid 15 items of math properties and the properties which were alienated to the defendants who have not appealed. The appeal is also allowed with respect to the appellants 4 to 9 as regards the properties covered by the alienations in their favour. These are premises No.owned by appellant 2 and 8 and premises No.owned by appellants 4 to 9. We leave open the question as to whether on the death of Mayanand Giri, his widow or his son and daughters can succeed to the properties other than math properties, left by him or whether such properties devolved on Krishnanand Giri on the death of Mayanand Giri.Krishnanand Giri filed appeal No. 215 of 1965 against several alienees or their representatives who have not appeared before us. They are the heirs and legal representatives of defendants Nos. 3, 18, 19 and 35 as also original defendants Nos. 33 and 45. The High Court had held the suit by Purushotamanand Giri to be barred by limitation inter alia against defendants 18, 19 and 35 : it had also held that the plaintiff could not challenge the decree against defendant No. 33. The suit had also been dismissed against defendant No. 45. The High Court had awarded costs to defendant No. 3. It was argued before us that the High Court had gone wrong in upholding the alienations of certain properties held by it to be math properties to the respondent in this appeal and that as the respondents in this appeal had not questioned the finding of the High Court with regard to the properties as math properties we should proceed on the basis that they were math properties. We do not think we can accede to this contention as we have already found that excepting the 15 items mentioned, the others were not math properties and consequently their alienation cannot be questioned on that ground.Lastly, Appeal No. 216 of 1965 is by Marwari Sanskrit College and one Vaidya Bhushan Sharma who have come up against the finding of the High Court that the alienations in favour of defendants 9 to 14 were not binding on the math or the plaintiff. During the pendency of the appeal, some of these defendants died and the present appellant, Marwari Sanskrit College was brought on record. As it has not been shown to us that the property in dispute in this appeal was endowed property, Mayanand Giri was competent to transfer it as he appears to have done for sufficient consideration.
| 1 | 8,794 |
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was the temple and must be an endowed property. In paragraph 189 of his judgment the learned Subordinate Judge refers to Ex. 38 i e. a deed of 1868 executed by Devi Dayalgir endowing the village Narina or Nirbhan in the Math i. e. item No. 42 of Schedule of the plaint. No argument was advanced to show that the learned Subordinate Judge had gone wrong and this item too must be treated as math property. Besides these 14 items, this Court held that premises No. 42/90- D was math property. For the sake of precision, we are giving a list of the properties found by us to be math properties in Schedule A hereto. Premises 42/66-D appears to have been the subject matter of the will Ex 10I executed by Hardeo Gir in 1909. Unfortunately this will was admitted by Mayanand and no effort was made to prove it as against the others. Consequently, even though in terms of the will the property would be math property we cannot so find it. This item of property was first mortgaged to defendant No. 7 Batuk Prasad and was covered by the sale deed in his favour.32. On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties. The fact that the predecessors-in-interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties. In Parma Nand v. Nihal Chand, 65 Ind App 252 = (AIR 1938 PC 195 ) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives. There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust. The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela. This was not accepted by the Judicial Committee and it was observed that :"this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character."In Raghbir Lala v. Mohammad Said, AIR 1943 PC 7 the plaintiffs case was that the land in suit claimed by the defendants directly or indirectly under transfers made in 1915 and 1916 by one Jainandar Kirat were debutter. It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose. It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes. According to the Judicial Committee :"He appears to have made money by practising astrology and medicine and by lending money-occupations which he added to that of a religious teacher........His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community.The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar. The Board further observed :"No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance. But it is out of question to suppose that a mans religious opinions or professions can make him incapable in law of holding property."33. In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof. In this case, we find that the Mahants had systematically pursued a money-lending business, that there was little nucleus of any endowed property, that during the course of a century and a half the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular item of property was the subject-matter of an endowment or a gift for a particular charitable purpose. We have already held that only 15 items of property including premises No. 42/90-D were math properties. On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri. It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject-matter of the appeals before us.
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M/S Magnum Promoters P.Ltd Vs. Union Of India
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been done in view of the interim order referred to supra and also the same has not been done in the presence of independent witnesses as required in law. 18. Further, this Court held at para 26 in Raghuvir Singh Sehravat’s case (supra) as under:- “26. Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under:(Balwant Narayan Bhagde case, SCC pp. 711-12, para 28)“28. … We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of……….” (emphasis laid by this Court) Thus, in view of the above decisions, this Court has clearly laid down the legal principle as to how taken over physical possession of the acquired land means the actual taking of possession of it of it from the land owners/interested persons. 19. The learned counsel on behalf of respondent Nos. 2,3 and 4 sought to distinguish the said judgments by placing reliance upon the judgment in the case of Sita Ram Bhandar Society (supra) wherein this Court opined thus:- “28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam after considering the judgment in Narayan Bhagde case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under: (Viswam case, SCC p. 262, para 9)9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land.29. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4)4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.” 20. Further, on the plea taken by the learned counsel on behalf of the respondent nos. 2 and 3 regarding contravention of Sections 3 and 4 of the Act of 1972 for transfer of the land in question by the appellant during the pendency of the proceedings as it was acquired by the NCT on behalf of the Central Government by placing reliance on Article 239AA of the Constitution, with respect to the contention of 1972 Act is concerned, the same has no application to the fact situation. In view of the said provision, it has been contended by the learned counsel on behalf of the respondent nos. 2, 3 and 4 that the land and home subject-matters that are in Delhi are still with the Central Government and therefore, acquisition of land by NCT is the acquisition made by it on behalf of the Central Government. This is far-fetched argument of the learned counsel and therefore, the same cannot be accepted by us for the reason that the acquisition notification available in the original record would clearly show that the land is acquired by the NCT, Delhi and not on behalf of the Central Government. Hence, the said contention is liable to be rejected and accordingly rejected. 21. Apart from the said reason, even assuming for the sake of argument that the Act of 1972 is applicable, it has been specifically stated by the learned senior counsel that the competent authority has given permission to the appellants to transfer the land in favour of subsidiary company of the appellant. The same can be seen in para 5 of the sale deed produced before this Court which reads thus:- “5. The vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on the Vendee.” Therefore, the provisions of Sections 3, 4, and 9 have no application to the fact situation on hand and there is no substance in this plea of the respondent and the same is rejected.22.
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1[ds]Thus, it is clear from the said document available on record that the possession of the building structure situated on theland was not taken by him on 27.12.2013. As per the possession memo available in the record, it is recorded in the said proceeding that the further action for taking over possession in respect of the land were to be continued by the Land Acquisition Collector on 28.12.2013 and there is no record to show as to whether the action continued on 28.12.2013 in this regard. The alleged taking over of possession of the land involved in this appeal was done on 31.12.2013, as per the document annexure R-1 memo of possession taking possession of the acquired land in Award no.07/98-99 is signed by the officers of the Land and Building Department of the third respondent; the same was alleged to have immediately been delivered to the DDA officials i.e. respondent no.5 on the same day. According to respondent Nos. 3 and 4, the possession of the land involved in this appeal has been allegedly taken by them without any objections being raised by the appellant-owner. The above said plea taken by them cannot be accepted by us as the same is wholly contrary to the factual position regarding possession of the land. The question of raising objection to respondent Nos. 3 and 4 for taking possession of the land by the appellant did not arise at all for the reason that notice in this regard was not issued to it calling upon it to handover possession of the land to the Land Acquisition Collector. The reasons stated at paragraphs 8 and 9 in the response affidavit filed by one Mr. Vivek Kumar Tripathi, who is the Land Acquisition Collector-respondent No. 4 in these proceedings with regard to limits of the then existing sub-divisions Tehsils in Delhi being modified, consequently the revenue estate of the boundaries of village Malikpur Kohi Rangpuri which previously formed part of District South, due to the said re-organisation, sub division, Delhi Cantonment and sub-division, Vasant Vihar which were earlier part of District of South West have become part of District New Delhi. Resultantly, village Rangapuri which was part of sub-division Vasant Vihar under the jurisdiction of Land Acquisition Collector, South-West fell under the jurisdiction of District New Delhi. The notification dated 11.09.2012 was issued by the first respondent creating 11 districts by altering sub-divisions Tehsils in Delhi. Land Acquisition of the land involved in these proceedings was transferred from District South-West to the office of respondent no.4 on 21.12.2012 and remaining records on 14.01.2014. The above said make believe story narrated by the Land Acquisition Collector in his affidavit is a deliberate intention to misrepresent facts to justify the alleged taking over possession of the land on 31.12.2013. The aforesaid explanation furnished by the Land Acquisition Collector in his affidavit for the alleged taking over possession of acquired land is wholly unnecessary and irrelevant. Therefore, the said explanation by him cannot be accepted by us. The averments made at para 10 of the response affidavit of Land Acquisition Collector are contrary to theKaryavahi (possession taking over proceedings) dated 27.12.2013 and the reason stated in the said memo is that the Land Acquisition Collector could not take possession of the building structure situated on the acquiredland, as the demolition squad was not available on that day. The possession of the land taking over document Annexure R-1 to the response affidavit dated 31.12.2013 produced by the Land Acquisition Collector in which it is stated that the possession of the land of the appellant has been taken on 31.12.2013 the said averment in the affidavit is contradictory to thent dated 27.12.2013 available in the original record. The contradictory statements made by the Land Acquisition Collector in his response affidavit at para 10 cannot be accepted by us. The plea sworn by the Land Acquisition Collector in the affidavit is a false statement of fact for the reason that the physical possession of the land is in fact not taken and could not have been taken by the Land Acquisition Collector from the appellant when the interim order ofth regard to the possession of land of the appellant was passed by this Court on 04.08.2008. The said order being well within the knowledge of the respondent Nos. 2-5 is evident from the record of proceedings of this Court dated 24.09.2010 as the names of learned counsel on behalf of the respondent Nos. 1-5 is shown in thisrecord of proceedings. The further plea taken by him at para 10 of the said affidavit that the second respondent enquired about the litigation status in respect of the order passed in relation to this case and other cases of village Rangpuri from the 5th respondent-DDA and did not receive any response from it is once again a false statement of fact. Therefore, the office of the 3rd respondent being unaware of any interim order ofis once again a false statement and the same has been deliberately made by him to justify his action as stated in the respondent affidavit. Hence, the statement of facts sworn to at paras 8-10 are liable to be rejected and accordingly rejected. Therefore, the plea of the Additional District Collector/Land Acquisition Collector and its officers to have allegedly taken over possession of the land as stated at paragraph 10 of the response affidavit is false and it amounts to contempt of this Court committed by them, as they have willfully disobeyed the interim order of this Court dated 04.08.2008. Therefore, the plea of taking over possession of land of the appellant either on 27.12.2013 as per the original record or on 31.12.2013 as per document Annexure R1 cannot be accepted by us. The respondents have misrepresented certain relevant facts to this Court by filing the above referred response affidavit with an oblique motive to deny the valuable statutory right accrued in favour of the appellant under Section 24(2) of the Act of 2013. Hence, the conduct of respondent No. 4 and officials of respondent No.3 in misrepresenting facts is deprecated byfrom the said reason, even assuming for the sake of argument that the Act of 1972 is applicable, it has been specifically stated by the learned senior counsel that the competent authority has given permission to the appellants to transfer the land in favour of subsidiary company of the appellant. The same can be seen in para 5 of the sale deed produced before this Court which readsThe vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on thethe provisions of Sections 3, 4, and 9 have no application to the fact situation on hand and there is no substance in this plea of the respondent and the same is rejected.
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been done in view of the interim order referred to supra and also the same has not been done in the presence of independent witnesses as required in law. 18. Further, this Court held at para 26 in Raghuvir Singh Sehravat’s case (supra) as under:- “26. Bhagwati, J. (as he then was) and Gupta, J., who constituted the majority did not agree with Untwalia, J. and observed as under:(Balwant Narayan Bhagde case, SCC pp. 711-12, para 28)“28. … We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of……….” (emphasis laid by this Court) Thus, in view of the above decisions, this Court has clearly laid down the legal principle as to how taken over physical possession of the acquired land means the actual taking of possession of it of it from the land owners/interested persons. 19. The learned counsel on behalf of respondent Nos. 2,3 and 4 sought to distinguish the said judgments by placing reliance upon the judgment in the case of Sita Ram Bhandar Society (supra) wherein this Court opined thus:- “28. A cumulative reading of the aforesaid judgments would reveal that while taking possession, symbolic and notional possession is perhaps not envisaged under the Act but the manner in which possession is taken must of necessity depend upon the facts of each case. Keeping this broad principle in mind, this Court in T.N. Housing Board v. A. Viswam after considering the judgment in Narayan Bhagde case, observed that while taking possession of a large area of land (in this case 339 acres) a pragmatic and realistic approach had to be taken. This Court then examined the context under which the judgment in Narayan Bhagde case had been rendered and held as under: (Viswam case, SCC p. 262, para 9)9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not be cooperative in taking possession of the land.29. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab yet again the question was as to the taking over of the possession of agricultural land and it was observed thus: (SCC p. 215, para 4)4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.” 20. Further, on the plea taken by the learned counsel on behalf of the respondent nos. 2 and 3 regarding contravention of Sections 3 and 4 of the Act of 1972 for transfer of the land in question by the appellant during the pendency of the proceedings as it was acquired by the NCT on behalf of the Central Government by placing reliance on Article 239AA of the Constitution, with respect to the contention of 1972 Act is concerned, the same has no application to the fact situation. In view of the said provision, it has been contended by the learned counsel on behalf of the respondent nos. 2, 3 and 4 that the land and home subject-matters that are in Delhi are still with the Central Government and therefore, acquisition of land by NCT is the acquisition made by it on behalf of the Central Government. This is far-fetched argument of the learned counsel and therefore, the same cannot be accepted by us for the reason that the acquisition notification available in the original record would clearly show that the land is acquired by the NCT, Delhi and not on behalf of the Central Government. Hence, the said contention is liable to be rejected and accordingly rejected. 21. Apart from the said reason, even assuming for the sake of argument that the Act of 1972 is applicable, it has been specifically stated by the learned senior counsel that the competent authority has given permission to the appellants to transfer the land in favour of subsidiary company of the appellant. The same can be seen in para 5 of the sale deed produced before this Court which reads thus:- “5. The vendor have obtained NOC under provisions of the Delhi Land (Restriction on transfer) Act, 1972 from the concerned department/Tehsildar Notification Delhi and shall obtain all such necessary clearance/permission as may be required for effectively transferring and conferring the title on the Vendee.” Therefore, the provisions of Sections 3, 4, and 9 have no application to the fact situation on hand and there is no substance in this plea of the respondent and the same is rejected.22.
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B.M. Malani Vs. Commr. of Income Tax & Another
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Phrases Permanent Edition Vol. 18 and Blacks Law Dictionary. It was furthermore submitted that had the shares and securities been sold when the request therefor was made, which was worth Rs. 30 lakhs at the relevant time, the tax burden of the appellant would have been reduced; particularly when after adjusting the amount of Rs.117.04 lakhs deposited by the appellant, only a sum of Rs. 40.73 lakhs remained due. 7. Ms. Rajni Ohri Lal, learned counsel appearing on behalf of the respondents, however, drew our attention to the nature of the business, the appellant had been carrying on and the magnitude thereof to contend that the appellant did not suffer any genuine hardship. 8. The term ‘genuine as per the New Collins Concise English Dictionary is defined as under: ‘Genuine means not fake or counterfeit, real, not pretending (not bogus or merely a ruse)" For interpretation of the aforementioned provision, the principle of purposive construction should be resorted to. Levy of interest although is statutory in nature, inter alia for re-compensating the revenue from loss suffered by non-deposit of tax by the assessee within the time specified therefor. The said principle should also be applied for the purpose of determining as to whether any hardship had been caused or not. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would not lead to a conclusion that a person having large assets would never be in difficulty as he can sell those assets and pay the amount of interest levied. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. [See Priyanka Overseas Pvt. Ltd. & Anr. v. Union of India & ors. 1991 Suppl. (1) SCC 102, para 39, Union of India & ors. v. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil v. Sana Ullah (dead) & ors. (1996) 6 SCC 342 at 345, para 7, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 at 692, para 65, first sentence, Kusheshwar Prasad Singh v. State of Bihar & ors. (2007) 11 scc 447 , paras 13, 14 and 16). Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could have kept mum. It should have taken some action. It should have responded to the prayer of the appellant.However, another principle should also be borne in mind, namely, that a statutory authority must act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three conditions laid down therein have been fulfilled before passing an order waiving interest. Compulsion to pay any unjust dues per se would cause hardship. But a question, however, would further arise as to whether the default in payment of the amount was due to circumstances beyond the control of the assessee.Unfortunately, this aspect of the matter has not been considered by the learned Commissioner and the High Court in its proper perspective. The Department had taken the plea that unless the amount of tax due was ascertainable, the securities could not have been sold and the demand draft could not have been encashed. The same logic would apply to the case of the assessee in regard to levy of interest also. It is one thing to say that the levy of interest on the ground of non-payment of correct amount of tax by itself can be a ground for non-acceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall not be taken into consideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. Appellant volunteered that the securities be sold. Why the said request of the appellant could not be acceded to has not been explained. It was a voluntary act on the part of the appellant. It was not even a case where sub-Section (3) of Section 226 of the Act was resorted to. As the offer was voluntary, the authorities of the Department subject to any statutory interdict could have considered the request of the appellant. It was probably in the interest of the revenue itself to realize its dues. Whether this could be done in law or not has not been gone into.9. The same ground, however, was not available to the appellant in respect of the demand draft, as in relation thereto no such request was made. The demand draft was in the name of a Company. It may be true that when any document is seized, a presumption is raised that the same belongs to the person from whose possession or control it was seized as is laid down in sub-Section (4A) of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same could not have been encashed. Appellant did not own the same in law. He did not make any request for its enchashment. Whether such a presumption should be raised or not was the subject matter of consideration by the Assessing Officer at the time of making its final assessment as the appellant himself filed an application before the Settlement Commission in terms of Section 245C(1) of the Act.
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1[ds]The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition ofthe said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could have kept mum. It should have taken some action. It should have responded to the prayer of the appellant.However, another principle should also be borne in mind, namely, that a statutory authority must act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three conditions laid down therein have been fulfilled before passing an order waiving interest. Compulsion to pay any unjust dues per se would cause hardship. But a question, however, would further arise as to whether the default in payment of the amount was due to circumstances beyond the control of the assessee.Unfortunately, this aspect of the matter has not been considered by the learned Commissioner and the High Court in its proper perspective. The Department had taken the plea that unless the amount of tax due was ascertainable, the securities could not have been sold and the demand draft could not have been encashed. The same logic would apply to the case of the assessee in regard to levy of interest also. It is one thing to say that the levy of interest on the ground of non-payment of correct amount of tax by itself can be a ground for non-acceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall not be taken into consideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. Appellant volunteered that the securities be sold. Why the said request of the appellant could not be acceded to has not been explained. It was a voluntary act on the part of the appellant. It was not even a case where sub-Section (3) of Section 226 of the Act was resorted to. As the offer was voluntary, the authorities of the Department subject to any statutory interdict could have considered the request of the appellant. It was probably in the interest of the revenue itself to realize its dues. Whether this could be done in law or not has not been gone into.9. The same ground, however, was not available to the appellant in respect of the demand draft, as in relation thereto no such request was made. The demand draft was in the name of a Company. It may be true that when any document is seized, a presumption is raised that the same belongs to the person from whose possession or control it was seized as is laid down in sub-Section (4A) of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same could not have been encashed. Appellant did not own the same in law. He did not make any request for its enchashment. Whether such a presumption should be raised or not was the subject matter of consideration by the Assessing Officer at the time of making its final assessment as the appellant himself filed an application before the Settlement Commission in terms of Section 245C(1) of the
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### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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Phrases Permanent Edition Vol. 18 and Blacks Law Dictionary. It was furthermore submitted that had the shares and securities been sold when the request therefor was made, which was worth Rs. 30 lakhs at the relevant time, the tax burden of the appellant would have been reduced; particularly when after adjusting the amount of Rs.117.04 lakhs deposited by the appellant, only a sum of Rs. 40.73 lakhs remained due. 7. Ms. Rajni Ohri Lal, learned counsel appearing on behalf of the respondents, however, drew our attention to the nature of the business, the appellant had been carrying on and the magnitude thereof to contend that the appellant did not suffer any genuine hardship. 8. The term ‘genuine as per the New Collins Concise English Dictionary is defined as under: ‘Genuine means not fake or counterfeit, real, not pretending (not bogus or merely a ruse)" For interpretation of the aforementioned provision, the principle of purposive construction should be resorted to. Levy of interest although is statutory in nature, inter alia for re-compensating the revenue from loss suffered by non-deposit of tax by the assessee within the time specified therefor. The said principle should also be applied for the purpose of determining as to whether any hardship had been caused or not. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would not lead to a conclusion that a person having large assets would never be in difficulty as he can sell those assets and pay the amount of interest levied. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. [See Priyanka Overseas Pvt. Ltd. & Anr. v. Union of India & ors. 1991 Suppl. (1) SCC 102, para 39, Union of India & ors. v. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil v. Sana Ullah (dead) & ors. (1996) 6 SCC 342 at 345, para 7, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 at 692, para 65, first sentence, Kusheshwar Prasad Singh v. State of Bihar & ors. (2007) 11 scc 447 , paras 13, 14 and 16). Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could have kept mum. It should have taken some action. It should have responded to the prayer of the appellant.However, another principle should also be borne in mind, namely, that a statutory authority must act within the four corners of the statute. Indisputably, the Commissioner has the discretion not to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three conditions laid down therein have been fulfilled before passing an order waiving interest. Compulsion to pay any unjust dues per se would cause hardship. But a question, however, would further arise as to whether the default in payment of the amount was due to circumstances beyond the control of the assessee.Unfortunately, this aspect of the matter has not been considered by the learned Commissioner and the High Court in its proper perspective. The Department had taken the plea that unless the amount of tax due was ascertainable, the securities could not have been sold and the demand draft could not have been encashed. The same logic would apply to the case of the assessee in regard to levy of interest also. It is one thing to say that the levy of interest on the ground of non-payment of correct amount of tax by itself can be a ground for non-acceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall not be taken into consideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. Appellant volunteered that the securities be sold. Why the said request of the appellant could not be acceded to has not been explained. It was a voluntary act on the part of the appellant. It was not even a case where sub-Section (3) of Section 226 of the Act was resorted to. As the offer was voluntary, the authorities of the Department subject to any statutory interdict could have considered the request of the appellant. It was probably in the interest of the revenue itself to realize its dues. Whether this could be done in law or not has not been gone into.9. The same ground, however, was not available to the appellant in respect of the demand draft, as in relation thereto no such request was made. The demand draft was in the name of a Company. It may be true that when any document is seized, a presumption is raised that the same belongs to the person from whose possession or control it was seized as is laid down in sub-Section (4A) of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same could not have been encashed. Appellant did not own the same in law. He did not make any request for its enchashment. Whether such a presumption should be raised or not was the subject matter of consideration by the Assessing Officer at the time of making its final assessment as the appellant himself filed an application before the Settlement Commission in terms of Section 245C(1) of the Act.
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Gulabdas & Company & Anr Vs. Assistant Collector Of Customs & Ors
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treatment. It may be stated here that, prior to 1st March 1951, coloured and copying pencils were included under the head stationery not otherwise specified in item 45 (4) of the Indian Customs Tariff. By the Indian Tariff (Amendment) Act, 1951, (Act XIII of 1951) item 45 (a) was inserted and this specifically related to coloured and copying pencils. The duty then imposed was protective duty of 37 1/3 per cent. ad valorem. By the Indian Finance Act XIV of 1953, the duty was enhanced to 66 2/3 per cent. ad valorem. Then, in October, 1954, came the Indian Tariff (Second Amendment) Act, 1954, by which the duty imposed under item 45 (4) with regard to coloured and copying pencils was a revenue duty of two annas for every length of 7 1/2 inches or part thereof or 66 2/3 per cent. ad valorem, whichever is higher. Whatever difficulty there might have been at an earlier stage, there was really no. difficulty in assessing duty on coloured pencils since the amendment of 1951, which inserted items 45 (4) in the First scheduled to the Indian Tariff Act, 1934 (XXXII of 1934). 8. The petitioners relied on the letter dated 3rd July 1954, in which the Assistant Collector of Customs said that Lyra brand crayons were classifiable under item 45 (a). This letter, however, itself stated that the classification was provisional and liable to revision in the light of examination of the goods at the time of importation. Moreover, the tentative classification made by the Assistant Collector, of Customs was not binding on the Collector and we do not think that the petitioners can found any claim on the ground of estoppel. In fairness to learned counsel for the petitioners we must add that no. such claim was made before us. Learned counsel for the petitioners referred us to certain observations in Chapter 1 of a handbook of rules and procedure, 1952, entitled Import Trade Control. The observations are these : "The import policy in respect of different items is announced with reference to the serial numbers under each part of the Import Trade Control Schedule. It is therefore necessary for the intending importer to ascertain under what part and which serial number of the I.T.C. Schedule the article which he wishes to import falls. An alphabetical list of articles is included in Appendix X to enable importers to ascertain readily the I.T.C. classification of any particular item. It will be noticed that in the I.T.C. Schedule (except in Part VI) against each serial number the corresponding Customs classification under the First Schedule to the Indian Tariff Act, 1934 has been quoted. This is intended to help importers in ascertaining the correct classification in doubtful cases by reference to the Customs classification with which as a rule they would already be familiar by virtue of their past imports. It is some what important for the importer to know the cornet I.T.C classification for any item because only then can he ascertain the appropriate authority to whom he should apply for an import licence and also judge for himself whether or not a licence licence is likely to be granted to him." We do not think that the aforesaid observations which relate to licensing policy have any bearing on the question at issue, namely, whether Lyra brand crayons should be assessed under item 45(a) as stationery not otherwise specified or item 45(4), as coloured pencils. 9. For the reasons given above, we do not think that there is any substance in the contention urged on behalf of the petitioners that by the impugned orders there has been a violation of their fundamental right under Art. 19 or that there has been unequal treatment of the petitioners by the Customs authorities. On this short ground only the applications are liable to be dismissed. 10. With regard to the first two grounds urged on behalf of the petitioners it is abundantly clear that the petitioners have had a full hearing before two successive Collectors of Customs, Calcutta and their grievance as to the violation of the principles of natural justice is totally devoid of merit. From the affidavit field on behalf of the respondents, it appears that between 19th January 1955, and 16th February 1955, the petitioners became aware of the decision of the Collector, through the Customs officers, that the assessment was made under item 45(4). On 16th February 1955, the petitioners made a representation with regard to the distinction between crayons and coloured pencils. The representation was considered by the Collector of Customs. The petitioners were then given a personal hearing by the Collector on 26th February 1955, and the order of assessment was confirmed. On 6th April 1953, the petitioners asked for an interview with the successor in office of the previous Collector, and again the petitioners were heard on 12th April 1955. Thereafter, on 26th April 1955, the petitioners were told that the order of assessment could not be revised and their proper remedy was to prefer an appeal to the Central Board of Revenue. The petitioners then preferred an appeal to the Central Board of Revenue. That appeal was also dismissed. In view of these facts and circumstances, it is idle to contend that there has been a violation of the principles of natural justice. 11. The contention that the impugned orders are manifestly erroneous, because crayons have been treated as coloured pencils is not a contention which can be gone into on an application under Art. 32 of the Constitution. It has no. bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between a coloured pencil and as crayon a distinction which must require an investigation into disputed facts and materials. This was a matter for the Constitution authorities to decide, and it is obvious that this Court cannot, on an application under Art. 32 of the Constitution, embark on such an investigation.
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0[ds]6. At first sight, the last two grounds stated above apparently seem to involves question of enforcement of fundamental rights, for which purpose the petitioners have the guaranteed right to move this court by appropriate proceedings under Art. 32 of the Constitution. On a closer examination, however, it will appear that there is really no. question of the enforcement of a fundamental right in any of these twelve petitions. What, after all, is the grievance of the petitioners? They do not challenge any of the provisions of the Indian Tariff Act, 1934 (XXXII of 1934) or any of the provisions of the Sea Customs Act, 1878 (VIII of 1878). It is for the Customs authorities to determine under the provisions of the said Acts what duty is payable in respect of certain imported articles. The Customs authorities came to a pursued decision, right or wrong, and the petitioners their remedy by way of an appeal to the Central Board of Revenue. The Central Board of Revenue dismissed the appeal, Unless the provisions relating to the imposition of duty are challenged as unconstitutional or the orders in question are challenged as being in excess of the power given to the Customs authorities and therefore without jurisdiction, it is difficult to see how the question of any fundamental right under Art. 19 (1), cls. (f) and (g), of the Constitution can at all arise. If the provision of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no. question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal. If the petitioners were aggrieved by the order of the Central Board of Revenue, they had a further remedy by way of an application for revision to the Central Government. The petitioners did not choose to do so nor do they challenge any of the provisions of law under which the impugned orders were made; nor is it contended that the orders were without jurisdiction. All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any fundamental right under Art. 19 of the ConstitutionThis, in our opinion, completely dispose of the argument as to unequal treatment. It may be stated here that, prior to 1st March 1951, coloured and copying pencils were included under the head stationery not otherwise specified in item 45 (4) of the Indian Customs Tariff. By the Indian Tariff (Amendment) Act, 1951, (Act XIII of 1951) item 45 (a) was inserted and this specifically related to coloured and copying pencils. The duty then imposed was protective duty of 37 1/3 per cent. ad valorem. By the Indian Finance Act XIV of 1953, the duty was enhanced to 66 2/3 per cent. ad valorem. Then, in October, 1954, came the Indian Tariff (Second Amendment) Act, 1954, by which the duty imposed under item 45 (4) with regard to coloured and copying pencils was a revenue duty of two annas for every length of 7 1/2 inches or part thereof or 66 2/3 per cent. ad valorem, whichever is higher. Whatever difficulty there might have been at an earlier stage, there was really no. difficulty in assessing duty on coloured pencils since the amendment of 1951, which inserted items 45 (4) in the First scheduled to the Indian Tariff Act, 1934 (XXXII of 1934)8. The petitioners relied on the letter dated 3rd July 1954, in which the Assistant Collector of Customs said that Lyra brand crayons were classifiable under item 45 (a). This letter, however, itself stated that the classification was provisional and liable to revision in the light of examination of the goods at the time of importation. Moreover, the tentative classification made by the Assistant Collector, of Customs was not binding on the Collector and we do not think that the petitioners can found any claim on the ground of estoppel. In fairness to learned counsel for the petitioners we must add that no. such claim was made before usWe do not think that the aforesaid observations which relate to licensing policy have any bearing on the question at issue, namely, whether Lyra brand crayons should be assessed under item 45(a) as stationery not otherwise specified or item 45(4), as coloured pencils9. For the reasons given above, we do not think that there is any substance in the contention urged on behalf of the petitioners that by the impugned orders there has been a violation of their fundamental right under Art. 19 or that there has been unequal treatment of the petitioners by the Customs authorities. On this short ground only the applications are liable to be dismissed10. With regard to the first two grounds urged on behalf of the petitioners it is abundantly clear that the petitioners have had a full hearing before two successive Collectors of Customs, Calcutta and their grievance as to the violation of the principles of natural justice is totally devoid of merit. From the affidavit field on behalf of the respondents, it appears that between 19th January 1955, and 16th February 1955, the petitioners became aware of the decision of the Collector, through the Customs officers, that the assessment was made under item 45(4). On 16th February 1955, the petitioners made a representation with regard to the distinction between crayons and coloured pencils. The representation was considered by the Collector of Customs. The petitioners were then given a personal hearing by the Collector on 26th February 1955, and the order of assessment was confirmed. On 6th April 1953, the petitioners asked for an interview with the successor in office of the previous Collector, and again the petitioners were heard on 12th April 1955. Thereafter, on 26th April 1955, the petitioners were told that the order of assessment could not be revised and their proper remedy was to prefer an appeal to the Central Board of Revenue. The petitioners then preferred an appeal to the Central Board of Revenue. That appeal was also dismissed. In view of these facts and circumstances, it is idle to contend that there has been a violation of the principles of natural justice11. The contention that the impugned orders are manifestly erroneous, because crayons have been treated as coloured pencils is not a contention which can be gone into on an application under Art. 32 of the Constitution. It has no. bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between a coloured pencil and as crayon a distinction which must require an investigation into disputed facts and materials. This was a matter for the Constitution authorities to decide, and it is obvious that this Court cannot, on an application under Art. 32 of the Constitution, embark on such an investigation.
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treatment. It may be stated here that, prior to 1st March 1951, coloured and copying pencils were included under the head stationery not otherwise specified in item 45 (4) of the Indian Customs Tariff. By the Indian Tariff (Amendment) Act, 1951, (Act XIII of 1951) item 45 (a) was inserted and this specifically related to coloured and copying pencils. The duty then imposed was protective duty of 37 1/3 per cent. ad valorem. By the Indian Finance Act XIV of 1953, the duty was enhanced to 66 2/3 per cent. ad valorem. Then, in October, 1954, came the Indian Tariff (Second Amendment) Act, 1954, by which the duty imposed under item 45 (4) with regard to coloured and copying pencils was a revenue duty of two annas for every length of 7 1/2 inches or part thereof or 66 2/3 per cent. ad valorem, whichever is higher. Whatever difficulty there might have been at an earlier stage, there was really no. difficulty in assessing duty on coloured pencils since the amendment of 1951, which inserted items 45 (4) in the First scheduled to the Indian Tariff Act, 1934 (XXXII of 1934). 8. The petitioners relied on the letter dated 3rd July 1954, in which the Assistant Collector of Customs said that Lyra brand crayons were classifiable under item 45 (a). This letter, however, itself stated that the classification was provisional and liable to revision in the light of examination of the goods at the time of importation. Moreover, the tentative classification made by the Assistant Collector, of Customs was not binding on the Collector and we do not think that the petitioners can found any claim on the ground of estoppel. In fairness to learned counsel for the petitioners we must add that no. such claim was made before us. Learned counsel for the petitioners referred us to certain observations in Chapter 1 of a handbook of rules and procedure, 1952, entitled Import Trade Control. The observations are these : "The import policy in respect of different items is announced with reference to the serial numbers under each part of the Import Trade Control Schedule. It is therefore necessary for the intending importer to ascertain under what part and which serial number of the I.T.C. Schedule the article which he wishes to import falls. An alphabetical list of articles is included in Appendix X to enable importers to ascertain readily the I.T.C. classification of any particular item. It will be noticed that in the I.T.C. Schedule (except in Part VI) against each serial number the corresponding Customs classification under the First Schedule to the Indian Tariff Act, 1934 has been quoted. This is intended to help importers in ascertaining the correct classification in doubtful cases by reference to the Customs classification with which as a rule they would already be familiar by virtue of their past imports. It is some what important for the importer to know the cornet I.T.C classification for any item because only then can he ascertain the appropriate authority to whom he should apply for an import licence and also judge for himself whether or not a licence licence is likely to be granted to him." We do not think that the aforesaid observations which relate to licensing policy have any bearing on the question at issue, namely, whether Lyra brand crayons should be assessed under item 45(a) as stationery not otherwise specified or item 45(4), as coloured pencils. 9. For the reasons given above, we do not think that there is any substance in the contention urged on behalf of the petitioners that by the impugned orders there has been a violation of their fundamental right under Art. 19 or that there has been unequal treatment of the petitioners by the Customs authorities. On this short ground only the applications are liable to be dismissed. 10. With regard to the first two grounds urged on behalf of the petitioners it is abundantly clear that the petitioners have had a full hearing before two successive Collectors of Customs, Calcutta and their grievance as to the violation of the principles of natural justice is totally devoid of merit. From the affidavit field on behalf of the respondents, it appears that between 19th January 1955, and 16th February 1955, the petitioners became aware of the decision of the Collector, through the Customs officers, that the assessment was made under item 45(4). On 16th February 1955, the petitioners made a representation with regard to the distinction between crayons and coloured pencils. The representation was considered by the Collector of Customs. The petitioners were then given a personal hearing by the Collector on 26th February 1955, and the order of assessment was confirmed. On 6th April 1953, the petitioners asked for an interview with the successor in office of the previous Collector, and again the petitioners were heard on 12th April 1955. Thereafter, on 26th April 1955, the petitioners were told that the order of assessment could not be revised and their proper remedy was to prefer an appeal to the Central Board of Revenue. The petitioners then preferred an appeal to the Central Board of Revenue. That appeal was also dismissed. In view of these facts and circumstances, it is idle to contend that there has been a violation of the principles of natural justice. 11. The contention that the impugned orders are manifestly erroneous, because crayons have been treated as coloured pencils is not a contention which can be gone into on an application under Art. 32 of the Constitution. It has no. bearing on the question of the enforcement of a fundamental right, nor can the question be decided without first determining what constitutes the distinction between a coloured pencil and as crayon a distinction which must require an investigation into disputed facts and materials. This was a matter for the Constitution authorities to decide, and it is obvious that this Court cannot, on an application under Art. 32 of the Constitution, embark on such an investigation.
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Workmen of Assam Match Company Limited Vs. Presiding Officer, Labour Court, Assam and Another
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High Court of Assam under Art. 226 of the Constitution on the December 18, 1961. The High Court however, summarily rejected the said application on the December 19, 1961. Thereafter the appellants moved the High Court for leave to appeal to this Court, but the said application was dismissed on the July 4, 1962. The appellants then came to this Court for special leave on the August 24, 1962. The leave was granted to them on the October 3, 1962. The appellants had also applied for special leave to appeal against the award itself on the October 24, 1962. This application was made after considerable delay, and so notice was issued to the respondent to show cause why the said delay should not be condoned. After hearing the parties, the said delay was condoned and special leave was granted on the November 5, 1962. It appears that the respondent had also moved and this application also had been filed after considerable delay. The delay committed by the respondent was, however, not condoned by this Court and its attempt to move this Court by special leave failed. Basing himself on these facts, the learned Solicitor-General contends that it would be inappropriate to direct Dutts reinstatement at this late stage.7. We are not impressed by this argument. As we have repeatedly pointed out, if an employer is shown to have dismissed his employee without justification, and the decision of the dispute resulting from such illegal dismissal takes time, it cannot be urged by the employer that by reason of passage of time, reinstatement should not be ordered. One of the objects which industrial adjudication has to keep in mind is to assure industrial employees security of tenure. There is no doubt that security of tenure for industrial employment tends to create harmonious relations between the employer and the employee, and so this Court has consistently held that in cases of wrongful or illegal dismissal, the normal rule is that the employee who has been illegally or wrongfully dismissed should be reinstated. We are, therefore, satisfied that the contention raised by the Solicitor-General against reinstatement on the ground of passage of time cannot be accepted.8. It is then urged that the Tribunal was justified in taking into account the fact that having regard to what has happened in the present proceedings, it should be held that he respondent has lost confidence in Dutt and that would be a ground for refusing reinstatement to him. This argument is plainly misconceived. We do not think it would be possible to accept the contention that even if an employer is shown to have dismissed his employee wrongfully and without justification, the fact that he has adopted such a course (sic) should be taken into account while determining whether reinstatement should be ordered or not. It would, we think, be unfair to allow an employer in such a case to urge that though the charge framed against his employee was not justified, the fact that a domestic enquiry was held against him on such a charge has led to a loss of confidence in the mind of the employer, and so, the employee should not be reinstated. If this contention were to prevail, the industrial employees who are illegally or unjustifiably dismissed would never get the relief of reinstatement. Cases may conceivably arise where the plea of loss of confidence may and can be entertained, but we have no doubt that the present case does not fall under that category.9. Beside, we cannot overlook the fact that on the findings of the Tribunal, the record of Dutt for 11 years in the employment of the respondent has been without a blemish. Dutt is, therefore, entitled to claim reinstatement with the respondent when he is shown to have served the respondent for 11 long years, and it appears that ordinarily he is entitled to look forward to another long spell of service with the respondent. It is remarkable that though Hussain was similarly charge-sheeted by the respondent and was ordered to be dismissed, on the findings recorded by the Tribunal his reinstatement has been ordered. We see no distinction between the case of Hussain and that of Dutt. The fact that Dutt was a foreman in charge of the motor vehicles of the respondent and Hussain was a driver of one of these vehicles cannot make any difference to the decision of the question with which we are concerned.10. The learned Solicitor-General also attempted to argue that the Tribunal has not considered the evidence led before it by the respondent to show that the charges framed against Dutt were proved. It is true that in the course of its award, the Tribunal has not elaborately referred to the evidence which was led before it. It does appear that apart from the proceedings of the domestic enquiry which were tendered before the Tribunal, evidence was led by both the parties on the merits and the Tribunal has considered the the evidence led at the domestic enquiry as well as the evidence led before it. The discussion of the evidence led before the Tribunal is not very elaborate, but on reading the award, we are satisfied that the Tribunal did take into account the said evidence. Therefore, we do not think the Solicitor-General is justified in contending that the award suffers from the infirmity that the Tribunal completely failed to consider the evidence led before it by the respondent Besides, we cannot overlook the fact that the attempt made by the respondent to move this Court for special leave with a view to challenge the correctness of the finding recorded by the Tribunal has failed inasmuch as the application made by the respondent in that behalf has been dismissed, and so the present appeal must be dealt with on the footing that the finding recorded by the Tribunal, both in regard to the nature of the domestic enquiry and as to the merits of charges framed against Dutt, are correct.
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1[ds]5. In our opinion, the answer to the question raised by the appellants must unhesitatingly be given in their favour. It isthat where in an industrial dispute arising out of a dismissal of a workman, it is established that the impugned dismissal was unjustified, normal rule is that the dismissed workman should be reinstated. In regard to disciplinary actions which the employers are entitled to take against their employees, the position in law is no longer in doubt. The employer can hold an enquiry against his employee whenever the employer feels that the employee has committed misconduct as a result of which he should be dismissed from service. If the enquiry is properly conducted and the conclusion reached at the enquiry does not appear to be perverse the impugned order of dismissal cannot be successfully challenged before the Tribunal. On the other hand, if the enquiry is not properly conducted or the findings recorded at the said enquiry appear too be perverse in the sense that they are not justified by any evidence whatever, the Industrial Tribunal can examine the question about the alleged misconduct of the employee on evidence which may be adduced before it by the employer and decide whether the employer is entitled to dismiss the employee. These principles have been laid down by this Court in several decisions, and both the parties have argued the present appeal before us on the basis of these principles.We are not impressed by this argument. As we have repeatedly pointed out, if an employer is shown to have dismissed his employee without justification, and the decision of the dispute resulting from such illegal dismissal takes time, it cannot be urged by the employer that by reason of passage of time, reinstatement should not be ordered. One of the objects which industrial adjudication has to keep in mind is to assure industrial employees security of tenure. There is no doubt that security of tenure for industrial employment tends to create harmonious relations between the employer and the employee, and so this Court has consistently held that in cases of wrongful or illegal dismissal, the normal rule is that the employee who has been illegally or wrongfully dismissed should be reinstated. We are, therefore, satisfied that the contention raised by theagainst reinstatement on the ground of passage of time cannot be accepted.8.It is then urged that the Tribunal was justified in taking into account the fact that having regard to what has happened in the present proceedings, it should be held that he respondent has lost confidence in Dutt and that would be a ground for refusing reinstatement to him. This argument is plainly misconceived.We do not think it would be possible to accept the contention that even if an employer is shown to have dismissed his employee wrongfully and without justification, the fact that he has adopted such a course (sic) should be taken into account while determining whether reinstatement should be ordered or not. It would, we think, be unfair to allow an employer in such a case to urge that though the charge framed against his employee was not justified, the fact that a domestic enquiry was held against him on such a charge has led to a loss of confidence in the mind of the employer, and so, the employee should not be reinstated. If this contention were to prevail, the industrial employees who are illegally or unjustifiably dismissed would never get the relief of reinstatement. Cases may conceivably arise where the plea of loss of confidence may and can be entertained, but we have no doubt that the present case does not fall under that category.9. Beside, we cannot overlook the fact that on the findings of the Tribunal, the record of Dutt for 11 years in the employment of the respondent has been without a blemish. Dutt is, therefore, entitled to claim reinstatement with the respondent when he is shown to have served the respondent for 11 long years, and it appears that ordinarily he is entitled to look forward to another long spell of service with the respondent. It is remarkable that though Hussain was similarlyby the respondent and was ordered to be dismissed, on the findings recorded by the Tribunal his reinstatement has been ordered. We see no distinction between the case of Hussain and that of Dutt. The fact that Dutt was a foreman in charge of the motor vehicles of the respondent and Hussain was a driver of one of these vehicles cannot make any difference to the decision of the question with which we are concerned.10. The learnedalso attempted to argue that the Tribunal has not considered the evidence led before it by the respondent to show that the charges framed against Dutt were proved.It is true that in the course of its award, the Tribunal has not elaborately referred to the evidence which was led before it. It does appear that apart from the proceedings of the domestic enquiry which were tendered before the Tribunal, evidence was led by both the parties on the merits and the Tribunal has considered the the evidence led at the domestic enquiry as well as the evidence led before it. The discussion of the evidence led before the Tribunal is not very elaborate, but on reading the award, we are satisfied that the Tribunal did take into account the said evidence. Therefore, we do not think theis justified in contending that the award suffers from the infirmity that the Tribunal completely failed to consider the evidence led before it by the respondent Besides, we cannot overlook the fact that the attempt made by the respondent to move this Court for special leave with a view to challenge the correctness of the finding recorded by the Tribunal has failed inasmuch as the application made by the respondent in that behalf has been dismissed, and so the present appeal must be dealt with on the footing that the finding recorded by the Tribunal, both in regard to the nature of the domestic enquiry and as to the merits of charges framed against Dutt, are correct.
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High Court of Assam under Art. 226 of the Constitution on the December 18, 1961. The High Court however, summarily rejected the said application on the December 19, 1961. Thereafter the appellants moved the High Court for leave to appeal to this Court, but the said application was dismissed on the July 4, 1962. The appellants then came to this Court for special leave on the August 24, 1962. The leave was granted to them on the October 3, 1962. The appellants had also applied for special leave to appeal against the award itself on the October 24, 1962. This application was made after considerable delay, and so notice was issued to the respondent to show cause why the said delay should not be condoned. After hearing the parties, the said delay was condoned and special leave was granted on the November 5, 1962. It appears that the respondent had also moved and this application also had been filed after considerable delay. The delay committed by the respondent was, however, not condoned by this Court and its attempt to move this Court by special leave failed. Basing himself on these facts, the learned Solicitor-General contends that it would be inappropriate to direct Dutts reinstatement at this late stage.7. We are not impressed by this argument. As we have repeatedly pointed out, if an employer is shown to have dismissed his employee without justification, and the decision of the dispute resulting from such illegal dismissal takes time, it cannot be urged by the employer that by reason of passage of time, reinstatement should not be ordered. One of the objects which industrial adjudication has to keep in mind is to assure industrial employees security of tenure. There is no doubt that security of tenure for industrial employment tends to create harmonious relations between the employer and the employee, and so this Court has consistently held that in cases of wrongful or illegal dismissal, the normal rule is that the employee who has been illegally or wrongfully dismissed should be reinstated. We are, therefore, satisfied that the contention raised by the Solicitor-General against reinstatement on the ground of passage of time cannot be accepted.8. It is then urged that the Tribunal was justified in taking into account the fact that having regard to what has happened in the present proceedings, it should be held that he respondent has lost confidence in Dutt and that would be a ground for refusing reinstatement to him. This argument is plainly misconceived. We do not think it would be possible to accept the contention that even if an employer is shown to have dismissed his employee wrongfully and without justification, the fact that he has adopted such a course (sic) should be taken into account while determining whether reinstatement should be ordered or not. It would, we think, be unfair to allow an employer in such a case to urge that though the charge framed against his employee was not justified, the fact that a domestic enquiry was held against him on such a charge has led to a loss of confidence in the mind of the employer, and so, the employee should not be reinstated. If this contention were to prevail, the industrial employees who are illegally or unjustifiably dismissed would never get the relief of reinstatement. Cases may conceivably arise where the plea of loss of confidence may and can be entertained, but we have no doubt that the present case does not fall under that category.9. Beside, we cannot overlook the fact that on the findings of the Tribunal, the record of Dutt for 11 years in the employment of the respondent has been without a blemish. Dutt is, therefore, entitled to claim reinstatement with the respondent when he is shown to have served the respondent for 11 long years, and it appears that ordinarily he is entitled to look forward to another long spell of service with the respondent. It is remarkable that though Hussain was similarly charge-sheeted by the respondent and was ordered to be dismissed, on the findings recorded by the Tribunal his reinstatement has been ordered. We see no distinction between the case of Hussain and that of Dutt. The fact that Dutt was a foreman in charge of the motor vehicles of the respondent and Hussain was a driver of one of these vehicles cannot make any difference to the decision of the question with which we are concerned.10. The learned Solicitor-General also attempted to argue that the Tribunal has not considered the evidence led before it by the respondent to show that the charges framed against Dutt were proved. It is true that in the course of its award, the Tribunal has not elaborately referred to the evidence which was led before it. It does appear that apart from the proceedings of the domestic enquiry which were tendered before the Tribunal, evidence was led by both the parties on the merits and the Tribunal has considered the the evidence led at the domestic enquiry as well as the evidence led before it. The discussion of the evidence led before the Tribunal is not very elaborate, but on reading the award, we are satisfied that the Tribunal did take into account the said evidence. Therefore, we do not think the Solicitor-General is justified in contending that the award suffers from the infirmity that the Tribunal completely failed to consider the evidence led before it by the respondent Besides, we cannot overlook the fact that the attempt made by the respondent to move this Court for special leave with a view to challenge the correctness of the finding recorded by the Tribunal has failed inasmuch as the application made by the respondent in that behalf has been dismissed, and so the present appeal must be dealt with on the footing that the finding recorded by the Tribunal, both in regard to the nature of the domestic enquiry and as to the merits of charges framed against Dutt, are correct.
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318 |
Indian Oxygen Ltd Vs. Workmen
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Mr. Banerji, W. W. 1, who was a Chartered Accountant. In chief examination he has stated that under the Act the amount claimed the appellant as doubtful debts has to be added back for ascertaining the gross-profits. He has further stated that under the Income-tax Act, Provision for doubtful debts cannot be deducted in computing the net profits. On this point, so far as we could see there is no cross-examination on behalf of the Company.The Tribunal was justified in holding that the appellant was not in order in deducting Rs. 55,127 under the head "doubtful debts" as an item of expenditure. It was perfectly justified in adding back this amount in computing the gross-profits.50. The last point in controversy related to three items shown as capital expenditure in Ex. 4. Those items are : (1) Patent fees Rs. 10,000; (2) Plant transfer charges Rs. 72,516; and (3) Disallowable rent Rs. 74,000. The above three items were claimed by the appellant as revenue expenditure and hence should not be added back for ascertaining the gross-profits.51. So far as Plant transfer charges of Rs. 72516/- is concerned, it is seen that though this was claimed as a revenue expenditure, Mr. K. B. Bose, appearing for the appellant, had conceded before the National Tribunal that this amount is an item of capital expenditure which should be added back. This concession has been recorded in the Award and it has not been, challenged before us on behalf of the appellant. Therefore, it follows that the Tribunal was justified in adding back this amount for ascertaining the gross-profits.52. Similarly, regarding Patent fees of Rs. 10,000, the appellant witness Mr. Basu, M. W. 1 has admitted in cross-examination that Patent fee is also regarded as an item of capital expenditure. If that is so, that Tribunal was justified in adding back this amount also.53. The same witness has also admitted that rent paid for godown for storing capital goods in the process offerection of a factory is not allowable that the Income-tax authorities would treat the same as part of capital expenditure for erecting a factory. Therefore, from the evidence on the side of the appellant, it is clear that this amount also is an item of capital expenditure and has to be added back in computing the gross-profits.54. Similarly, Mr. Banerji, Chartered Accountant, who gave evidence on the said of the Union, as W. W. 1, has also stated that the appellant itself originally added back in computing gross-profits the amount under Patent Fees, Disallowable Rent and Plant Transfer Charges and that it was only as a later stage that it claimed these items as revenue expenditure. Under, those circumstances, the Tribunal was justified in adding back the amount of Rs. 74,000/- under the heading Disallowable Rent.55. So far as the calculation of Surtax is concerned, the Tribunal has held that the method of calculation made by the Company in Ex. 4 is correct, but it has to be altered because the Income-tax calculated by it after deducting bonus was less. Now, that we are accepting the claim of the appellant that bonus should not be deducted for calculating direct taxes, it follows that the view of the Tribunal in this respect is not correct.56. We have already pointed out that the National Tribunal has held that direct tax has to be calculated without taking into account the bonus paid for the year 1963-64 and the bonus paid for the year 1963-64 and the bonus payable for the accounting year 1964-65. So far as the bonus payable for the accounting year 1964-65 is concerned, we have already discussed the matter and held that the view of the Tribunal is erroneous. But, in our opinion, the Tribunal was justified in holding that in calculating direct taxes, the bonus for the accounting 1963-64, though paid during the accounting year 1964-65 should not be taken into account, is correct. As the bonus paid for the previous accounting year from and out of the profits of the said previous year does not come into the picture.57. From the discussion above, it follows that except, the error committed by the National Tribunal in the matter of computation of direct taxes after excluding bonus payable for the accounting year 1964-65, in all other respects it was justified in rejecting the various claims made by the Company. Even on the basis of the rejection of the claim of the appellant that the bonus paid for the previous accounting year 1963-64 has also to be taken into account for purposes of calculation of direct taxes, there is no controversy that on a proper calculation, the bonus to which the workmen will be entitled, will be very much less than 17.58% already given by the Company. Hence it is not necessary for us to recompute the figure, as the appellant has agreed not to claim a refund or in any other manner adjust or collect the excess bonus that has been already paid.58. But it follows that the view of the Tribunal that the workmen are entitled to bonus at the maximum rate of 20% and the further direction regarding the set on to be carried forward, cannot be sustained. From the calculation given by us earlier, it will be seen that the National Tribunal had directed that a sum of Rs. 4,63,750 had to be carried forward as set on in the succeeding year. This direction has been given on its finding that the allocable surplus works out at more than 20% of the Annual Wage Bill. If that finding is correct, the direction regarding set on will be justified under S. 15 of the Act. But as we have already held that parties are agreed that on a proper computation, on the basis, indicated by us in the earlier part of the judgment, even the bonus already paid at 17.58%, will be on the high side, it follows that the direction of the National Tribunal regarding set on cannot be accepted.
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1[ds]Going by a very strict interpretation of the language of the provisions relied on by Mr. G. B. Pai, his argument, no doubt, looks attractive. But from the other proceedings, to which we will refer immediately, it will be seen that the approach made by the Tribunal is correct. In the Schedule to the balance-sheet as on September 30, 1964, the appellant Company has shown a sum of Rupees 1,23,00,000 as General Reserve. It has further shown a sum of Rs. 43,68,000 as the amount transferred to appropriation account for payment of dividend subject to tax in respect of the previsious year, namely, 1962-63. It has also shown a sum of Rs. 63,00,000 as added to the General Reserve during the year ended September 30, 1964. On December 5, 1964, a notice was issued regarding holding of the Annual General Meeting on February 12, 1965. One of the items in the agenda for the said meeting was to declare dividend. It is further stated in the said notice that the dividend to be declared at the meeting will be payable on or before March 9, 1965, to those members whose names are on the Companys Register of Members as on February 12, 1965. In the Directors Report accompanying the notice, it is stated that a sum of Rs. 43,68,000 has been appropriated "for payment of dividend for the previous year" (paid during year). The reference to the "previous year ended September 30, 1964. It is also clear that the amount so appropriated for payment of dividend is to be paid "during the years" namely, 1964-65. It is also stated that this amount for payment of dividend has been transferred from the General Reserve. The notice further states that the Directors recommend payment of divident for the year ended September 30, 1964 at 12% subject to deduction of tax at the appropriate rate and that the said payment will absorb Rs. 43,68,000, out of the General Reserve.44. It will be seen that from the notice calling for the General Meeting, the Directors Report and the balance-sheet, referred to above, that a sum of Rs. 43,68,000 out of the General Reserve of Rs. 2,35,07,686 has been set apart and is to be appropriated for payment of dividend for the previous year 1963-64. In no case will a Company be able to declare a dividend for the year ending September 30, 1964 on the morning of October 1, 1964. Therefore, it is clear that from the Reserve shown at the commencement of the accounting year i.e. October 1, 1964, a sum of Rs. 43,68,000 has to be deducted as per the Explanation to the Third Schedule, as the said amount must be considered to have been set apart for payment of dividend. No doubt, Mr. Pai urged that the notice calling for a General Meeting on February 12, 1965 was issued on December 5, 1964 and that the dividend was actually declared only on a later date and in fact the dividend was paid only as late as March 9, 1965. Therefore, he pointed out that in any event it cannot be considered that the said amount has been set apart for payment of dividend which have been declared.45. It is not possible to accept this contention of Mr. Pal. Once the Directors have, on the basis of the auditors report and other materials, decided to declare a particular amount as dividend and have set apart the required amount from the General Reserve, it must relate back to the date of the commencement of the accounting year. The mere fact that dividend was actually paid only on March 9, 1965, in this view, is of no consequence. Therefore, the National Tribunal was perfectly justified in allowing interest at 6% only on the sum of Rs. 1,91,39,686. There is no controversy that 6% Return on this amount, as correctly stated in the Award, is the sum of Rs. 11,48,381.46. Another amount that has been added back by the Tribunal to the net profits shown in the Profit and Loss Account is the sum of Rupees 55,127/-. According to the appellant this amount represents doubtful debts and as such the Tribunal should not have added back the same. In this connection Mr. G. B. Pai, learned counsel for the appellant, drew our attention to S. 211 ofthe Companies Act, 1956, which provides for the from and contents of balance-sheet and Profit and Loss account. He also invited our attention to Part II and Schedule Six of the same Act regarding the requirements as to Profit and Loss Account as well as to Part III regarding the interpretation of the expressions contained in Parts I and II of the said Schedule. He has also referred us to the Auditors report for the year ending September 30, 1965 and also to certain passages in Pickles and Dunkerley on Accountancy.47. All the above matters were relied on by the learned counsel to support his contention that the doubtful debts have been properly excluded by the Company in computing the gross-profits. Here again, it is not possible to accept the contention of Mr. Pai. In the Profit and Loss Account for the year ended September 30, 1965, the appellant under the column Expenses, had given one item as Miscellaneous. Under this heading it had shown a sum of Rs. 71,71,072. Later on, under Ex. 3D, the appellant gave a break up of this amount. In particular, it is only necessary to note that it had referred to two separate items, namely, Rs. 41,099 as bad debts and the sum of Rs. 55,127 as doubtful debts. This clearly shows that the appellant Company made a clear distinction between bad debts and doubtful debts. The claim of the appellant is that this amount of Rs. 55,127, shown as doubtful debts, is really a Provision and not a Reserve.No doubt, this Court was considering the question on the basis of the Full Bench formula; but in our opinion that principal applies with equal force to the case on hand even under the Act. In fact the above decision also shows that creation of such an amount is really a reserve and not a Provision, as contended by the appellant. Even apart from the above circumstances, there is a crucial fact that the appellant itself in its break up has distinguished bad debts from doubtful debts. The Tribunal had not added back the amount shown by the appellant in the break-up sheet under the heading "bad debts." We may also refer to the evidence of Mr. Banerji, W. W. 1, who was a Chartered Accountant. In chief examination he has stated that under the Act the amount claimed the appellant as doubtful debts has to be added back for ascertaining the gross-profits. He has further stated that under the Income-tax Act, Provision for doubtful debts cannot be deducted in computing the net profits. On this point, so far as we could see there is no cross-examination on behalf of the Company.The Tribunal was justified in holding that the appellant was not in order in deducting Rs. 55,127 under the head "doubtful debts" as an item of expenditure. It was perfectly justified in adding back this amount in computing the gross-profits.gross-profits.51. So far as Plant transfer charges of Rs. 72516/- is concerned, it is seen that though this was claimed as a revenue expenditure, Mr. K. B. Bose, appearing for the appellant, had conceded before the National Tribunal that this amount is an item of capital expenditure which should be added back. This concession has been recorded in the Award and it has not been, challenged before us on behalf of the appellant. Therefore, it follows that the Tribunal was justified in adding back this amount for ascertaining the gross-profits.52. Similarly, regarding Patent fees of Rs. 10,000, the appellant witness Mr. Basu, M. W. 1 has admitted in cross-examination that Patent fee is also regarded as an item of capital expenditure. If that is so, that Tribunal was justified in adding back this amount also.53. The same witness has also admitted that rent paid for godown for storing capital goods in the process offerection of a factory is not allowable that the Income-tax authorities would treat the same as part of capital expenditure for erecting a factory. Therefore, from the evidence on the side of the appellant, it is clear that this amount also is an item of capital expenditure and has to be added back in computing the gross-profits.54. Similarly, Mr. Banerji, Chartered Accountant, who gave evidence on the said of the Union, as W. W. 1, has also stated that the appellant itself originally added back in computing gross-profits the amount under Patent Fees, Disallowable Rent and Plant Transfer Charges and that it was only as a later stage that it claimed these items as revenue expenditure. Under, those circumstances, the Tribunal was justified in adding back the amount of Rs. 74,000/- under the heading Disallowable Rent.55. So far as the calculation of Surtax is concerned, the Tribunal has held that the method of calculation made by the Company in Ex. 4 is correct, but it has to be altered because the Income-tax calculated by it after deducting bonus was less. Now, that we are accepting the claim of the appellant that bonus should not be deducted for calculating direct taxes, it follows that the view of the Tribunal in this respect is not correct.56. We have already pointed out that the National Tribunal has held that direct tax has to be calculated without taking into account the bonus paid for the year 1963-64 and the bonus paid for the year 1963-64 and the bonus payable for the accounting year 1964-65. So far as the bonus payable for the accounting year 1964-65 is concerned, we have already discussed the matter and held that the view of the Tribunal is erroneous. But, in our opinion, the Tribunal was justified in holding that in calculating direct taxes, the bonus for the accounting 1963-64, though paid during the accounting year 1964-65 should not be taken into account, is correct. As the bonus paid for the previous accounting year from and out of the profits of the said previous year does not come into the picture.57. From the discussion above, it follows that except, the error committed by the National Tribunal in the matter of computation of direct taxes after excluding bonus payable for the accounting year 1964-65, in all other respects it was justified in rejecting the various claims made by the Company. Even on the basis of the rejection of the claim of the appellant that the bonus paid for the previous accounting year 1963-64 has also to be taken into account for purposes of calculation of direct taxes, there is no controversy that on a proper calculation, the bonus to which the workmen will be entitled, will be very much less than 17.58% already given by the Company. Hence it is not necessary for us to recompute the figure, as the appellant has agreed not to claim a refund or in any other manner adjust or collect the excess bonus that has been already paid.58. But it follows that the view of the Tribunal that the workmen are entitled to bonus at the maximum rate of 20% and the further direction regarding the set on to be carried forward, cannot be sustained. From the calculation given by us earlier, it will be seen that the National Tribunal had directed that a sum of Rs. 4,63,750 had to be carried forward as set on in the succeeding year. This direction has been given on its finding that the allocable surplus works out at more than 20% of the Annual Wage Bill. If that finding is correct, the direction regarding set on will be justified under S. 15 of the Act. But as we have already held that parties are agreed that on a proper computation, on the basis, indicated by us in the earlier part of the judgment, even the bonus already paid at 17.58%, will be on the high side, it follows that the direction of the National Tribunal regarding set on cannot beis, even if after accepting any of the contentions of the appellant Company, it is found that bonus is payable at a percentage lesser than the rate, at which it has been paid, the excess amount will not be recovered from the employees, nor adjusted in any other manner.Therefore, it will be noted that the principle laid down in Metal Box Co., (1969) 1 SCR 750 = (AIR 1969 SC 612 ) regarding the manner of computation of direct tax has been reiterated and reaffirmed in William Jacks and Co., (1971) 1 Lab LJ 503 = (AIR 1969 SC 1812) and it has also been further pointed out that the Amendment Act had made no change whatsoever on this aspect.30. The same question again came up for consideration before this Court in Delhi Cloth and General Mills Co., Ltd. v. Workmen, (1971) 2 SCC 695 = (AIR 1972 SC 299 ). The workmen therein again contended that many of the observations in Metal Box Co., (1969) 1 SCR 750 = (AIR 1969 SC 612 ) were obiter and that the said decision should not be followed as a precedent for determination of the question regarding the manner in which direct taxes have to be computed. Again, after a very elaborate consideration of the scheme of the Act this Court rejected the contention of the Union, and observed asreliance was placed by learned counsel for the appellant on the decision of this Court in (1969) 1 SCR 750 = (AIR 1969 SC 612 ). Counsel for the respondents made valiant efforts to persuade us to hold that many of the observations therein were obiter and as such the case should either be distinguished or be not followed as a precedent for the determination of the question before us. While no doubt the dispute in that case was somewhat different from the one which we have to resolve and there are some distinguishing features in that case, namely, that the Court was not called upon to examine the computation of the figures of gross profits, etc., for an establishment which came within the proviso to Section 3, the observations bearing on the question of the computation of direct tax under Section 6 (c) of the Act are certainly in point. It was pointed out there at p. 775:"What Section 7 really means is that the Tribunal has to compute the direct taxes at the rates at which the income, gains and profits of the employer are taxed under theAct and other such Acts during the accounting year in question. That is the reason why Section 6 (c) has the words "is liable for" and the words "income, gains and profits". These words do not, however, mean that the Tribunal while computing direct taxes as a prior charge has to assess the actual taxable income and the taxes thereon."With respect we entirely agree with the above observation and in our view no useful purpose will be served by referring to the other observations bearing on a question with which we are not directlydecision again reiterates the principle laid down in Metal Box Co.31. In view of the fact that the two later decisions, William Jacks and Co., (1971) 1 Lab LJ 503 = (AIR 1971 SC 1821 ) and Delhi Cloth and General Mills Co. (1971) 2 695 = (AIR 1972 SC 299 ) have approved and adopted the principles laid down by this Court in Metal Box Co., (1969) 1 SCR 750 = (AIR 1969 SC 612 ) that decision holds good and governs the principles to be applied to the case on hand. We are not persuaded by the request made by Mr. Dudhiya that the decision in Metal Box Co., has to be reconsidered. In fact we have already pointed out that even the effect of the Amendment Act has been considered by this Court in William Jacks and Co., Ltd. and it has been held that the Amendment Act has made no change in the principles laid down by this Court in Metal Box Co.32. It is rather significant to note that the Amendment Act was passed, after the decision of this Court in Metal Box Co., (1969) 1 SCR 750 = (AIR 1969 SC 612 ). Parliament at that time was fully aware of the principle laid down by this Court that the tax liability has to be worked out by first working out theand deducting therefrom the prior charges under S. 6, but not the bonus payable to the employees. Nevertheless, Parliament did not make any change in the Act enacting that a different method is to be adopted for computing direct taxes. If the Parliament intended to make a departure from the principle laid down by this Court in Metal Box Co., that bonus amount should be calculated, after a provision for tax was made and not before, a provision to that effect would have been incorporated by the Amendment Act. That not having been done, the law as laid down by this court in Metal Box Co., and reaffirmed by the two later decisions, referred to above, still holds the field.33. One must in fairness state that the National Tribunal in the case before us, was for the first time applying the provisions of the Act and it did not have the benefit of the decision of this Court in Metal Box Co., (1969) 1 SCR 750 = (AIR 1969 SC 612 ).From what is stated above, it follows that the view of the National Tribunal that bonus must be subtracted form theax is calculated, is not correct.34. Before closing the discussion on this aspect, it is necessary to point out that the view of the National Tribunal that the tax concession by way of rebate that an employer will get under theAct on the bonus found to be payable has also to be taken into consideration in dividing the surplus between the workmen and the Company, is also erroneous in view of the fact that the Act, which is aCode has prescribed the manner in which available surplus and the allocable surplus are to be calculated.In our opinion, there is considerable force in the contention of Mr. Dudhiya.Going by a very strict interpretation of the language of the provisions relied on by Mr. G. B. Pai, his argument, no doubt, looks attractive. But from the other proceedings, to which we will refer immediately, it will be seen that the approach made by the Tribunal is correct. In the Schedule to theas on September 30, 1964, the appellant Company has shown a sum of Rupees 1,23,00,000 as General Reserve. It has further shown a sum of Rs. 43,68,000 as the amount transferred to appropriation account for payment of dividend subject to tax in respect of the previsious year, namely,It has also shown a sum of Rs. 63,00,000 as added to the General Reserve during the year ended September 30, 1964. On December 5, 1964, a notice was issued regarding holding of the Annual General Meeting on February 12, 1965. One of the items in the agenda for the said meeting was to declare dividend. It is further stated in the said notice that the dividend to be declared at the meeting will be payable on or before March 9, 1965, to those members whose names are on the Companys Register of Members as on February 12, 1965. In the Directors Report accompanying the notice, it is stated that a sum of Rs. 43,68,000 has been appropriated "for payment of dividend for the previous year" (paid during year). The reference to the "previous year ended September 30, 1964. It is also clear that the amount so appropriated for payment of dividend is to be paid "during the years" namely,It is also stated that this amount for payment of dividend has been transferred from the General Reserve. The notice further states that the Directors recommend payment of divident for the year ended September 30, 1964 at 12% subject to deduction of tax at the appropriate rate and that the said payment will absorb Rs. 43,68,000, out of the General Reserve.
| 1 | 8,899 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
Mr. Banerji, W. W. 1, who was a Chartered Accountant. In chief examination he has stated that under the Act the amount claimed the appellant as doubtful debts has to be added back for ascertaining the gross-profits. He has further stated that under the Income-tax Act, Provision for doubtful debts cannot be deducted in computing the net profits. On this point, so far as we could see there is no cross-examination on behalf of the Company.The Tribunal was justified in holding that the appellant was not in order in deducting Rs. 55,127 under the head "doubtful debts" as an item of expenditure. It was perfectly justified in adding back this amount in computing the gross-profits.50. The last point in controversy related to three items shown as capital expenditure in Ex. 4. Those items are : (1) Patent fees Rs. 10,000; (2) Plant transfer charges Rs. 72,516; and (3) Disallowable rent Rs. 74,000. The above three items were claimed by the appellant as revenue expenditure and hence should not be added back for ascertaining the gross-profits.51. So far as Plant transfer charges of Rs. 72516/- is concerned, it is seen that though this was claimed as a revenue expenditure, Mr. K. B. Bose, appearing for the appellant, had conceded before the National Tribunal that this amount is an item of capital expenditure which should be added back. This concession has been recorded in the Award and it has not been, challenged before us on behalf of the appellant. Therefore, it follows that the Tribunal was justified in adding back this amount for ascertaining the gross-profits.52. Similarly, regarding Patent fees of Rs. 10,000, the appellant witness Mr. Basu, M. W. 1 has admitted in cross-examination that Patent fee is also regarded as an item of capital expenditure. If that is so, that Tribunal was justified in adding back this amount also.53. The same witness has also admitted that rent paid for godown for storing capital goods in the process offerection of a factory is not allowable that the Income-tax authorities would treat the same as part of capital expenditure for erecting a factory. Therefore, from the evidence on the side of the appellant, it is clear that this amount also is an item of capital expenditure and has to be added back in computing the gross-profits.54. Similarly, Mr. Banerji, Chartered Accountant, who gave evidence on the said of the Union, as W. W. 1, has also stated that the appellant itself originally added back in computing gross-profits the amount under Patent Fees, Disallowable Rent and Plant Transfer Charges and that it was only as a later stage that it claimed these items as revenue expenditure. Under, those circumstances, the Tribunal was justified in adding back the amount of Rs. 74,000/- under the heading Disallowable Rent.55. So far as the calculation of Surtax is concerned, the Tribunal has held that the method of calculation made by the Company in Ex. 4 is correct, but it has to be altered because the Income-tax calculated by it after deducting bonus was less. Now, that we are accepting the claim of the appellant that bonus should not be deducted for calculating direct taxes, it follows that the view of the Tribunal in this respect is not correct.56. We have already pointed out that the National Tribunal has held that direct tax has to be calculated without taking into account the bonus paid for the year 1963-64 and the bonus paid for the year 1963-64 and the bonus payable for the accounting year 1964-65. So far as the bonus payable for the accounting year 1964-65 is concerned, we have already discussed the matter and held that the view of the Tribunal is erroneous. But, in our opinion, the Tribunal was justified in holding that in calculating direct taxes, the bonus for the accounting 1963-64, though paid during the accounting year 1964-65 should not be taken into account, is correct. As the bonus paid for the previous accounting year from and out of the profits of the said previous year does not come into the picture.57. From the discussion above, it follows that except, the error committed by the National Tribunal in the matter of computation of direct taxes after excluding bonus payable for the accounting year 1964-65, in all other respects it was justified in rejecting the various claims made by the Company. Even on the basis of the rejection of the claim of the appellant that the bonus paid for the previous accounting year 1963-64 has also to be taken into account for purposes of calculation of direct taxes, there is no controversy that on a proper calculation, the bonus to which the workmen will be entitled, will be very much less than 17.58% already given by the Company. Hence it is not necessary for us to recompute the figure, as the appellant has agreed not to claim a refund or in any other manner adjust or collect the excess bonus that has been already paid.58. But it follows that the view of the Tribunal that the workmen are entitled to bonus at the maximum rate of 20% and the further direction regarding the set on to be carried forward, cannot be sustained. From the calculation given by us earlier, it will be seen that the National Tribunal had directed that a sum of Rs. 4,63,750 had to be carried forward as set on in the succeeding year. This direction has been given on its finding that the allocable surplus works out at more than 20% of the Annual Wage Bill. If that finding is correct, the direction regarding set on will be justified under S. 15 of the Act. But as we have already held that parties are agreed that on a proper computation, on the basis, indicated by us in the earlier part of the judgment, even the bonus already paid at 17.58%, will be on the high side, it follows that the direction of the National Tribunal regarding set on cannot be accepted.
### Response:
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DIRECTOR OF INCOME TAX-II (INTERNATIONAL TAXATION) NEW DELHI & ANR Vs. M/S SAMSUNG HEAVY INDUSTRIES CO. LTD
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as is attributable to that permanent establishment. 24. At this stage, it is important to go into some of the documents that were relied upon by the ITAT. The application submitted by the Assessee to the RBI dated 24.04.2006 for opening a project office, reads as follows: Letter dated 24 th April 2006 General Manager Reserve Bank of India Regional Office Mumbai Dear sir, Re: M/s Samsung Heavy Industries Co. Ltd. (SHI) Application for Registration of Project Office Our aforesaid client (SHI) has entered into contract with M/s Oil and Natural Gas Corporation Ltd. (ONGC) vide contract number MR/OW/MM/VED/O3/2005. Under the instructions of our above- referred client, we have to enclose following documents in connection with Registration of Project office in India: 1. Letter dated (…) on the letter head of the company for the details of the project as Notification FEMA 95/2003- RB dated 2 nd July, 2003 Foreign Exchange Management (Establishment in India of Branch or Office or other place of business) (Amendment) Regulations 2003 along with the copy of letter from ChoHung Bank for opening Bank account. 2. Copy of the POA in our favour and in favour of M/s Hemand Arora and Co., CA. 3. Certified copy of the POA in the name of the Mr. S.S. Park, who has signed the application. 4. Certified copy of the certificate of registration of the company in South Korea. 5. Certified copy of the notarised Board resolution for opening a Project office in India. 6. Certified copy of Extract of contract entered into by our client. Kindly take the above documents on record. Please take on record our clients Project office and register the same. If you require any clarification, please let us know… 25. The Board Resolution dated 03.04.2006 referred to in this letter reads as follows: MINUTES OF BOARD OF DIRECTORS MEETING OF SAMSUNG HEAVY INDUSTRIES CO. LTD. A meeting of the Board of Directors of Samsung Heavy Industries Co. Ltd. (the Company) was duly called and held on the 3 rd day of April 2006 at the office of the Company in Seoul the Republic of Korea, at which 3 of 3 Directors were present and acting throughout. Jing Wan Kim, President and CEO of Samsung Heavy Industries Co. Ltd. announced that the notice of meeting was duly given to all Directors and a quorum was present and the meeting was duly called to order and held. RESOLVED: 1. That the Company hereby open one project office in Mumbai, India for coordination and execution of Vasai East Development Project for Oil and Natural Gas Corporation Limited ( ONGC), India. 2. That the Company hereby does make and constitute Mr. Sangsoon Park Yard General Manager of the Company, as the Companys true and lawful representative with full power and authority for the purpose of establishing a project office and coordinating and executing delivery of documents in connection with construction of offshore platform modification of existing facilities for ONGC above. IN WITNESS WHEREOF, the President and Directors present at the meeting have hereunto affixed their names and seals on this 3rd day of April 2006. Sd/- Samsung Heavy Industries Co., Ltd. President and CEO Jing Wan Kim 26. Based on the letter given to RBI which contained this resolution, the RBI approval dated 24.05.2006 reads as follows: FEO, Mumbai CAD/080/04.02.2001/05-06 24th May, 2006 M/s Davesh K. Shah and Co., Chartered Accountants, 106, Banaji House, 361, Dr. D.N. Road, Flora Fountain, Mumbai 400 001. Dear sirs, Registration of Project Office – M/s Samsung Heavy Industries Co. Ltd. (SHI) Please refer to your letter dated 24 th April, 2006 on the captioned subject. In this connection, we advise having noted a Project Office in India in terms of provision contained in AP (Dir Series) Circular No.37 dated 15 th November 2003. 27. A reading of the Board Resolution would show that the Project Office was established to coordinate and execute delivery documents in connection with construction of offshore platform modification of existing facilities for ONGC . Unfortunately, the ITAT relied upon only the first paragraph of the Board Resolution, and then jumped to the conclusion that the Mumbai office was for coordination and execution of the project itself. The finding, therefore, that the Mumbai office was not a mere liaison office, but was involved in the core activity of execution of the project itself is therefore clearly perverse. Equally, when it was pointed out that the accounts of the Mumbai office showed that no expenditure relating to the execution of the contract was incurred, the ITAT rejected the argument, stating that as accounts are in the hands of the Assessee, the mere mode of maintaining accounts alone cannot determine the character of permanent establishment. This is another perverse finding which is set aside. Equally the finding that the onus is on the Assessee and not on the Tax Authorities to first show that the project office at Mumbai is a permanent establishment is again in the teeth of our judgment in E-Funds IT Solution Inc. (supra). 28. Though it was pointed out to the ITAT that there were only two persons working in the Mumbai office, neither of whom was qualified to perform any core activity of the Assessee, the ITAT chose to ignore the same. This being the case, it is clear, therefore, that no permanent establishment has been set up within the meaning of Article 5(1) of the DTAA, as the Mumbai Project Office cannot be said to be a fixed place of business through which the core business of the Assessee was wholly or partly carried on. Also, as correctly argued by Shri Ganesh, the Mumbai Project Office, on the facts of the present case, would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. This being the case, it is not necessary to go into any of the other questions that have been argued before us.
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0[ds]17. Some of the judgments of this Court have dealt with similar double taxation avoidance treaty provisions and therefore need to be mentioned at this juncture. In Morgan Stanley & Co. Inc. (supra), the Double Taxation Avoidance Agreement (1990) between India and the United States of America was construed. The facts in that case made it clear that the Morgan Stanley Group is one of the worlds largest diversifying financial services companies. Morgan Stanley and Company, which is a part of the Morgan Stanley Group, is an investment bank engaged in the business of providing financial advisory services, corporate lending and securities underwriting. One of the group companies of Morgan Stanley Group, namely, Morgan Stanley Advantages Services Pvt. Ltd. ( MSAS) entered into an agreement for providing certain support services to Morgan Stanley and Company. MSAS, being an Indian Company, was set up to support the main office functions in equity and fixed income research, account reconciliation and providing IT enabled services such as back office operation, data processing and support centre to Morgan Stanley and Company. Tackling the question as to whether a fixed place permanent establishment existed on the facts of that case under Article 5 of the India-US treaty – which is similar to Article 5 of the present DTAA – this Court held:10. In our view, the second requirement of Article 5(1) of DTAA is not satisfied as regards back office functions. We have examined the terms of the Agreement along with the advance ruling application made by MSCo inviting AAR to give its ruling. It is clear from reading of the above Agreement/application that MSAS in India would be engaged in supporting the front office functions of MSCo in fixed income and equity research and in providing IT enabled services such as data processing support centre and technical services as also reconciliation of accounts. In order to decide whether a PE stood constituted one has to undertake what is called as a functional and factual analysis of each of the activities to be undertaken by an establishment. It is from that point of view, we are in agreement with the ruling of AAR that in the present case Article 5(1) is not applicable as the said MSAS would be performing in India only back office operations. Therefore to the extent of the above back office functions the second part of Article 5(1) is not attracted.xxx xxx xxx14. There is one more aspect which needs to be discussed, namely, exclusion of PE under Article 5(3). Under Article 5(3)(e) activities which are preparatory or auxiliary in character which are carried out at a fixed place of business will not constitute a PE. Article 5(3) commences with a non obstante clause. It states that notwithstanding what is stated in Article 5(1) or under Article 5(2) the term PE shall not include maintenance of a fixed place of business solely for advertisement, scientific research or for activities which are preparatory or auxiliary in character. In the present case we are of the view that the abovementioned back office functions proposed to be performed by MSAS in India falls under Article 5(3)(e) of DTAA. Therefore, in our view in the present case MSAS would not constitute a fixed place PE under Article 5(1) of DTAA as regards its back office operations.18. The Court then went on to hold that activities performed by stewards who were deployed by the American Company to work in India as employees of the Indian company were so employed merely to protect the American companies interests in a competitive world, by ensuring quality and confidentiality of services performed in India. It was therefore found that so far as stewardship was concerned, this activity would fall within Article 5(2)(l) of the US-India treaty, and therefore would be outside the term permanent establishment as defined. On the deputation of certain employees of the American Company to work as employees of the Indian Company, it was found, however, that the American Company was rendering services through its employees to the Indian Company, as a result of which a service permanent establishment would stand established on this count.23. A reading of the aforesaid judgments makes it clear that when it comes to fixed place permanent establishments under double taxation avoidance treaties, the condition precedent for applicability of Article 5(1) of the double taxation treaty and the ascertainment of a permanent establishment is that it should be an establishment through which the business of an enterprise is wholly or partly carried on. Further, the profits of the foreign enterprise are taxable only where the said enterprise carries on its core business through a permanent establishment. What is equally clear is that the maintenance of a fixed place of business which is of a preparatory or auxiliary character in the trade or business of the enterprise would not be considered to be a permanent establishment under Article 5. Also, it is only so much of the profits of the enterprise that may be taxed in the other State as is attributable to that permanent establishment.27. A reading of the Board Resolution would show that the Project Office was established to coordinate and execute delivery documents in connection with construction of offshore platform modification of existing facilities for ONGC . Unfortunately, the ITAT relied upon only the first paragraph of the Board Resolution, and then jumped to the conclusion that the Mumbai office was for coordination and execution of the project itself. The finding, therefore, that the Mumbai office was not a mere liaison office, but was involved in the core activity of execution of the project itself is therefore clearly perverse. Equally, when it was pointed out that the accounts of the Mumbai office showed that no expenditure relating to the execution of the contract was incurred, the ITAT rejected the argument, stating that as accounts are in the hands of the Assessee, the mere mode of maintaining accounts alone cannot determine the character of permanent establishment. This is another perverse finding which is set aside. Equally the finding that the onus is on the Assessee and not on the Tax Authorities to first show that the project office at Mumbai is a permanent establishment is again in the teeth of our judgment in E-Funds IT Solution Inc. (supra).28. Though it was pointed out to the ITAT that there were only two persons working in the Mumbai office, neither of whom was qualified to perform any core activity of the Assessee, the ITAT chose to ignore the same. This being the case, it is clear, therefore, that no permanent establishment has been set up within the meaning of Article 5(1) of the DTAA, as the Mumbai Project Office cannot be said to be a fixed place of business through which the core business of the Assessee was wholly or partly carried on. Also, as correctly argued by Shri Ganesh, the Mumbai Project Office, on the facts of the present case, would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. This being the case, it is not necessary to go into any of the other questions that have been argued before us.
| 0 | 7,910 |
### Instruction:
Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner?
### Input:
as is attributable to that permanent establishment. 24. At this stage, it is important to go into some of the documents that were relied upon by the ITAT. The application submitted by the Assessee to the RBI dated 24.04.2006 for opening a project office, reads as follows: Letter dated 24 th April 2006 General Manager Reserve Bank of India Regional Office Mumbai Dear sir, Re: M/s Samsung Heavy Industries Co. Ltd. (SHI) Application for Registration of Project Office Our aforesaid client (SHI) has entered into contract with M/s Oil and Natural Gas Corporation Ltd. (ONGC) vide contract number MR/OW/MM/VED/O3/2005. Under the instructions of our above- referred client, we have to enclose following documents in connection with Registration of Project office in India: 1. Letter dated (…) on the letter head of the company for the details of the project as Notification FEMA 95/2003- RB dated 2 nd July, 2003 Foreign Exchange Management (Establishment in India of Branch or Office or other place of business) (Amendment) Regulations 2003 along with the copy of letter from ChoHung Bank for opening Bank account. 2. Copy of the POA in our favour and in favour of M/s Hemand Arora and Co., CA. 3. Certified copy of the POA in the name of the Mr. S.S. Park, who has signed the application. 4. Certified copy of the certificate of registration of the company in South Korea. 5. Certified copy of the notarised Board resolution for opening a Project office in India. 6. Certified copy of Extract of contract entered into by our client. Kindly take the above documents on record. Please take on record our clients Project office and register the same. If you require any clarification, please let us know… 25. The Board Resolution dated 03.04.2006 referred to in this letter reads as follows: MINUTES OF BOARD OF DIRECTORS MEETING OF SAMSUNG HEAVY INDUSTRIES CO. LTD. A meeting of the Board of Directors of Samsung Heavy Industries Co. Ltd. (the Company) was duly called and held on the 3 rd day of April 2006 at the office of the Company in Seoul the Republic of Korea, at which 3 of 3 Directors were present and acting throughout. Jing Wan Kim, President and CEO of Samsung Heavy Industries Co. Ltd. announced that the notice of meeting was duly given to all Directors and a quorum was present and the meeting was duly called to order and held. RESOLVED: 1. That the Company hereby open one project office in Mumbai, India for coordination and execution of Vasai East Development Project for Oil and Natural Gas Corporation Limited ( ONGC), India. 2. That the Company hereby does make and constitute Mr. Sangsoon Park Yard General Manager of the Company, as the Companys true and lawful representative with full power and authority for the purpose of establishing a project office and coordinating and executing delivery of documents in connection with construction of offshore platform modification of existing facilities for ONGC above. IN WITNESS WHEREOF, the President and Directors present at the meeting have hereunto affixed their names and seals on this 3rd day of April 2006. Sd/- Samsung Heavy Industries Co., Ltd. President and CEO Jing Wan Kim 26. Based on the letter given to RBI which contained this resolution, the RBI approval dated 24.05.2006 reads as follows: FEO, Mumbai CAD/080/04.02.2001/05-06 24th May, 2006 M/s Davesh K. Shah and Co., Chartered Accountants, 106, Banaji House, 361, Dr. D.N. Road, Flora Fountain, Mumbai 400 001. Dear sirs, Registration of Project Office – M/s Samsung Heavy Industries Co. Ltd. (SHI) Please refer to your letter dated 24 th April, 2006 on the captioned subject. In this connection, we advise having noted a Project Office in India in terms of provision contained in AP (Dir Series) Circular No.37 dated 15 th November 2003. 27. A reading of the Board Resolution would show that the Project Office was established to coordinate and execute delivery documents in connection with construction of offshore platform modification of existing facilities for ONGC . Unfortunately, the ITAT relied upon only the first paragraph of the Board Resolution, and then jumped to the conclusion that the Mumbai office was for coordination and execution of the project itself. The finding, therefore, that the Mumbai office was not a mere liaison office, but was involved in the core activity of execution of the project itself is therefore clearly perverse. Equally, when it was pointed out that the accounts of the Mumbai office showed that no expenditure relating to the execution of the contract was incurred, the ITAT rejected the argument, stating that as accounts are in the hands of the Assessee, the mere mode of maintaining accounts alone cannot determine the character of permanent establishment. This is another perverse finding which is set aside. Equally the finding that the onus is on the Assessee and not on the Tax Authorities to first show that the project office at Mumbai is a permanent establishment is again in the teeth of our judgment in E-Funds IT Solution Inc. (supra). 28. Though it was pointed out to the ITAT that there were only two persons working in the Mumbai office, neither of whom was qualified to perform any core activity of the Assessee, the ITAT chose to ignore the same. This being the case, it is clear, therefore, that no permanent establishment has been set up within the meaning of Article 5(1) of the DTAA, as the Mumbai Project Office cannot be said to be a fixed place of business through which the core business of the Assessee was wholly or partly carried on. Also, as correctly argued by Shri Ganesh, the Mumbai Project Office, on the facts of the present case, would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. This being the case, it is not necessary to go into any of the other questions that have been argued before us.
### Response:
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Chandrana & Co Vs. State Of Mysore
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have power on the date of the enactment and that its competency at some anterior time is immaterial. In other words, the contention was that if the Mysore Legislature had no power on February 27, 1964 to impose tax on sales of declared goods at a rate in excess of that specified in Section 15 of the Central Sales Tax as it stood then, namely 2%, it was not competent to the Legislature to give retrospective effect to Section 5-A covering the period of assessment here even if during that period it had the power to do so. Counsel submitted that even though textiles were not declared goods during the assessment period namely from October 1, 1957 to March 31, 1958 and the State Legislature was competent to levy sales tax at a rate higher than that specified in Section 15 of the Central Sales Tax Act as it then stood, the legislature lost that power the moment textiles became declared goods and that its power to tax sales of textiles became restricted to 2% at the time of the enactment of Act No.9 of 1964 and therefore even for the assessment period it could not have passed a law imposing tax at a rate in excess of two per cent. In support of this proposition, counsel relied upon certain observations in A.Hajee Abdul Shakoor and Company v. State of Madras, (1964) 8 SCR 217 at p 231 = p 231 = (AIR 1964 SC 1729); one of the questions which this Court had to consider in that case was whether the Madras Legislature was competent to enact the provisions of sub-section (1) of Section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963. Hides and skins had been declared under Act LII of 1952 to be essential for the life of the community. Article 286 (3) of the Constitution as it stood before its amendment by the Constitution VI Amendment Act of 1956, on September 11, 1956 provided that no law made by the Legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. By August 28, 1963, when the Act was enacted by the Madras Legislature, Article 286 (3) had been amended and Act LII of 1952 had also been repealed. Consequently there was no Constitutional requirement for the Act being reserved for the assent of the President before it could be enforced. But it was contended for the petitioner there that the Act was really enacted for a period, when if passed, it had to receive the Presidents assent for its enforcement and that therefore the State Legislature could not even in 1963 enact this provision affecting the taxation law in respect of the sale or purchase of goods which were goods declared essential for the life of the community. It was in repelling this contention that this Court said that the State Legislature was free to enact laws which would have retrospective operation and "its competence to make a law for a certain past period, depends on its present legislative power and not on what it possessed at the period of time when its enactment is to have operation."19. We do not think that the above proposition has any application to the case in hand. The question here is whether Mysore Legislature was competent in 1964 to impose tax on sales of textiles during the assessment period namely from October 1, 1957 to March 31, 1958 at a rate in excess of that specified in Section 15 of the Central Sales Tax Act as it stood then, when textiles were not declared goods. We think that imposition of sales tax on textiles at the rate specified in the Second Schedule to the Act before they became declared goods was permissible for the Legislature of Mysore. The power of the Legislature to retrospectively levy tax has not been controverted.20. There was no fetter on the power of the Legislature of Mysore on February 27, 1964 in enacting a measure imposing sales tax on the turnover of undeclared goods during the assessment period at the rate specified in the 2nd Schedule to the Act. It was because textiles became declared goods from April 1, 1958 that the Mysore Legislature lost its power to tax the sales of textiles at a rate higher than that specified in Section 15 of the Central Sales Tax Act, as it stood at the relevant time. Though the goods on the sales of which tax was imposed remained the same in substance, their legal quality became different. As textiles were not declared goods before April 1, 1958, there was no inhibition on the part of the Mysore Legislature in subjecting the turnover of sales of textiles before that period to a tax higher than that specified in Section 15 of the Central Sales Tax Act.21. The matter can be looked at from a different angle. As we have already indicated, by virtue of Section 5 (5) of the Act No.9 of 1964, the substituted sub-section (5-A) was deemed to have been in the Mysore General Sales Tax Act always. The only limit on the power of a legislature to create a fiction is that is should not transcend its power by its creation. The limitation on the power of the Legislature of Mysore in 1964 when it enacted Act No.9 of 1964 was that on the sale of declared goods it could not have imposed sales tax at a rate higher than that specified in Section 15 of the Central Sales Tax Act as it stood then. There was no limitation on its power to impose tax on the turnover of sales of textiles before April 1, 1958, when they were not declared goods.
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0[ds]19. We do not think that the above proposition has any application to the case in hand. The question here is whether Mysore Legislature was competent in 1964 to impose tax on sales of textiles during the assessment period namely from October 1, 1957 to March 31, 1958 at a rate in excess of that specified in Section 15 of the Central Sales Tax Act as it stood then, when textiles were not declared goods. We think that imposition of sales tax on textiles at the rate specified in the Second Schedule to the Act before they became declared goods was permissible for the Legislature of Mysore. The power of the Legislature to retrospectively levy tax has not been controverted.20. There was no fetter on the power of the Legislature of Mysore on February 27, 1964 in enacting a measure imposing sales tax on the turnover of undeclared goods during the assessment period at the rate specified in the 2nd Schedule to the Act. It was because textiles became declared goods from April 1, 1958 that the Mysore Legislature lost its power to tax the sales of textiles at a rate higher than that specified in Section 15 of the Central Sales Tax Act, as it stood at the relevant time. Though the goods on the sales of which tax was imposed remained the same in substance, their legal quality became different. As textiles were not declared goods before April 1, 1958, there was no inhibition on the part of the Mysore Legislature in subjecting the turnover of sales of textiles before that period to a tax higher than that specified in Section 15 of the Central Sales Tax Act.21. The matter can be looked at from a different angle. As we have already indicated, by virtue of Section 5 (5) of the Act No.9 of 1964, the substituted sub-section (5-A) was deemed to have been in the Mysore General Sales Tax Act always. The only limit on the power of a legislature to create a fiction is that is should not transcend its power by its creation. The limitation on the power of the Legislature of Mysore in 1964 when it enacted Act No.9 of 1964 was that on the sale of declared goods it could not have imposed sales tax at a rate higher than that specified in Section 15 of the Central Sales Tax Act as it stood then. There was no limitation on its power to impose tax on the turnover of sales of textiles before April 1, 1958, when they were not declareda pure question of law, we permitted the Appellant to urge the ground in support of the appeals and allowed the said application.
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### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
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have power on the date of the enactment and that its competency at some anterior time is immaterial. In other words, the contention was that if the Mysore Legislature had no power on February 27, 1964 to impose tax on sales of declared goods at a rate in excess of that specified in Section 15 of the Central Sales Tax as it stood then, namely 2%, it was not competent to the Legislature to give retrospective effect to Section 5-A covering the period of assessment here even if during that period it had the power to do so. Counsel submitted that even though textiles were not declared goods during the assessment period namely from October 1, 1957 to March 31, 1958 and the State Legislature was competent to levy sales tax at a rate higher than that specified in Section 15 of the Central Sales Tax Act as it then stood, the legislature lost that power the moment textiles became declared goods and that its power to tax sales of textiles became restricted to 2% at the time of the enactment of Act No.9 of 1964 and therefore even for the assessment period it could not have passed a law imposing tax at a rate in excess of two per cent. In support of this proposition, counsel relied upon certain observations in A.Hajee Abdul Shakoor and Company v. State of Madras, (1964) 8 SCR 217 at p 231 = p 231 = (AIR 1964 SC 1729); one of the questions which this Court had to consider in that case was whether the Madras Legislature was competent to enact the provisions of sub-section (1) of Section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963. Hides and skins had been declared under Act LII of 1952 to be essential for the life of the community. Article 286 (3) of the Constitution as it stood before its amendment by the Constitution VI Amendment Act of 1956, on September 11, 1956 provided that no law made by the Legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. By August 28, 1963, when the Act was enacted by the Madras Legislature, Article 286 (3) had been amended and Act LII of 1952 had also been repealed. Consequently there was no Constitutional requirement for the Act being reserved for the assent of the President before it could be enforced. But it was contended for the petitioner there that the Act was really enacted for a period, when if passed, it had to receive the Presidents assent for its enforcement and that therefore the State Legislature could not even in 1963 enact this provision affecting the taxation law in respect of the sale or purchase of goods which were goods declared essential for the life of the community. It was in repelling this contention that this Court said that the State Legislature was free to enact laws which would have retrospective operation and "its competence to make a law for a certain past period, depends on its present legislative power and not on what it possessed at the period of time when its enactment is to have operation."19. We do not think that the above proposition has any application to the case in hand. The question here is whether Mysore Legislature was competent in 1964 to impose tax on sales of textiles during the assessment period namely from October 1, 1957 to March 31, 1958 at a rate in excess of that specified in Section 15 of the Central Sales Tax Act as it stood then, when textiles were not declared goods. We think that imposition of sales tax on textiles at the rate specified in the Second Schedule to the Act before they became declared goods was permissible for the Legislature of Mysore. The power of the Legislature to retrospectively levy tax has not been controverted.20. There was no fetter on the power of the Legislature of Mysore on February 27, 1964 in enacting a measure imposing sales tax on the turnover of undeclared goods during the assessment period at the rate specified in the 2nd Schedule to the Act. It was because textiles became declared goods from April 1, 1958 that the Mysore Legislature lost its power to tax the sales of textiles at a rate higher than that specified in Section 15 of the Central Sales Tax Act, as it stood at the relevant time. Though the goods on the sales of which tax was imposed remained the same in substance, their legal quality became different. As textiles were not declared goods before April 1, 1958, there was no inhibition on the part of the Mysore Legislature in subjecting the turnover of sales of textiles before that period to a tax higher than that specified in Section 15 of the Central Sales Tax Act.21. The matter can be looked at from a different angle. As we have already indicated, by virtue of Section 5 (5) of the Act No.9 of 1964, the substituted sub-section (5-A) was deemed to have been in the Mysore General Sales Tax Act always. The only limit on the power of a legislature to create a fiction is that is should not transcend its power by its creation. The limitation on the power of the Legislature of Mysore in 1964 when it enacted Act No.9 of 1964 was that on the sale of declared goods it could not have imposed sales tax at a rate higher than that specified in Section 15 of the Central Sales Tax Act as it stood then. There was no limitation on its power to impose tax on the turnover of sales of textiles before April 1, 1958, when they were not declared goods.
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321 |
Hari Chand Madan Gopal And Others Vs. State Of Punjab
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the appellants. The letter says that the Clearing Agents were unable to pay the amounts debited to the Joint accounts of the Punjab Government before March, 1948, because they had been uprooted from West Punjab where they had huge property worth Rs. 27 lakhs in the shape of mills, agricultural lands and other movable and immovable properties, because large amounts were due to them from West Punjab Government on account of the supply of food grains by them, because there were also other dues payable to them on account of securities and shares in wholesale Pacca Ahrties Association and Syndicate in West Punjab and because the commission due to them to the tune of Rs. 7 lakhs by Undivided Punjab was not being paid to them. It is said that on account of their financial difficulties the Government had decided that Rs. 12,55,214/6/3 payable by them should be debited to the Joint Account of the Undivided Punjab and that all recoveries in respect of those dues relating to the pre-partition period and payable at Lahore should be credited to the Joint Account. Second, the Government was not legally liable to pay the sellers from whom the appellants had purchased rice. Shri H. S. Achreja, Secretary to the Governor, has deposed that there was "no legal liability of the Government to pay sellers, whose goods were supplied to the consignees through the sellers at Shahadara. The Syndicate had filed a suit against the Government. That suit was dismissed." Third, the Government was likely to get mere 40% of the recovery from the appellants. Any recovery in excess of it was likely to benefit West Punjab. So the Government could afford to take a magnanimous decision without the likelihood of any loss to itself that only 40% of the amount debited to the Joint Punjab Account before March 1948, should be recovered from the appellants. 21. According to counsel for the respondent, the minutes of the meeting would show that the decision to recover only 40% of the aforesaid amount was subject to the condition that the appellants should pay the sellers for whom the Government has already recovered certain amounts from the consignees. We are diffident to draw that inference from the minutes of the meeting held on July 28 and 29, 1953. It is important to notice the difference in the language of the Directors letter dated January 17, 1951 and the minutes of the aforesaid meeting. The language of the former clearly evinces that payment to the sellers by the appellants was an essential term of the proposed settlement. The language of the minutes of the meeting does not show that payment to the sellers was a condition precedent to the limitation of recovery to 40%. The minutes of the meeting can be split up in two parts; (1) limiting the appellants liability to 40%, and (2) payment of the amounts due to sellers by the appellants. The first part is not dependent on the performance of the second part as in the Directors letter of January 17, 1951. 22. This inference is supported by the subsequent conduct of the Government Officers. After January 17, 1951, the Government has sent letters to the appellants indicating that payment to sellers was an essential term of the proposed settlement of January 17, 1951. A similar letter was never sent to the appellant after July 28-29, 1953. On the other hand, letters of the Director, Food and Civil Supplies, dated April 21, 1954 and May 11, 1954 show that the Government was paying the sellers from the amount with it to the credit of the appellants and asking them to give their consent to such payment. The Director, Food and Civil Supplies, sent five letters to the appellants on April 21, 1954. They are exhibits D-6 to D-11. In each of them he has stated that if no reply was received within a fortnight, it would be presumed that the appellants had agreed to the payment being made to the sellers mentioned in the letters. The appellants replied to those five letters on May 3, 1954. They said that unless a detailed account of their post-partition dealings was made available to them, it would not be possible to reply to the Directors letters. The Director was requested to send a complete copy of the accounts. In his reply letter of May 11, 1954, the Director said that the appellants had already been given details of the accounts in the meeting of July 28 and 29, 1953. He concluded by saying that if no reply was received by him upto May 20, 1954, it would be presumed that they had no objection to the payment being made to the sellers and that "this office would proceed to make payment to the parties concerned." These letters indicate that in spite of the absence of consent by the appellants, the Government was paying sellers from the amount with it to the credit of the appellants. These letters show that instead of insisting upon payment to the sellers by the appellants, the Government was accepting and acting according to the appellants proposal of January 17, 1951 that the sellers should be paid by the Government from the money with it to the credit of the appellants. 23.In view of the foregoing discussion, we are of the view, that the Government had decided to recover only 40% and no more. The Governments decision would amount to remitting a part of the debt due by the appellants. Under S. 63 of the Contract Act, a promisee can remit a promise in part. It is not necessary under the Contract Act that such remission should be supported by consideration. If the decision of the Government amounts to remitting a part of the debt, as we think, then the Government cannot seek to recover more than 40%. Admittedly more than 40% of the total liability has already been paid to the Government. Therefore nothing remains due by the appellants. 24.
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1[ds]we are of opinion that the two Orders did not over-lap. They operated in different fields. Clause 8 (2), (3) and (4) of the Governor-Generals Order dealt with any contract made "on behalf of the Province of West Bengal", "the Province of Punjab" and the "Province of Assam" before the appointed day. Clauses 2, 3, 4 and 7 of the Governors Order dealt with various contracts "made by or on behalf of the Governor of Punjab in accordance with Section 175 of the Government of India Act, 1935", or rights and obligations of the Governor arising under those contracts. The aforesaid difference in the phraseology of the two Orders is purposive. The phrase "on behalf of the Province of Punjab" in Clause 8 (3) of the Governor-Generals Order shows that the contracts dealt with in that clause were the contracts which formed the subject-matter of Section 177 (1) of the Government of India Act, 1935. Section 177 (1) provided that any contract made before the commencement of Part III of the said Act by or on behalf of the Secretary of State in Council would from that date, if made for purposes which would after the commencement of Part III of the Act be purposes of the Government of a Province, have effect as if it had been made "on behalf of that Province" and reference in any such contract to the Secretary of State in Council would be construed accordingly. According to Section 179 (1) of that Act, such a contract could be enforced in a suit against the Province concerned. So clause 8 (3) of the Governor-Generals Order dealt with contracts made by or on behalf of the Secretary of State in Council for purposes of the Punjab Province before March 1937 when Part III of the Government of India Act, 1935 was brought into force. Clause 8 (3) has nothing to do with the contracts made by or on behalf of the Governor of Punjab under Section 175 (3) of the Government of India Act, 1935, after March 1937. Clause 2 (d) of the Governors Order dealt with the contracts made by or on behalf of the Governor under Section 175 (3). It would thus appear that the fields of operation of Clause 8 (3) of the Governor-Generals Order and Cl. 2 (d) of the Governors Order were distinct and discrete. They did not overlap and there was no conflict between themThis argument is completely negatived by cl. 2 (d) of the Governors Order. Clause 2 (d) provides that any contract made by the Governor of Punjab in accordance with S. 175 of the Government of India Act, 1935, in so far as it related, inter alia, to services to be rendered "in or for the benefit of areas situated within both the new Provinces, would be deemed to have been made, executed or entered into with the West Punjab Province and the East Punjab Province, as two separate contracts". Each such separate contract would have effect only in relation to "such services as are to be rendered in or for the benefit of the West Bengal or East Punjab Province." Obviously cl. 2 (d) itself provided for the bifurcation of a single and indivisible contract into two separate contractsThe arbitration award brought about a financial adjustment between the West Punjab and the East Punjab. It did not deal with the liabilities of third parties like the appellants to one or the other Province. It did not direct that any amount due by a third party could be recovered only to the extent of 40% of his total liability. According to the award, if more than 40% is recovered from the appellants, the excess over 40% would become payable by the Government to the West Punjab. Secondly, it is said that by virtue of a settlement between the Government and the appellants, the former can recover only 40% of the amount found due by the latter. The trial Court and the High Court have found that there was no settlement between the parties and we agree with them. The so-called settlement is spelt out by the appellants from two letters, dated January 17, 1951. One of the letters was written by the Director of Food, Civil Supplies, Punjab to the first appellant and the other was a reply to it by the second appellant on behalf of the first appellant. The subject-matter of the Directors letter is "settlement of accounts". The letter opens with the statement that "the question of settlement of claims of Government and all sellers against your agency has been discussed at length", in the presence of certain Government representatives and Hari Chand, the second appellantAccording to the Directors proposal, the appellants should pay the sellers, on whose behalf certain amounts had been realised from purchasers by the Government. They should also pay the sellers to whom payments were to be made according to the decision of the Delhi Committee. Hari Chand, on the other hand, suggested that excess over 40% recovered by the Government should be paid to the sellers for whom the Government has recovered the amounts and that the balance, if any, should be utilised in paying the remaining sellers. There is plainly substantial difference between the terms proposed by the Director and the alternative term proposed by Hari Chand. It has not been argued that the Government accepted the alternative proposal of Hari Chand. In the result, we are of opinion, that there was no settlement between the parties. The things did not move beyond the stage of proposal and counter-proposal. This inference is supported by three letters sent to the appellants by the Director, Food and Civil Supplies, the Controller of Food Accounts and the Director General, Food and Civil Supplies, dated September 22, 1951, November 22, 1951 and September 18, 1952 respectively. In all these letters it is insisted upon that the appellants should settle the claims of sellers. The appellants can derive no advantage from the word "settlement" in those letters. We are satisfied that the said word has been loosely used thereinThis argument cannot be raised at this stage. The plea of estoppel was not taken by the appellants in their two written statements filed on January 15, 1957 and June 2, 1959. No issue was framed on estoppel. No argument founded on estoppel was advanced by the appellants in the trial court and the High Court. The argument is not raised even in the statement of case filed by the appellants in this Court. As we are not allowing the appellants to raise the plea of estoppel at the stage of hearing,This inference is supported by the subsequent conduct of the Government Officers. After January 17, 1951, the Government has sent letters to the appellants indicating that payment to sellers was an essential term of the proposed settlement of January 17, 1951. A similar letter was never sent to the appellant after July 28-29, 1953. On the other hand, letters of the Director, Food and Civil Supplies, dated April 21, 1954 and May 11, 1954 show that the Government was paying the sellers from the amount with it to the credit of the appellants and asking them to give their consent to such payment. The Director, Food and Civil Supplies, sent five letters to the appellants on April 21, 1954. They are exhibits D-6 to D-11. In each of them he has stated that if no reply was received within a fortnight, it would be presumed that the appellants had agreed to the payment being made to the sellers mentioned in the letters. The appellants replied to those five letters on May 3, 1954. They said that unless a detailed account of their post-partition dealings was made available to them, it would not be possible to reply to the Directors letters. The Director was requested to send a complete copy of the accounts. In his reply letter of May 11, 1954, the Director said that the appellants had already been given details of the accounts in the meeting of July 28 and 29, 1953. He concluded by saying that if no reply was received by him upto May 20, 1954, it would be presumed that they had no objection to the payment being made to the sellers and that "this office would proceed to make payment to the parties concerned." These letters indicate that in spite of the absence of consent by the appellants, the Government was paying sellers from the amount with it to the credit of the appellants. These letters show that instead of insisting upon payment to the sellers by the appellants, the Government was accepting and acting according to the appellants proposal of January 17, 1951 that the sellers should be paid by the Government from the money with it to the credit of the appellantsview of the foregoing discussion, we are of the view, that the Government had decided to recover only 40% and no more. The Governments decision would amount to remitting a part of the debt due by the appellants. Under S. 63 of the Contract Act, a promisee can remit a promise in part. It is not necessary under the Contract Act that such remission should be supported by consideration. If the decision of the Government amounts to remitting a part of the debt, as we think, then the Government cannot seek to recover more than 40%. Admittedly more than 40% of the total liability has already been paid to the Government. Therefore nothing remains due by the appellants.
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the appellants. The letter says that the Clearing Agents were unable to pay the amounts debited to the Joint accounts of the Punjab Government before March, 1948, because they had been uprooted from West Punjab where they had huge property worth Rs. 27 lakhs in the shape of mills, agricultural lands and other movable and immovable properties, because large amounts were due to them from West Punjab Government on account of the supply of food grains by them, because there were also other dues payable to them on account of securities and shares in wholesale Pacca Ahrties Association and Syndicate in West Punjab and because the commission due to them to the tune of Rs. 7 lakhs by Undivided Punjab was not being paid to them. It is said that on account of their financial difficulties the Government had decided that Rs. 12,55,214/6/3 payable by them should be debited to the Joint Account of the Undivided Punjab and that all recoveries in respect of those dues relating to the pre-partition period and payable at Lahore should be credited to the Joint Account. Second, the Government was not legally liable to pay the sellers from whom the appellants had purchased rice. Shri H. S. Achreja, Secretary to the Governor, has deposed that there was "no legal liability of the Government to pay sellers, whose goods were supplied to the consignees through the sellers at Shahadara. The Syndicate had filed a suit against the Government. That suit was dismissed." Third, the Government was likely to get mere 40% of the recovery from the appellants. Any recovery in excess of it was likely to benefit West Punjab. So the Government could afford to take a magnanimous decision without the likelihood of any loss to itself that only 40% of the amount debited to the Joint Punjab Account before March 1948, should be recovered from the appellants. 21. According to counsel for the respondent, the minutes of the meeting would show that the decision to recover only 40% of the aforesaid amount was subject to the condition that the appellants should pay the sellers for whom the Government has already recovered certain amounts from the consignees. We are diffident to draw that inference from the minutes of the meeting held on July 28 and 29, 1953. It is important to notice the difference in the language of the Directors letter dated January 17, 1951 and the minutes of the aforesaid meeting. The language of the former clearly evinces that payment to the sellers by the appellants was an essential term of the proposed settlement. The language of the minutes of the meeting does not show that payment to the sellers was a condition precedent to the limitation of recovery to 40%. The minutes of the meeting can be split up in two parts; (1) limiting the appellants liability to 40%, and (2) payment of the amounts due to sellers by the appellants. The first part is not dependent on the performance of the second part as in the Directors letter of January 17, 1951. 22. This inference is supported by the subsequent conduct of the Government Officers. After January 17, 1951, the Government has sent letters to the appellants indicating that payment to sellers was an essential term of the proposed settlement of January 17, 1951. A similar letter was never sent to the appellant after July 28-29, 1953. On the other hand, letters of the Director, Food and Civil Supplies, dated April 21, 1954 and May 11, 1954 show that the Government was paying the sellers from the amount with it to the credit of the appellants and asking them to give their consent to such payment. The Director, Food and Civil Supplies, sent five letters to the appellants on April 21, 1954. They are exhibits D-6 to D-11. In each of them he has stated that if no reply was received within a fortnight, it would be presumed that the appellants had agreed to the payment being made to the sellers mentioned in the letters. The appellants replied to those five letters on May 3, 1954. They said that unless a detailed account of their post-partition dealings was made available to them, it would not be possible to reply to the Directors letters. The Director was requested to send a complete copy of the accounts. In his reply letter of May 11, 1954, the Director said that the appellants had already been given details of the accounts in the meeting of July 28 and 29, 1953. He concluded by saying that if no reply was received by him upto May 20, 1954, it would be presumed that they had no objection to the payment being made to the sellers and that "this office would proceed to make payment to the parties concerned." These letters indicate that in spite of the absence of consent by the appellants, the Government was paying sellers from the amount with it to the credit of the appellants. These letters show that instead of insisting upon payment to the sellers by the appellants, the Government was accepting and acting according to the appellants proposal of January 17, 1951 that the sellers should be paid by the Government from the money with it to the credit of the appellants. 23.In view of the foregoing discussion, we are of the view, that the Government had decided to recover only 40% and no more. The Governments decision would amount to remitting a part of the debt due by the appellants. Under S. 63 of the Contract Act, a promisee can remit a promise in part. It is not necessary under the Contract Act that such remission should be supported by consideration. If the decision of the Government amounts to remitting a part of the debt, as we think, then the Government cannot seek to recover more than 40%. Admittedly more than 40% of the total liability has already been paid to the Government. Therefore nothing remains due by the appellants. 24.
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322 |
Kedar Nath Lal & Another Vs. Ganesh Ram & Others
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he overlooked that a mortgaged award had to be passed. On August 16, 1934 he ordered that an award jointly with sureties be issued. However, on September 2, 1934, he corrected his earlier order thus :"S. 1.6 read along with Section 1.5. By mistake of the 2nd Assistant simple award was issued instead of mortgage award. Issue mortgage award and ask the C. B. to return the simple award which will be cancelled here.S. Syed Ozair D. F. A.Addl. A. R. 2-9-34.After this mortgage award which had the force of a preliminary decree, the Society on December 16, 1934 resolved that a final mortgage decree be obtained from the Assistant Registrar, and a final decree was obtained and the property brought to sale on February 7, 1936 and purchased by the Society itself with the permission of the court executing the decree.Possession was obtained on July 20,1937. Therefore, litigation in respect of this mortgage remained pending from April 5, 1934 to July 20, 1937. Under Explanation to Section 52 of the Transfer of Property Act the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.14. All the leases made by Devendranth were after the proceedings commenced. Devendranath purchased the right, title and interest of Ram Narain Ram on August 13, 1934.His acquisition was prima facie hit by the doctrine of lis pendens. Three arguments were advanced before us to meet this situation and we shall now deal with them seriatim.15. The first argument is that there could be no lis pendens till August 16, when the money award was issued because a money suit or proceeding cannot lead to the application of the doctrine of lis pendens. As a proposition of law the argument is sound but it is wrongly grounded on fact. The proceeding was to get a mortgage award, the equivalent of a mortgage decree. The Court made a mistake and treated it as a proceeding for a money decree. When the Court corrected its order, the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine. We cannot, therefore, accede to the suggestion that the doctrine did not apply; at any rate, on this suggested ground.16. The second ground of attack is that before the proceeding commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannot apply. We are unable to accept this argument either.If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore the attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-Din, (1897) 24 Ind App 170 (PC).17. Lastly it was contended that the sale was by court auction and the doctrine of lis pendens would not apply to such a sale.This point was considered in Samarendra Nath Sinha v. Krishna Kumar Nag, 1967-2 SCR 18 = (AIR 1967 SC 1440 ) by one of us (Shelat J.) and it was observed as follows :". . . The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohar, (1887) 15 Ind App 97 where the facts were almost similar to those in the instant case.It is true that Section 52, strictly speaking, does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 and (1897) 24 Ind App 170 (PC))."This ground also has no validity.18. Lastly it was argued that if the fields were released from the operation of the mortgage they could not be made the subject of a mortgage decree, and whatever was done in the mortgage proceedings was not of any consequence. To this there are two answers. Firstly, the respondent before the Registrar (Ram Narain Ram) made no objection to the inclusion of the plots in the petition for a mortgage award. Secondly, the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side or other.See Gouri Dutt Maharaj v. Sukur Mohammed, 75 Ind App 165 = (AIR 1948 PC 147 ). There is, however, one condition that the proceedings must be bona fide. Here no doubt the Society knew that the plots had been released from the mortgage, but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs. 500 to the Society. This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered. In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position. In Gouri Dutt Maharajs case, 75 Ind App 165 = (AIR 1948 PC 147 ), referred to by us, it was said that if the proceedings were bona fide, the applicability of Section 52 was not avoided.19. For the above reasons we are clear that the purchase by Kedarnath was protected by the doctrine of lis pendens, the prior transfer to the defendants notwithstanding.
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1[ds]10. Before we deal with these two points it may be mentioned at once that neither ground of appeal applies to the transfers by Sheonarain who was not a mortgagor and who was not affected by the release deed made by the Society.C. B. Aggarwal frankly conceded that the transfer by him could not be assailed and must stand. He, therefore, did not press Civil Appeals Nos. 1091, 1092, 1093 and 1094 of 1964. These appeals are accordingly dismissed withour opinion the release was binding on the society. The argument in opposition to the binding nature of the release is that it was conditional on payment of Rs. 500. This is not true. No doubt the motive for the release was the payment of Rs. 500 to the Society promised by Ram Narain Ram, but the payment was not made a condition of the release.There was no attempt to realise this amount from Ram Narain Ram. Therefore, the release being absolute and unconditional and by a registered deed must be treated as binding. It is open to the promisee to waive the performance of any part of the contract or to release any property from the operation of a mortgage or charge. If he wishes his rights to continue in the event of some condition simultaneously imposed on the promisor, he must see that the release is made dependent on the performance by the promisor of his part of the agreement. Here the Society merely released the two plots without making the payment a condition precedent, and the release operated.12. That, however, is not the end of the matter. The Society filed on April 5, 1934 a petition for a mortgage award before the Assistant Registrar, Co- operative Societies. The petition is headed Petition for mortgage decree. The petition mentioned that the mortgage was made on April 27, 1931 and that the amount secured was Rs. 3000 with interest at 12 1/2 per cent per annum. The petition then described the property mortgaged and it included plots Nos. 3385 and 3384. The amount due on December 31, 1933 was said to be Rs. 2440/3.When the Registrar made his order he overlooked that a mortgaged award had to be passed. On August 16, 1934 he ordered that an award jointly with sureties bethis mortgage award which had the force of a preliminary decree, the Society on December 16, 1934 resolved that a final mortgage decree be obtained from the Assistant Registrar, and a final decree was obtained and the property brought to sale on February 7, 1936 and purchased by the Society itself with the permission of the court executing the decree.Possession was obtained on July 20,1937. Therefore, litigation in respect of this mortgage remained pending from April 5, 1934 to July 20, 1937. Under Explanation to Section 52 of the Transfer of Property Act the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.14. All the leases made by Devendranth were after the proceedings commenced. Devendranath purchased the right, title and interest of Ram Narain Ram on August 13, 1934.His acquisition was prima facie hit by the doctrine of lis pendens. Three arguments were advanced before us to meet this situation and we shall now deal with thema proposition of law the argument is sound but it is wrongly grounded on fact. The proceeding was to get a mortgage award, the equivalent of a mortgage decree. The Court made a mistake and treated it as a proceeding for a money decree. When the Court corrected its order, the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine. We cannot, therefore, accede to the suggestion that the doctrine did not apply; at any rate, on this suggested ground.16.The second ground of attack is that before the proceeding commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannotpoint was considered in Samarendra Nath Sinha v. Krishna Kumar Nag, 1967-2 SCR 18 = (AIR 1967 SC 1440 ) by one of us (Shelatground also has nothis there are two answers. Firstly, the respondent before the Registrar (Ram Narain Ram) made no objection to the inclusion of the plots in the petition for a mortgage award. Secondly, the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side oris, however, one condition that the proceedings must be bona fide. Here no doubt the Society knew that the plots had been released from the mortgage, but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs. 500 to the Society. This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered. In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position.For the above reasons we are clear that the purchase by Kedarnath was protected by the doctrine of lis pendens, the prior transfer to the defendants notwithstanding.
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Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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he overlooked that a mortgaged award had to be passed. On August 16, 1934 he ordered that an award jointly with sureties be issued. However, on September 2, 1934, he corrected his earlier order thus :"S. 1.6 read along with Section 1.5. By mistake of the 2nd Assistant simple award was issued instead of mortgage award. Issue mortgage award and ask the C. B. to return the simple award which will be cancelled here.S. Syed Ozair D. F. A.Addl. A. R. 2-9-34.After this mortgage award which had the force of a preliminary decree, the Society on December 16, 1934 resolved that a final mortgage decree be obtained from the Assistant Registrar, and a final decree was obtained and the property brought to sale on February 7, 1936 and purchased by the Society itself with the permission of the court executing the decree.Possession was obtained on July 20,1937. Therefore, litigation in respect of this mortgage remained pending from April 5, 1934 to July 20, 1937. Under Explanation to Section 52 of the Transfer of Property Act the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.14. All the leases made by Devendranth were after the proceedings commenced. Devendranath purchased the right, title and interest of Ram Narain Ram on August 13, 1934.His acquisition was prima facie hit by the doctrine of lis pendens. Three arguments were advanced before us to meet this situation and we shall now deal with them seriatim.15. The first argument is that there could be no lis pendens till August 16, when the money award was issued because a money suit or proceeding cannot lead to the application of the doctrine of lis pendens. As a proposition of law the argument is sound but it is wrongly grounded on fact. The proceeding was to get a mortgage award, the equivalent of a mortgage decree. The Court made a mistake and treated it as a proceeding for a money decree. When the Court corrected its order, the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine. We cannot, therefore, accede to the suggestion that the doctrine did not apply; at any rate, on this suggested ground.16. The second ground of attack is that before the proceeding commenced before the Registrar these fields had been attached and therefore, the doctrine of lis pendens again cannot apply. We are unable to accept this argument either.If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition. This result is not avoided by reason of the earlier attachment. Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property. On the other hand, Section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation. Therefore the attachment was ineffective against the doctrine. Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal v. Karrab-ul-Din, (1897) 24 Ind App 170 (PC).17. Lastly it was contended that the sale was by court auction and the doctrine of lis pendens would not apply to such a sale.This point was considered in Samarendra Nath Sinha v. Krishna Kumar Nag, 1967-2 SCR 18 = (AIR 1967 SC 1440 ) by one of us (Shelat J.) and it was observed as follows :". . . The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder v. Monohar, (1887) 15 Ind App 97 where the facts were almost similar to those in the instant case.It is true that Section 52, strictly speaking, does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra, (1885) 12 Ind App 171 and (1897) 24 Ind App 170 (PC))."This ground also has no validity.18. Lastly it was argued that if the fields were released from the operation of the mortgage they could not be made the subject of a mortgage decree, and whatever was done in the mortgage proceedings was not of any consequence. To this there are two answers. Firstly, the respondent before the Registrar (Ram Narain Ram) made no objection to the inclusion of the plots in the petition for a mortgage award. Secondly, the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side or other.See Gouri Dutt Maharaj v. Sukur Mohammed, 75 Ind App 165 = (AIR 1948 PC 147 ). There is, however, one condition that the proceedings must be bona fide. Here no doubt the Society knew that the plots had been released from the mortgage, but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs. 500 to the Society. This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered. In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position. In Gouri Dutt Maharajs case, 75 Ind App 165 = (AIR 1948 PC 147 ), referred to by us, it was said that if the proceedings were bona fide, the applicability of Section 52 was not avoided.19. For the above reasons we are clear that the purchase by Kedarnath was protected by the doctrine of lis pendens, the prior transfer to the defendants notwithstanding.
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R. KRSNA MURTII Vs. R. R. JAGADESAN
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DINESH MAHESHWARI, J. 1. Leave granted. 2. We have heard the appellant appearing in person and the learned counsel appearing for the sole respondent. 3. Shorn of unnecessary details, the relevant aspects of the present matter are that the appellant herein had been the power of attorney holder of his mother, who had filed the subject suit for declaration and perpetual injunction and alternatively, for declaration and recovery of possession against the respondent. The suit was being prosecuted by the appellant as the power agent of the plaintiff. The said plaintiff, mother of the appellant, expired on 10.01.2020. Thereafter, the appellant moved an application, being I.A. No. 1 of 2020, seeking his substitution as legal representative of the deceased plaintiff with the assertion that the plaintiff, his mother, had executed a Will dated 13.06.2016 in his favour with respect to all her estate and the said Will was registered with the Sub-Registrar Office, Perambalur. 4. This application was considered by the learned Sub-ordinate Judge, Perambalur in the order dated 29.03.2021, wherein the submissions on behalf of the defendant-respondent were taken into consideration that the appellant was not the only legal heir of the deceased plaintiff; and that the deceased had another son and one daughter and without impleading them, the appellant was not entitled to proceed further. The learned Trial Judge was of the view that from the Will itself, existence of other son and daughter of the deceased plaintiff was evident; and that the execution and attestation were not the questions to be decided at the given stage. 5. Having regard to the factum of existence of other legal heirs of the deceased plaintiff, the learned Trial Judge straightway came to the conclusion that the application I.A. No. 1 of 2020 moved by the appellant for substitution was required to be dismissed and ordered accordingly. 6. The appellant preferred a revision petition before the High Court against the order aforesaid. The High Court proceeded to dismiss the said revision petition on the consideration that the petitioner i.e., the present appellant, ought to have taken steps for impleading the other legal heirs of the late plaintiff either as co-plaintiffs or as defendants to enforce his right over the property in question. 7. The order aforesaid has been questioned by the appellant before us, inter alia, with the submission that the Trial Court and High Court were not justified in rejecting the prayer made by the appellant for his own substitution as the legal representative of deceased plaintiff and in any case, the application could not have been rejected on the grounds taken and on the reasons assigned by the learned Trial Judge and approved by the High Court. 8. Learned counsel for the respondent has attempted his best to support the orders impugned, again and essentially with the submissions that at the given stage and in view of the factual aspects involved, other legal heirs of the deceased plaintiff could not have been left out from being impleaded as her legal representatives in the subject suit. 9. Having examined the matter in its totality and having given thoughtful consideration to the rival submissions, we are unable to approve the orders impugned. 10. Leaving aside any other aspect of the matter, it is but apparent that the appellant is admittedly the son of the deceased plaintiff. Thus, his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff cannot be denied. That being the position, the application made by him for substituting himself as the legal representative of the deceased plaintiff could not have been declined by the Trial Court. 11. In this regard too, it would be relevant to point out that if any inquiry was required to be made, the Trial Court could have adopted the course envisaged by Rule 5 of Order XXII of the Code of Civil Procedure, 1908 but, in any case, the application made by the appellant could not have been dismissed altogether.
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1[ds]9. Having examined the matter in its totality and having given thoughtful consideration to the rival submissions, we are unable to approve the orders impugned.10. Leaving aside any other aspect of the matter, it is but apparent that the appellant is admittedly the son of the deceased plaintiff. Thus, his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff cannot be denied. That being the position, the application made by him for substituting himself as the legal representative of the deceased plaintiff could not have been declined by the Trial Court.11. In this regard too, it would be relevant to point out that if any inquiry was required to be made, the Trial Court could have adopted the course envisaged by Rule 5 of Order XXII of the Code of Civil Procedure, 1908 but, in any case, the application made by the appellant could not have been dismissed altogether.
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Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
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DINESH MAHESHWARI, J. 1. Leave granted. 2. We have heard the appellant appearing in person and the learned counsel appearing for the sole respondent. 3. Shorn of unnecessary details, the relevant aspects of the present matter are that the appellant herein had been the power of attorney holder of his mother, who had filed the subject suit for declaration and perpetual injunction and alternatively, for declaration and recovery of possession against the respondent. The suit was being prosecuted by the appellant as the power agent of the plaintiff. The said plaintiff, mother of the appellant, expired on 10.01.2020. Thereafter, the appellant moved an application, being I.A. No. 1 of 2020, seeking his substitution as legal representative of the deceased plaintiff with the assertion that the plaintiff, his mother, had executed a Will dated 13.06.2016 in his favour with respect to all her estate and the said Will was registered with the Sub-Registrar Office, Perambalur. 4. This application was considered by the learned Sub-ordinate Judge, Perambalur in the order dated 29.03.2021, wherein the submissions on behalf of the defendant-respondent were taken into consideration that the appellant was not the only legal heir of the deceased plaintiff; and that the deceased had another son and one daughter and without impleading them, the appellant was not entitled to proceed further. The learned Trial Judge was of the view that from the Will itself, existence of other son and daughter of the deceased plaintiff was evident; and that the execution and attestation were not the questions to be decided at the given stage. 5. Having regard to the factum of existence of other legal heirs of the deceased plaintiff, the learned Trial Judge straightway came to the conclusion that the application I.A. No. 1 of 2020 moved by the appellant for substitution was required to be dismissed and ordered accordingly. 6. The appellant preferred a revision petition before the High Court against the order aforesaid. The High Court proceeded to dismiss the said revision petition on the consideration that the petitioner i.e., the present appellant, ought to have taken steps for impleading the other legal heirs of the late plaintiff either as co-plaintiffs or as defendants to enforce his right over the property in question. 7. The order aforesaid has been questioned by the appellant before us, inter alia, with the submission that the Trial Court and High Court were not justified in rejecting the prayer made by the appellant for his own substitution as the legal representative of deceased plaintiff and in any case, the application could not have been rejected on the grounds taken and on the reasons assigned by the learned Trial Judge and approved by the High Court. 8. Learned counsel for the respondent has attempted his best to support the orders impugned, again and essentially with the submissions that at the given stage and in view of the factual aspects involved, other legal heirs of the deceased plaintiff could not have been left out from being impleaded as her legal representatives in the subject suit. 9. Having examined the matter in its totality and having given thoughtful consideration to the rival submissions, we are unable to approve the orders impugned. 10. Leaving aside any other aspect of the matter, it is but apparent that the appellant is admittedly the son of the deceased plaintiff. Thus, his entitlement, whether by way of testamentary succession or non-testamentary succession, as being the legal heir of the deceased plaintiff cannot be denied. That being the position, the application made by him for substituting himself as the legal representative of the deceased plaintiff could not have been declined by the Trial Court. 11. In this regard too, it would be relevant to point out that if any inquiry was required to be made, the Trial Court could have adopted the course envisaged by Rule 5 of Order XXII of the Code of Civil Procedure, 1908 but, in any case, the application made by the appellant could not have been dismissed altogether.
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Upper Ganges Valley Electricity Supply Company Ltd Vs. U.P. Electricity Board
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purchases price". Under the relevant part of sub-section (2) of that section, the market value of an undertaking is to be the value of all lands, buildings, works etc. other than "service lines ..............which have been constructed at the expense of consumers". The appellants undertaking having been acquired on 4/5 May 1959, the provisions of old Section 7 and not of the newly added Section 7A would govern his rights. The Umpire made his award on November 27, 1961 relying, probably, on Section 7A which had no application. 23. Learned counsel for the respondent is right that even a mistake of law cannot vitiate the award unless the mistake is apparent on the face of the award. But here, the Umpire framed specific issues for decision, the first of these being : whether the respondent was "entitled to get a credit for the amount of consumers contribution paid for the service lines, laid on their premises and at their cost". The finding of the Umpire on this issue was that "The company is not entitled to claim from the Board the value of the portion of the service lines which were laid at the cost of the consumers." The calculations made by the Umpire in the award for ascertaining the true market value of the appellants undertaking show that the "value of the portion of services installed at the cost of the consumers" was expressly excluded from the total market value of the assets of the undertaking. It seems beyond the pale of controversy that the Umpire did not award compensation to the appellant in respect of the service lines for the sole reason that they were laid at the cost of the consumers. Some market-value the service-lines must have had, even if it be no more than the scrap value. But to the way of thinking which the Umpire adopted, that consideration had no relevance. The service-lines were paid for by the consumers and that, for the Umpire, was the end of the matters. That, patently, was the wrong end. 24. Respondent drew our attention to the decision in Durga Prosad Chamria v. Sewkishendas Bhattar, AIR 1949 PC 334 in which it was held that if a question of law is specifically referred to an arbitrator for his decision it would be contrary to well-established principles for a Court of law to interfere with the award, even if the Court itself would have take a different view of the point of law, had it been before it. This decision can have no application because the parties here did not refer any specific question of law for the decision of the arbitrators. The reference to arbitrators was on the broad question as to what was the fair market-value of the appellants undertaking. Being unable to agree on this question, the two arbitrators referred the matter to an Umpire. The Umpire raised a question of law and decided it. Parties had invited none to decide a specific question of law. 25. We are not disposed to hold as contended by the respondent, that if a part of the award be found to be invalid, the entire award should be set aside and remitted back for a fresh decision. The error which has occurred in the award of the Umpire relates to a matter which is distinct and separate from the rest of the award. The part which is invalid being severable from that which is valid, there is no justification for setting aside the entire award. 26. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. Learned counsel for the respondent demurred but he was unable to indicate any cogent reason why we should not adopt a course which, far from causing any prejudice to the parties, was clearly in the interests of justice. 27. The Umpire has held that on the date of sale, the fair market value of the appellants undertaking was Rupees 23,81,670/-. He arrived at this figure after excluding from the total market value, the sum of Rupees 2,38,255/- which represented the consumers contributions to the cost of laying the service lines. These contributions, according to him, were made from April 1, 1958 to March 31, 1959. The date of sale being 4/5 May, 1959 the consumers contribution will roughly represent the market value of the service lines even if as required by the first proviso to Section 7 (1) of the Act as it then stood, due regard is to be had to the nature and condition for the time being of the "works", to the state of repair thereof, to the circumstance that they are in such a position as to be ready for immediate working and to the suitability of the same for the purposes of the undertaking. 28. Accordingly we direct that the award of the Umpire will stand amended to the extent that the fair market value of the appellants undertaking shall be Rupees 23,81,670/- plus Rupees 2,38,255/-, that is to say Rupees 26,19,925/-. We have not allowed solatium on the additional amount, so as to offset reasonable depreciation in the value of the service lines after they were laid. 29. The Umpire has directed the appellant to refund Rupees 98,568/- to the respondent, on the basis that the amount was paid to the appellant in excess of its just dues. This amount shall have to be adjusted as against the sum of Rupees 2,38,255/- which we have found to be due to the appellant in addition to what was awarded to it by the Umpire. Respondent, therefore, shall pay to the appellant a sum of Rupees 2,38,255/- minus Rupees 98,568/-, that is to say, Rupees 1,39,687/- with interest at six per cent per annum from the date of this judgment till payment.
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1[ds]22. The reason for this error may easily be this : Under Section 7 of the Act to which we have called attention, the licensee was entitled to the "payment of the value of all lands, buildings, works" etc. This section, along with certain others, was amended by the Electricity (Amendment) Act, 32 of 1959, which came into force on September 5, 1959. By this amendment, a new Section 7A was inserted in the Act in order to provide for the "Determination of purchases price". Under the relevant part of sub-section (2) of that section, the market value of an undertaking is to be the value of all lands, buildings, works etc. other than "service lines ..............which have been constructed at the expense of consumers". The appellants undertaking having been acquired on 4/5 May 1959, the provisions of old Section 7 and not of the newly added Section 7A would govern his rights. The Umpire made his award on November 27, 1961 relying, probably, on Section 7A which had no application23. Learned counsel for the respondent is right that even a mistake of law cannot vitiate the award unless the mistake is apparent on the face of the award. But here, the Umpire framed specific issues for decision, the first of these being : whether the respondent was "entitled to get a credit for the amount of consumers contribution paid for the service lines, laid on their premises and at their cost". The finding of the Umpire on this issue was that "The company is not entitled to claim from the Board the value of the portion of the service lines which were laid at the cost of the consumers." The calculations made by the Umpire in the award for ascertaining the true market value of the appellants undertaking show that the "value of the portion of services installed at the cost of the consumers" was expressly excluded from the total market value of the assets of the undertaking. It seems beyond the pale of controversy that the Umpire did not award compensation to the appellant in respect of the service lines for the sole reason that they were laid at the cost of the consumers. Some market-value the service-lines must have had, even if it be no more than the scrap value. But to the way of thinking which the Umpire adopted, that consideration had no relevance. The service-lines were paid for by the consumers and that, for the Umpire, was the end of the matters. That, patently, was the wrong end24. Respondent drew our attention to the decision in Durga Prosad Chamria v. Sewkishendas Bhattar, AIR 1949 PC 334 in which it was held that if a question of law is specifically referred to an arbitrator for his decision it would be contrary to well-established principles for a Court of law to interfere with the award, even if the Court itself would have take a different view of the point of law, had it been before it. This decision can have no application because the parties here did not refer any specific question of law for the decision of the arbitrators. The reference to arbitrators was on the broad question as to what was the fair market-value of the appellants undertaking. Being unable to agree on this question, the two arbitrators referred the matter to an Umpire. The Umpire raised a question of law and decided it. Parties had invited none to decide a specific question of law25. We are not disposed to hold as contended by the respondent, that if a part of the award be found to be invalid, the entire award should be set aside and remitted back for a fresh decision. The error which has occurred in the award of the Umpire relates to a matter which is distinct and separate from the rest of the award. The part which is invalid being severable from that which is valid, there is no justification for setting aside the entire award26. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. Learned counsel for the respondent demurred but he was unable to indicate any cogent reason why we should not adopt a course which, far from causing any prejudice to the parties, was clearly in the interests of justice27. The Umpire has held that on the date of sale, the fair market value of the appellants undertaking was Rupees 23,81,670/-. He arrived at this figure after excluding from the total market value, the sum of Rupees 2,38,255/- which represented the consumers contributions to the cost of laying the service lines. These contributions, according to him, were made from April 1, 1958 to March 31, 1959. The date of sale being 4/5 May, 1959 the consumers contribution will roughly represent the market value of the service lines even if as required by the first proviso to Section 7 (1) of the Act as it then stood, due regard is to be had to the nature and condition for the time being of the "works", to the state of repair thereof, to the circumstance that they are in such a position as to be ready for immediate working and to the suitability of the same for the purposes of the undertaking.
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### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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purchases price". Under the relevant part of sub-section (2) of that section, the market value of an undertaking is to be the value of all lands, buildings, works etc. other than "service lines ..............which have been constructed at the expense of consumers". The appellants undertaking having been acquired on 4/5 May 1959, the provisions of old Section 7 and not of the newly added Section 7A would govern his rights. The Umpire made his award on November 27, 1961 relying, probably, on Section 7A which had no application. 23. Learned counsel for the respondent is right that even a mistake of law cannot vitiate the award unless the mistake is apparent on the face of the award. But here, the Umpire framed specific issues for decision, the first of these being : whether the respondent was "entitled to get a credit for the amount of consumers contribution paid for the service lines, laid on their premises and at their cost". The finding of the Umpire on this issue was that "The company is not entitled to claim from the Board the value of the portion of the service lines which were laid at the cost of the consumers." The calculations made by the Umpire in the award for ascertaining the true market value of the appellants undertaking show that the "value of the portion of services installed at the cost of the consumers" was expressly excluded from the total market value of the assets of the undertaking. It seems beyond the pale of controversy that the Umpire did not award compensation to the appellant in respect of the service lines for the sole reason that they were laid at the cost of the consumers. Some market-value the service-lines must have had, even if it be no more than the scrap value. But to the way of thinking which the Umpire adopted, that consideration had no relevance. The service-lines were paid for by the consumers and that, for the Umpire, was the end of the matters. That, patently, was the wrong end. 24. Respondent drew our attention to the decision in Durga Prosad Chamria v. Sewkishendas Bhattar, AIR 1949 PC 334 in which it was held that if a question of law is specifically referred to an arbitrator for his decision it would be contrary to well-established principles for a Court of law to interfere with the award, even if the Court itself would have take a different view of the point of law, had it been before it. This decision can have no application because the parties here did not refer any specific question of law for the decision of the arbitrators. The reference to arbitrators was on the broad question as to what was the fair market-value of the appellants undertaking. Being unable to agree on this question, the two arbitrators referred the matter to an Umpire. The Umpire raised a question of law and decided it. Parties had invited none to decide a specific question of law. 25. We are not disposed to hold as contended by the respondent, that if a part of the award be found to be invalid, the entire award should be set aside and remitted back for a fresh decision. The error which has occurred in the award of the Umpire relates to a matter which is distinct and separate from the rest of the award. The part which is invalid being severable from that which is valid, there is no justification for setting aside the entire award. 26. Normally, we would have remitted the award for a decision in the light of our judgment but that is likely to involve undue delay and expense in a dispute which is pending since 1959. Learned counsel for the appellant was agreeable that we should ourselves amend the award. Learned counsel for the respondent demurred but he was unable to indicate any cogent reason why we should not adopt a course which, far from causing any prejudice to the parties, was clearly in the interests of justice. 27. The Umpire has held that on the date of sale, the fair market value of the appellants undertaking was Rupees 23,81,670/-. He arrived at this figure after excluding from the total market value, the sum of Rupees 2,38,255/- which represented the consumers contributions to the cost of laying the service lines. These contributions, according to him, were made from April 1, 1958 to March 31, 1959. The date of sale being 4/5 May, 1959 the consumers contribution will roughly represent the market value of the service lines even if as required by the first proviso to Section 7 (1) of the Act as it then stood, due regard is to be had to the nature and condition for the time being of the "works", to the state of repair thereof, to the circumstance that they are in such a position as to be ready for immediate working and to the suitability of the same for the purposes of the undertaking. 28. Accordingly we direct that the award of the Umpire will stand amended to the extent that the fair market value of the appellants undertaking shall be Rupees 23,81,670/- plus Rupees 2,38,255/-, that is to say Rupees 26,19,925/-. We have not allowed solatium on the additional amount, so as to offset reasonable depreciation in the value of the service lines after they were laid. 29. The Umpire has directed the appellant to refund Rupees 98,568/- to the respondent, on the basis that the amount was paid to the appellant in excess of its just dues. This amount shall have to be adjusted as against the sum of Rupees 2,38,255/- which we have found to be due to the appellant in addition to what was awarded to it by the Umpire. Respondent, therefore, shall pay to the appellant a sum of Rupees 2,38,255/- minus Rupees 98,568/-, that is to say, Rupees 1,39,687/- with interest at six per cent per annum from the date of this judgment till payment.
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Amarnath Ashram Trust Society Vs. Governor Of U.P.
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Land Acquisition Officer, Bombay v. Godrej and Boyce, 1988(1) RRR 403. In that case this Court examined the nature and extent of the power of the Government to withdraw from acquisition after issuance of notification under section 4 of the Act. In that case the State Government had passed an order under section 48 of the Act withdrawing the lands of Godrej and Boyce from acquisition. The owner thereupon challenged the withdrawal order as mala fide and prayed for quashing of the same. The writ petition was allowed by a Single Judge of the High Court and his decision was affirmed by a Division Bench. In an appeal filed by the State, this Court held that under the scheme of the Act neither the notification under section 4 nor the declaration under section 6, nor the notice under section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title of the land vests in the Government only when possession is taken by the Government and till that point of time, the land continues to be with the original owner and he is also free to deal with the land just as he likes. So long as the possession is not taken over, the mere fact of a notification issued under section 4 or a declaration under section 6, does not divest the owner of his rights in the land to take care of it and confer on the State Government any right whatsoever to interfere with the ownership of the land or safeguard the interests of the owner. Section 48 gives liberty to the State Government to withdraw from the acquisition at any stage before the possession of the land is taken by it. By such withdrawal, no irreparable prejudice is caused to the owner of the land and, if at all the owner has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under section 48(2) of the Act. This Court further observed that the State can be permitted to exercise its power to withdraw unilaterally. It further observed that having regard to the scheme of the Act, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for its decision not to go ahead with the acquisition of any land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire any land, as a breach of contract can always be compensated for by damages. That is also the principle of section 48(2) of the Act. In that case the Court found that the withdrawal was bona fide and was justified in view of the facts and circumstances of the case. That was a case where the decision of the Government to withdraw from acquisition was challenged by the owner of the land on the ground that the withdrawal was mala fide and it was bad because no show cause notice was served to the company before the withdrawal order was passed. It was in that context that this Court made the above quoted observations. That was not a case where proceedings were initiated to acquire land for a company under part VII of the Act. Therefore, it is not an authority laying down the proposition that in all cases where power is exercised under section 48 of the Act it is open to the State Government to act unilaterally and that it can withdraw from acquisition without giving any reason or for any reason whatsoever. 9. In an acquisition under part VII of the Act, position of the company or the body for which the land is acquired is quite different from that of the owner of the land. As a result of withdrawal from the acquisition whereas the owner of land is ordinarily not likely to suffer any prejudice or irreparable loss, the company for whose benefit the land was to be acquired, may suffer substantial loss. 10. However, it is not necessary to go into this larger question whether in such a case the State Government can withdraw from acquisition without the consent of the company as the justification given by the Government is otherwise not sustainable. As stated earlier, the reason given by the Government for withdrawing from the acquisition is that as no part of the cost of acquisition was to be borne by the Government the acquisition could not have been sustained as for a public purpose. We have already pointed out that in this case the acquisition was not for a public purpose but it was an acquisition for a company under Chapter VII of the Act. In respect of an acquisition for a company under Chapter VII of the Act, law does not require that the State should also bear some cost of the acquisition to make it an acquisition for public use. Thus the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company, its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all.
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1[ds]6. It is now well established that if the cost of acquisition is borne either wholly or partly by the Government, the acquisition can be said to be for a public purpose within the meaning of the Act. But if the cost is entirely borne by the company then it is an acquisition for a company under part VII of thestated earlier, the reason given by the Government for withdrawing from the acquisition is that as no part of the cost of acquisition was to be borne by the Government the acquisition could not have been sustained as for a public purpose. We have already pointed out that in this case the acquisition was not for a public purpose but it was an acquisition for a company under Chapter VII of the Act. In respect of an acquisition for a company under Chapter VII of the Act, law does not require that the State should also bear some cost of the acquisition to make it an acquisition for public use. Thus the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company, its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all.
| 1 | 2,922 |
### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
Land Acquisition Officer, Bombay v. Godrej and Boyce, 1988(1) RRR 403. In that case this Court examined the nature and extent of the power of the Government to withdraw from acquisition after issuance of notification under section 4 of the Act. In that case the State Government had passed an order under section 48 of the Act withdrawing the lands of Godrej and Boyce from acquisition. The owner thereupon challenged the withdrawal order as mala fide and prayed for quashing of the same. The writ petition was allowed by a Single Judge of the High Court and his decision was affirmed by a Division Bench. In an appeal filed by the State, this Court held that under the scheme of the Act neither the notification under section 4 nor the declaration under section 6, nor the notice under section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title of the land vests in the Government only when possession is taken by the Government and till that point of time, the land continues to be with the original owner and he is also free to deal with the land just as he likes. So long as the possession is not taken over, the mere fact of a notification issued under section 4 or a declaration under section 6, does not divest the owner of his rights in the land to take care of it and confer on the State Government any right whatsoever to interfere with the ownership of the land or safeguard the interests of the owner. Section 48 gives liberty to the State Government to withdraw from the acquisition at any stage before the possession of the land is taken by it. By such withdrawal, no irreparable prejudice is caused to the owner of the land and, if at all the owner has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under section 48(2) of the Act. This Court further observed that the State can be permitted to exercise its power to withdraw unilaterally. It further observed that having regard to the scheme of the Act, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for its decision not to go ahead with the acquisition of any land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire any land, as a breach of contract can always be compensated for by damages. That is also the principle of section 48(2) of the Act. In that case the Court found that the withdrawal was bona fide and was justified in view of the facts and circumstances of the case. That was a case where the decision of the Government to withdraw from acquisition was challenged by the owner of the land on the ground that the withdrawal was mala fide and it was bad because no show cause notice was served to the company before the withdrawal order was passed. It was in that context that this Court made the above quoted observations. That was not a case where proceedings were initiated to acquire land for a company under part VII of the Act. Therefore, it is not an authority laying down the proposition that in all cases where power is exercised under section 48 of the Act it is open to the State Government to act unilaterally and that it can withdraw from acquisition without giving any reason or for any reason whatsoever. 9. In an acquisition under part VII of the Act, position of the company or the body for which the land is acquired is quite different from that of the owner of the land. As a result of withdrawal from the acquisition whereas the owner of land is ordinarily not likely to suffer any prejudice or irreparable loss, the company for whose benefit the land was to be acquired, may suffer substantial loss. 10. However, it is not necessary to go into this larger question whether in such a case the State Government can withdraw from acquisition without the consent of the company as the justification given by the Government is otherwise not sustainable. As stated earlier, the reason given by the Government for withdrawing from the acquisition is that as no part of the cost of acquisition was to be borne by the Government the acquisition could not have been sustained as for a public purpose. We have already pointed out that in this case the acquisition was not for a public purpose but it was an acquisition for a company under Chapter VII of the Act. In respect of an acquisition for a company under Chapter VII of the Act, law does not require that the State should also bear some cost of the acquisition to make it an acquisition for public use. Thus the decision of the Government to withdraw from acquisition was based upon misconception of the correct legal position. Such a decision has to be regarded as arbitrary and not bona fide. Particularly in a case where as a result of a decision taken by the Government other party is likely to be prejudicially affected, the Government has to exercise its power bona fide and not arbitrarily. Even though section 48 of the Act confers upon the State wide discretion it does not permit it to act in an arbitrary manner. Though the State cannot be compelled to acquire land compulsorily for a company, its decision to withdraw from acquisition can be challenged on the ground that power has been exercised mala fide or in an arbitrary manner. Therefore, we cannot accept the submission of the learned counsel for the State that the discretion of the State Government in this behalf is absolute and not justiciable at all.
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326 |
Anjan Kumar Sarma & Others Vs. State of Assam
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of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." 19. This Court in Bharat v. State of M.P., (2003) 3 SCC 106 , held that the failure of the accused to offer any explanation in his statement under Section 313, Cr.P.C. alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted. 20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:- "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence." 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- "34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.
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1[ds]15. It is no more res integra that suspicion cannot take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of "may be true." But there is a long mental distance between "may be true" and "must be true" and the same divides conjunctures from sure conclusions.It is settled law that inferences drawn by the court have to be on the basis of established facts and not onif the time is stretched to the maximum of 48 hours, the death was after 12:00 noon on 28.12.1992. The deceased was in the company of the accused till 9:00 pm on 27.12.1992. The inference drawn by the High Court that the accused have killed the deceased on 28.12.1992 in the night time and thrown the body on the railway track is not on the basis of any proved facts. The Trial Court is right in holding that there is no evidence on record to show that the deceased was with the accused after 12:00 noon onare in agreement with the Trial Court that the recovery of the khukri was not supported by any independent witnesses. The prosecution has also failed to prove that there were blood stains on the said khukri. The blood stains found in the bathroom of bungalow No. 17 were sent for examination which resulted in a negative report. The above circumstances not being proved would leave only two circumstances against the Accused which are that the Accused were last seen together with the deceased and the absence of any explanation forthcoming by the Accused.It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis ofother judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be advertedwe have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.
| 1 | 5,162 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded." 19. This Court in Bharat v. State of M.P., (2003) 3 SCC 106 , held that the failure of the accused to offer any explanation in his statement under Section 313, Cr.P.C. alone was not sufficient to establish the charge against the accused. In the facts of the present case, the High Court committed an error in holding that in the absence of any satisfactory explanation by the accused the presumption of guilt of the Accused stood un-rebutted and thus the Appellants were liable to be convicted. 20. Mr. R. Venkataramani relied upon Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 at p.582 to buttress his submission that the circumstance of last seen together coupled with lack of any satisfactory explanation by the accused is a very strong circumstance on the basis of which the accused can be convicted. It was held by this Court in the above judgment as follows:- "It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence." 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- "34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case.
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327 |
Ponusamy Vs. State of Tamil Nadu
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it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures : in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green. 21. In Journal of Forensic Sciences Volume 41 under the Title - Fracture of the Hyoid Bone in Strangulation : Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated :- The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, postmortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n = 10, each). The fractured hyoids occurred in older victims of strangulation (39 1 14 years) when compared to the victims with unfractured hyoids (30 1 10 years). The age-dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid was fused in older victims of strangulation (41 1 12 years) whereas the unfused hyoids were found in the younger victims (28 1 10 years). In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. Fractured byoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones. 22. Mr. Rangaramanajam, however, relied upon Modis Medical Jurisprudence and Toxicology, Twenty-Third Edition at page 584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to point No.12 which reads as under: - Hanging Strangulation Fracture of the larynx and trachea - Very rare and that too in judicial hanging. Fracture of the larynx and trachea - Often found also hyoid bone. 23. A bare perusal of the opinion of the learned Author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases. 24. We must also take into consideration the fact that the dead-body was decomposed with maggots all over it. Other marks of strangulation which could have been found were not to be found in this case. The dead body was found after a few days. We are, therefore, of the opinion that medical evidence does not negate the prosecution case. 25. There cannot be any doubt that extra judicial confession is evidence of weaks nature as has been held in Kuldip Singh and another vs. State of Punjab : (2002) 6 SCC 757. However, it must also be noticed that therein, not only the confession made by the appellant was found to be unbelievable, even the recovery of the dead body, pursuant to the disclosure statement made, was also found to be so. There was no other evidence on record on the basis of which the conviction of the appellant could be sustained. In this case, however, not only an extra judicial confession was made by the appellant before PW-10, the same was also made before PW-11. The jewellery which had been put on by the deceased was produced by the appellant. Only upon the disclosure made by the appellant that the dead body had been thrown in the canal, a search was made and it was found. The dead body was also identified to be that of the deceased. 26. In Vinayak Shivajirao Pol vs. State of Maharashtra : (1998) 2 SCC 233 this Court opined:- 10. There is no ambiguity in the above statement. It shows that the appellant killed his wife. Both the Courts have found that the statement was made voluntarily by the appellant. The sequence of events shows that at the time when the appellant made a confession, neither he nor the military authorities had any knowledge of the recovery of the headless trunk of the appellants wife. The military authorities were in no way biased or inimical to the appellant. Nothing is brought out in the evidence in respect of the military officers which may indicate that they had a motive for attributing an untruthful statement to the appellant. The statement has been proved by one of the officers to whom it was made. The said officer has been examined as PW 32. A perusal of the evidence shows that the vague plea raised by the appellant that the statement was obtained from him on inducement and promise is not true. In such circumstances it is open to the Court to rest its conclusion on the basis of such statement and no corroboration is necessary. 27. We have been taken through the evidence of PW-10 and PW-18. We have no reason to differ with the findings of the learned trial Judge as also the High Court that the extra judicial confession was voluntary or truthful.
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0[ds]11. The relationship of the appellant with that of the deceased is not in dispute. That they were married and immediately thereafter started living in the house of P-1 is also not denied or disputed. It further stands established that PW-2 is the husband of Rukmani, another daughter of PW-1. It has also not been disputed that the deceased was earlier married to Easwaran, PW-9. The prosecution has also brought on record a Deed of Gift dated 25th January, 1996 executed by the husband of PW-1 in favour of the deceased. There is also no serious dispute that the appellant did not maintain any relationship with the deceased for about a year. They were last seen together on 5th March, 1997, when they travelled together from the house of PW-118. We have to consider the factual background of the present case in the light of the relationship between the parties. If his wife was found missing, ordinarily, the husband would search for he. If she has died in an unnatural situation when she was in his company, he is expected to offer an explanation therefor. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him24. We must also take into consideration the fact that the dead-body was decomposed with maggots all over it. Other marks of strangulation which could have been found were not to be found in this case. The dead body was found after a few days. We are, therefore, of the opinion that medical evidence does not negate the prosecution case25. There cannot be any doubt that extra judicial confession is evidence of weaks nature as has been held in Kuldip Singh and another vs. State of Punjab : (2002) 6 SCC 757. However, it must also be noticed that therein, not only the confession made by the appellant was found to be unbelievable, even the recovery of the dead body, pursuant to the disclosure statement made, was also found to be so. There was no other evidence on record on the basis of which the conviction of the appellant could be sustained. In this case, however, not only an extra judicial confession was made by the appellant before PW-10, the same was also made before PW-11. The jewellery which had been put on by the deceased was produced by the appellant. Only upon the disclosure made by the appellant that the dead body had been thrown in the canal, a search was made and it was found. The dead body was also identified to be that of the deceased27. We have been taken through the evidence of PW-10 and PW-18. We have no reason to differ with the findings of the learned trial Judge as also the High Court that the extra judicial confession was voluntary or truthful.
| 0 | 4,501 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures : in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green. 21. In Journal of Forensic Sciences Volume 41 under the Title - Fracture of the Hyoid Bone in Strangulation : Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated :- The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, postmortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n = 10, each). The fractured hyoids occurred in older victims of strangulation (39 1 14 years) when compared to the victims with unfractured hyoids (30 1 10 years). The age-dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid was fused in older victims of strangulation (41 1 12 years) whereas the unfused hyoids were found in the younger victims (28 1 10 years). In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. Fractured byoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones. 22. Mr. Rangaramanajam, however, relied upon Modis Medical Jurisprudence and Toxicology, Twenty-Third Edition at page 584 wherein a difference between hanging and strangulation has been stated. Our attention in this connection has been drawn to point No.12 which reads as under: - Hanging Strangulation Fracture of the larynx and trachea - Very rare and that too in judicial hanging. Fracture of the larynx and trachea - Often found also hyoid bone. 23. A bare perusal of the opinion of the learned Author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases. 24. We must also take into consideration the fact that the dead-body was decomposed with maggots all over it. Other marks of strangulation which could have been found were not to be found in this case. The dead body was found after a few days. We are, therefore, of the opinion that medical evidence does not negate the prosecution case. 25. There cannot be any doubt that extra judicial confession is evidence of weaks nature as has been held in Kuldip Singh and another vs. State of Punjab : (2002) 6 SCC 757. However, it must also be noticed that therein, not only the confession made by the appellant was found to be unbelievable, even the recovery of the dead body, pursuant to the disclosure statement made, was also found to be so. There was no other evidence on record on the basis of which the conviction of the appellant could be sustained. In this case, however, not only an extra judicial confession was made by the appellant before PW-10, the same was also made before PW-11. The jewellery which had been put on by the deceased was produced by the appellant. Only upon the disclosure made by the appellant that the dead body had been thrown in the canal, a search was made and it was found. The dead body was also identified to be that of the deceased. 26. In Vinayak Shivajirao Pol vs. State of Maharashtra : (1998) 2 SCC 233 this Court opined:- 10. There is no ambiguity in the above statement. It shows that the appellant killed his wife. Both the Courts have found that the statement was made voluntarily by the appellant. The sequence of events shows that at the time when the appellant made a confession, neither he nor the military authorities had any knowledge of the recovery of the headless trunk of the appellants wife. The military authorities were in no way biased or inimical to the appellant. Nothing is brought out in the evidence in respect of the military officers which may indicate that they had a motive for attributing an untruthful statement to the appellant. The statement has been proved by one of the officers to whom it was made. The said officer has been examined as PW 32. A perusal of the evidence shows that the vague plea raised by the appellant that the statement was obtained from him on inducement and promise is not true. In such circumstances it is open to the Court to rest its conclusion on the basis of such statement and no corroboration is necessary. 27. We have been taken through the evidence of PW-10 and PW-18. We have no reason to differ with the findings of the learned trial Judge as also the High Court that the extra judicial confession was voluntary or truthful.
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328 |
Bacha F. Guzdar Vs. Commissioner Of Income-Tax, Bombay
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sum of money ..............................."19. It was suggested that the dividend arises out of the profits accruing from land and is impressed with the same character as the profits and that it does not change its character merely because of the incident that it reaches the hands of the shareholder. This argument runs counter to. the definition of agricultural income which emphasizes the necessity of the recipient of income having a direct and an immediate rather than an indirect and remote relation with land. To accept this argument will be tantamount to saying that the creditor recovering interest on money debt due from the agriculturist who pays out of the produce of the land is equally entitled to the exemption. In fairness to Mr. Kolah it must, however, be stated that the contention was not so broadly put but there is no reason why one should stop at a particular stage and not pursue the analogy to its logical limits.20. English decisions resting upon the peculiarities of the English Income-tax law can hardly be a safe guide , in determining upon the language of the Indian Income-tax Act the true meaning of the words agricultural income. A few cases of the Privy Council decided with reference to the provisions of the Indian Income-tax Act, however, deserve notice. The first case, -viz., Commissioner of Income-tax, Bihar and Orissa v. Raja Bahadur Kamakshya Narayan Singh and Others([1948] 16 I.T.R. 325.) dealt with the question whether interest on arrears of rent payable in respect of land used for agricultural purposes is agricultural income and therefore exempt from income-tax. It was held that it was neither rent nor revenue derived from land within the meaning of section 2(1) of the Income-tax Act. Lord Uthwatt who delivered the judgment of the Privy Council used the following piquant language in coming to that conclusion :"The word derived is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment. And rent is not land within the meaning of the definition. "21. The second case, viz., Premier Construction Co. Ltd. V. Commissioner of Income-tax, Bombay City([1948] 16 I.T.R. 380.) dealt, with the nature of the commission of a managing agent of the company a part of whose income was agricultural income. The assessee claimed exemption from tax on the ground that his remuneration at 10 per cent. of the profits was calculated with reference to the income of the company part of which was agricultural income. It was held that the assessee received no agricultural income as defined by the Act but that he received a remuneration under a contract for personal service calculated on the amount of profits earned by the employer, payable not in specie out of any item of such profits, but out of any moneys of the employer avail- Able for the purpose, and that the remuneration therefore was not agricultural income and was not exempt from tax. Sir John Beaumont in the above case observed :" In their Lordships view the principle to be derived from a consideration of the terms of the Income-tax Act and the authorities referred to is that where an assessee receives income, not itself of a character to fall within the definition of agricultural income contained in the, Act, such income does not assume the character of agricultural income by reason of the source from which it is derived, or the method by which it iscalculated. "22. In the third case, viz., Maharajkumar Gopal Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa([1935] 3 I.T.R. 237.) an annual payment for life to the assessee was not held to be agricultural income and therefore not exempt from tax where the annuity arose out of a transfer made by the assessee of a portion of his estate for discharging his debts and for obtaining an adequate income for his life it being held that it was not rent or revenue derived from land --but. Money paid under a contract imposing personal liability on the covenantor the discharge of which was secured by a charge on land. But reliance was placed uponanother judgment of the Privy Council in the same volume at page 305 in Commissioner of Income-tax, Bihar and Orissa v. Sir Kameshwar Singh([1935] 3 I.T.R. 305.). That was a case of a Usufructuary mortgagee the profits received by whom were exempt from income-tax on the ground that they were agricultural income in his hands. Lord Macmillan, after referring to certain sections of the Act, observed that "the result of those sections is to exclude agricultural income altogether from the scope of the Act howsoever or by whomsoever it may be received." These observations must be held to be confined to the facts of that particular case which was a case of usufructuary mortgagee who had received profits directly from the land. The obvious implication of the words used by Lord Macmillan was that whosoever receives profit from the land directly is entitled to the exemption.23. Reference was also made to some English decisions but they have no bearing upon the present case as they were founded on the English Income-tax law and the provisions of the particular statute.24. The learned Attorney-General also contended that the conclusion that dividend is not agricultural income also follows from the provisions of section 16, subsection (2) and the proviso to the Act. According to him, this section compels the assessee to show in his return the whole dividend including the portion which is excluded on the ground of agricultural income. We do not consider it necessary to express any opinion upon this contention as our conclusion reached as a result of the foregoing discussion is sufficient to dispose of the appeal.
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0[ds]The proper approach to the solution of the question is to concentrate on the plain words of the definition of agricultural income which connects in no uncertain language revenue with the land from which it directly springs and a stray observation in a case which has no bearing upon the present question does not advance the solution of the question. There is nothing in the Indian law to warrant the assumption that a shareholder who buys shares buys any interest in the property of the company which is a juristic person entirely distinct from the shareholders.
| 0 | 3,439 |
### Instruction:
Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner?
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sum of money ..............................."19. It was suggested that the dividend arises out of the profits accruing from land and is impressed with the same character as the profits and that it does not change its character merely because of the incident that it reaches the hands of the shareholder. This argument runs counter to. the definition of agricultural income which emphasizes the necessity of the recipient of income having a direct and an immediate rather than an indirect and remote relation with land. To accept this argument will be tantamount to saying that the creditor recovering interest on money debt due from the agriculturist who pays out of the produce of the land is equally entitled to the exemption. In fairness to Mr. Kolah it must, however, be stated that the contention was not so broadly put but there is no reason why one should stop at a particular stage and not pursue the analogy to its logical limits.20. English decisions resting upon the peculiarities of the English Income-tax law can hardly be a safe guide , in determining upon the language of the Indian Income-tax Act the true meaning of the words agricultural income. A few cases of the Privy Council decided with reference to the provisions of the Indian Income-tax Act, however, deserve notice. The first case, -viz., Commissioner of Income-tax, Bihar and Orissa v. Raja Bahadur Kamakshya Narayan Singh and Others([1948] 16 I.T.R. 325.) dealt with the question whether interest on arrears of rent payable in respect of land used for agricultural purposes is agricultural income and therefore exempt from income-tax. It was held that it was neither rent nor revenue derived from land within the meaning of section 2(1) of the Income-tax Act. Lord Uthwatt who delivered the judgment of the Privy Council used the following piquant language in coming to that conclusion :"The word derived is not a term of art. Its use in the definition indeed demands an enquiry into the genealogy of the product. But the enquiry should stop as soon as the effective source is discovered. In the genealogical tree of the interest land indeed appears in the second degree, but the immediate and effective source is rent, which has suffered the accident of non-payment. And rent is not land within the meaning of the definition. "21. The second case, viz., Premier Construction Co. Ltd. V. Commissioner of Income-tax, Bombay City([1948] 16 I.T.R. 380.) dealt, with the nature of the commission of a managing agent of the company a part of whose income was agricultural income. The assessee claimed exemption from tax on the ground that his remuneration at 10 per cent. of the profits was calculated with reference to the income of the company part of which was agricultural income. It was held that the assessee received no agricultural income as defined by the Act but that he received a remuneration under a contract for personal service calculated on the amount of profits earned by the employer, payable not in specie out of any item of such profits, but out of any moneys of the employer avail- Able for the purpose, and that the remuneration therefore was not agricultural income and was not exempt from tax. Sir John Beaumont in the above case observed :" In their Lordships view the principle to be derived from a consideration of the terms of the Income-tax Act and the authorities referred to is that where an assessee receives income, not itself of a character to fall within the definition of agricultural income contained in the, Act, such income does not assume the character of agricultural income by reason of the source from which it is derived, or the method by which it iscalculated. "22. In the third case, viz., Maharajkumar Gopal Saran Narain Singh v. Commissioner of Income-tax, Bihar and Orissa([1935] 3 I.T.R. 237.) an annual payment for life to the assessee was not held to be agricultural income and therefore not exempt from tax where the annuity arose out of a transfer made by the assessee of a portion of his estate for discharging his debts and for obtaining an adequate income for his life it being held that it was not rent or revenue derived from land --but. Money paid under a contract imposing personal liability on the covenantor the discharge of which was secured by a charge on land. But reliance was placed uponanother judgment of the Privy Council in the same volume at page 305 in Commissioner of Income-tax, Bihar and Orissa v. Sir Kameshwar Singh([1935] 3 I.T.R. 305.). That was a case of a Usufructuary mortgagee the profits received by whom were exempt from income-tax on the ground that they were agricultural income in his hands. Lord Macmillan, after referring to certain sections of the Act, observed that "the result of those sections is to exclude agricultural income altogether from the scope of the Act howsoever or by whomsoever it may be received." These observations must be held to be confined to the facts of that particular case which was a case of usufructuary mortgagee who had received profits directly from the land. The obvious implication of the words used by Lord Macmillan was that whosoever receives profit from the land directly is entitled to the exemption.23. Reference was also made to some English decisions but they have no bearing upon the present case as they were founded on the English Income-tax law and the provisions of the particular statute.24. The learned Attorney-General also contended that the conclusion that dividend is not agricultural income also follows from the provisions of section 16, subsection (2) and the proviso to the Act. According to him, this section compels the assessee to show in his return the whole dividend including the portion which is excluded on the ground of agricultural income. We do not consider it necessary to express any opinion upon this contention as our conclusion reached as a result of the foregoing discussion is sufficient to dispose of the appeal.
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329 |
Monnet Ispat & Energy Ltd. & Others Vs. Union of India & Others
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of the power plant within a variation not exceeding ten percent;"Reading of the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11. The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases. The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to Sub-Section 2 of Section 38, and the fourth proviso to Sub-Section (2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or for non-compliance of the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due to force-measure any generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also.13. Reliance has been placed on behalf of the appellants on Global Energy Ltd. & Anr. v. Central Electricity Regulatory Commission (2009) 15 SCC 570. Relied upon portions are extracted hereunder :"44. A disqualifying statute, in our opinion, must be definite and not uncertain; it should not be ambiguous or vague. Requisite guidelines in respect thereof should be laid down under the statute itself. It is well settled that essential legislative function cannot be delegated.""57. We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Sections 12 and 14 of the Act, the regulation-making power may also be available for the said purpose. We have noticed hereinbefore the effect of subsection (1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation."This Court considered vires of Regulation 6- A of the Regulations framed by the CERC in 2006. It was held to be ultra vires of Act and the Constitution of India. Regulation 6-A provided for disqualification. This Court held subordinate legislation should be read in the context of the Act, in terms of requirement of section 52 of the Electricity Act, 2003. This Court observed that when statute is sought to be enforced power of authority to impose restrictions and conditions must be construed having regard to purpose and object it seeks to achieve. The conditions regarding generation of power must be reasonable. There cannot be excessive delegation. The power of Central Electricity Regulatory Commission to impose qualifications/restrictions should be read in line with larger object of the Act. The delegated legislation should promote rational and accountable policy implementation. This Court also observed that for disqualification guidelines should be laid down in the statute itself. Essential legislative functions cannot be delegated.14. In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit.
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1[ds]8. It is apparent from the provisions that generating plants are to be regulated as per the provisions of the Act, Rules andof the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11.The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases.The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to2 of Section 38, and the fourth proviso to(2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or forof the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due toany generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also.In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit.
| 1 | 3,812 |
### Instruction:
Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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of the power plant within a variation not exceeding ten percent;"Reading of the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11. The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases. The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to Sub-Section 2 of Section 38, and the fourth proviso to Sub-Section (2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or for non-compliance of the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due to force-measure any generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also.13. Reliance has been placed on behalf of the appellants on Global Energy Ltd. & Anr. v. Central Electricity Regulatory Commission (2009) 15 SCC 570. Relied upon portions are extracted hereunder :"44. A disqualifying statute, in our opinion, must be definite and not uncertain; it should not be ambiguous or vague. Requisite guidelines in respect thereof should be laid down under the statute itself. It is well settled that essential legislative function cannot be delegated.""57. We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Sections 12 and 14 of the Act, the regulation-making power may also be available for the said purpose. We have noticed hereinbefore the effect of subsection (1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation."This Court considered vires of Regulation 6- A of the Regulations framed by the CERC in 2006. It was held to be ultra vires of Act and the Constitution of India. Regulation 6-A provided for disqualification. This Court held subordinate legislation should be read in the context of the Act, in terms of requirement of section 52 of the Electricity Act, 2003. This Court observed that when statute is sought to be enforced power of authority to impose restrictions and conditions must be construed having regard to purpose and object it seeks to achieve. The conditions regarding generation of power must be reasonable. There cannot be excessive delegation. The power of Central Electricity Regulatory Commission to impose qualifications/restrictions should be read in line with larger object of the Act. The delegated legislation should promote rational and accountable policy implementation. This Court also observed that for disqualification guidelines should be laid down in the statute itself. Essential legislative functions cannot be delegated.14. In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit.
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330 |
L. Janakirama Iyer Vs. P.M. Nilakanta Iyer
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really concerned with the narration of the relevant facts and it purports to summarise the effect of the decree and nothing more. Besides, the use of the words "mesne profits" in the context is obviously the result of inadvertence because the decree of the trial court had in the relevant clause used the words "net profits" and not "mesne profits". Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words "mesne profits" and such an error could be corrected by the High Court under Ss. 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction.24. But apart from this technical argument about the jurisdiction of the High Court to make the correction the point in question has been raised on the merits before us; and it is urged that the plaintiffs are not entitled to anything more than three years profits from the respective defendants. The argument is that Art. 109 of the Limitation Act applies to such a claim and the claim is confined to three years under that article. Article 109 deals with claims for profits of immovable property belonging to the plaintiffs which have been wrongfully received by the defendants and it prescribes three years period of limitation commencing from the time when the profits were received. Normally there is no doubt that a successful-plaintiff would be entitled to mesne profits for three years and not more; but in the present case we are dealing with a claim made by the plaintiffs on behalf of the trust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees alienations in whose favour have been set aside as invalid.We have already seen that having set aside the alienations in favour of defendant 14 and others the Courts below have directed that the alienees should get the amounts due to them from the trust. It has also been directed that interest at the rate awarded by the decree should be paid to them on the said amounts. This cleary is an equitable relief granted to the alienees. Having held that the alienees should interest on the amounts due to them from the dates of their respective mortgages or sales the Courts in fairness have directed that the alienees in turn should give an account of the net profits of the properties which were wrongfully in their possession commencing with the date when they got possession. If the technical argument based on Art. 109 is upheld as a matter of law there would be no scope for giving equitable relief to the alienees at all and they may be driven to file fresh actions to recover their claims and such actions would have to face the possible plea of limitation. That is why the High Court has observed that the question about the net profits awardable to the trust and interest awardable to the alienees, involves considerations of equitable adjustment, and it is by way of an equitable adjustment that the relevant directions have been issued by the decree.It is not disputed that the Court had jurisdiction to make such an equitable adjustment. Indeed, in many cases of this type Courts have made equitable adjustments between rival parties (Vide: Satgur Prasad v. Har Narain Das, 59 Ind 147 : (AIR 1932 PC 89 ) : Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu, 35 Ind App 48 at P. 59. The principal and interest ordered to be paid to defendant 14 and the profits ordered to be paid by him are thus integral parts of an equitable adjustment between the plaintiffs and defendant 14.25. It is also urged on behalf of defendant 14 that the High Court was in error in modifying the decree passed by the trial Court by changing 10 1/2% interest at compound rate to 10 1/2% simple interest in favour of defendant 14. The contention is that under the mortgage executed in favour of defendant 14 (Ex. B-95) the contract rate was 10 1/2% compound interest and as mortgagee defendant 14 was entitled to that rate. In support of this argument reliance is placed on the decision of the Privy Council in Jagannath Prasad Singh v. Surajmal Jalal, 54 Ind App 1 : (AIR 1927 PC 1 ).In that case the Privy Council has held that on a preliminary decree for foreclosure or sale under O. XXXIV, Rr. 2, 4 of the Code, a mortgagee is entitled to interest at the rate and with the rests stipulated in the mortgage, down to the rate fixed for redemption by the decree. This position cannot be disputed; but the answer to the plea is that the present decree is not passed in an action instituted by defendant 14 as a mortgagee. The present decree is passed while adjusting equities between defendant 14 the alienation in whose favour is set aside; his rights as mortgagee are equitably recognised and thereby further litigation is avoided. Since the decree by which defendant 14 is allowed to recover his mortgage dues has been passed for giving him equitable relief it was open to the High Court to consider whether compound interest should be paid to him or not. As the High Court has pointed out, while adjusting equities between the parties the mortgage does not become revived as such but the relief granted to the 14th defendant is based on equity and justice, and so the High Court thought that the interests of justice would be met if he is paid out of the sale proceeds the principal amount of the mortgage with simple interest at 10 1/2%. We have carefully considered the contention raised by the learned Attorney-General in this behalf but we do not think that we would be justified in interfering with the modification made by the High Court in the decree passed by the trial court.
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0[ds]The plaint sets out all the material facts which constitute the background to the present litigation, makes material allegations in respect of all the alienations impeached in the plaint, and by paragraph 35 it prays, inter alia, that schedules I toand VIII should be adjudged as still impressed as trust imposed on them by the deed of August 26, 1936 and direct theirThat is cl. (c) of paragraph 35. By cl. (d) it is prayed that the Court should order the administration of the trust by removing defendant 7 if need be and appointing an administrator or officer of court (1) to realise the amounts mentioned in cl. (a), (2) to recover possession andthe properties referred to in paragraph (c), (3) to distribute the proceeds rateably amongst the unsecured creditors and perform such other acts and functions as may be necessary to effectuate the trust inis not a claim that possession should be delivered to the administrator in the present suit.It may be, conceded that if read by itself alone cl. (d) may be capable of the construction which the learnedseeks to put on it; but in construing the plaint we must have regard to all the relevant allegations made in the plaint and must look at the substance of the matter and not its form. It is significant that the plaintiffs have valued the suit for the purpose of court fee and jurisdiction at Rs. 23,745 and this valuation includes several items in respect of different properties valued under S. 7(5) of the Court Fees Act. The valuation made in respect of the different items of properties under S. 7(5) is obviously and clearly valuation made on the footing that a claim for possession is made. In fact the plaint specifically avers that the plaintiffs valued the suit for possession covered by reliefs C andunder S. 7(5) as indicated in the plaint. Thus there can be no doubt that the plaint has been valued on the basis that a claim for possession of the properties covered by the schedules is intended to be made. Besides, it is also significant that in regard to the claim made by the plaintiffs in respect of the transfer in favour of defendant 14 his sons defendants 18 to 24 have been joined specifically on the ground that since the plaintiffs claim possession of the said property the said defendants are necessary parties as it is found that they are in possession of the said properties. In other words, the joinder of defendants 18 to 24 to the present suit is based solely on the ground that a claim for possession is made in the plaint and defendants 18 to 24 being in possession are necessary parties to the suit. Therefore, in our opinion reading the plaint as a whole it would be unreasonable to construe cl., (d) in paragraph 35 in the manner suggested by the learnedThe prayer which the clause really purports to make is that an administrator should be appointed and that an order should be passed against the respective defendants asking them to deliver possession of the properties to the said administrator. If that be so the plaint cannot be construed as one on which a mere claim for declaration is made. It is a plaint in which a declaration is no doubt claimed but based on the said declaration or adjudication a further claim for possession to the administrator is also made. The result, therefore, is that the argument that the prayer made in the plaint attracts Art. 120 must beis not disputed by the learnedthat in regard to public charitable trusts the beneficiaries are entitled to sue for setting aside alienations of the trust properties improperly effected by the trustees, and to ask for the restoration of possession of the said trust properties to the trustees newly appointed. Indeed, there is ample judicial authority in support of thiswould thus be seen that these observations mean no more than this that the beneficiary under a private trust cannot claim to recover possession of the property from the trustee so as to attract the application of Art. 144 of the Limitation Act. He can make the claim for a declaration which would be governed by Art. 120. It is quite clear that the question as to whether in proper case the beneficiary cannot apply for the removal of the trustee, for the appointment of a new trustee, and for the delivery to the new trustee of the property improperly alienated by the previous trustee did not fall to be considered in that case. All that the Privy Council was called upon to consider was whether a beneficiary can bring a suit for possession against a trustee and whether such a suit can be governed by Art. 144, and in holding that such a suit cannot be brought by the beneficiary the Privy Council pointed out that Art. 144 postulates a suit by the owner and a beneficiary is not an owner under the Indian Law of Trusts. We are, therefore, satisfied that the observations on which reliance is placed by the learnedcannot be said to amount to a decision that in no case can a beneficiary claim that the trustee appointed under the trust should be removed and a new trustee should be appointed and the trust properties improperly alienated by the previous trustee should be ordered to be delivered into the possession of the new trustee. Section 63 no doubt provides for the two remedies which are available to the beneficiary, but, in our opinion, S. 63 cannot be treated as exhaustive on the subject and so it cannot be urged that a claim for constructive possession like the one made in the present suit is prohibited by S. 63, Prima facie S. 10 of the Limitation Act seems to contemplate an action by a beneficiary under a trust to which S. 10 applies and provides that in such an action the beneficiary may follow the property and ask for a proper order as to the delivery of the said property to the new trustee. If that be so, the provisions of S. 10 would suggest that the remedies prescribed by S. 63 are not exhaustive.15. Besides, it would be relevant to observe that if S. 63 is held to be exhaustive as to the remedies available to a beneficiary it would lead to very anomalousa trustee improperly alienates the trust property the only remedy which would on that view be available to the beneficiary is to obtain aand literally construed S. 63 does not refer to the remedy for the appointment of a new trustee either, so that on a literal construction of S. 63 even that remedy may be outside its purview; but assuming that a beneficiary can ask for a declaration that the property alienated is comprised in the trust and also add a prayer for the appointment of a new trustee that only means that after the new trustee is appointed he will have to sue the alienee for possession and very often this suit would be defeated by the alienees plea of adverse possession. It is hardly necessary to emphasise that when the beneficiary sues for a declaration as required by S. 63 and the alienee resists the said suit the adverse possession of the alienee is emphatically, brought out and the pendency of the beneficiarys suit would not affect that position so that on the view that S. 63 is exhaustive more often than not the beneficiarys claim would in substance be defeated by the adverse possession of thewould like to add that if for bringing back to the trust the properties improperly alienated by the trustees two suits are required to be filed we apprehend thatthe second suit by the newly appointed trustee for obtaining possession of the properties would almost always be too late, and so S. 63 cannot be read as exhaustively dealing with all the remedies available to the beneficiary.We must, therefore, reject the argument that the suit for possession in the form in which the prayer has been made by the plaintiffs isS. 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of S. 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by reshave already seen that three trustees were appointed under the trust deed executed by defendants 1 to 6 and two of the impugned sale deeds have been executed by only two out of the said three trustees. The Courts below have held that two out of the three trustees could not convey a valid title and so on that ground alone the two transfers are invalid.Section 48 of the Trusts Act provides that when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. It is thus clear that all acts which the trustees intend to take for executing the trust must be taken by all of them acting together. Therefore, there can be no doubt that if the validity of the alienations effected by the trustees falls to be considered only in the light of S. 48 the fact that out of the three trustees only two have executed the sale deeds would by itself make the transactions invalid and would not convey title to the alienees. This position is not in doubt.As we have seen S. 48 contemplates that its provisions will not apply where the instrument of trust otherwise provides. In other words, if a trust deed under which more trustees than one are appointed expressly provides that the execution of the trust may be carried out not by all but by one or more, then of course the matter would be governed by the special provision of the trusthave carefully compared all the translations, and we feel no difficulty in holding that the translation supplied in the earlier litigation is somewhat inaccurate, whereas all the three translations made in the present proceedings substantially agree. Taking the translation supplied by the learnedit is clear that what this clause requires is that the three trustees shall act, and it provides that they shall act according to the decision which may be reached either unanimously or by majority. "You three," that is to say the three trustees, is the subject of the predicate "shall act"; and the words between the subject and the predicate indicate how the decision has been reached. Reading the clause as a whole it is difficult to accept the argument that this clause allows two of the three trustees to act without joining the third trustee in the actual action to be taken in the execution of the trust. It is not necessary under the clause that in the matter of executing the trust every decision must be unanimous. The clause recognises that in some matters decision may be by majority; but nevertheless it requires that once a decision is reached either unanimously or by majority, in giving effect to the decision and in taking any given action in the execution of the trust all the three must act. Thus read this clause conforms to the statutory provisions contained in S. 48 of the Indian Trusts Act and is not intended to provide for an exception to the said provisions atargument is wholly inconclusive. There are several other clauses in the trust deed which also bring out provisions corresponding to the relevant provision of the Trusts Act and this argument may apply to the said clauses is well. The authors of the trust, while creating the trust, have made elaborate provisions in respect of the several matters concerning the execution of the trust, and the whole scheme of the trust deed is consistent with the operative cl. 23 in that it seems to require all the trustees to act together even though the decisions which they seek to give effect to may have been majority decisions and not unanimous decisions. Therefore, in our opinion, the Courts below were right in holding that cl. 23, like the main provision of S. 48, requires that all the trustees should have joined in the execution of the sale deeds in question. That being so, Exs.37 which are respectively executed in favour of defendant 14 and defendant 13 are invalid and can pass no title to the alienees on the ground that only two out of the three trustees have executedhave considered the evidence to which our attention was invited in this connection, and we see no reason to interfere with the concurrent conclusion recorded by the Courts below that Narayana Pillai was not a consenting party to the transfer in question. That being so, the alternative ground made in support of Ex.fails. If the transfers in favour of defendant 14 (Ex.as well as Ex.in favour of defendant 13 fail on this found it is really not necessary to consider the further question as to whether both the said transfers were effected for grossly inadequateappears that the certificate was granted by the High Court to the respective defendants who have come to this Court as appellants on November 26, 1954 and the appeals were admitted on December 4, 1955, whereas the amendment has been made after the appeals were admitted. The application for the amendment in question was made under Ss. 151 and 152 of the Code; and it became necessary because the decretal order drawn in the High Court referred to the profits of which accounts were directed as mesne profits. The use of the words "mesne profits" would have inevitably brought in the period of three years beyond which accounts could not be claimed. By their application the plaintiffs alleged that the use of "mesne profits" in the decretal order was inconsistent with the judgment which had directed accounts of the net profits and so they claimed that the decretal order should be corrected in cl. III,(3). According to the prayer thus made it was suggested that the clause should read as follows that the defendants 12, 13 and 14 are liable for the net profits of the properties purchased by them under schedule V, schedule II and schedule I respectively". The word "net profit" was used in the place of "mesne profits" originally introduced in the order. When this application for amendment was argued before the High Court the defendants pleaded that the use of the words "mesne profits" was proper and should not be changed. It was urged on their behalf that in its judgment the High Court had introduced the words "mesne profits" deliberately and so the decretal order was perfectly correct. This contention has been negatived by the High Court, and in our opinion rightly. It appears that in the earlier portion of his judgment Krishnaswami Naidu, J. summarised in one paragraph the effect of the decree passed by the trial court; and in giving this summary he observed that under the decree defendants 12, 13, 14 and 16 were held entitled to be paid the respective considerations of the sales and mortgages together with interest they being liable to account for mesne profits as per the terms of the decree. Two things are clear. This part of the judgment does not contain the decision of the High Court at all. It is really concerned with the narration of the relevant facts and it purports to summarise the effect of the decree and nothing more. Besides, the use of the words "mesne profits" in the context is obviously the result of inadvertence because the decree of the trial court had in the relevant clause used the words "net profits" and not "mesne profits". Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words "mesne profits" and such an error could be corrected by the High Court under Ss. 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date ofthere is no doubt that awould be entitled to mesne profits for three years and not more; but in the present case we are dealing with a claim made by the plaintiffs on behalf of the trust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees alienations in whose favour have been set aside as invalid.We have already seen that having set aside the alienations in favour of defendant 14 and others the Courts below have directed that the alienees should get the amounts due to them from the trust. It has also been directed that interest at the rate awarded by the decree should be paid to them on the said amounts. This cleary is an equitable relief granted to the alienees. Having held that the alienees should interest on the amounts due to them from the dates of their respective mortgages or sales the Courts in fairness have directed that the alienees in turn should give an account of the net profits of the properties which were wrongfully in their possession commencing with the date when they got possession. If the technical argument based on Art. 109 is upheld as a matter of law there would be no scope for giving equitable relief to the alienees at all and they may be driven to file fresh actions to recover their claims and such actions would have to face the possible plea of limitation. That is why the High Court has observed that the question about the net profits awardable to the trust and interest awardable to the alienees, involves considerations of equitable adjustment, and it is by way of an equitable adjustment that the relevant directions have been issued by the decree.It is not disputed that the Court had jurisdiction to make such an equitable adjustment. Indeed, in many cases of this type Courts have made equitable adjustments between rivalprincipal and interest ordered to be paid to defendant 14 and the profits ordered to be paid by him are thus integral parts of an equitable adjustment between the plaintiffs and defendantposition cannot be disputed; but the answer to the plea is that the present decree is not passed in an action instituted by defendant 14 as a mortgagee. The present decree is passed while adjusting equities between defendant 14 the alienation in whose favour is set aside; his rights as mortgagee are equitably recognised and thereby further litigation is avoided. Since the decree by which defendant 14 is allowed to recover his mortgage dues has been passed for giving him equitable relief it was open to the High Court to consider whether compound interest should be paid to him or not. As the High Court has pointed out, while adjusting equities between the parties the mortgage does not become revived as such but the relief granted to the 14th defendant is based on equity and justice, and so the High Court thought that the interests of justice would be met if he is paid out of the sale proceeds the principal amount of the mortgage with simple interest at 10 1/2%. We have carefully considered the contention raised by the learnedin this behalf but we do not think that we would be justified in interfering with the modification made by the High Court in the decree passed by the trial court.We now turn to Civil Appeal No. 77 of 1959 filed by defendants 12, 13 and 16. We will take the case of defendant 12 first. We have already seen that in favour of defendant 12 a sale deed has been executed on November 7, 1941 (Ex.This sale deed has been set aside on twothat it is executed in favour of a person who by intermeddling with the estate of the trust has become trustee de son tort, and second that the properties covered by the document have been sold for inadequateis conceded by Mr. Ganapathy Iyer that if we confirm the finding recorded by the Courts below against defendant 12 on the first point that itself would invalidate the transfer in his favour. He has, however, argued that the said finding is erroneous. Having carefully considered the relevant material we see no reason to interfere with the finding inis in the light of these facts that the Courts below have held that defendant 12 is a trustee de son tort. As is observed in "Williams on Executors and Administrators" (Williams on Executors and Administrators, 14th ed. Vol. I, p. 28) "a very slight act of intermeddling with the goods of the deceased will make a person executor de son tort". In the present case the acts of intermeddling by defendant 12 spread over a fairly long period and cannot in any sense be regarded as minor and insignificant. We would accordingly hold that defendant 12 is in the position of trustee de son tort and so the sale deed executed in his favour (Ex.is bad on that account alone.29. In regard to defendant 13 there are two transactions in his favour, Ex.79. Ex.as we have already seen is invalid for the reason that it has been executed by two out of the three trustees. That leaves Ex.but before we deal with that transaction it would be relevant to refer to a general consideration which applies to all the transfers in favour of defendants 12, 13 and 16. Defendants 12 and 13 are theof Veerabahu and defendant 16 is theof defendant 13. It is quite clear that under S. 52 of the Trusts Act "no trustee whose duty it is to selland no agent employed by such trustee for the purpose of the sale, may, directly or indirectly, buy the same or any interest therein, on his own account or as agent for a third person". This position is thus stated by Lewin on Trusts : "A trustee is absolutely and entirely disabled from purchasing the trust property whether it be real estate or a chattel personal, land, or a ground rent, in reversion or possession, whether the purchase be made in the trustees own name or in the name of a trustee for him, directly or indirectly, as to a purchaser upon a contract or understanding (amounting to more than mere expectation that the purchaser shall resell to the trustee, by private contract or public auction, from himself as the single trustee, or with the sanction of his(Lewin on Trusts, 15th ed., p. 797). Thus, the alienations by the trustees in favour of theof one of the trustees would be bad for this reason. Besides, under S. 47 of the Indian Trusts Act a trustee cannot delegate his office or any of his duties either to aor to a stranger, unless the instrument of trust so provides, or the delegation is in the regular course of business, or the delegation is necessary, or the beneficiary, being competent to contract, consents to the delegation. The trust did impose upon the trustees the obligation to sell the properties of the trust at the highest price recoverable and to distribute the sale proceeds amongst the creditors of the authors of the trust. The documents in favour of defendants 13 and 16 seem to leave it to the respective purchasers to pay the debts and that may be another infirmity in the transaction.30. Going back to Ex.which is a transfer in favour of defendant 13 it is evident that this transaction is inevitably connected with another transaction Ex.79 has been executed for a consideration of Rs. 2,000 and odd and it relates to 3 acres and 14 cents of schedule VIII property. It appears that defendant 13 had obtained another sale deed Ex.on April 19, 1937. This sale deed consisted of 51 items of property belonging to the trust which had spread over five villages. These items consisted ofand lands. The sale deed was for Rs. 5,000. Defendant 13 in his turn proceeded to sell the said property by different lots to respective buyers. Amongst the creditors of the estate was Lakshmi Ammal to whom Rs. 800 was payable on the basis of 50% of return of debt. Defendant sold to Lakshmi Ammal 64 cents out of the lands purchased by him under Ex.It, however, appears that in respect of the 3 acres and 14 cents which was the subject matter of Ex.Original Suit No. 32 of 1941 was instituted by persons who claimed title to the said property. To that suit Lakshmi Ammal was impleaded as a defendant and so was defendant 13. Ultimately the said suit was decreed and the property in question was held to belong to the plaintiffs in that suit and not to the estate of defendants 1 to 6. It was as a result of this decree that Ex.came to be passed in favour of defendant 13. This document purports to convey 3 acres and 14 cents of another property to make good the loss to him by reason of the decree in Suit No. 32 of 1941. Thus, it would be seen that the transaction evidenced by Ex.can stand only if the transaction evidenced by Ex.is valid and not otherwise. The Courts below have held that this latter transaction is obviously and patently invalid. In our opinion, this conclusion is right. It is true that Ex.is not directly challenged in the present suit because the properties covered by it have been sold to different purchasers by defendant 13 and they have not been impleaded. Even so, since Ex.is the very foundation of Ex.it is open to the plaintiffs to contend that the validity of Ex.should be considered for determining the validity of Ex.and that is what the Courts below have done. Now, one has merely to look at the broad features of Ex.to be satisfied that it is an invalid transaction. It is patent that no attempt was made to value the properties individually. The properties numbering 51 and spread over five villages were all grouped together and sold for Rs. 5,000 without making any serious efforts to determine the value of the lot. The purchaser was told to sell the properties to the respective creditors of the estate and thus satisfy them. That in substance is delegation of the functions of the trustees which they could notdefendant 13. The stamp paper for the sale deed Ex.stands in the name of Veerabahu Pillai and defendant 13 was unable to explain how the stamp paper came to be in that name. Defendant 13 admitted that he did not inspect the property before its purchase and that he had no idea about its value. As the trial court has observed, the transaction cannot be regarded "as a bona fide sale because the property consists of odd assortment of punja lands and house sites in Pathi, Padmaneri and Sivilpuri villages". Therefore, we have no difficulty whatever in agreeing with the conclusion of the Courts below that Ex.was invalid; if that be so Ex.must be held to be invalid for that reason alone. Incidentally, we may refer to the fact that defendant 13 admitted in the earlier suit that he had not refunded the purchase money to Lakshmi Ammal and that substantially destroys the basis of Ex.because defendant 13 not having paid anything to Lakshmi Ammal had no right to retain the property conveyed to him.31. The last transactions which have yet to be examined are those in favour of defendant 16. In regard to these transactions the trial court has found that evidence adduced by the plaintiffs shows that the consideration for which properties were sold were grossly inadequate. The vendee, defendant 16, did not care to examine himself. Besides, as we have already pointed our he is a close relation of defendants 12 and 13. The High Court has concurred with the trial courts conclusion. The only point which was attempted to be made by Mr. Pattabhiraman in challenging the correctness of this concurrent conclusion is that the Courts appear to have assumed that the agricultural lands conveyed to defendant 16 were all double crop lands. On this assumption he suggested that the calculation made about the true value of the said properties errs on the side of overstatement. It is not disputed that of the lands conveyed 3 acres and 24 cents are single crop while approximately 3 1/2 acres are double crop. On looking at the judgments of both the Courts below, however, we are satisfied that the argument is misconceived because neither judgment proceeds on the assumption that the whole of the agricultural property is double crop land. In fact the discussion in the judgment of the trial court on Issue No. 27 quite clearly negatives the assumption made by Mr. Pattabhiraman. That being so, as the Courts below have observed, evidence led by the plaintiffs in support of their case that the transfers were effected for grossly inadequate price has remained unrebutted. The question about the value of the property as been determined on the evidence, documentray and oral, led in the case, and both the Courts have found in favour of the plaintiffs and against the alienees. Incidentally, we may point out that Mr. Viswanatha Sastri appears to be right when he suggests that schedule VII refers to the properties both at Thirukurunkudi as well as Padmaneri though the heading of the schedule refers only to Thirukurunkudi.
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really concerned with the narration of the relevant facts and it purports to summarise the effect of the decree and nothing more. Besides, the use of the words "mesne profits" in the context is obviously the result of inadvertence because the decree of the trial court had in the relevant clause used the words "net profits" and not "mesne profits". Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words "mesne profits" and such an error could be corrected by the High Court under Ss. 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction.24. But apart from this technical argument about the jurisdiction of the High Court to make the correction the point in question has been raised on the merits before us; and it is urged that the plaintiffs are not entitled to anything more than three years profits from the respective defendants. The argument is that Art. 109 of the Limitation Act applies to such a claim and the claim is confined to three years under that article. Article 109 deals with claims for profits of immovable property belonging to the plaintiffs which have been wrongfully received by the defendants and it prescribes three years period of limitation commencing from the time when the profits were received. Normally there is no doubt that a successful-plaintiff would be entitled to mesne profits for three years and not more; but in the present case we are dealing with a claim made by the plaintiffs on behalf of the trust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees alienations in whose favour have been set aside as invalid.We have already seen that having set aside the alienations in favour of defendant 14 and others the Courts below have directed that the alienees should get the amounts due to them from the trust. It has also been directed that interest at the rate awarded by the decree should be paid to them on the said amounts. This cleary is an equitable relief granted to the alienees. Having held that the alienees should interest on the amounts due to them from the dates of their respective mortgages or sales the Courts in fairness have directed that the alienees in turn should give an account of the net profits of the properties which were wrongfully in their possession commencing with the date when they got possession. If the technical argument based on Art. 109 is upheld as a matter of law there would be no scope for giving equitable relief to the alienees at all and they may be driven to file fresh actions to recover their claims and such actions would have to face the possible plea of limitation. That is why the High Court has observed that the question about the net profits awardable to the trust and interest awardable to the alienees, involves considerations of equitable adjustment, and it is by way of an equitable adjustment that the relevant directions have been issued by the decree.It is not disputed that the Court had jurisdiction to make such an equitable adjustment. Indeed, in many cases of this type Courts have made equitable adjustments between rival parties (Vide: Satgur Prasad v. Har Narain Das, 59 Ind 147 : (AIR 1932 PC 89 ) : Raja Rai Bhagwat Dayal Singh v. Debi Dayal Sahu, 35 Ind App 48 at P. 59. The principal and interest ordered to be paid to defendant 14 and the profits ordered to be paid by him are thus integral parts of an equitable adjustment between the plaintiffs and defendant 14.25. It is also urged on behalf of defendant 14 that the High Court was in error in modifying the decree passed by the trial Court by changing 10 1/2% interest at compound rate to 10 1/2% simple interest in favour of defendant 14. The contention is that under the mortgage executed in favour of defendant 14 (Ex. B-95) the contract rate was 10 1/2% compound interest and as mortgagee defendant 14 was entitled to that rate. In support of this argument reliance is placed on the decision of the Privy Council in Jagannath Prasad Singh v. Surajmal Jalal, 54 Ind App 1 : (AIR 1927 PC 1 ).In that case the Privy Council has held that on a preliminary decree for foreclosure or sale under O. XXXIV, Rr. 2, 4 of the Code, a mortgagee is entitled to interest at the rate and with the rests stipulated in the mortgage, down to the rate fixed for redemption by the decree. This position cannot be disputed; but the answer to the plea is that the present decree is not passed in an action instituted by defendant 14 as a mortgagee. The present decree is passed while adjusting equities between defendant 14 the alienation in whose favour is set aside; his rights as mortgagee are equitably recognised and thereby further litigation is avoided. Since the decree by which defendant 14 is allowed to recover his mortgage dues has been passed for giving him equitable relief it was open to the High Court to consider whether compound interest should be paid to him or not. As the High Court has pointed out, while adjusting equities between the parties the mortgage does not become revived as such but the relief granted to the 14th defendant is based on equity and justice, and so the High Court thought that the interests of justice would be met if he is paid out of the sale proceeds the principal amount of the mortgage with simple interest at 10 1/2%. We have carefully considered the contention raised by the learned Attorney-General in this behalf but we do not think that we would be justified in interfering with the modification made by the High Court in the decree passed by the trial court.
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Krishna Biharilal Vs. Gulabchand Am Ors
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that Pattobai had an absolute estate in a portion of the suit properties; this cannot be said to be a representation of a fact and therefore the same cannot form any basis for invoking the rule of estoppel. We are unable to accept this contention. From the facts set out earlier, it is clear that Bulakichand claimed the entire estate for himself after the death of Jwalaprasad. If the contention of Bulakichand is correct, as we must assume for the purpose of this case, then Pattobai would have been entitled to enjoy the entire properties during her lifetime. But she gave up her right in a substantial portion of those properties on the representation by the defendants that she can take a portion of the suit properties absolutely. This is a representation of a fact and not of law. The representation is that the defendants were willing to confer on Pattobai an absolute right in a portion of the suit properties if she gave up her right in the remaining properties. Pattobai relied on that representation and gave up her claim in respect of a substantial portion of the properties included in the earlier suit. Hence the plaintiffs particularly Lakshmichand and Ganeshilal who alone were the reversioners to the estate of Bulakichand on the date of the death of Pattobai, are estopped from contending that they are entitled to succeed to the properties given to Pattobai. The other plaintiffs have no independent right of their own in the properties with which we are concerned. In Dhyan Singhs case, 1952 SCR 478 = (AIR 1952 SC 145 ) (supra) this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the validity of the award or from going behind the award in a subsequent litigation. In T. V. R. Subbu Chettys Family Charities v. M. Raghava Mudaliar, (1961) 3 SCR 624 = (AIR 1981 SC 797), this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. At the time of the compromise Lakshmichand and the Ganeshilal were the nearest presumptive reversioners. They must be deemed to have known their rights under law. Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties. They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise. They cannot advance their case by impleading their sons as co-plaintiffs. Their sons can only claim through them. 7. For the first time in this Court it was urged that the plea of estoppel was not available to the defendant as no such plea had been taken in the pleadings. It is true that no specific plea of estoppel had been taken in the written statement filed by the defendant. But he had definitely stated in paragraph 14 of his written statement that the plaintiffs are bound by the compromise and have no right to deny the right of Pattobai over the whole of the properties sold to him. One of the issue raised in the suit (Issue No. 4 ) is :"Are the plaintiffs Nos. 1 and 2 bound by the terms of compromise filed in Civil Original Suit No. 3 of S. Y. 1991 of the High Court? If so what is its effect?? This issue is broad enough to cover the plea of estoppel. The plea of estoppel had been urged and considered by all the Courts without any objection from the plaintiffs. They cannot be now permitted to contend that the defendant had not taken any specific plea of estoppel. 8. The next question that we have to consider is whether the compromise in question can be considered as a settlement of family disputes. It may be noted that Lakshmichand and Ganeshilal who along with Pattobai were the principal parties to the compromise were the grand-children of Parvati who was the aunt of Bulakichand. The parties to the earlier suit were near relations. The dispute between the parties was in respect of a certain property which was originally owned by their common ancestor namely Chhedilal. To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. As observed by this Court in Ram Charan Das v. Girija Nandini Devi, (1965) 3 SCR 841 at pp. 850 and 851 = (AIR 1966 SC 323 at pp. 328 and 329) the word "family" in the context of the family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement - see Ramcharan Dass case 1965-3 SCR 841 = (AIR 1966 SC 323 ) (supra). 9. The Courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all - see Sahu Madho Das v. Pandit Mukand Ram and anr. 10. For the reasons mentioned above we are of the opinion that in view of the compromise entered into between the parties in 1941, the suits from which these appeals arise are not maintainable. In that view, it is not necessary to go into the question whether the alienations were effected for valid necessity, a question that has not been gone into finally.
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1[ds]4. The ordinary rule of construction of a document is to give effect to the normal and natural meaning of the words employed in the document. The compromise deed specifically says that the properties given to Pattobai were to be enjoyed by her as "Malik Mustakil. The meaning of the expression "Malik Mustakil" an urdu word, has come up for consideration before this Court in some cases. In Dhyan Singh v. Jugal Kishore, 1952 SCR 478 = (AIR 1952 SC 145 ) this Court ruled that the words Malik Mustikal" were strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the Courts must hold that the estate given is an absolute one. A similar view was taken by the Judicial Committee in Bishunath Prasad Singh v. Chandika Prasad Kumari 60 Ind App 56 = (AIR 1933 PC 67 ). The circumstances under which the compromise was entered into as well as the language used in the deed do not in any manner go to indicate that the estate given to Pattobai was anything other than an absolute estate5. The Letters Patent Bench of the High Court held that the compromise entered into was an illegal compromise. It came to that conclusion on the basis that a Hindu widow cannot enlarge her own rights by entering into a compromise in a suit. But the High Court overlooked the fact that this was not a compromise entered into with third parties. It was a compromise entered into with the presumptive reversioners. Further at no stage the plaintiffs had pleaded that the compromise entered into in 1941 was an illegal compromise. The plaintiffs took no such plea in the plaint. There was no issue relating to the validity of the compromise. Hence the High Court was not justified in going into the validity of the compromise. Further even if the compromise was an invalid one, the parties to the compromise are estopped from challenging the impugned alienations: see Dhyan Singhs case, 1952 SCR 478 = (AIR 1952 SC 145 ) (supra)6. This takes us to the question ofestoppel.As seen earlier, the trial Court, the first appellate Court as well as the learned single Judge of the High Court have concurrently come to the conclusion that the plaintiffs are estopped from challenging the impugned alienations. But the Letters Patent Bench took a different view. Its conclusion as mentioned earlier, proceeded on the basis that a Hindu widow cannot enlarge her own estate by entering into a compromise with others. It is well settled that a Hindu widow cannot enlarge her estate by entering into a compromise with third parties to the prejudice of the ultimate reversioners. But the same will not be true if the compromise is entered into with persons who ultimately become the reversionersBut this argument overlooks the fact that according to Pattobai she was entitled to enjoy the entire properties included in the earlier suit during her lifetime; but under the compromise a fraction of those properties were given to her absolutely: that being so the plaintiffs are estopped from backing out of that compromiseWe are unable to accept this contention. From the facts set out earlier, it is clear that Bulakichand claimed the entire estate for himself after the death of Jwalaprasad. If the contention of Bulakichand is correct, as we must assume for the purpose of this case, then Pattobai would have been entitled to enjoy the entire properties during her lifetime. But she gave up her right in a substantial portion of those properties on the representation by the defendants that she can take a portion of the suit properties absolutely. This is a representation of a fact and not of law. The representation is that the defendants were willing to confer on Pattobai an absolute right in a portion of the suit properties if she gave up her right in the remaining properties. Pattobai relied on that representation and gave up her claim in respect of a substantial portion of the properties included in the earlier suit. Hence the plaintiffs particularly Lakshmichand and Ganeshilal who alone were the reversioners to the estate of Bulakichand on the date of the death of Pattobai, are estopped from contending that they are entitled to succeed to the properties given to Pattobai. The other plaintiffs have no independent right of their own in the properties with which we are concernedIn Dhyan Singhs case, 1952 SCR 478 = (AIR 1952 SC 145 ) (supra) this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the validity of the award or from going behind the award in a subsequent litigation. In T. V. R. Subbu Chettys Family Charities v. M. Raghava Mudaliar, (1961) 3 SCR 624 = (AIR 1981 SC 797), this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. At the time of the compromise Lakshmichand and the Ganeshilal were the nearest presumptive reversioners. They must be deemed to have known their rights under law. Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties. They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise. They cannot advance their case by impleading their sons as. Their sons can only claim through themIt is true that no specific plea of estoppel had been taken in the written statement filed by the defendant. But he had definitely stated in paragraph 14 of his written statement that the plaintiffs are bound by the compromise and have no right to deny the right of Pattobai over the whole of the properties sold to himOne of the issue raised in the suit (Issue No. 4 ) is :"Are the plaintiffs Nos. 1 and 2 bound by the terms of compromise filed in Civil Original Suit No. 3 of S. Y. 1991 of the High Court? If so what is its effect??This issue is broad enough to cover the plea ofestoppel.It may be noted that Lakshmichand and Ganeshilal who along with Pattobai were the principal parties to the compromise were then of Parvati who was the aunt of Bulakichand. The parties to the earlier suit were near relations. The dispute between the parties was in respect of a certain property which was originally owned by their common ancestor namely Chhedilal. To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. As observed by this Court in Ram Charan Das v. Girija Nandini Devi, (1965) 3 SCR 841 at pp. 850 and 851 = (AIR 1966 SC 323 at pp. 328 and 329) the word "family" in the context of the family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangementsee Ramcharan Dass case3 SCR 841 = (AIR 1966 SC 323 ) (supra)9. The Courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them allsee Sahu Madho Das v. Pandit Mukand Ram and anr10. For the reasons mentioned above we are of the opinion that in view of the compromise entered into between the parties in 1941, the suits from which these appeals arise are not maintainable. In that view, it is not necessary to go into the question whether the alienations were effected for valid necessity, a question that has not been gone into finally.
| 1 | 2,843 |
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Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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that Pattobai had an absolute estate in a portion of the suit properties; this cannot be said to be a representation of a fact and therefore the same cannot form any basis for invoking the rule of estoppel. We are unable to accept this contention. From the facts set out earlier, it is clear that Bulakichand claimed the entire estate for himself after the death of Jwalaprasad. If the contention of Bulakichand is correct, as we must assume for the purpose of this case, then Pattobai would have been entitled to enjoy the entire properties during her lifetime. But she gave up her right in a substantial portion of those properties on the representation by the defendants that she can take a portion of the suit properties absolutely. This is a representation of a fact and not of law. The representation is that the defendants were willing to confer on Pattobai an absolute right in a portion of the suit properties if she gave up her right in the remaining properties. Pattobai relied on that representation and gave up her claim in respect of a substantial portion of the properties included in the earlier suit. Hence the plaintiffs particularly Lakshmichand and Ganeshilal who alone were the reversioners to the estate of Bulakichand on the date of the death of Pattobai, are estopped from contending that they are entitled to succeed to the properties given to Pattobai. The other plaintiffs have no independent right of their own in the properties with which we are concerned. In Dhyan Singhs case, 1952 SCR 478 = (AIR 1952 SC 145 ) (supra) this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the validity of the award or from going behind the award in a subsequent litigation. In T. V. R. Subbu Chettys Family Charities v. M. Raghava Mudaliar, (1961) 3 SCR 624 = (AIR 1981 SC 797), this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens. At the time of the compromise Lakshmichand and the Ganeshilal were the nearest presumptive reversioners. They must be deemed to have known their rights under law. Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties. They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise. They cannot advance their case by impleading their sons as co-plaintiffs. Their sons can only claim through them. 7. For the first time in this Court it was urged that the plea of estoppel was not available to the defendant as no such plea had been taken in the pleadings. It is true that no specific plea of estoppel had been taken in the written statement filed by the defendant. But he had definitely stated in paragraph 14 of his written statement that the plaintiffs are bound by the compromise and have no right to deny the right of Pattobai over the whole of the properties sold to him. One of the issue raised in the suit (Issue No. 4 ) is :"Are the plaintiffs Nos. 1 and 2 bound by the terms of compromise filed in Civil Original Suit No. 3 of S. Y. 1991 of the High Court? If so what is its effect?? This issue is broad enough to cover the plea of estoppel. The plea of estoppel had been urged and considered by all the Courts without any objection from the plaintiffs. They cannot be now permitted to contend that the defendant had not taken any specific plea of estoppel. 8. The next question that we have to consider is whether the compromise in question can be considered as a settlement of family disputes. It may be noted that Lakshmichand and Ganeshilal who along with Pattobai were the principal parties to the compromise were the grand-children of Parvati who was the aunt of Bulakichand. The parties to the earlier suit were near relations. The dispute between the parties was in respect of a certain property which was originally owned by their common ancestor namely Chhedilal. To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. As observed by this Court in Ram Charan Das v. Girija Nandini Devi, (1965) 3 SCR 841 at pp. 850 and 851 = (AIR 1966 SC 323 at pp. 328 and 329) the word "family" in the context of the family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement - see Ramcharan Dass case 1965-3 SCR 841 = (AIR 1966 SC 323 ) (supra). 9. The Courts lean strongly in favour of the family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all - see Sahu Madho Das v. Pandit Mukand Ram and anr. 10. For the reasons mentioned above we are of the opinion that in view of the compromise entered into between the parties in 1941, the suits from which these appeals arise are not maintainable. In that view, it is not necessary to go into the question whether the alienations were effected for valid necessity, a question that has not been gone into finally.
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332 |
Delta International Ltd Vs. Shyam Sunder Ganeriwalla
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from the date thereof. Admittedly, sub-lease is not granted and the amount of Rs. 2,50,000/- as agreed is also not paid by anyone.24. Hence, even though it is not necessary to discuss, however, we would briefly refer to other decisions upon which learned Counsel for the parties relied upon. Learned Counsel for the respondent relied upon the decision in the case of Capt. B.V. DSouza v. Antonio Fausto Fernandes, 1989(3) S.C.C. 574 and submitted that the main purpose of enacting the rent statutes is to protect the tenant from the exploitation of the landlord, who being in dominating position is capable of dictating his terms at the inception of the tenancy and the Rent Acts must receive that interpretation which may advance the object and suppress the mischief. He, therefore, submitted that using of the words leave and licence or some other terms in the document should be construed in a way so as to advance the object of the Rent Act. In our view, in the present case, there is no question of such exploitation by the landlord. `Dewar itself was inducted by a tenant in the premises and at the time of executing the leave and licence document; parties were under the impression that they would obtain the consent of the landlord for granting sub-lease. The contemplation was not achieved. Hence, the said judgment has no bearing in interpreting the terms of the document which is executed between two Companies knowing full well their rights and the legal implications of the terms provided in the document. He also referred to the decision in the case of Tulsi v. Paro (dead) 1997(2) SCC 706 wherein this Court after considering the revenue records for the period from 1951-52 to 1971-72 mentioning that appellant was not in a possession as the "tenant at will", held that the theory of licence was untenable and in that context observed that a licensee has no right in property and not to speak of any right to exclusive possession of the property and animus of possession always remains with the licensor and the licensee gets the possession only with the consent of licensor and is liable to vacate when so asked. In the said case, there was no written document between the parties and considering the facts of the case particularly exclusive possession for a period of 20 years and the revenue records, the Court held that it was unthinkable to conclude that appellant of that case was licensee. As stated above, exclusive possession is one of the most relevant factors for deciding whether it is a lease or licence. But, at the same time, when the terms of the document are clear leaving no doubt that parties never intended to execute lease deed, in that set of circumstances, exclusive possession would lose its importance. Dealing with the similar question in the case of M.N. Clubwala v. Fida Hussain Saheb, 1964(6) S.C.R. 642, this Court observed as under :- "While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with the licence. In England it has been held that a contractual licence may be revocable or irrevocable according to the express of implied terms of the contract between the parties. It has further been held that if the licensee under a revocable licence has brought the property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry on his business elsewhere. Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, section 62(c) of the Indian Easements Act, 1882 itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under section 62. It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Courts finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties."25. Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or veil is required to be removed for determining the true intent and purpose of the document. In the present case, there is no pleading by the defendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant, for execution of sub-lease which would create interest in the property as sub-tenant and thirdly, in case of sub-lease, for purchase of equipment, fittings and fixtures at a price of Rs. 2,50,000. Second and third part of the Agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18th July, 1970 is a deed of `leave and licence and not a `lease.
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1[ds]9. Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding circumstances. The description given by the parties may be evidence of the intention but is not decisive. Mere use of the words appropriate to the creation of a lease will not preclude the agreement operates as a licence. A recital that the agreement does not create a tenancy is also not decisive. The crucial test in each case is whether the instrument is intended to create or not to create an interest in the property theof the agreement. If it is in fact intended to create an interest in the property it is a lease, if it does not, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though not decisive, is of significance." (Emphasis added).13. From the aforesaid discussion what emerges isTo find out whether the document creates lease or license real test is to find out `the intention of the parties, keeping in mind that in cases where exclusive possession is given, the line between lease and license is very thin.(2) The intention of the parties is to be gathered from the document itself. Mainly, intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties.(3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got it, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would be most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease.(4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sublet the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and themay jointly set up the plea of a license against the landlord which is a camouflage. In such cases, the mask is to be removed or veil is to be lifted and the true intention behind a facade of aconveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid to operation of rent legislation.(5) Prima facie, in absence of a sufficient title or interest to carve out or to create a similar tenancy by the sitting tenant, in favour of a third person, the person in possession to whom the possession is handed over cannot claim that thewas created in his favour; because a person having no right cannot confer any title of tenancy orA tenant protected under statutory provisions with regard to occupation of the premises having no right to sublet or transfer the premises, cannot confer any better title. But, thus question is not required to be finally determined in this matter.(6) Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act inter alia provides that leases of immoveable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the parties is to be interpreted or construed on the well laid principles for construction of contractual terms, viz. for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or having double intendment one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing what he had a right to do.For this proposition there cannot be any dispute. The contract is to be construed on the basis of the terms of the document disregarding the legal consequences. However, when terms of the document are ambiguous and are holding double intendment then the meaning which is lawful is to be preferred. As stated above, in the license deed, the parties have specifically made it clear that they were not executing lease deed, but only a license deed and it should not be construed as a lease deed or a deed creating relationship of landlord and tenant between them. It was known to them that without prior consent, creation ofwould be illegal. Hence, it would not be correct to arrive a conclusion which is contrary to the law and the express terms of the agreement. Learned counsel for the respondents further submitted that in the present case, exclusive possession of the property was handed over to the defendant coupled with the fact that in clause 18, the parties have used the phrase `demised premises which means that the intention of the parties was to create relationship of landlord and tenant. In our view, this submission of the learned counsel cannot be accepted. Exclusive possession as discussed above is not the sole inditia (indicia ?) to establish the relationship of landlord and tenant between parties. It is true that the word `demise indicates either lease or conveyance depending upon the terms of the document. But, at the same time said word is to be construed by finding out what is sought to be conveyed or transferred in the context of all the terms of the document. If privilege of occupying the premises exclusively is granted on certain terms and conditions specifically as a licensee or what is agreed to be granted is exclusive possession of the premises on certain terms and conditions as a licensee, then there is no question of holding to the contrary. This would be clear from various meanings which could be assigned to the word `demise. In Strouds `Judicial Dictionary of Words and Phrases, the word `demise is given different meaning and it is stated that it is to be interpreted in context of other terms. This would be clear from the following meanings given to the said word :"On the demise of a brewery, with the exclusive privilege of supplying ale, it would seem that no covenant can be implied with respect to such a privilege from the word `demise." (Hind v. Gray 9 L.J.C.P. 253).An instrument is not a demise or lease, although it contains the usual words of demise, if its contents show that such was not the intention of the parties (Taylor v. Caldwell, 32 L.J.Q.B. 164); and, on the other hand, an agreement only may sometimes be a lease.Hence for determining whether the phrase `demised premises should be construed as a lease or a license as expressly stated in the agreement, the phrase or the word is to be construed in context in which it is used. In the present case the said phrase is used in clause 18 three times along with the term `license fee which was to be paid by the licensee and the manner of its payment. It provides that `license fee for the demised premises was Rs. 3950/per month and the license fee was payable for the said demised premises as provided therein, that is to say, Rs. 23,700/for six months in advance and that the said license fee is to be adjusted in respect of the demised premises per month. The phrase `demised premises is used for recovering the license fee. If the intention of the parties was to create lease, then the word `rent would have been easily used at all the places. `Demised premises, in the present case, includes not only the premises, but fittings, fixtures and the petrol service station also. License was granted specifically to run the petrol service station on the terms and conditions specified therein. There are number of other terms and conditions in the document which indicate that it was a license deed. Firstly, the license was for the purpose of running the petrol service station which was set up by the licensor. The possible grant ofwas reserved for the future in the event of Delta obtaining consent from its landlord Mallika Investments Company. The licensee was not obliged to pay any part of the outgoings in respect of the premises which indicate that the charges attendant upon occupation of the premises were to be paid and borne by the licensor. He was also required to keep the plant and machinery at the said premises in good repair and was required to obtain necessary insurance policies for the business. A further clause to the effect that the licensee was permitted to carry on business in the name of the licensor indicates that the premises were not let out otherwise there was no question of permitting the use of the licensors name. It is true that there are certain other clauses which may indicate a different intention if they are construed in isolation such as a term to the effect that licensee was entitled to grantto operate the petrol station or that they were entitled to instal other machinery. But, at the same time, these clauses are to be read in the context of the fact that the licensor had decided not to run the business of petrol service station and that by the impugned deed, right to run the said business along with the premises was given to the licensee. Further, clause 9 specifically provides that licensor shall be at liberty to withdraw and or revoke the leave and licence in case there is any default of the terms mentioned in the document. Clause 16 provides that if theis granted then licensee was required to purchase the equipments, fittings and fixtures as mentioned in the Second Schedule at a price of Rs. 2,50,000/within a period of one year from the date thereof. Admittedly,is not granted and the amount of Rs. 2,50,000/as agreed is also not paid by anyone.24. Hence, even though it is not necessary to discuss, however, we would briefly refer to other decisions upon which learned Counsel for the parties relied upon. Learned Counsel for the respondent relied upon the decision in the case of Capt. B.V. DSouza v. Antonio Fausto Fernandes, 1989(3) S.C.C. 574 and submitted that the main purpose of enacting the rent statutes is to protect the tenant from the exploitation of the landlord, who being in dominating position is capable of dictating his terms at the inception of the tenancy and the Rent Acts must receive that interpretation which may advance the object and suppress the mischief. He, therefore, submitted that using of the words leave and licence or some other terms in the document should be construed in a way so as to advance the object of the Rent Act. In our view, in the present case, there is no question of such exploitation by the landlord. `Dewar itself was inducted by a tenant in the premises and at the time of executing the leave and licence document; parties were under the impression that they would obtain the consent of the landlord for grantingThe contemplation was not achieved. Hence, the said judgment has no bearing in interpreting the terms of the document which is executed between two Companies knowing full well their rights and the legal implications of the terms provided in the document. He also referred to the decision in the case of Tulsi v. Paro (dead) 1997(2) SCC 706 wherein this Court after considering the revenue records for the period from72 mentioning that appellant was not in a possession as the "tenant at will", held that the theory of licence was untenable and in that context observed that a licensee has no right in property and not to speak of any right to exclusive possession of the property and animus of possession always remains with the licensor and the licensee gets the possession only with the consent of licensor and is liable to vacate when so asked. In the said case, there was no written document between the parties and considering the facts of the case particularly exclusive possession for a period of 20 years and the revenue records, the Court held that it was unthinkable to conclude that appellant of that case was licensee. As stated above, exclusive possession is one of the most relevant factors for deciding whether it is a lease or licence. But, at the same time, when the terms of the document are clear leaving no doubt that parties never intended to execute lease deed, in that set of circumstances, exclusive possession would lose its importance. Dealing with the similar question in the case of M.N. Clubwala v. Fida Hussain Saheb, 1964(6) S.C.R. 642, this Court observed as underit is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with the licence. In England it has been held that a contractual licence may be revocable or irrevocable according to the express of implied terms of the contract between the parties. It has further been held that if the licensee under a revocable licence has brought the property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry on his business elsewhere. Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, section 62(c) of the Indian Easements Act, 1882 itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or acquired on condition that it shall become void on the performance orof a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under section 62. It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Courts finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties."25. Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or veil is required to be removed for determining the true intent and purpose of the document. In the present case, there is no pleading by the defendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant, for execution ofwhich would create interest in the property asand thirdly, in case offor purchase of equipment, fittings and fixtures at a price of Rs. 2,50,000. Second and third part of the Agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18th July, 1970 is a deed of `leave and licence and not a `lease.
| 1 | 9,575 |
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Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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from the date thereof. Admittedly, sub-lease is not granted and the amount of Rs. 2,50,000/- as agreed is also not paid by anyone.24. Hence, even though it is not necessary to discuss, however, we would briefly refer to other decisions upon which learned Counsel for the parties relied upon. Learned Counsel for the respondent relied upon the decision in the case of Capt. B.V. DSouza v. Antonio Fausto Fernandes, 1989(3) S.C.C. 574 and submitted that the main purpose of enacting the rent statutes is to protect the tenant from the exploitation of the landlord, who being in dominating position is capable of dictating his terms at the inception of the tenancy and the Rent Acts must receive that interpretation which may advance the object and suppress the mischief. He, therefore, submitted that using of the words leave and licence or some other terms in the document should be construed in a way so as to advance the object of the Rent Act. In our view, in the present case, there is no question of such exploitation by the landlord. `Dewar itself was inducted by a tenant in the premises and at the time of executing the leave and licence document; parties were under the impression that they would obtain the consent of the landlord for granting sub-lease. The contemplation was not achieved. Hence, the said judgment has no bearing in interpreting the terms of the document which is executed between two Companies knowing full well their rights and the legal implications of the terms provided in the document. He also referred to the decision in the case of Tulsi v. Paro (dead) 1997(2) SCC 706 wherein this Court after considering the revenue records for the period from 1951-52 to 1971-72 mentioning that appellant was not in a possession as the "tenant at will", held that the theory of licence was untenable and in that context observed that a licensee has no right in property and not to speak of any right to exclusive possession of the property and animus of possession always remains with the licensor and the licensee gets the possession only with the consent of licensor and is liable to vacate when so asked. In the said case, there was no written document between the parties and considering the facts of the case particularly exclusive possession for a period of 20 years and the revenue records, the Court held that it was unthinkable to conclude that appellant of that case was licensee. As stated above, exclusive possession is one of the most relevant factors for deciding whether it is a lease or licence. But, at the same time, when the terms of the document are clear leaving no doubt that parties never intended to execute lease deed, in that set of circumstances, exclusive possession would lose its importance. Dealing with the similar question in the case of M.N. Clubwala v. Fida Hussain Saheb, 1964(6) S.C.R. 642, this Court observed as under :- "While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with the licence. In England it has been held that a contractual licence may be revocable or irrevocable according to the express of implied terms of the contract between the parties. It has further been held that if the licensee under a revocable licence has brought the property on to the land, he is entitled to notice of revocation and to a reasonable time for removing his property, and in which to make arrangements to carry on his business elsewhere. Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, section 62(c) of the Indian Easements Act, 1882 itself provides that a licence is deemed to be revoked where it has been either granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires, or the condition is fulfilled. In the agreements in question the requirement of a notice is a condition and if that condition is fulfilled the licence will be deemed to be revoked under section 62. It would seem that it is this particular requirement in the agreements which has gone a long way to influence the High Courts finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties."25. Lastly, it is to be noted that if the document is a camouflage as stated earlier, the mask or veil is required to be removed for determining the true intent and purpose of the document. In the present case, there is no pleading by the defendants that the document was a camouflage so as to defeat the rights of a tenant who had inducted the appellant or that of the owner of the premises. As stated earlier, the document contemplates three types of agreements, one, that of a leave and licence; secondly, in case a consent is obtained from the tenant, for execution of sub-lease which would create interest in the property as sub-tenant and thirdly, in case of sub-lease, for purchase of equipment, fittings and fixtures at a price of Rs. 2,50,000. Second and third part of the Agreement never came into operation. Hence, for the reasons discussed above, we hold that the agreement dated 18th July, 1970 is a deed of `leave and licence and not a `lease.
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Prag Ice and Oil Mills and Another Vs. Union of India
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and inconvenience, but the ultimate savings in the cost of the finished product could more than balance that inconvenience. The argument of the petitioners really amounts to a rigid insistence that they are entitled to carry on their business as they please, mostly in a traditional manner, regardless of its impact on public interest. But, property rights are not absolute, and important as the right of property may be, the right of the public that such rights be regulated in common interest is of greater importance. These correlative rights, as observed in Lea Nebbia v. People of the State of New York(78 Lawyers Edition 940.), are always in collision: No exercise of the private right can be imagined which will not ever slight, affect the public; no exercise of the to regulate abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public the words of Justice Roberts who delivered the opinion of in Leo Nebbia (supra): The Constitution does not se cure to any one liberty to conduct his business in such fashion as to inflict injury upon the, public at large, or upon any substantial group of the people. Price control, like any other for m of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. 36. Counsel for the petitioners characterised the fixation of price in the instant case as a veiled transgression of power conferred by section 3 ( 1 of the Essential Commodities Act. In support of that submission the judgment of this Court in K. C. Gajapati Narayan Deo anti Others v. The State of Orissa([1954] S.C.R. 1.) was cited in which it was said that when a legislative power is defined by reference to purpose, legislation not directed to that purpose will be invalid. We are unable to appreciate how, if the Government has got the power to fix a fair price of an essential commodity, it can be said that they have under a pretext trespassed upon a field which does not properly belong to them. The power conferred by section 3(1) of the Essential Commodities Act is undoubtedly purposive. But it seems to us incontrovertible that the Price Control Order was promulgated by the Government in order to achieve the purpose set out in section 3(1) of the Act. The fact that a legislative remedy or an administrative order passed in exercise of a statutory power is effective to mitigate an evil may show that it has failed to achieve its purpose, highlighting thereby the paradox of reform. But, as observed in Joseph Beaubarnais v. People of the State of Illinois(96 Lawyers Edition 919.) , that is the price to be paid for the trail-and-error inherent in legislative efforts to dial with obstinate social issues. We are, therefore, unable to hold that by fixing a fair price for mustard oil, the Government has committed a veiled and subtle trespass upon private rights or upon a legislative field which is not open to them to occupy.To sum up, it seems to us impossible to accept the contention of the petitioners that the impugned Price Control Order is an act of hostile discrimination against them or that it violates their right to property or their right to do trade or business. The petitioners have taken us into the mutest details of the mechanism of their trade operations and they have attempted to demonstrate in relation thereto that a factor here or a factor there which ought to have been taken into account while fixing the price of mustard oil has been ignored. Dealing with a similar argument it was observed in Metropolis Theater Company v. City of Chicago(57 Lawyers Edition 730.) that to be able to. find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require rough , accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void. . . . 37. The Parliament having entrusted the fixation of prices to the expert judgment of the Government, it would be wrong for this Court, as was done by common consent in Premier Automobiles (supra) to examine each and every minute detail pertaining to the Governmental decision. The Government, as was said in Permian Basin Area Rate Cases, (supra) is entitled to make pragmatic adjustments which may be called for by particular circumstances and the price control can be declared unconstitutional only if it is patently arbitrary, discriminatory or demonstrably irrelevant to the policy which the legislature is free to adopt. The interest of the producer and the investor is only one of the variables in the constitutional calculus of reasonableness and Courts ought not to interfere so long as the exercise of Governmental power to fix fair prices is broadly within a zone of reasonableness. If we were to embark upon an examination of the desperate contentions raised before us on behalf of the contending parties we have no doubt that we shall have exceeded our narrow and circumscribed authority. Before closing, we would like to mention that the petitioners rushed to this Court too precipitately On the heels of the Price Control Order. Thereby they deprived themselves of an opportunity to show that in actual fact, the Order causes them irreparable prejudice. Instead, they were driven through their ill-thought haste to rely on speculative hypotheses in order to buttress their grievance that their right to property and the right to do trade was gone or was substantially affected.
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0[ds]But it makes no distinction whatsoever between any grants of powers and their exercise. Powers are granted or conferred so as to be exercised and not to be kept in cold storage for purpose s of some kind of display only as though they were exhibits in a show case not meant for actual use. The whole object of a protection conferred upon powers meant for actual use is to protect their use against attacks upon their validity based upon provisions of Part 111. If , his be the correct position, it would, quite naturally and logically, follow that their use is what is really protected.In practice, it is theexercise of power which is generally assailed and not the mere conferment of it which raises the somewhat different question of legislative competence. Indeed, the Ninth Schedule does not provide any protection at all against attacks based upon either the vice of excessive delegation or w ant of legislative compete defects which could be said to vitiate the grant of powers despite their place in the Ninth Schedule. But, questions of conflict with fundamental rights and of transgression of Legitimate or reasonable, limit.% upon their exercise arise when citizens complain of unreason. able impediments to the exercise of their fundamental rights. The distinction between protection to a mere grant of powers and to their exercise, therefore, seems specious in the context of the protection. It cannot explain why, if section 3 is protected by the Ninth Schedule. the exercise of power granted by it, which manifests itself. in control orders, is not protected. It would be so protected, if at all, not because the orders to be made in future, as such are protected, but because the power actually conferred and found in existence in section 3 is protected. The protection is given to a power which is specified and in existence which has to be used of certain purposes and not to what may be specified in futureIf orders passed under section 3 of the Act also get a protection it would be what may be described as a derivative protection so long as the orders are covered by section 3 of the Act. It is available only so long as and because the source of their authorityWe do not think that we need deal with American cases in price fixation such as Leo Nebbia v. People of the State of New York(291 U.S. (78 Law. En.) 502), where the guarantee of due process against capricious action was involved. in this country, such guarantees in regard to rights of property or to carry on industry or trade or business could only arise by reason of Articles 14 and 19 of the Constitution which it, excluded here because of the protection conferred upon section 3 of the Act by the 9th Schedule of the Constitution. I may, however, mention that in Permian Basin Area Rate cases (20 L. Ed. 2d. p. 312.), where the majority of learned judges of the U.S. Supreme Court laid down, inter alia, with regard to price fixation by a body of experts of Federal Power Commission required to proceed, that in order to over turn the Commissions judgment the petitioners must undertake the heavy burden of making a convincing showing that it is invalid, because it is unjust and unreasonable in its consequences. That was a case in which a Commission was charged with a duty to fix rates in accordance with certain principles after taking evidence and hearing parties effected. Nevertheless, the duty of the petitioners was held to extend to demonstrating the unreasonableness and injustice of the consequences. A fortiori, patent injustice and unreasonable injury to the interests of consumers must be shown if a measure of price control, in the nature of either legislative or purely administrative action, is assailed. So long as the action taken is not so patently unjust and unreasonable as to lead to the irresistible conclusion that it could not fall within section 3(1) of the Act it cannot be set aside or declared invalid. The test has to be that of consequences on objects sought by section 3 ( 1 ) of the Act. Judged by this test we think that the Order of 30th September, 1977, fell within the purview of section 3 of the Act and it has served , its purposes.For reasons given above, the order of dismissal of Writ Petitions already pass ed by us on 23rd November, 1977 is, in our opinion, fully justifiedThe argument that the Price Control Order offends against the right to property and the right to carry on trade or business requires for its appreciation and decision the awarene ss that by the 40th Amendment passed in 1976, the Essential Commodities Act was placed in the Ninth Schedule to the Constitution as item 125. One of the main contentions of the Union Government in answer to the petitioners challenge to the constitutionality of the Price Control Order is that since the Act, by reason of its being placed in the Ninth Schedule, is immune from attack on the ground that its provisions violate the fundamental rights guaranteed by Part III of the Constitution, the Price Control Order which is but a creature of the Act must enjoy the same immunity. This contention has found favour with the learned Chief Justice, Shri M. H. Beg but, with respect, we are unable to share his view.Article 3 1 A of the Constitution saves laws which provide for matters mentioned in clauses (a) to (e) thereof from a challenge under articles 14, 19 or 31 notwithstanding anything contained in article 13 of the Constitution. Article 31A which w as introduced by the Constitution (First Amendment) Act, 1951, validates certain Acts and Regulations providing that without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of Part III. On a plain reading of this article it seems to us impossible to accept that the protective umbrella of the Ninth Schedule takes in its ever widening wings not only the Acts and Regulations specified therein but also Orders and Notifications issued under those Acts and Regulations. Article 31B constitutes a grave encroachment on fundamental rights and doubtless as it may seem that it is inspired by a radiant social philosophy, it must be construed as strictly as on e may, for the simple reason that the guarantee of fundamental rights cannot be permitted to be diluted by implications and inferences. An express provision of the Constitution which prescribes the extent to which a challenge to the constitutionality of a law is excluded, must be construed as demarcating the farthest limit of exclusion. Considering the nature of ther which article 31B deals with, there is, in our opinion, no justification for extending b y judicial interpretation the frontiers of the field which is declared by that article to be immune from challenge on the ground of violation or abridgement of fundamental rights. The article affords protection to Acts and Regulations specified in the Ninth Schedule. Therefore, whenever a challenge to the constitutionality of a provision of law on the ground that it violates any of the fundamental rights conferred by Part III is sought to be repelled by the State on the plea that the law is placed in the Ninth Schedule, the narrow question to which one must address oneself is whether the impugned law is specified in that Schedule. If it is, the provisions of article 31B would be attracted and the challenge would fail without any further inquiry. On the other hand, if the law is not specified in the Ninth Schedule, the validity of the challenge has to be examined in order to determine whether the provisions thereof invade in any manner any of the fundamental r ights conferred by Part III. It is then no answer to say that though the particular law, as for example a Control Order, is not specified in the Ninth Schedule, the parent Act under which the Order is issued is specified in that Schedule.The Mustard Oil (Price Control) Order, 1977, was passed under section 3 of the Essential Commodities Act, 1955, which by the relevant part of itsempowers the Central Government to provide by an order for regulating or prohibiting the production, supply and distribution of an essential commodity or trade and commerce therein, if it is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securinge distribution and availability at a fair price. Since the Act of 1955 has been placed in the Ninth Schedule, none of its provisions, including of course section 3(1), is open to attack on the ground that it ever was or is inconsistent with or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. But that is the farthest that the immunity offered by article 31B can go. In other words, speaking of a provision directly in point, s. 3(1) of the Act of 1955 is not open to challenge on the ground, to take a relevant instance, that it violates the guarantee contained in article 19 (1) (f) or 19 (1) (g) of the Constitution. But there is no justification for extending the protection of that immunity to an Order passed under section 3 of the Act like the Mustard Oil (Price Control) Order. Extending the benefit of the protection afforded by article 31B to any action taken under an Act or Regulation which is specified in the Ninth Schedule, appears to us to be an unwarranted extension of the provisions contained in article 31B, neither justified by its language nor by the policy or principle underlying it. When a particular Act or Regulation is placed in the Ninth Schedule, the Parliament may be assumed to have applied its mind to the provisions of the particular Act or Regulation and to the desirability, propriety or necessity of placing it in the Ninth Schedule in order to obviate a possible challenge to its provisions on the ground that they offend against the provisions of Part III. Such an assumption cannot, in the very nature of things, be made in the case of an Order issued by the Government under an Act or regulation which is placed in the Ninth Schedule. The fundamental rights will be eroded of their significant content if by judicial interpretation a constitutional immunity is extended to Orders the validity of which the Parliament at least theoretically, has had no opportunity to apply its mind. Such an extension takes for granted the supposition that the authorities on whom Dower is conferred to take appropriate action under a statute will act both within the framework of the statute and within the permissible constitutional limitations, a supposition which past experience does not justify and to some extent falsifies. In fact, the upholding of laws by the application of the theory of derivative immunity is foreign t o the scheme of our constitution and accordingly orders and Notifications issued under Acts and Regulations which are specified in the Ninth Schedule must meet the challenge that they offend against the provisions of Part III of the Constitution. The immunity enjoyed by the parent Act by reason of its being placed in the Ninth Schedule cannot proprio vigore be extended to an offspring of the Act like a Price Control Order issued under the authority of the Act. it is therefore open to the petitioners to invoke the writ jurisdiction of this Court for determination of the question whether the provisions of the Price Control Order violate articles 14, 19 (1) (f) and 19 (1) (g) of the Constitution. The learned Solicitor General relies, justifiably, on two decisions of this Court in Vasantlal Maganbhai Sanjanwala v. The State of Bombay and Others([1961] 1 S.C.R. 341.) and Latafat Ali Khan and Ors. v. The State of U.P.([1971] Supp. S.C.R. 719.), in support of his argument that the Price Control Order must receive the protection of the Ninth Schedule to the same extent as the Essential Commodities Act under which that order was issued and which has been placed in the Ninth Schedule. In Vasantlal Maganbhai([1961] 1 S.C.R. 341.), the vires of section 6(2) of the Bombay. Tenancy and Agricultural Lands Act, 1948, was challenged on the ground that it suffered from the vice of excessive delegation. In exercise of the power con feared by section 6(2), the State Government had issued a Notification fixing the maximum rent payable by tenants of lands situated in the areas specified in the schedule appended to the Notification. The validity of that Notification was challenged on the ground. that it offended against Article 31 of the Constitution. The first contention was rejected by the majority which held that section 6(2) did not suffer from excessive delegation. On the second question it was held by the Court that since the Bombay Tenancy Act was placed in the Ninth Schedule, the Notification which was issued under section 6(2) of that Act could not be challenged on the ground that it violated article 31. Subba Rao J., who was in minority, did not consider the latter point regarding the validity of the Notification issued under section 6(2) because he took the view that section 6(2) suffered from the vice of excessive delegation and was therefore unconstitutional. This decision undoubtedly lends support to the contention of the Union Government that if an Act or Regulation is specified in the Ninth Schedule, any order or notification issued under it would equally be entitled to the protection of that Schedule. We are, however, of the opinion, respectfully, that the decision in Vasantlal Maganbhai (supra) does not reflect the true legal position which, according to us, is that the immunity enjoyed by an Act placed in the Ninth Schedule cannot be extended to an order or notification issued under it. The decision of. the Court appears to have been influenced largely by the consideration that the only argument advanced against the validity of the notification was that in substance it amended the provisions of section 6(1) and was therefore a fresh legislation to which article 31B could not apply. The Court rejected that argument and held that if section 6(2) was Valid, the exercise of the power validly conferred on the Provincial Government could not be treated as a fresh legislation.The decision in Latafat Ali Khan (supra) contains no reasons beyond the bare statement thatif a statutory rule is within the powers conferred by a section of a statute protected by Art. 3 1 B, it is difficult to say that the rule must further be scrutinised under arts. 14, 19, etc.This discussion will not be complete without reference to the decision of a Constitution Bench of this Court in Shree Meenakshi Mills Ltd. v. Union of India([1974] 2 S.C.R.398.). The question which arose in that case was as regards the validity of a notification fixing fair prices of cotton yarn. It was contended on behalf of the petitioners therein that the price fixed was arbitrary because the fluctuation in the price of cotton was not taken into consideration, the price of raw materials, the liability for wages and the necessity for ensuring reasonable profit to the trader were not taken into account; and above everything else, the industry was not ensured a reasonable return on its investment. These contentions were rejected by this Court on the ground that, just as the industry cannot complain of rise and fall of prices due to, economic factors in an open market, it cannot similarly complain of some increase in or reduction of prices as a result of a notification issued under section 3(1) of the Essential Commodities Act because, such increase or reduction is also based on economic factors. Dealing with the contention that a reasonable profit must be assured to the manufacturers, the Court held that ensuring a fair price to the consumer was the dominant object and purpose of the Essential Commodities Act and that object would be completely lost sight of, if the producers profit was kept in theRay C.J., speaking for the Court, observed:In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable. By its very nature, industry or trade or commerce goes through periods of prosperity and adversity on account of economic and sometimes social and political factors. In a , largely free economy when controls have to be introduced to ensure availability of consumer goods like foodstuff, cloth and the like at a fair price, it is an impracticable proposition to require the Government to go through the exercise like that of a Commission to fix the pricesAnother passage from the judgment of the learned Chief Justice which has an important bearing on the instant case is to the following effect:When available stocks go underground and the Government has to step in to control distribution and availability in public interest, fixing of price can, therefore, be only empirical. Market prices at a time when the goods did not go underground and were freely available, the general rise in prices, the capacity of the consumer specially in case of consumer goods likeetc. the amount of loss which the industry is able to absorb after having made huge profits in prosperous years, all these enter into the calculation of a fair price in an emergency created by artificial shortagesOn this aspect of the matter, the Court cited with approval a passage from an American decision, Secretary of Agriculture v. Central Reig Refining Company(94Law Ed. 381.) to the effect that Courts of Law cannot be converted into tribunals for relief from the crudities and inequities of complicated experimental economic legislation.Counsel for the petitioners relied upon the decisions in Panipat(A.T.R. 1973 S.C. 536.) and Anakapalle Cooperative Agricultural and Indus trial Society Ltd. v. Union of India(A.T.R. 1973 S.C. 734.) in support of their contention that fixation. of a price without ensuring a reasonable return to the producers or dealers is unconstitutional. The infirmity of this argument, as pointed out in Meenakshi Mills v. Union of India, (supra) is that these two decisions turn on the language of section 3(3c) of the Essential Commodities Act under which it is statutorily obligatory to ensure to the industry a reasonable return on the capital employed in the business of manufacturing sugar. These decisions can, therefore, have no application to cases of price fixation under section 3 (1) read with section 3 (2) (c) of the Act. Cases failing unders 3A, 3B and 3C of section 3 of t hat Act belong to a different category altogetherIt is customary in price fixation cases to cite thed decision in Premier Automobiles Ltd. &Anr. etc. v. Union of India([1972] 2 S.C.R. 526.) which concerned the fixation of price of motor cars. It is time that it was realized that the decision constitutes. no precedent in matters of price fixation and was rendered for reasons peculiar to the particular case. At page 535 of the Report Grover J., who spoke for the Court, stated at the outset of the judgment: Counsel for all the parties and the learned Attorney General are agreed that irrespective of the technical or legal points that may be involved, we should base our judgment on examination of correct and rational principles and should direct deviation from the report of the Commission which was an expert body presided over by a former judge of a High Court only when it is shown that there has been a departure from, established principles or the conclusions of the Commission are shown to be demonstrably wrong or erroneous. By an agreement of parties the Court was thus converted into a Tribunal for considering every minute detail relating to price fixation of motor cars. Secondly, as regards the escalation clause, the Court recorded at page 543 that it was not disputed on behalf of the Government, and the Attorney General accepted the position, that a proper method should be. Thirdly, it is clear from page 544 of the Report that the Learned Attorney General also agreed that amust be al lowed to the manufacturers on their investment. The decision thus proceeded partly on an agreement between the parties and partly on concessions made at the Bar. That is the reason why the judgment in Premier Automobiles (supra) cannot be treated as a precedent and cannot afford any appreciable assistance in the decision of price fixation cases.The contention that the Price Control Order is arbitrary because it is not limited in point of time is without any merit. In the very nature of things, orders passed under section 3(1) read with section 3(2) of the Essential Commodities Act are designed primarily to meet urgent situations which require prompt and timely attention. If a price control order brings about an improvement in the supply position or if during the period that such an order is in operation there is a fall in prices so at to bring an essential commodity within the reach of the ordinary consumer, the order shall have lost its justification and would in all probability be withdrawn. That in fact is what has happened in the instant case. It appears that the supply position having improved, or, so at any rate seems to be the assessment of the situation by the Government , the order has been recently withdrawnIn support of that submission the judgment of this Court in K. C. Gajapati Narayan Deo anti Others v. The State of Orissa([1954] S.C.R. 1.) was cited in which it was said that when a legislative power is defined by reference to purpose, legislation not directed to that purpose will be invalid. We are unable to appreciate how, if the Government has got the power to fix a fair price of an essential commodity, it can be said that they have under a pretext trespassed upon a field which does not properly belong to them. The power conferred by section 3(1) of the Essential Commodities Act is undoubtedly purposive. But it seems to us incontrovertible that the Price Control Order was promulgated by the Government in order to achieve the purpose set out in section 3(1) of the Act. The fact that a legislative remedy or an administrative order passed in exercise of a statutory power is effective to mitigate an evil may show that it has failed to achieve its purpose, highlighting thereby the paradox of reform. But, as observed in Joseph Beaubarnais v. People of the State of Illinois(96 Lawyers Edition 919.) , that is the price to be paid for ther inherent in legislative efforts to dial with obstinate social issues. We are, therefore, unable to hold that by fixing a fair price for mustard oil, the Government has committed a veiled and subtle trespass upon private rights or upon a legislative field which is not open to them to occupy.To sum up, it seems to us impossible to accept the contention of the petitioners that the impugned Price Control Order is an act of hostile discrimination against them or that it violates their right to property or their right to do trade or business. The petitioners have taken us into the mutest details of the mechanism of their trade operations and they have attempted to demonstrate in relation thereto that a factor here or a factor there which ought to have been taken into account while fixing the price of mustard oil has been ignored. Dealing with a similar argument it was observed in Metropolis Theater Company v. City of Chicago(57 Lawyers Edition 730.) that to be able to. find fault with a law is not to demonstrate its invalidityIt may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require rough , accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void. . . .The Parliament having entrusted the fixation of prices to the expert judgment of the Government, it would be wrong for this Court, as was done by common consent in Premier Automobiles (supra) to examine each and every minute detail pertaining to the Governmental decision. The Government, as was said in Permian Basin Area Rate Cases, (supra) is entitled to make pragmatic adjustments which may be called for by particular circumstances and the price control can be declared unconstitutional only if it is patently arbitrary, discriminatory or demonstrably irrelevant to the policy which the legislature is free to adopt. The interest of the producer and the investor is only one of the variables in the constitutional calculus of reasonableness and Courts ought not to interfere so long as the exercise of Governmental power to fix fair prices is broadly within a zone of reasonableness. If we were to embark upon an examination of the desperate contentions raised before us on behalf of the contending parties we have no doubt that we shall have exceeded our narrow and circumscribed authority. Before closing, we would like to mention that the petitioners rushed to this Court too precipitately On the heels of the Price Control Order. Thereby they deprived themselves of an opportunity to show that in actual fact, the Order causes them irreparable prejudice. Instead, they were driven through theirt haste to rely on speculative hypotheses in order to buttress their grievance that their right to property and the right to do trade was gone or was substantially affected.
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and inconvenience, but the ultimate savings in the cost of the finished product could more than balance that inconvenience. The argument of the petitioners really amounts to a rigid insistence that they are entitled to carry on their business as they please, mostly in a traditional manner, regardless of its impact on public interest. But, property rights are not absolute, and important as the right of property may be, the right of the public that such rights be regulated in common interest is of greater importance. These correlative rights, as observed in Lea Nebbia v. People of the State of New York(78 Lawyers Edition 940.), are always in collision: No exercise of the private right can be imagined which will not ever slight, affect the public; no exercise of the to regulate abridge his liberty or affect his property. But subject only to constitutional restraint the private right must yield to the public the words of Justice Roberts who delivered the opinion of in Leo Nebbia (supra): The Constitution does not se cure to any one liberty to conduct his business in such fashion as to inflict injury upon the, public at large, or upon any substantial group of the people. Price control, like any other for m of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. 36. Counsel for the petitioners characterised the fixation of price in the instant case as a veiled transgression of power conferred by section 3 ( 1 of the Essential Commodities Act. In support of that submission the judgment of this Court in K. C. Gajapati Narayan Deo anti Others v. The State of Orissa([1954] S.C.R. 1.) was cited in which it was said that when a legislative power is defined by reference to purpose, legislation not directed to that purpose will be invalid. We are unable to appreciate how, if the Government has got the power to fix a fair price of an essential commodity, it can be said that they have under a pretext trespassed upon a field which does not properly belong to them. The power conferred by section 3(1) of the Essential Commodities Act is undoubtedly purposive. But it seems to us incontrovertible that the Price Control Order was promulgated by the Government in order to achieve the purpose set out in section 3(1) of the Act. The fact that a legislative remedy or an administrative order passed in exercise of a statutory power is effective to mitigate an evil may show that it has failed to achieve its purpose, highlighting thereby the paradox of reform. But, as observed in Joseph Beaubarnais v. People of the State of Illinois(96 Lawyers Edition 919.) , that is the price to be paid for the trail-and-error inherent in legislative efforts to dial with obstinate social issues. We are, therefore, unable to hold that by fixing a fair price for mustard oil, the Government has committed a veiled and subtle trespass upon private rights or upon a legislative field which is not open to them to occupy.To sum up, it seems to us impossible to accept the contention of the petitioners that the impugned Price Control Order is an act of hostile discrimination against them or that it violates their right to property or their right to do trade or business. The petitioners have taken us into the mutest details of the mechanism of their trade operations and they have attempted to demonstrate in relation thereto that a factor here or a factor there which ought to have been taken into account while fixing the price of mustard oil has been ignored. Dealing with a similar argument it was observed in Metropolis Theater Company v. City of Chicago(57 Lawyers Edition 730.) that to be able to. find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require rough , accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void. . . . 37. The Parliament having entrusted the fixation of prices to the expert judgment of the Government, it would be wrong for this Court, as was done by common consent in Premier Automobiles (supra) to examine each and every minute detail pertaining to the Governmental decision. The Government, as was said in Permian Basin Area Rate Cases, (supra) is entitled to make pragmatic adjustments which may be called for by particular circumstances and the price control can be declared unconstitutional only if it is patently arbitrary, discriminatory or demonstrably irrelevant to the policy which the legislature is free to adopt. The interest of the producer and the investor is only one of the variables in the constitutional calculus of reasonableness and Courts ought not to interfere so long as the exercise of Governmental power to fix fair prices is broadly within a zone of reasonableness. If we were to embark upon an examination of the desperate contentions raised before us on behalf of the contending parties we have no doubt that we shall have exceeded our narrow and circumscribed authority. Before closing, we would like to mention that the petitioners rushed to this Court too precipitately On the heels of the Price Control Order. Thereby they deprived themselves of an opportunity to show that in actual fact, the Order causes them irreparable prejudice. Instead, they were driven through their ill-thought haste to rely on speculative hypotheses in order to buttress their grievance that their right to property and the right to do trade was gone or was substantially affected.
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334 |
World Sport Group (Mauritius) Ltd Vs. Msm Satellite(Singapore) Pte. Ltd
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Convention to which Section 45 of the Act applies. In the case of such arbitrations covered by the New York Convention, the Court can decline to make a reference of a dispute covered by the arbitration agreement only if it comes to the conclusion that the arbitration agreement is null and void, inoperative or incapable of being performed, and not on the ground that allegations of fraud or misrepresentation have to be inquired into while deciding the disputes between the parties. 30. We may now consider the correctness of the findings of the Division Bench of the High Court in the impugned judgment. The Division Bench of the High Court has held that the Facilitation Deed was part of several agreements entered into amongst different parties commencing from 25.03.2009 and, therefore, cannot be considered as stand apart agreement between the appellant and the respondent and so considered the Facilitation Deed as contrary to public policy of India because it is linked with the finances, funds and rights of the BCCI, which is a public body. This approach of the Division Bench of the High Court is not in consonance with the provisions of Section 45 of the Act, which mandates that in the case of arbitration agreements covered by the New York Convention, the Court which is seized of the matter will refer the parties to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. In view of the provisions of Section 45 of the Act, the Division Bench of the High Court was required to only consider in this case whether Clause 9 of the Facilitation Deed which contained the arbitration agreement was null and void, inoperative or incapable of being performed. 31. The Division Bench of the High Court has further held that Clause 9 of the Facilitation Deed insofar as it restricted the right of the parties to move the courts for appropriate relief and also barred the right to trial by a jury was void for being opposed to public policy as provided in Section 23 of the Indian Contract Act, 1872 and was also void for being an agreement in restraint of the legal proceedings in view of Section 28 of the said Act. Parliament has made the Arbitration and Conciliation Act, 1996 providing domestic arbitration and international arbitration as a mode of resolution of disputes between the parties and Exception 1 to Section 28 of the Indian Contract Act, 1872 clearly states that Section 28 shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Clause 9 of the Facilitation Deed is consistent with this policy of the legislature as reflected in the Arbitration and Conciliation Act, 1996 and is saved by Exception 1 to Section 28 of the Indian Contract Act, 1872. The right to jury trial is not available under Indian laws. The finding of the Division Bench of the High Court, therefore, that Clause 9 of the Facilitation Deed is opposed to public policy and is void under Sections 23 and 28 of the Indian Contract Act, 1872 is clearly erroneous.32. The Division Bench of the High Court has also held that as allegations of fraud and serious malpractices on the part of the appellant are in issue, it is only the court which can decide these issues through furtherance of judicial evidence by either party and these issues cannot be properly gone into by the arbitrator. As we have already held, Section 45 of the Act does not provide that the court will not refer the parties to arbitration if the allegations of fraud have to be inquired into. Section 45 provides that only if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, it will decline to refer the parties to arbitration.33. The Division Bench of the High court has further held that since the earlier suit (Suit No.1869 of 2010) was pending in court since 25.06.2010 and that suit was inter-connected and inter-related with the second suit (Suit No.1828 of 2010), the court could not allow splitting of the matters and disputes to be decided by the court in India in the first suit and by arbitration abroad in regard to the second suit and invite conflicting verdicts on the issues which are inter-related. This reasoning adopted by the Division Bench of the Bombay High Court in the impugned judgment is alien to the provisions of Section 45 of the Act which does not empower the court to decline a reference to arbitration on the ground that another suit on the same issue is pending in the Indian court.34. We make it clear that we have not expressed any opinion on the dispute between the appellant and the respondent as to whether the Facilitation Deed was voidable or not on account of fraud and misrepresentation. Clause 9 of the Facilitation Deed states inter alia that all actions or proceedings arising in connection with, touching upon or relating to the Facilitation Deed, the breach thereof and/or the scope of the provisions of the Section shall be submitted to the ICC for final and binding arbitration under its Rules of Arbitration. This arbitration agreement in Clause 9 is wide enough to bring this dispute within the scope of arbitration. To quote Redfern And Hunter On International Arbitration (Fifth Edition page 134 para 2.141) “Where allegations of fraud in the procurement or performance of a contract are alleged, there appears to be no reason for the arbitral tribunal to decline jurisdiction.” Hence, it has been rightly held by the learned Single Judge of the Bombay High Court that it is for the arbitrator to decide this dispute in accordance with the arbitration agreement.
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1[ds]20. We are unable to accept the first contention of Mr. Venugopal that as Clause 9 of the Facilitation Deed provides that any party may seek equitable relief in a court of competent jurisdiction in Singapore, or such other court that may have jurisdiction over the parties, the Bombay High Court had no jurisdiction to entertain the suit and restrain the arbitration proceedings at Singapore because of the principle of Comity offind that in para 64 of the plaint in Suit No.1828 of 2010 filed before the Bombay High Court by the respondent, it is stated that the Facilitation Deed in which the arbitration clause is incorporated came to be executed by the defendant at Mumbai and the fraudulent inducement on the part of the defendant resulting in the plaintiff entering into the Facilitation Deed took place in Mumbai and the rescission of the Facilitation Deed on the ground that it was induced by fraud of defendant has also been issued from Mumbai. Thus, the cause of action for filing the suit arose within the jurisdiction of the Bombay High Court and the Bombay High Court had territorial jurisdiction to entertain the suit under Section 20 of theapproach of the Division Bench of the High Court is not in consonance with the provisions of Section 45 of the Act, which mandates that in the case of arbitration agreements covered by the New York Convention, the Court which is seized of the matter will refer the parties to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. In view of the provisions of Section 45 of the Act, the Division Bench of the High Court was required to only consider in this case whether Clause 9 of the Facilitation Deed which contained the arbitration agreement was null and void, inoperative or incapable of beingfinding of the Division Bench of the High Court, therefore, that Clause 9 of the Facilitation Deed is opposed to public policy and is void under Sections 23 and 28 ofthe Indian Contract Act, 1872 is clearly erroneous.32. The Division Bench of the High Court has also held that as allegations of fraud and serious malpractices on the part of the appellant are in issue, it is only the court which can decide these issues through furtherance of judicial evidence by either party and these issues cannot be properly gone into by the arbitrator. As we have already held, Section 45 of the Act does not provide that the court will not refer the parties to arbitration if the allegations of fraud have to be inquired into. Section 45 provides that only if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, it will decline to refer the parties to arbitration.33. The Division Bench of the High court has further held that since the earlier suit (Suit No.1869 of 2010) was pending in court since 25.06.2010 and that suit was inter-connected and inter-related with the second suit (Suit No.1828 of 2010), the court could not allow splitting of the matters and disputes to be decided by the court in India in the first suit and by arbitration abroad in regard to the second suit and invite conflicting verdicts on the issues which are inter-related. This reasoning adopted by the Division Bench of the Bombay High Court in the impugned judgment is alien to the provisions of Section 45 of the Act which does not empower the court to decline a reference to arbitration on the ground that another suit on the same issue is pending in the Indian court.34. We make it clear that we have not expressed any opinion on the dispute between the appellant and the respondent as to whether the Facilitation Deed was voidable or not on account of fraud and misrepresentation. Clause 9 of the Facilitation Deed states inter alia that all actions or proceedings arising in connection with, touching upon or relating to the Facilitation Deed, the breach thereof and/or the scope of the provisions of the Section shall be submitted to the ICC for final and binding arbitration under its Rules of Arbitration. This arbitration agreement in Clause 9 is wide enough to bring this dispute within the scope of arbitration.
| 1 | 9,610 |
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Convention to which Section 45 of the Act applies. In the case of such arbitrations covered by the New York Convention, the Court can decline to make a reference of a dispute covered by the arbitration agreement only if it comes to the conclusion that the arbitration agreement is null and void, inoperative or incapable of being performed, and not on the ground that allegations of fraud or misrepresentation have to be inquired into while deciding the disputes between the parties. 30. We may now consider the correctness of the findings of the Division Bench of the High Court in the impugned judgment. The Division Bench of the High Court has held that the Facilitation Deed was part of several agreements entered into amongst different parties commencing from 25.03.2009 and, therefore, cannot be considered as stand apart agreement between the appellant and the respondent and so considered the Facilitation Deed as contrary to public policy of India because it is linked with the finances, funds and rights of the BCCI, which is a public body. This approach of the Division Bench of the High Court is not in consonance with the provisions of Section 45 of the Act, which mandates that in the case of arbitration agreements covered by the New York Convention, the Court which is seized of the matter will refer the parties to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. In view of the provisions of Section 45 of the Act, the Division Bench of the High Court was required to only consider in this case whether Clause 9 of the Facilitation Deed which contained the arbitration agreement was null and void, inoperative or incapable of being performed. 31. The Division Bench of the High Court has further held that Clause 9 of the Facilitation Deed insofar as it restricted the right of the parties to move the courts for appropriate relief and also barred the right to trial by a jury was void for being opposed to public policy as provided in Section 23 of the Indian Contract Act, 1872 and was also void for being an agreement in restraint of the legal proceedings in view of Section 28 of the said Act. Parliament has made the Arbitration and Conciliation Act, 1996 providing domestic arbitration and international arbitration as a mode of resolution of disputes between the parties and Exception 1 to Section 28 of the Indian Contract Act, 1872 clearly states that Section 28 shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Clause 9 of the Facilitation Deed is consistent with this policy of the legislature as reflected in the Arbitration and Conciliation Act, 1996 and is saved by Exception 1 to Section 28 of the Indian Contract Act, 1872. The right to jury trial is not available under Indian laws. The finding of the Division Bench of the High Court, therefore, that Clause 9 of the Facilitation Deed is opposed to public policy and is void under Sections 23 and 28 of the Indian Contract Act, 1872 is clearly erroneous.32. The Division Bench of the High Court has also held that as allegations of fraud and serious malpractices on the part of the appellant are in issue, it is only the court which can decide these issues through furtherance of judicial evidence by either party and these issues cannot be properly gone into by the arbitrator. As we have already held, Section 45 of the Act does not provide that the court will not refer the parties to arbitration if the allegations of fraud have to be inquired into. Section 45 provides that only if the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed, it will decline to refer the parties to arbitration.33. The Division Bench of the High court has further held that since the earlier suit (Suit No.1869 of 2010) was pending in court since 25.06.2010 and that suit was inter-connected and inter-related with the second suit (Suit No.1828 of 2010), the court could not allow splitting of the matters and disputes to be decided by the court in India in the first suit and by arbitration abroad in regard to the second suit and invite conflicting verdicts on the issues which are inter-related. This reasoning adopted by the Division Bench of the Bombay High Court in the impugned judgment is alien to the provisions of Section 45 of the Act which does not empower the court to decline a reference to arbitration on the ground that another suit on the same issue is pending in the Indian court.34. We make it clear that we have not expressed any opinion on the dispute between the appellant and the respondent as to whether the Facilitation Deed was voidable or not on account of fraud and misrepresentation. Clause 9 of the Facilitation Deed states inter alia that all actions or proceedings arising in connection with, touching upon or relating to the Facilitation Deed, the breach thereof and/or the scope of the provisions of the Section shall be submitted to the ICC for final and binding arbitration under its Rules of Arbitration. This arbitration agreement in Clause 9 is wide enough to bring this dispute within the scope of arbitration. To quote Redfern And Hunter On International Arbitration (Fifth Edition page 134 para 2.141) “Where allegations of fraud in the procurement or performance of a contract are alleged, there appears to be no reason for the arbitral tribunal to decline jurisdiction.” Hence, it has been rightly held by the learned Single Judge of the Bombay High Court that it is for the arbitrator to decide this dispute in accordance with the arbitration agreement.
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335 |
M/s. Jayaswal Neco Ltd Vs. Commnr. of Central Excise, Raipur
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13, in the manufacture of goods. Building materials used as raw materials for construction of “plant” cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under s. 8(3)(b) must be intended for use as raw materials or as plant, or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description . The High Court was, therefore, right in rejecting the claim of the Company in that behalf. The expression “electricals” is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that “electrical equipment” should fall within the terms of Rule 13, it must be an ingredient of the finished goods to be prepared, or “it must be a commodity which is used in the creation of goods”. If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression “electricals”. This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under s. 8(1).” Applying the aforesaid test to the facts of this case, it is apparent that the use of railway tracks is related to the actual production of goods and without the use of the said railway track, commercial production would be inexpedient. In the instant case, the manner in which railway track materials have been used by the appellant was explained by the appellant before the Commissioner and veracity thereof was accepted by the Commissioner. Therefore, without any fear of contradiction, we may note the exact process that is involved: “These railway tracks used in transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. Secondly the system also helps in taking hot pigs from pig casting machine to pigs storage yard by the big wagon where hot pig iron are dumped for cooling and making ready for dispatchers. This Railway tracks are also used in handling of raw materials at wagon tippler to stacker reclaimer where stacking and reclaiming of raw material is taken place and required quantity is conveyed for further processing at stock house.” It reflects that the appellant has installed railway tracks within the plant which is a handling system for raw material and processed material.The aforesaid process squarely meets the test laid down by this court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case. It is clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.We find from the order of the Commissioner that in spite of taking note of the aforesaid use of the railway tracks and accepting the same as correct, the Commissioner denied the relief to the appellant on an extraneous ground, i.e., railway tracks were used for other purposes as well, namely, apart from conveying hot metal and hot pigs, it was used for carrying raw materials and finished goods as well. This can hardly be a ground to deny the relief inasmuch as by incidental use of the railway tracks for some other innocuous purpose, it does not lose the character of being an integral part of the manufacturing process. The Commissioner has further observed in his order that the railway track is not utilised directly or indirectly for producing or processing of goods or bringing about any change for manufacture of final product. This conclusion, obviously, is completely erroneous and amounts to misreading of the process. Such an error has occurred because the Commissioner did not keep in mind the principle of law laid down by this Court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case, highlighted above.When we read the order of the CEGAT, we find that CEGAT has not even adverted to and examined the issue from the aforesaid angle, which was the only method for arriving at a finding as to whether the railway tracks installed within the plant would come within the definition of capital goods under Rule 57Q of the Rules or not. The order of the CEGAT is stoically silent. It has affirmed the order of the Commissioner by simply observing that the Commissioner has arrived at the conclusion that these goods are not being used directly or indirectly for producing or processing the goods or for bringing about any change for the manufacture of the final product. We have already pointed out that the aforesaid conclusion of the Commissioner is not only factually incorrect and perverse but legally unsustainable as well.
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1[ds]In the instant case, the manner in which railway track materials have been used by the appellant was explained by the appellant before the Commissioner and veracity thereof was accepted by the Commissioner. Therefore, without any fear of contradiction, we may note the exact process that israilway tracks used in transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. Secondly the system also helps in taking hot pigs from pig casting machine to pigs storage yard by the big wagon where hot pig iron are dumped for cooling and making ready for dispatchers. This Railway tracks are also used in handling of raw materials at wagon tippler to stacker reclaimer where stacking and reclaiming of raw material is taken place and required quantity is conveyed for further processing at stockreflects that the appellant has installed railway tracks within the plant which is a handling system for raw material and processed material.The aforesaid process squarely meets the test laid down by this court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case. It is clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.We find from the order of the Commissioner that in spite of taking note of the aforesaid use of the railway tracks and accepting the same as correct, the Commissioner denied the relief to the appellant on an extraneous ground, i.e., railway tracks were used for other purposes as well, namely, apart from conveying hot metal and hot pigs, it was used for carrying raw materials and finished goods as well. This can hardly be a ground to deny the relief inasmuch as by incidental use of the railway tracks for some other innocuous purpose, it does not lose the character of being an integral part of the manufacturing process. The Commissioner has further observed in his order that the railway track is not utilised directly or indirectly for producing or processing of goods or bringing about any change for manufacture of final product. This conclusion, obviously, is completely erroneous and amounts to misreading of the process. Such an error has occurred because the Commissioner did not keep in mind the principle of law laid down by this Court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case, highlighted above.When we read the order of the CEGAT, we find that CEGAT has not even adverted to and examined the issue from the aforesaid angle, which was the only method for arriving at a finding as to whether the railway tracks installed within the plant would come within the definition of capital goods under Rule 57Q of the Rules or not. The order of the CEGAT is stoically silent. It has affirmed the order of the Commissioner by simply observing that the Commissioner has arrived at the conclusion that these goods are not being used directly or indirectly for producing or processing the goods or for bringing about any change for the manufacture of the final product. We have already pointed out that the aforesaid conclusion of the Commissioner is not only factually incorrect and perverse but legally unsustainable asis clear from the reading of the definition of capital goods that when machines, machinery, plants, equipment, etc., are used for producing or processing any good or bringing about any change in any substance for the manufacture of final product, it would qualify as capital goods and MODVAT credit thereon would bethe court was concerned with the construction of Section 8(3)(b) of the Central Sales Tax Act, 1956, and Rule 13 framed under the said Act, the expressionthe manufacture or processing of goods forappearing in Section 8(3)(b) came up for interpretation. Section 8(3(b) authorises the Sales Tax Officer to specify goods intended for use by the dealer inthe manufacture or processing of goods forsale or in mining, or in the generation or distribution of electricity or any other form of power. Rule 13 provides that such goods must be intended for use inthe manufacture or processing of goods forsale or in mining or generation or distribution ofthe instant case, the manner in which railway track materials have been used by the appellant was explained by the appellant before the Commissioner and veracity thereof was accepted by theaforesaid process squarely meets the test laid down by this court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case. It is clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.We find from the order of the Commissioner that in spite of taking note of the aforesaid use of the railway tracks and accepting the same as correct, the Commissioner denied the relief to the appellant on an extraneous ground, i.e., railway tracks were used for other purposes as well, namely, apart from conveying hot metal and hot pigs, it was used for carrying raw materials and finished goods as well. This can hardly be a ground to deny the relief inasmuch as by incidental use of the railway tracks for some other innocuous purpose, it does not lose the character of being an integral part of the manufacturing process. The Commissioner has further observed in his order that the railway track is not utilised directly or indirectly for producing or processing of goods or bringing about any change for manufacture of final product. This conclusion, obviously, is completely erroneous and amounts to misreading of the process. Such an error has occurred because the Commissioner did not keep in mind the principle of law laid down by this Court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case, highlighted above.When we read the order of the CEGAT, we find that CEGAT has not even adverted to and examined the issue from the aforesaid angle, which was the only method for arriving at a finding as to whether the railway tracks installed within the plant would come within the definition of capital goods under Rule 57Q of the Rules or not. The order of the CEGAT is stoically silent. It has affirmed the order of the Commissioner by simply observing that the Commissioner has arrived at the conclusion that these goods are not being used directly or indirectly for producing or processing the goods or for bringing about any change for the manufacture of the final product. We have already pointed out that the aforesaid conclusion of the Commissioner is not only factually incorrect and perverse but legally unsustainable as
| 1 | 3,055 |
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13, in the manufacture of goods. Building materials used as raw materials for construction of “plant” cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under s. 8(3)(b) must be intended for use as raw materials or as plant, or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description . The High Court was, therefore, right in rejecting the claim of the Company in that behalf. The expression “electricals” is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that “electrical equipment” should fall within the terms of Rule 13, it must be an ingredient of the finished goods to be prepared, or “it must be a commodity which is used in the creation of goods”. If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression “electricals”. This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under s. 8(1).” Applying the aforesaid test to the facts of this case, it is apparent that the use of railway tracks is related to the actual production of goods and without the use of the said railway track, commercial production would be inexpedient. In the instant case, the manner in which railway track materials have been used by the appellant was explained by the appellant before the Commissioner and veracity thereof was accepted by the Commissioner. Therefore, without any fear of contradiction, we may note the exact process that is involved: “These railway tracks used in transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. Secondly the system also helps in taking hot pigs from pig casting machine to pigs storage yard by the big wagon where hot pig iron are dumped for cooling and making ready for dispatchers. This Railway tracks are also used in handling of raw materials at wagon tippler to stacker reclaimer where stacking and reclaiming of raw material is taken place and required quantity is conveyed for further processing at stock house.” It reflects that the appellant has installed railway tracks within the plant which is a handling system for raw material and processed material.The aforesaid process squarely meets the test laid down by this court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case. It is clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.We find from the order of the Commissioner that in spite of taking note of the aforesaid use of the railway tracks and accepting the same as correct, the Commissioner denied the relief to the appellant on an extraneous ground, i.e., railway tracks were used for other purposes as well, namely, apart from conveying hot metal and hot pigs, it was used for carrying raw materials and finished goods as well. This can hardly be a ground to deny the relief inasmuch as by incidental use of the railway tracks for some other innocuous purpose, it does not lose the character of being an integral part of the manufacturing process. The Commissioner has further observed in his order that the railway track is not utilised directly or indirectly for producing or processing of goods or bringing about any change for manufacture of final product. This conclusion, obviously, is completely erroneous and amounts to misreading of the process. Such an error has occurred because the Commissioner did not keep in mind the principle of law laid down by this Court in M/s. J. K. Cotton Spinning & Weaving Mills Co. Ltd.s case, highlighted above.When we read the order of the CEGAT, we find that CEGAT has not even adverted to and examined the issue from the aforesaid angle, which was the only method for arriving at a finding as to whether the railway tracks installed within the plant would come within the definition of capital goods under Rule 57Q of the Rules or not. The order of the CEGAT is stoically silent. It has affirmed the order of the Commissioner by simply observing that the Commissioner has arrived at the conclusion that these goods are not being used directly or indirectly for producing or processing the goods or for bringing about any change for the manufacture of the final product. We have already pointed out that the aforesaid conclusion of the Commissioner is not only factually incorrect and perverse but legally unsustainable as well.
### Response:
1
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336 |
Gaurav Nagpal Vs. Sumedha Nagpal
|
to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42 ; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6 ].42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Gangulis case (supra), the Court has to due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical others.43. The word ‘welfare used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.44. The trump card in appellants argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.45. The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother does not in our view suffer from any infirmity. It is true that taking the child out of the fathers custody may cause some problems, but that is bound to be neutralized.46. Learned counsel for the appellant submitted that the childs education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.47. In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.(2) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.(3) For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mothers place on such days.48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-.CRIMINAL APPEAL NO.491 OF 200649. Though we find that the order of the High Court does not suffer from any infirmity but taking into account the fact that we have dismissed the connected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Courts order and committing contempt of Court, we restrict the sentence to the period already undergone.50. Before saying omega, we propose to make some general observations. It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in short the ‘Marriage Act) has led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid. Actions may be bad, but not the Section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. As noted above, this is more important in cases where the children bear the brunt of dissolution of marriage.50. One must not lose faith in humanity. It is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty. If nothing ever went wrong in ones life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be physical and mental union. Marriage is something, Ibsen said in "The League of Youth" you have to give your whole mind to. If marriages are made in Heaven as Tennyson said in Ayloners Field, why make matrimonial home hell is a big question.
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0[ds]35. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child and not rights of the parents under a statute for the time being in force.36. The aforesaid statutory provisions came up for consideration before Courts in India in several cases. Let us deal with few decisions wherein the courts have applied the principles relating to grant of custody of minor children by taking into account their interest and well-being as paramount consideration.37. In Saraswathibai Shripad v. Shripad Vasanji, ILR 1941 Bom 455 : AIR 1941 Bom 103 ; the High Court of Bombayis not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor and the minor alone which is the paramount consideration." (emphasisIn Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840 , this Court held that object and purpose of 1890 Act is not merely physical custody of the minor but due protection of the rights of wards health, maintenance and education. The power and duty of the Court under the Act is the welfare of minor. In considering the question of welfare of minor, due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.39. Again, in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544 , this Court reiterated that the only consideration of the Court in deciding the question of custody of minor should be the welfare and interest of the minor. And it is the special duty and responsibility of the Court. Mature thinking is indeed necessary in such situation to decide what will enure to the benefit and welfare of the child.40. Merely because there is no defect in his personal care and his attachment for his children--which every normal parent has, he would not be granted custody. Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him. Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.41. In Surinder Kaur Sandhu (Smt.) v. Harbax Singh Sandhu, (1984) 3 SCC 698 , this Court held that Section 6 of the Act constitutes father as a natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42 ; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6 ].42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Gangulis case (supra), the Court has to due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical others.43. The word ‘welfare used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.44. The trump card in appellants argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.45. The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother does not in our view suffer from any infirmity. It is true that taking the child out of the fathers custody may cause some problems, but that is bound to be neutralized.46. Learnedcounsel for the appellant submitted that the childs education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.(2) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.(3) For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mothers place on such days.48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-.CRIMINAL APPEAL NO.491 OF 200649. Though we find that the order of the High Court does not suffer from any infirmity but taking into account the fact that we have dismissed the connected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Courts order and committing contempt of Court, we restrict the sentence to the period already undergone.50. Before saying omega, we propose to make some general observations. It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in short the ‘Marriage Act) has led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid. Actions may be bad, but not the Section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. As noted above, this is more important in cases where the children bear the brunt of dissolution of marriage.50. One must not lose faith in humanity. It is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty. If nothing ever went wrong in ones life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be physical and mental union. Marriage is something, Ibsen said in "The League of Youth" you have to give your whole mind to. If marriages are made in Heaven as Tennyson said in Ayloners Field, why make matrimonial home hell is a big question.
| 0 | 7,399 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
to the welfare of the minor. [See also Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw, (1987) 1 SCC 42 ; Chandrakala Menon (Mrs.) v. Vipin Menon (Capt), (1993) 2 SCC 6 ].42. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The Court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mousami Moitra Gangulis case (supra), the Court has to due weightage to the childs ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical others.43. The word ‘welfare used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.44. The trump card in appellants argument is that the child is living since long with the father. The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He can not be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.45. The conclusions arrived at and reasons indicated by the High Court to grant custody to the mother does not in our view suffer from any infirmity. It is true that taking the child out of the fathers custody may cause some problems, but that is bound to be neutralized.46. Learned counsel for the appellant submitted that the childs education is of paramount importance and the father is spending good amount of money for providing him excellent education, and the mother does not have the financial affluence as the appellant claims to have. But that can be taken care of if father is asked to pay the educational expenses of the child in addition to the maintenance being paid to the respondent. But at the same time it cannot be overlooked that the father needs to have visitation rights of the child.47. In partial modification of the order passed by the District Judge and the High Court, we direct that the visitation rights shall be in the following terms:(1) During long holidays/vacations covering more than two weeks the child will be allowed to be in the company of the father for a period of seven days.(2) The period shall be fixed by the father after due intimation to the mother who shall permit the child to go with the father for the aforesaid period.(3) For twice every month preferably on Saturday or Sunday or a festival day, mother shall allow the child to visit the father from morning to evening. Father shall take the child and leave him back at the mothers place on such days.48. The appeal is dismissed subject to aforesaid modifications. Costs fixed at Rs.25,000/-.CRIMINAL APPEAL NO.491 OF 200649. Though we find that the order of the High Court does not suffer from any infirmity but taking into account the fact that we have dismissed the connected Civil appeal relating to the custody of the child, while upholding the finding of guilt for disobeying the Courts order and committing contempt of Court, we restrict the sentence to the period already undergone.50. Before saying omega, we propose to make some general observations. It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act, 1950 (in short the ‘Marriage Act) has led to such a situation. In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid. Actions may be bad, but not the Section. The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Effort should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it. As noted above, this is more important in cases where the children bear the brunt of dissolution of marriage.50. One must not lose faith in humanity. It is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty. If nothing ever went wrong in ones life, he or she would never have a chance to grow stronger. One should never forget that today well lived makes every yesterday a dream of happiness and tomorrow a vision of hope. Marital happiness depends upon mutual trust, respect and understanding. A home should not be an arena for ego clashes and misunderstandings. There should be physical and mental union. Marriage is something, Ibsen said in "The League of Youth" you have to give your whole mind to. If marriages are made in Heaven as Tennyson said in Ayloners Field, why make matrimonial home hell is a big question.
### Response:
0
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337 |
The Commissioner Of Income Tax,Bombay Vs. The Elphinstone Spinning Andweaving Mills Ltd
|
no charge could be imposed if the proviso was inapplicable (See p. 736). The provisions of Paragraph 7 of the Schedule as amended by S. 32 of the English Finance Act, 1947 were entirely different, and the proviso to S. 34 (2) of the English Act was held applicable. The scheme of the provisions we are interpreting is entirely different. Reliance was also placed upon Rajputana Agencies Ltd. v. Commissioner of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), but we find nothing there to support the appellants case. Similarly, in (1959) 36 ITR 65 : (AIR 1959 SC 771 ), the words were held to be apt to impose a charge. It is obvious enough that unless they were so or unless the Act covered the instant cases, the tax must fail. 19. The gist of the matter is not the possibility of an arithmetical calculation as in the English case. The rate in the proviso is applicable to the total income though after the application of a simple arithmetical calculation. The total income, however, is still the total income as determined for the purpose of income-tax, and in the case of businesses, the rules require that the total income shall not include the depreciation allowance. By the application of those rules if the total income ceases to exist, the second paragraph of the proviso, as it is worded, ceases to be workable. All the four expressions to which we have referred earlier cease to have natural meaning, and the Commissioner is again driven to contend that we must delete the offending words or suitably modify them. This we are not prepared to do, because the intention might well have been not to comprehend such cases. 20. The Commissioner next contends that we may treat this as an independent charging section and give effect to it. The proviso is to Paragraph B in the First Schedule of the Finance Act, and the Schedule only imposes a rate of tax and this rate, either by itself or with rebate or with additional tax at a higher rate, has to be applied to the total income. The extra tax under the second part of the proviso, though called an additional tax, is only the difference between the tax charged at one rate and the tax subsequently chargeable at another rate. The function of the proviso is thus to prescribe varying rates for varying circumstances, and it deals with rate or rates, first and last, and not with chargeability to tax, which is the subject-matter of S. 3 of the Income-tax Act. There are no words here making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income. We are thus unable to treat the proviso as an independent charging section. In this view of the matter, no useful purpose will be served by referring to those cases noted by this Court in Commissioner of Income-tax v. Calcutta National Bank, Limited, (1959) 37 ITR 171 : (AIR 1959 SC 928 ), where a schedule which went beyond the purpose for which it was enacted was given effect to. The proviso here was framed to lay down the rates, and has done no more. 21. It remains to consider two other arguments, which were addressed to us on behalf of the Commissioner. The first pointed out an anomaly that if there was a total income of even one rupee, the proviso could be made applicable according to its terms but not if the income was nil or negative. The Commissioner contended that such an anomaly should be avoided, and that the proviso should be interpreted in such a way as to take in all the kinds of cases. Our answer to this is much the same as was given by the learned Chief Justice of the Bombay High Court. The learned Chief Justice observes :"There seems to be no logic, there seems to be no reason nor principle why a distinction should be made between the cases of two such companies. But if life is not logic, income-tax is much less so, and it is clear that we cannot impose tax upon a subject by implication or because we think that the object of the legislature was a particular object". We respectfully agree with the learned Chief Justice that though the interpretation we have placed upon the proviso might lead to some anomalies, it is for the legislature to avoid the anomalies which, according to us, spring not from our interpretation but from the language employed. 22. The second argument is that the proviso itself states that the excess dividend shall be deemed to be out of the undistributed profits of one or more years immediately preceding the previous year, and that the fiction makes the profits take the place of total income for purposes of tax. In our opinion, the fiction cannot be carried further than the purpose for which it has been put in, in the statute. The Income-tax Act creates an assessment year and a corresponding previous year. Assessment to tax in any assessment year can only be in respect of the profits of the immediately preceding previous year. All that the fiction does is to bring profits of back years into the immediately preceding previous years, so that the requirements of the Income-tax Law may be complied with. As we have already stated, this fiction cannot be carried further than what it is intended for; it cannot be used to make these profits take the place of total income, which did not exist in the previous year and to which the rate is to be applied under the terms of the proviso. 23. We do not accept both the arguments, and agree with the High Court in the answer given to the first question. As pointed out by the High Court, the second question does not survive, after the first question is answered against the Department.
|
0[ds]If the section was there, its meaning could be taken from the words used there and not from a description of what it enacted, put parenthetically in another statute. The case cited is hardly in point14. There is no doubt that if the words of a taxing statute fail, then so must the tax. The Courts cannot, except rarely and in clear cases, help the draftsmen by a favourable construction. Here, the difficulty is not one of inaccurate language only. It is really this that a very large number of taxpayers are within the words but some of them are not. Whether the enactment might fail in the former case on some other ground (as has happened in another case decided today) is not a matter we are dealing with at the moment. It is sufficient to say here that the words do not take in the modifications which the learned counsel for the appellant suggests. The word additional in the expression additional income-tax must refer to a state of affairs in which there has been a tax before. The words charge on the total income are not appropriate to describe a case in which there is no income or there is loss. The same is the case with the expression profits liable to tax. The last expression dividends payable out of such profits can only apply when there are profits and not when there are no profits15. It is clear that the legislature had in mind the case of persons paying dividends beyond a reasonable portion of their income. A rebate was intended to be given to those who kept within the limit and an enhanced rate was to be imposed on those who exceeded it. The law was calculated to reach those persons who did the latter even if they resorted to the device of keeping profits back in one year to earn rebate to pay out the same profits in the next. For this purpose, the profits of the earlier years were deemed to be profits of the succeeding years. So far so good. But the legislature failed to fit in the law in the scheme of the Indian Income-tax Act under which and to effectuate which the Finance Act is passed. The legislature used language appropriate to income, and applied the rate to the total income. Obviously, therefore, the law must fail in those cases where there is no total income at all, and the Courts cannot be invited to supply the omission made by the legislature16. It is quite possible that the legislature did not contemplate the imposition of tax in circumstances such as these, and we are not prepared to read the proviso without the words on the total income or after modifying this and other expressions. The High Court has given adequate reasons to show that these words are quite inappropriate, where the total income, if it can be described as income at all, is a loss. The imposition of the additional income-tax is conditioned by the existence of income and profits, to the total of which income the rate is made applicable. Unless some other amount, not strictly income, is by law deemed to be income (see for example McGregor and Balfour Ltd. v. Commr. of Income-tax, (1959) 36 ITR 65 : (AIR 1959 SC 771 ), we cannot improve the existing law by deeming it to be so by our interpretationThis argument has a familiar ring. It is really that "you can have more than nothing"These passages were used in the other case decided today, in which there were no profits of the previous years. There is, however, this difficulty that there the tax was laid on the net relevant distribution, and it was conceded that no charge could be imposed if the proviso was inapplicable (See p. 736). The provisions of Paragraph 7 of the Schedule as amended by S. 32 of the English Finance Act, 1947 were entirely different, and the proviso to S. 34 (2) of the English Act was held applicable. The scheme of the provisions we are interpreting is entirely different. Reliance was also placed upon Rajputana Agencies Ltd. v. Commissioner of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), but we find nothing there to support the appellants case. Similarly, in (1959) 36 ITR 65 : (AIR 1959 SC 771 ), the words were held to be apt to impose a charge. It is obvious enough that unless they were so or unless the Act covered the instant cases, the tax must fail19. The gist of the matter is not the possibility of an arithmetical calculation as in the English case. The rate in the proviso is applicable to the total income though after the application of a simple arithmetical calculation. The total income, however, is still the total income as determined for the purpose of income-tax, and in the case of businesses, the rules require that the total income shall not include the depreciation allowance. By the application of those rules if the total income ceases to exist, the second paragraph of the proviso, as it is worded, ceases to be workable. All the four expressions to which we have referred earlier cease to have natural meaning, and the Commissioner is again driven to contend that we must delete the offending words or suitably modify them. This we are not prepared to do, because the intention might well have been not to comprehend such casesThere are no words here making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income. We are thus unable to treat the proviso as an independent charging section. In this view of the matter, no useful purpose will be served by referring to those cases noted by this Court in Commissioner of Income-tax v. Calcutta National Bank, Limited, (1959) 37 ITR 171 : (AIR 1959 SC 928 ), where a schedule which went beyond the purpose for which it was enacted was given effect to. The proviso here was framed to lay down the rates, and has done no moreOur answer to this is much the same as was given by the learned Chief Justice of the Bombay High Court. The learned Chief Justice observes :"There seems to be no logic, there seems to be no reason nor principle why a distinction should be made between the cases of two such companies. But if life is not logic, income-tax is much less so, and it is clear that we cannot impose tax upon a subject by implication or because we think that the object of the legislature was a particular object"We respectfully agree with the learned Chief Justice that though the interpretation we have placed upon the proviso might lead to some anomalies, it is for the legislature to avoid the anomalies which, according to us, spring not from our interpretation but from the language employedIn our opinion, the fiction cannot be carried further than the purpose for which it has been put in, in the statute. The Income-tax Act creates an assessment year and a corresponding previous year. Assessment to tax in any assessment year can only be in respect of the profits of the immediately preceding previous year. All that the fiction does is to bring profits of back years into the immediately preceding previous years, so that the requirements of the Income-tax Law may be complied with. As we have already stated, this fiction cannot be carried further than what it is intended for; it cannot be used to make these profits take the place of total income, which did not exist in the previous year and to which the rate is to be applied under the terms of the proviso23. We do not accept both the arguments, and agree with the High Court in the answer given to the first question. As pointed out by the High Court, the second question does not survive, after the first question is answered against the Department.
| 0 | 5,377 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
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no charge could be imposed if the proviso was inapplicable (See p. 736). The provisions of Paragraph 7 of the Schedule as amended by S. 32 of the English Finance Act, 1947 were entirely different, and the proviso to S. 34 (2) of the English Act was held applicable. The scheme of the provisions we are interpreting is entirely different. Reliance was also placed upon Rajputana Agencies Ltd. v. Commissioner of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), but we find nothing there to support the appellants case. Similarly, in (1959) 36 ITR 65 : (AIR 1959 SC 771 ), the words were held to be apt to impose a charge. It is obvious enough that unless they were so or unless the Act covered the instant cases, the tax must fail. 19. The gist of the matter is not the possibility of an arithmetical calculation as in the English case. The rate in the proviso is applicable to the total income though after the application of a simple arithmetical calculation. The total income, however, is still the total income as determined for the purpose of income-tax, and in the case of businesses, the rules require that the total income shall not include the depreciation allowance. By the application of those rules if the total income ceases to exist, the second paragraph of the proviso, as it is worded, ceases to be workable. All the four expressions to which we have referred earlier cease to have natural meaning, and the Commissioner is again driven to contend that we must delete the offending words or suitably modify them. This we are not prepared to do, because the intention might well have been not to comprehend such cases. 20. The Commissioner next contends that we may treat this as an independent charging section and give effect to it. The proviso is to Paragraph B in the First Schedule of the Finance Act, and the Schedule only imposes a rate of tax and this rate, either by itself or with rebate or with additional tax at a higher rate, has to be applied to the total income. The extra tax under the second part of the proviso, though called an additional tax, is only the difference between the tax charged at one rate and the tax subsequently chargeable at another rate. The function of the proviso is thus to prescribe varying rates for varying circumstances, and it deals with rate or rates, first and last, and not with chargeability to tax, which is the subject-matter of S. 3 of the Income-tax Act. There are no words here making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income. We are thus unable to treat the proviso as an independent charging section. In this view of the matter, no useful purpose will be served by referring to those cases noted by this Court in Commissioner of Income-tax v. Calcutta National Bank, Limited, (1959) 37 ITR 171 : (AIR 1959 SC 928 ), where a schedule which went beyond the purpose for which it was enacted was given effect to. The proviso here was framed to lay down the rates, and has done no more. 21. It remains to consider two other arguments, which were addressed to us on behalf of the Commissioner. The first pointed out an anomaly that if there was a total income of even one rupee, the proviso could be made applicable according to its terms but not if the income was nil or negative. The Commissioner contended that such an anomaly should be avoided, and that the proviso should be interpreted in such a way as to take in all the kinds of cases. Our answer to this is much the same as was given by the learned Chief Justice of the Bombay High Court. The learned Chief Justice observes :"There seems to be no logic, there seems to be no reason nor principle why a distinction should be made between the cases of two such companies. But if life is not logic, income-tax is much less so, and it is clear that we cannot impose tax upon a subject by implication or because we think that the object of the legislature was a particular object". We respectfully agree with the learned Chief Justice that though the interpretation we have placed upon the proviso might lead to some anomalies, it is for the legislature to avoid the anomalies which, according to us, spring not from our interpretation but from the language employed. 22. The second argument is that the proviso itself states that the excess dividend shall be deemed to be out of the undistributed profits of one or more years immediately preceding the previous year, and that the fiction makes the profits take the place of total income for purposes of tax. In our opinion, the fiction cannot be carried further than the purpose for which it has been put in, in the statute. The Income-tax Act creates an assessment year and a corresponding previous year. Assessment to tax in any assessment year can only be in respect of the profits of the immediately preceding previous year. All that the fiction does is to bring profits of back years into the immediately preceding previous years, so that the requirements of the Income-tax Law may be complied with. As we have already stated, this fiction cannot be carried further than what it is intended for; it cannot be used to make these profits take the place of total income, which did not exist in the previous year and to which the rate is to be applied under the terms of the proviso. 23. We do not accept both the arguments, and agree with the High Court in the answer given to the first question. As pointed out by the High Court, the second question does not survive, after the first question is answered against the Department.
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Printers House Pvt. Ltd Vs. Saiyadan
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evidence adduced in the case as to what was the actual value attributable to the working tube-well in the land and the electric connections. Here some amount of guesswork becomes inevitable to find the value of the working tube-well or its electrical connections. We feel that their value could be safely put at Rs 10, 000. If that be so the value of 8 kanals of land sold under the sale-deed, becomes Rs 30, 000. As the sale in the instant case had come into existence after about a month after publication of the preliminary notification in respect of the acquired land with which we are concerned, we may make a deduction of Rs 2000 out of Rs 30, 00 0 for the increased value due to earlier acquisition of the adjoining land and the time elapsed. Thus, the market value of the 8 kanals of land could be fixed at Rs 28, 000, i.e., Rs 3500 per kanal with reference to the date of publication of preliminary notification. In our view, this rate of Rs 3500 per kanal could be given for the plot of 8 kanals 6 marlas of Mst Saiyadan and plot of 9 kanals 2 marlas of M/s Cold Storage &Food Products, i.e., Group (1) lands. 42. Insofar as the triangular plot of 6 kanals 15 marlas of land of M/s Cold Storage and Food Products covered in Group (2) above, only its comer point touches the Delhi-Mathura Grand Trunk Road. Hence, it cannot stand on par with the plots covered by Group (1) lands above facing G.T. Road to a width of 40 yards or 43 yards. We feel that the value of this land could be fixed at about 3/4th the value of the plot of lands covered by Group (1) above by making deduction of 1/4th value because of minus factors of being triangular in shape and only a corner point of triangular plot alone facing G.T. Road. We accordingly determine the market value of the triangular plot of 6 kanals 15 marlas of land owned by M/s Cold Storage &Food Products covered by Group (2) at Rs 2625 per kanal. 43. Then comes plot of 73 kanals 2 marlas of land of Masjid of Village Ranhera and plot of kanal and 19 marlas of land of Mst Saiyadan, falling under Group (3) above. Though these are two plots of lands, we can consider the market value of the plot of 73 kanals and 2 marlas of land, for the market value fixed for it could hold good in respect of an insignificant extent of 1 kanal 19 marlas in the Group. If 73 kanals 2 marlas was to be sold in the market, it could not have fetched the same price as those Group (1) lands as on the date of the publication of the preliminary notification. The reasons are obvious: (i) That its location lies beyond industrial plots facing Delhi-Mathura Grand Trunk Road covered in Group (1) lands which are proper and suitable for setting up medium scale of industries. (ii) That it has no access to either G.T. Road or any other road. (iii) That its extent being as large as 3 kanals 2 marlas it will involve loss of land for roads and expenditure in turning them into industrial plots of the size i n Group (1) lands. (iv) That it would involve also considerable cost in purchasing valuable land for making a road to reach the G.T. Road. 44. The said minus factors, if are taken into account, necessarily they reduce the value of the land considerably and on a rough estimate its reduced value could be put at three-fifth value fixed by us for plots of lands in Group (1). Therefore, it would be safe and reasonable to determine the market value of this land of 73 kanals 2 marlas of land at Rs 2100 per kanal, in that, rate could also be regarded to be a reasonable wholesale price of the large extent of land. The same rate could be adopted for fixing the value o f kanal 19 marlas of land since it falls in Groups (3) lands above, and the minus factors appertaining to it cannot be any the less, as compared with the other land of 73 kanals 2 marlas in that Group. 45. However, we make it clear that the principles of valuation enunciated hereinbefore are not intended to be exhaustive but are meant to serve as merely guidelines. 46. Thus, we determine the market value of the acquired plots of land of an extent of 8 kanals 6 marlas (502 0.50 sq. yds.) facing Delhi-Mathura G.T. Road, falling in Group (1), which was owned by Mst Saiyadan at the rate of Rs 3500 per kanal (Rs 5.79 per sq. yd.); of the acquired plot of land of an extent of 1 kanal 19 marlas (1179.75 sq. yds.) without acc ess to Delhi-Mathura Road, [falling in Group (3)] which was owned by Mst Saiyadan at the rate of Rs 2100 per kanal (Rs 3.47 per sq. yd.); of the acquired plot of land of an extent of 9 kanals 2 marlas (5505.50 sq. yds.) facing Delhi- Mathura Grand Trunk Road, [failing in Group (1)], which was owned by M/s Cold Storage and Food Products at the rate of Rs 3500 per kanal (Rs 5.79 per sq. yd.); of the acquired triangular plot of land of an extent of 6 kanals 15 marlas (4083.75 sq. yds.), its conical point alone facing Delhi- Mathura Grand Trunk Road [falling in Group (2)] which was owned by M/s Cold Storage and Food Products at the rate of Rs 2 625 per kanal (Rs 4.35 per sq. yd.); and of 73 kanals 2 marlas (44, 225.50 sq. yds.) situated aw ay from Delhi-Mathura Grand Trunk Road with no a ccess to it [falling in Group (3)] which was owned by Masjid of Village Ranhera at the rate of Rs 2100 per kanal (Rs 3.47 per sq. yd.).
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0[ds]6.If the amount of compensation awardable for the lands acquired under the Act is required to be determined by a civil court, such amount of compensation has to be determined by taking into consideration the market value of the lands on the date of publication in Government Gazette, of the preliminary notification under sub-section (1) of Section 4 of the Act, as is envisaged under the first clause of sub-section (1) of Section 23 of the Act admits of no controversy. Such market value of the acquired land which has to be determined by the courts ought to be the price which a willing vendor of the land might reasonably expect to obtain from a willing purchaser, has been a well accepted principl e of valuation of acquired lands, ever since that principle was expounded by the Privy Council in the case of Vyricherala Narayana Gajapatiraju Bahadur Garu v. Revenue Divisional Officer, Vizagapatnam1 known as Chemudu case. In fact, this Court has approved the correctness of that principle by stating that the market value means the price that a willing purchaser would pay to the willing seller for a property, having due regard to its existing condition, with all its existing advan tages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired vide: Raghubans Narain Singh v. U.P. GoVt.2, Prithvi Raj Taneja v. State of M.P.37.Where there is evidence of sales or awards of land(s), which could be compared with the acquired land(s), the Court, as a matter of course, adopts the Comparable Sales Method of valuation of land, in preference to other recognised methods of valuation of lands, such as Capitalisation of Net Income Method or Expert Opinion Method for determining the market value of the acquired land(s). Comparable Sales Method is the most favored method, since the prices paid within a reasonable time in bona fide transactions of purchase or sale of the very acquired land or a portion thereof, or of the lands adjacent to those acquired and possessing similar advantages, could furnish to the court the price basis for determination of the market value of the acquired land, in that, there can be no better evidence of w hat the willing purchaser would pay for the acquired land if it had been sold in the open market at the time of publication of preliminary notification. Evidence of prices fetched by sales of lands similar to the acquired land will be taken by the Court to be the price which a willing purchaser would have paid for the acquired land, if the same had been sold to him in the open market. However, if the price under comparable sale is to be taken by the Court, as furnishing the price basis for determination of the market value of the acquired land, the comparable sale must, firstly be genuine, secondly it must have taken place at a time proximate to the date of publication of the preliminary notification under Section 4(1) of the Act, thirdly the land sold under the sale must be similar to the acquired land, and fourthly the land sold under the sale must be in the vicinity of the acquired land. It has, therefore, to be noted that the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favorably with the acquired land, pi-ice fetched in comparable sale cannot furnish the price basis for determining, the market value of the acquired land. However, if any differing feature or factor in a land covered by comparable sale admits of adjustment in terms of money, depending on whether it is plus factor or minus factor, the market value of the acquired land is determined either by increasing its price or decreasing its price vis-a-vis the price fetched for land under comparable sale.What applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the market value of the land, cannot be disputed. Thus, the best evidence for determining the market value of the acquired land could be an authentic transaction of sale relating to the very acquired land or a portion thereof or any other land which could be favorably compared with the acquired land. The same would be the position when the available evidence relates to land covered by a previous award8.If Comparable Sales Method of valuation of land is adopted for determining the market value of an acquired plot of land, it generally holds good for determination of the market value of several acquired plots of land if acquisition of all such plots of land is made pursuant to the same preliminary notification. But, if any of the factors, such as, location, shape, size, potentiality or tenure of one plot of acquired land widely differs from the other plot(s) of acquired land(s), then the market value of each plot of land acquired has to be determined independently of the other(s) even if all of them had been acquired pursuant to the same preliminary notification. The reason is not far to seek since the differential factors relating to different acquired plots greatly affect their value. Hence, if any salient factor of different acquired plots of land, which greatly affects their value is ignored or is not taken into consideration by the court while determining the marketvalue of acquired lands, it will have failed to apply the correct principle of valuation adoptable in valuation of different types of acquired lands9.Whether the High Court has, in valuing several plots of acquired lands with differing salient f actors, ignored the aforesaid principle of valuation of such acquired lands is the point which needs our consideration now. That the locations, sizes and shapes of the several acquired plots of land, the market value of which had to be determined by the High Court, were not at all comparable, becomes apparent from its judgments. The concurring judgment of Mr Justice Bhopinder Singh Dhillon, shows that several acquired plots of land with the market value of which he was concerned were different, for he states that:"Another relevant question, which has to be considered is whether the entire block of the acquired land could be assessed at a flat rate or there is justification for assessing at a flat rate or there is justification for assessing the market value by dividing the land into blocks." *10.But the learned Judge proceeded to value the different plots of acquired lands, a s a compact block on his view that all the plots of acquired lands even if treated as a single block, would be smaller in size than some of the instances of sales with which it had to be compared. In so proceeding to value the different plots of acquired lands, the learned Judge overlooked the important aspect that there were in reality five different types of plots of acquired lands belonging to three different persons and the unit rate which each of the owners (claimants) could have by sale of their- respective plots in the open market, could not have been the same, for the features (factors), i.e., advantages and disadvantages, possessed by each plot varied greatly11.Mst Saiyadan (Appellant in C.A. No. 946 of 1977), Masjid of Village Ranhera (Appellant in C.A. No. 947 of 1977) and M/s Cold Storage &Food Products (Appellant in C.A. No. 948 of 1977) are the owners of the several acquired plots of land aggregating to 99 kanals and 4 marlas. Relying upon the evide nce of CW 1, Dyal Dass Patwari, Halqua Ballabgarh, who was called as court witness to speak to the exact location of tile acquired plots of lands with reference to a plan prepared by him, S.S. Sandhawalia, J. has referred to the fact situation in his judgment, thus:"No serious challenge is posed to the correctness of the plan, C. I prepared from the official records and this would show that an area of 8 kanals, 6 marlas belon ging to Mst Saiyadan, landowner abuts on the Delhi-Mathura road with a frontage of nearly 23 karems or 44 yards thereon. The southern block of the land of Messrs Cold Storage and Food Products measuring 9 kanals and 2 marlas is in an identical situation because it adjoins the G.T. Road with a frontage of nearly 40 yards.In sharp contrast thereto, however, is the situation of the land of the third claimant the Masjid of Village Ranhera. This area of 73 kanals and 2 marlas is completely locked on all sides and has no direct ingress to the G.T. Road above mentioned. Indeed CW 1, Dyal Das deposed that the distance of the Masjid Ranhera is about 100 to 105 yards from the main road and no portion thereof adjoins the highway. Similarly, a small portion of Mst Saiyadans land comprising kanal and 19 marlas is situated equally away from the road and thus falls in the same class as the Masjid land. The identical situation exists as regards the northern portion comprising an area of 6 kanals 15 marlas belonging to Messrs Cold Storage and Food Products which also has no proper access to the road and an insignificant corner thereof merely touches the same. This area is also irregular in shape and in no way superior to the land belonging to the Masjid."12.The fact situation as to the location, size and shape of the acquired plots of lands referred to as above by Sandhawalia, J. is unassailable for it is based on the unrebutted evidence of court witness, CW 1. If that be so, two learned Judges of the High Court, by their judgments under appeals could not have proceeded to determine the market value of almost all the plots of the acquired lands which varied greatly in situation (location), shape and size, at a uniform rate per unit measure of land13.Thus, when the evidence in the case clearly established that the different plots of lands of three claimants acquired, varied greatly as to their sizes, shapes and location (situation) they could not have fetched a uniform rate, i f the same had been sold in the open market by each of the claimants. That being the correct position, two learned Judges of the High Court did err on a principle of valuation applicable to valuation of different types of acquired land, when they by their judgments under present appeals determined the market value of almost all the acquired plots of lands at a uniform rate, on the wrong assumption that all the five plots of acquired lands would have fetched the same rate if sold in the open market. Point 2:14.This point relates to making the choice of sales when market value of the acquired land has to be determined by Comparable Sales Method. If a land sold under a sale deed is comparable with the acquired land, then the courts will have, ordinarily, recourse to Comparable Sales Method of valuation to determine the market value of the acquired land, cannot be doubted. What is done under the Comparable Sales Method of valuation of land is to find out the price fetched for sale of land under the sale deed claimed to be comparable sale and take that price as that which the acquired land would have fetched, if its sale had been effected in the open market and determine the market value of the acquired land accordingly. The Comparable Sales Method of Valuation of land is preferred to other known methods of valuation of land since the variety of factors appertaining to the land, which require adjustment by the court (valuer) in determining the market value of the acquired land, would be the least. Where, however, certain factors appertaining to the land in a comparable sale have to be adjusted, it is done by varying the price of the land covered by the sale, i.e., by adding certain amount to the price fetched for the land sold or by deducting a certain amount in such price, depending on the nature of the factor concerned being a plus factor or a minus factorWhatever it be, the genuineness or authenticity of the sale is a factor which permits ]lo adjustment in price15.As the price fetched under a genuine sale-deed could form the basis for determining the market value of the acquired land, the market value determined by an award made under the Act for an earlier acquired land, by either the Land Acquisition Officer or the court could also form the basis for determining the market value of subsequently acquired land16.If the comparable sales or previous awards are more than on e, whether the average price fetched by all the comparable sales should form the price basis for determination of the market value of the acquired land or the price fetched by the nearest or closest of the comparable sales should alone form the price basis for determination of the market value of the acquired land, being the real point requiring our consideration here, we shall deal with it. When several sale-deeds or previous awards are produced in court as evidence of comparable sales, court has to necessarily examine every sale or award to find out as to what is the land which is the subject of sale or award and as to what is the price fetched by its sale or by the award made therefore17.If the sale is found to be a genuine one or the award is an accepted one, and the sale or award pertains to land which wits sold or acquired at about the time of publication of preliminary notification under the Act in respect of the acquired land, the market value of which has to be determined, the court has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by court of the size, shape, tenure, potentiality etc. of the land. Keeping in view the various factors marked or noticed respecting the land covered by the sale or award, as the case may be, presence or absence of such factors, degree of presence or degree of absence of such f actors in the acquired land the market value of which has to be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land tinder the sale or the market value determined for the land in the award could be taken by the court as the price basis for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the price basis to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different price basis. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the price basis on which the market value of the acquired land could be determined. It is so, for the obvious reason that such price basis may vary largely depending even on comparable sales or awards. Moreover, price basis got by averaging comparable sales or awards which are not of the same kind, cannot be correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in number, are not similar, in that, their location, size, shape vary greatly.One plot of land of one claimant and another plot of another claimant appear to be of one type. Another plot of land of one of them appears to be of a different type. Yet another plot of the second of them appears to be different. Insofar as third claimants plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of the claimants were to sell her/his respective plots of land in the open market , it is impossible to think that they would have got a uniform rate for their lands. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land the market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration18.In the judgments of learned Judges of the High Court, which are under appeals, what is taken as the basis for determining the market value of t he acquired plots of lands of the three claimants is to take the average of prices fetched by several sale-deeds and awards relating to different types of lands and determine the market value of the acquired plots of land accordingly. The relevant passage. in the concurring judgment of Dhillon, J. which needs to be seen in the context reads:"While assessing the market value of the acquired land as compared to the instances of sale or acquisition which furnish guideline for assessing the market value, the sizes of the plots of land, subject-matter of sale or acquisition, which have been found to be relevant, and their location has to be compared with the acquired land. It would be noticed that the land of Nawal Singh measured 8 kanals only but it is similarly situate as the acquired land. However, this being a small plot, the value of this plot also goes (sic) quite deep towards the railway lines and its depth is a little less than the acquired land. However, this being a small plot, value of this plot is bound to be higher than the acquired land which is quite a big chunk of land. The land purchased by the Globe Motors measures 99 kanals and 4 marlas. The area is thus more or less the same as that of the acquired land. As regards the location, its frontage does not touch the G.T. Road but touches the Ballabhgarh Road. The situation of this plot cannot be termed in any way better than the acquired land. The area acquired for the Gurgaon canal is with a very little width and quite a good length, and, therefore, it cannot be compared with the acquired land in the sense of its dimensions. The land sold by Shaha-bu-din (AW 18) measuring 6 kanals, for Rs 4000 is again a small area. It would thus be seen that out of five instances, which have been found to be useful for arriving at the market value of the acquired land, three instances are of small plots whereas two are of big plots. Itwould thus be appropriate to draw the average and work out the price per square yard on the basis of the said transactions which comes to Rs 4.60 per sq. yard. But some reduction has to be made on account of the acquired land being low lying. It would appear appropriate that the deduction of Rs 1.60 per square yard be made from the average price as the entire land is 6 or 7 feet below the road. The land falling in Killa No. 14 Rectangle No. 11, has been proved to be a Jauhar. The market value of Killa No. 14 which is a Jauhar, awarded by the learned Additional District Judge, appears to be a fair compensation. Therefore, Rs 3 per sq. yard would be a reasonable price of the acquired land except the land falling in Killa No. 14 Rectangle No. 11."19.The comparable sales and awards which are made the basis for findingaverage price of lands covered by them by Gujral, J. with whose judgmentDhillon, J. has concurred are five in number and are these:"Description of Area Total price Approximate price land per sq. yard. 1 . Sale by Nawal 6 kanals Rs 40, 000 Rs 10 Singh (Mutation No. 63) 2. Land purchased by 100 kanals Rs 2, 84, 000 Rs 5.50 (Only the Globe Motors (Ex. amount paid before A.W. 14/1) the Sub-Registrar is accepted as the price) 3. Land acquired for Assessed b y the Spun Pipe Factory Land Acquisition Collector at Rs 4 per sq. yard. 4. Land acquired for The portion situated the Gurgaon canal between G.T. Road (on 20.09.60 vide and railway line P-26) assessed by the Land Acquisition Collector at Rs 3.25 per sq. yard. 5. Sale by Shah-bu- 6 kanals Rs 4000 Rs 1.33"din dated August 11, 1959 (Ex. R-8) The relevant sentence in his judgment which needs to be seen in the context reads:"I am clearly of the view that the average price worked out on the basis of the five transactions mentioned above would fairly represent the market value of the land in the vicinity of the acquired land on the relevant date." *20. When the rate per sq. yard of land in the said 5 instances relied upon by the learned Judge for averaging the price, showed the highest rate in an instance was Rs 10 per sq. yd. and the lowest rate i n another instance was Rs 1.33 p., he should have seen that averaging of prices could bring about unrealistic results. For instance, if the sale in Item 5 related to 600 kanals of land instead of 6 kanals of land, the average price of all transacti ons could be even below Rs 221. The determination of market value of the acquired plots of lands made by the High Court on average price basis, therefore, is incorrect, in that, it overlooks the important principle of valuation that the market value of the acquired land when is determined by adoption of the Comparable Sales Method the same has to be done with reference to the price fetched in a sale or market value given in an award, as the case may be, of a land which is closest or nearest to the acquired land and not with reference to average price fetched by several comparable sale deeds or awards, of different types of lands. Point 3:22. Both the learned Judges (Gujral, J. and Dhillon, J.) who rendered their judgments under appeals, as is pointed out by us, in dealing with Points 1 and 2, have failed to determine the market value of the acquired lands by applying the warranted two principles of valuation of land the first of them being that where the acquired plots of land belong to different persons and do not have similar features they should not be treated as a single unit for awarding a uniform rate of market value and the second of them being that where there are several comparable sales or awards produced for determining the market value of the acquired plots of land by Comparable Sales Method of valuation, it is not the average price reflected in such comparable sales or awards which should form the price basis but it is the price reflected in the sale or award pertaining to a land closest or nearest to the acquired land, in all its features. As could be seen from their judgments, an obvious mistake is committed in determining the market value of acquired lands possessed of dissimilar features by applying the unwarranted principle of valuation adaptable in valuation of agricultural lands in a large tract of acquired agricultural land or vast extent of non-agricultural land or long strip of agricultural or n on-agricultural acquired land comprised of several plots of similar lands on the basis of price fetched by a comparable sale of a similar plot of land or amount awarded in a comparable award for a plot of acquired land. Consequently, the market value of the acquired plots of lands with dissimilar features, determined by the two learned Judges of the High Court in their judgments under appeals become unsustainable. This situation, should have, in the normal course, led us to make an order setting aside the judgments under appeals and remitting the cases to the High Court for their fresh disposal by application of the appropriate principles of valuation relating to valuation of dissimilar plots of lands, although such plots adjoining each other were acquired pursuant to a common preliminary 1otification and for a common purpose. But the period of 32 years during which the parties are in litigation has made us feel that we should ourselves decide the matter finally and save the parties from the agony of further litigation23. In the judgment of Sandhawalia, J. we find reference to Ex. I plan prepared from the official records by CW 1 Dyal Das Patwari and his evidence, where the acquired lands, the market value of which is to be determined by us, are described in detail thus:"... This (Ex. C-1) would show that an area of 8 kanals 6 marlas belonging to Mst Saiyadan, landowner abu ts on the Delhi-Mathura road with a frontage of nearly 28 karems or 44 yards thereon. The southern block of the land of Messrs Cold Storage and Food Products measuring 9 kanals and 2 marlas is in an identical situation because it adjoins the G.T. Road with a frontage of nearly 40 yardsIn sharp contrast thereto, however, is the situation of the land of the third claimant the Masjid of Village Ranhera. This area of 73 kanals and 2 marlas is completely locked on all sides and has no direct ingress to the G.T. Road above mentioned. Indeed CW 1, Dyal Das deposed that the distance of the Masjid Ranhera is about 100 to 105 yards from the main road and no portion thereof adjoins the highway. Similarly, a small portion of Mst Saiyadans land comprising 1 kanal and 19 marlas is situated equally away from the road and thus falls in the same class as Masjid land. The identical situation exists as regards the northern portion comprising an area of 6 kanals 15 marlas belonging to Messrs Cold Storage and Food Products which also has no proper access to the road and an insignificant corner thereof merely touches the same. This area is also irregular in shape and in no way superior to the land belonging to the Masjid." *24. In the judgment of Gujral, J. with which judgment Dhillon, J. has agreed, reference to acquired plots of land is made thus:"The acquired land measuring 99 kanals 4 marlas belongs to three different landowners, namely, (1) Mst Saiyadan widow of Jamal-ud- din, (2) Messrs Cold Storage and Food Products and (3) Masjid of Village Ranhera. The entire land is situated between the Grand Trunk Road, leading from Delhi to Mathura and the railway line connecting these two stations. A substantial part of the land of Mst Saidyadan is situated on the Grand Trunk Road while only a small portion is at the other end next to the railway line. As regards the land of Messrs Cold Storage and Food Products, it is all situated oil the G.T. Road but is in two pans flanking the plot of Mst Saiyadan. The main plot which is on the south has a good frontage on the G.T. Road but the plot on the north has hardly any frontage and is only accessible to the G.T. Road through a small passage. So far as the land of Masjid is concerned, it is in one block, behind the main plot of Mst Saidyadan and the two plots of the Cold Storage and extends up to the railway line." *25. That plots of lands, the market value of which have to be determined by us are correctly described in the above judgments of learned judges of the High Court with reference to their location (situation) vis-a-vis Delhi-Mathura Road (Grand Trunk Road) has been, in fact, endorsed by learned counsel for opposing parties in their respective written submissions filed in this Court. Hence it follows:(a) That the two acquired plots of lands of Mst Saiyadan for which market value has to be determined by us are: (i) 8 kanals 6 marlas (about 105 yards by 44 yards) of land which abuts Delhi-Mathura Grand Trunk Road and has a frontage of 44 yards to that G.T. Road. (ii) 1 kanal 19 marlas of land far away from the Delhi-Mathura Grand Trunk Road with no access to that G.T. Road(b) That the two acquired plots of lands of M/s Cold Storage and Food Products for which the market value has to be determined by us are:(i) 9 kanals 2 marlas (about 105 yards by 40 yards) of land which abuts Delhi-Mathura Grand Trunk Road and has a frontage of 40 yards to that G.T. Road(ii) 6 kanals 15 marlas of triangular land, adjoining the land at a(i) but only corner point of the triangular land abutting Delhi- Mathura Grand Trunk Road(c) That the acquired plot of land of the Masjid of Village Ranhera for which the market value has to be determined by us is:(i) 73 kanals 2 marlas of land situated beyond the acquired lands of Mst Saiyadan and M/s Cold Storage and Food Products land locked with noaccess to Delhi-Mathura Grand Trunk Road26. Having regard to the common features of the acquired plots of lands as to their location, size and shape, they could be grouped thus for the purpose of determining their market value:Group (1) a(i) Rectangular plot of 8 kanals 6 marlas of Mst Saiyadan.b(i) Rectangular plot of 9 kanals 2 marlas of M/s Cold Storage and Food ProductsGroup (2) b(ii)T riangular shaped plot of 6 kanals 15 marlas of M/s Cold Storage and Food ProductsGroup (3) c 73 kanals 2 marlas of land of Masjid of Village Ranheraa(ii) 1 kanal and 19 marlas of Mst Saiyadan27. It is not disputed that the acquired lands were located in Ballabhgarh industrial and commercial area and several lands in that area had been acquired for industrial or commercial purposes a year or two earlier to the date of publication of the preliminary notification in respect of the acquired lands under consideration. The evidence in the case shows that the acquired lands while had been located on one side of Delhi-Mathura Grand Trunk Road, where several industries had either been set up or were being set up, there were on the other side of that Road, General Hospital, public park and public offices of the town of Ballabhgarh. It cannot, therefore, be disputed that the acquired lands had the potentiality for their user for industrial or commercial purposes30. To begin with we have to find out which land covered by which saledeed could be said to closely or nearly comparable with one or the other group of acquired plots of lands of the three claimants. Such examination is indispensable since the question of making the price fetched under one or the other of the comparable sales, as the price basis for determining the market value of the acquired l ands would not be possible without knowing whether the land sold under the sale compared, is closer or nearer to the acquired land in its features31. Ex. A.W. 14/1 is the registration copy of the sale-deed dated September 18, 1960. The land sold the render measures 99 kanals 4 marlas of agricultural land and it is of Bisbedari Estate of Ballabhgarh. The registration copy, when seen, no doubt says that the land sold under the deed is situated within the boundary of Village Ballabhgarh, but does not say in which part of the area of the village the land finds its place. Boundaries of the land sold are not mentioned. This land has been sold by Smt Dewan Kaur and others in favour of M/s Globe Motors Pvt. Ltd., for a consideration of Rs 4, 00, 000 as mentioned in the sale-deed. Neither the vendors nor anyone on behalf of the vendee under the sale-deed is examined to show where exactly the land sold under the sale-deed lies within the boundaries of Village Ballabhgar h. AW 14, Ami Ram, said to be the attesting witness of this sale-deed, has given evidence in the case on behalf of the claimants. He also does not say anything about the exact location of the land sold under the deed, except stating that the land sold by Smt Dewan Kaur adjoins the land of Nawal Singh. No doubt in the Map produced as Ex. A.W. 4/1, an area therein shaded in orange color is mentioned as Globe Factory but that land is found on the map at a distant place from that of the land of Nawal Singh and belies the statement of Ami Ram in respect to its location. Moreover, from the said map, it is seen that the said land neither abuts the DelhiMathura Grand Trunk Road nor is in the vicinity of the acquired lands. It w as argued on behalf of the claimants that the aforesaid land covered by the sale-deed since does not abut the Delhi-Mathura Grand Trunk Road, the market value of the acquired lands which abut the Delhi-Mathura Grand Trunk Road should be regarded as that of higher value as compared with the land covered by the sale-deed. When certain facts are shown to exist, certain amount of guess would, no doubt, be there in drawing inferences while determining the market value of land in acquisition cases. For instance, if the land sold to Globe Factory was shown to adjoin the acquired land or shown to have been situated in the closer vicinity of the acquired land, it was possible to say that the value fetched by land sold to Globe Factory would bear on the value to be given to acquired land. But, as pointed out earlier that is not the case here. Here, the map Ex. A.W. 4/1 is not by courts, as that which correctly reflects the locations of the places shown thereunder. Hence, we are cons trained to hold that the land covered under the said sale-deed cannot in any way be compared with the acquired plots of land. In this view of the matter, we find it unnecessary to examine the challenge made on behalf of M/s Printers House Pvt. Ltd., as to acceptance of the said sale-deed as a genuine sale transaction32. Now, we shall deal with the land covered by Ex. A.W. 6/1. This is a registration copy of the sale-deed dated April 24, 1961 executed by Nawal Singh in favour of Jaswant Rai. The land sold thereunder measures 8 kanals. It is clarified in the sale-deed that the land sold thereunder measures 8 kanals at the spot and it is bounded on the east by Mathura Road, on the west by the land of vendor, on the north by the land of vendor and on the south by M/s Cold Storage and Food Products. In the sale-deed, there is a specific mention made of the existence of a tube-well with the necessary electric connection, on the land sold thereunder. The recital reads thus:"Tube-well in working order has been installed in the aforesaid land measuring 8 Kanals and it is included in the sold land together with an electric connection."33. There is also mention in the sale-deed that the land which was being sold thereunder was surrounded by factories and it was sold since the vendor did not have the know-how to set up a factory. There is also a mention in the sale- deed that the land was purchased from its owner in the year 1956 since the vendor was an old tenant. The sale consideration of this land mentioned in the sale-deed is Rs 40, 000. Sub-Registrars endorsement in the deed is to the effect that Rs 40, 000 was count ed in his presence by the vendee and was handed over to the vendor. Nawal Singh is examined in the case as AW 7 on behalf of the claimants. In his examination-in-chief, it is stated thus:"The boundary of my land and the boundary of the acquired land adjoins. I sold 8 kanals of my land to Dr Jaswant Rai (AW 6) for Rs 40, 000 by means of a registered sale-deed. I have heard the original sale-deed, it is correct and bears my signatures as well as my thumb impression. I received the whole of the sale price amounting to Rs 40, 000 before the Sub- Registrar. The vendee paid the expenses of the registration and the stamp paper. The quality of my land sold to AW 6 is on par with that of the acquired land. A large number of factories have been set up near the acquired land during the last 2 years. The acquired land adjoins the road as well as the railway line." *34. In his cross-examination this is what is elicited as to the amount of Rs 40, 000 received by him:"I had deposited a sum of Rs 30, 000 in Punjab National Bank at Ballabgarh. I have spent Rs 5000 on the marriage of my daughter and a sum of Rs 5000 was spent by me on the construction of my pacca house. ..." *35. The purchaser of the said land Dr Jaswant Rai Chawla (AW 6) has also been examined on behalf of the claimants. It is stated in his examination-in-chief that sale money of Rs 40, 000 was paid to the vendor before the Sub-Registrar. In his cross-examination, he said: "It is wrong to suggest that only a sum of Rs 10, 000 was paid to Nawal Singh, and the balance was taken back from him."36. As seen from the copy of the registered sale-deed dated April 24, 1961, the extent of the land sold thereunder is 8 kanals of land and it faces the Delhi-Mathura Grand Trunk Road as the plot of 8 kanals and 6 marlas of Mst Saiyadan and the plot of 9 kanals 2 marlas of M/ s Cold Storage &Food Products, do. It also adjoins the acquired lands. Thus, the features and location of land covered by the sale-deed well compares with the plot of 8 kanals and 6 marlas of Mst Saiyadan and plot of 9 kanals and 2 marlas of M/s Cold Storage &Food Products, covered by Group (1) lands above. Execution of the sale-deed and its contents have been duly proved by the vendor and vendee. In fact, the price paid under this sale-deed has been accepted by the learned Judges of the High Court in their judgments under appeals for purposes of averaging the prices of the land37. We shall now turn to sales relied upon for M/s Printers House Pvt. Ltd38. Ex. R/8 is the extract taken from the register of mutation of Village Ballabgarh. The entry shows that Shaha- bu-din had sold 6 kanals of land by registered sale-deed dated August 11, 1959 for a sum of Rs 4000 out of the field No. 15/1/1 Maghda. An entry in the exhibit mentions about the registration of t he sale-deed. On behalf of M/s Printers House Pvt. Ltd. for whom the lands under consideration were acquired, it was contended that the said entry Ex. R/8 relating to mention of sale of 6 kanals of land by Shahabu-din to Ram Chander for Rs 4000 in the year 1959 should form the basis for us to determine the market value of the acquired land at that rate. We findit difficult to accept the contention. Shaha-bu-din, whose name is found in the entry, is, in fact, examined as AW 18. As seen from his evidence in cross-examination not even a suggestion is made about his sale referred to the entry in Ex. R/8. In the absence of production of sale-deed and its proof by examining the appropriate persons, we cannot say that t he land sold under the deed compares with the acquired plots of land and the value for which it was sold should form the price-basis for valuing the acquired plots of land. Hence, Ex. R-8 cannot be of any assistance in determining the market value o f the acquired plots of lands39. Ex. R/2, relied upon for M/s Printers House Pvt. Ltd. is the extract from the register of mutation relating to Village Ranhera. An entry thereunder shows that on August 11, 1960, 5 kanals and 15 marlas of land i n Khasra No. 15/17 was sold by Smt Saiyadan to Shadi for a sum of Rs 427.97 according to the order passed by the S.D.O., Palwal. What is argued now is, that the amount of sale consideration mentioned in the extract should form the basis for determination of the market value of the acquired land and calculations in that regard must be made in accordance with the provisions of Punjab Security of Land Tenures Act. The argument so put forth on behalf of M/s Printers House PvtLtd., in our view, cannot be accepted. When the amount to be awarded for land acquired under the Act has to be just market value to be determined on the basis of well- recognised principles of valuation, amounts payable under statutory provisions by cultivating tenants for purchase of lands by them from the landlords, can provide no guidance in the matter. Moreover, Shaha-bu-din, though is the vendor, according to entry, nothing relating to the said transaction is suggested in the course of his cross-examination. Hence, this exhibit also can be of no assistance to M/s Printers House Pvt. Ltd. for determination of market value of the acquired plots of lands40. Thus out of the lands which are the subject-matters of the sales afores aid, only the lands covered by Ex. A.W.6/1 is comparable with the plot of 8 kanals 6 marlas of Mst Saiyadan and a plot of 9 kanals and 2 marlas of M/s Cold Storage and Food Products41. Then as seen from the registration copy A.W.6/1 of the s ale-deed, 8 kanals of land is sold for Rs 40, 000. This Rs 40, 000 cannot be the value of the land itself for the land was purchased along with a tube-well in working order with electric connections. The Rs 40, 000 includes the value of working tube -well and all its electrical connectionsUnfortunately, there is no evidence adduced in the case as to what was the actual value attributable to the working tube-well in the land and the electric connections. Here some amount of guesswork becomes inevitable to find the value of the working tube-well or its electrical connections. We feel that their value could be safely put at Rs 10, 000. If that be so the value of 8 kanals of land sold under the sale-deed, becomes Rs 30, 000. As the sale in the instant case had come into existence after about a month after publication of the preliminary notification in respect of the acquired land with which we are concerned, we may make a deduction of Rs 2000 out of Rs 30, 00 0 for the increased valuedue to earlier acquisition of the adjoining land and the time elapsed. Thus, the market value of the 8 kanals of land could be fixed at Rs 28, 000, i.e., Rs 3500 per kanal with reference to the date of publication of preliminary notification. In our view, this rate of Rs 3500 per kanal could be given for the plot of 8 kanals 6 marlas of Mst Saiyadan and plot of 9 kanals 2 marlas of M/s Cold Storage &Food Products, i.e., Group (1) lands42. Insofar as the triangular plot of 6 kanals 15 marlas of land of M/s Cold Storage and Food Products covered in Group (2) above, only its comer point touches the Delhi-Mathura Grand Trunk Road. Hence, it cannot stand on par with the plots covered by Group (1) lands above facing G.T. Road to a width of 40 yards or 43 yards. We feel that the value of this land could be fixed at about 3/4th the value of the plot of lands covered by Group (1) above by making deduction of 1/4th value because of minus factors of being triangular in shape and only a corner point of triangular plot alone facing G.T. Road. We accordingly determine the market value of the triangular plot of 6 kanals 15 marlas of land owned by M/s Cold Storage &Food Products covered by Group (2) at Rs 2625 per kanal. 43. Then comes plot of 73 kanals 2 marlas of land of Masjid of Village Ranhera and plot of kanal and 19 marlas of land of Mst Saiyadan, falling under Group (3) above. Though these are two plots of lands, we can consider the market value of the plot of 73 kanals and 2 marlas of land, for the market value fixed for it could hold good in respect of an insignificant extent of 1 kanal 19 marlas in the Group. If 73 kanals 2 marlas was to be sold in the market, it could not have fetched the same price as those Group (1) lands as on the date of the publication of the preliminary notification. The reasons are) That its location lies beyond industrial plots facing Delhi-Mathura Grand Trunk Road covered in Group (1) lands which are proper and suitable for setting up medium scale of industries(ii) That it has no access to either G.T. Road or any other road(iii) That its extent being as large as 3 kanals 2 marlas it will involve loss of land for roads and expenditure in turning them into industrial plots of the size i n Group (1) lands(iv) That it would involve also considerable cost in purchasing valuable land for making a road to reach the G.T. Road44. The said minus factors, if are taken into account, necessarily they reduce the value of the land considerably and on a rough estimate its reduced value could be put at three-fifth value fixed by us for plots of lands in Group (1). Therefore, it would be safe and reasonable to determine the market value of this land of 73 kanals 2 marlas of land at Rs 2100 per kanal, in that, rate could also be regarded to be a reasonable wholesale price of the large extent of land. The same rate could be adopted for fixing the value o f kanal 19 marlas of land since it falls in Groups (3) lands above, and the minus factors appertaining to it cannot be any the less, as compared with the other land of 73 kanals 2 marlas in that Group45. However, we make it clear that the principles of valuation enunciated hereinbefore are not intended to be exhaustive but are meant to serve as merely guidelines
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Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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evidence adduced in the case as to what was the actual value attributable to the working tube-well in the land and the electric connections. Here some amount of guesswork becomes inevitable to find the value of the working tube-well or its electrical connections. We feel that their value could be safely put at Rs 10, 000. If that be so the value of 8 kanals of land sold under the sale-deed, becomes Rs 30, 000. As the sale in the instant case had come into existence after about a month after publication of the preliminary notification in respect of the acquired land with which we are concerned, we may make a deduction of Rs 2000 out of Rs 30, 00 0 for the increased value due to earlier acquisition of the adjoining land and the time elapsed. Thus, the market value of the 8 kanals of land could be fixed at Rs 28, 000, i.e., Rs 3500 per kanal with reference to the date of publication of preliminary notification. In our view, this rate of Rs 3500 per kanal could be given for the plot of 8 kanals 6 marlas of Mst Saiyadan and plot of 9 kanals 2 marlas of M/s Cold Storage &Food Products, i.e., Group (1) lands. 42. Insofar as the triangular plot of 6 kanals 15 marlas of land of M/s Cold Storage and Food Products covered in Group (2) above, only its comer point touches the Delhi-Mathura Grand Trunk Road. Hence, it cannot stand on par with the plots covered by Group (1) lands above facing G.T. Road to a width of 40 yards or 43 yards. We feel that the value of this land could be fixed at about 3/4th the value of the plot of lands covered by Group (1) above by making deduction of 1/4th value because of minus factors of being triangular in shape and only a corner point of triangular plot alone facing G.T. Road. We accordingly determine the market value of the triangular plot of 6 kanals 15 marlas of land owned by M/s Cold Storage &Food Products covered by Group (2) at Rs 2625 per kanal. 43. Then comes plot of 73 kanals 2 marlas of land of Masjid of Village Ranhera and plot of kanal and 19 marlas of land of Mst Saiyadan, falling under Group (3) above. Though these are two plots of lands, we can consider the market value of the plot of 73 kanals and 2 marlas of land, for the market value fixed for it could hold good in respect of an insignificant extent of 1 kanal 19 marlas in the Group. If 73 kanals 2 marlas was to be sold in the market, it could not have fetched the same price as those Group (1) lands as on the date of the publication of the preliminary notification. The reasons are obvious: (i) That its location lies beyond industrial plots facing Delhi-Mathura Grand Trunk Road covered in Group (1) lands which are proper and suitable for setting up medium scale of industries. (ii) That it has no access to either G.T. Road or any other road. (iii) That its extent being as large as 3 kanals 2 marlas it will involve loss of land for roads and expenditure in turning them into industrial plots of the size i n Group (1) lands. (iv) That it would involve also considerable cost in purchasing valuable land for making a road to reach the G.T. Road. 44. The said minus factors, if are taken into account, necessarily they reduce the value of the land considerably and on a rough estimate its reduced value could be put at three-fifth value fixed by us for plots of lands in Group (1). Therefore, it would be safe and reasonable to determine the market value of this land of 73 kanals 2 marlas of land at Rs 2100 per kanal, in that, rate could also be regarded to be a reasonable wholesale price of the large extent of land. The same rate could be adopted for fixing the value o f kanal 19 marlas of land since it falls in Groups (3) lands above, and the minus factors appertaining to it cannot be any the less, as compared with the other land of 73 kanals 2 marlas in that Group. 45. However, we make it clear that the principles of valuation enunciated hereinbefore are not intended to be exhaustive but are meant to serve as merely guidelines. 46. Thus, we determine the market value of the acquired plots of land of an extent of 8 kanals 6 marlas (502 0.50 sq. yds.) facing Delhi-Mathura G.T. Road, falling in Group (1), which was owned by Mst Saiyadan at the rate of Rs 3500 per kanal (Rs 5.79 per sq. yd.); of the acquired plot of land of an extent of 1 kanal 19 marlas (1179.75 sq. yds.) without acc ess to Delhi-Mathura Road, [falling in Group (3)] which was owned by Mst Saiyadan at the rate of Rs 2100 per kanal (Rs 3.47 per sq. yd.); of the acquired plot of land of an extent of 9 kanals 2 marlas (5505.50 sq. yds.) facing Delhi- Mathura Grand Trunk Road, [failing in Group (1)], which was owned by M/s Cold Storage and Food Products at the rate of Rs 3500 per kanal (Rs 5.79 per sq. yd.); of the acquired triangular plot of land of an extent of 6 kanals 15 marlas (4083.75 sq. yds.), its conical point alone facing Delhi- Mathura Grand Trunk Road [falling in Group (2)] which was owned by M/s Cold Storage and Food Products at the rate of Rs 2 625 per kanal (Rs 4.35 per sq. yd.); and of 73 kanals 2 marlas (44, 225.50 sq. yds.) situated aw ay from Delhi-Mathura Grand Trunk Road with no a ccess to it [falling in Group (3)] which was owned by Masjid of Village Ranhera at the rate of Rs 2100 per kanal (Rs 3.47 per sq. yd.).
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339 |
Union Of India & Others Vs. M/S Chowgule & Co. Ltd. & Others
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licence. 13. Paragraph 204 of Chapter XV of the new policy provides that in the case of exports made prior to 1.4.1990 against which REP licence was issued on or after 1.4.1990, the rate of import replenishment will be as admissible on the date of export but subject to the conditions laid down in 1998-1991 policy book. Chapter XVI deals with deemed exports. Under paragraph 210 the deemed exports will qualify for grant of import replenishment licence. The material provision, however, is contained in Chapter XVIII. Part-A thereof deals with Export Houses/Trading Houses. The objective is similar to that of earlier policy. The eligibility criteria laid down in paragraph 218 for the grant of export/trading housing certificate is to be determined on the basis of NFE earnings from the exports actually made in the preceding three licensing years termed as "base period". The earnings from export of products in Appendix 12 shall not quality for this purpose. Paragraph 220 deals with additional licence and provides, inter alia, that the export houses/trading houses will be eligible for additional licences on the basis of admissible exports made in the preceding licensing year and the value of the licence will be calculated at the rate of 10% NFE earnings on the total eligible exports made in the preceding licensing year. Paragraph 222 deals with transitional arrangements and the same reads as under: "222. Where the applications from Export Houses/Trading Houses for Additional Licence for any of the preceding licensing year, have not been disposed of by the end of the licensing year, licenses will be issued as per the relevant Policy provisions prevailing during the period to which the Additional Licenses relate, subject to the condition that the permissibility of the items allowed for import against such licences will be governed by the relevant provision of the Import Policy in force, at the time of their actual import." 14. Coming to the point raised it is to be noticed that paragraph 215 of the old policy is clear and provides that eligibility to the additional licence was to be determined on the basis of the admissible exports made in the preceding licensing year. Paragraph 222 of the new policy which has been extracted above provides that where the applications from export houses/trading houses for additional licences for any of the preceding year, have not been disposed of by the end of the licensing year, licences will be issued as per the relevant policy provisions prevailing during the period to which the additional licences relate. Meaning thereby that if an application for additional licence for any preceding licensing year is pending which in this case shall be deemed to be pending as the controversy is still alive being adjudicated then the licence has to be issued as per the relevant policy provisions prevailing during the period to which the additional licence relates which in the present case would be under the old policy. The grant of additional licence in paragraph 222 has been made subject to the condition that the permissibility of the items allowed for import against such licences will be governed by the relevant provisions of the import in force at the time of their actual import meaning thereby that the items which can be imported would be relatable to the import policy in force, i.e., the new policy. Traditional arrangements stated in paragraph 222 makes it abundantly clear that the applications from export houses/tradition houses which have not been finally disposed of by the end of the licensing year would be entitled to the issuance of the additional licence as per the relevant policy provisions prevailing during the period to which the additional licence related. The entitlement of the export houses/trading houses to get the additional licence has not been taken away. The only condition to which the additional licence has been subjected is that the permissible items allowable for import against such (additional licensing) would be governed by the provisions of the import policy in force at the time of their actual import. Contentions raised on behalf of the Union of India that the respondents/writ petitioners had to lodge their right/entitlement to get the additional licence under the new policy for the exports made during the period when the old policy was in force cannot be accepted. The application for the additional licence could be made only after the end of the fiscal year, as only thereafter the export house could know its entitlement. The High Court was, therefore, right in holding that the interpretation put by the authorities on the new policy in declining the claim of the respondents for the grant of additional licence was unacceptable. Under the new policy as well, the export houses/trading houses would remain entitled to the additional licence for the exports made during the period when the old policy was in force but subject to the condition that they would be allowed to import against the additional licence such items which are governed by the policy in force at the time of the import of the goods. 15. For the reasons stated above, we do not find any infirmity in the orders passed by the High Court in quashing the orders passed by the authorities rejecting the claim of the respondents for grant of additional licence. 16. Similarly, we do not find any infirmity in the orders passed by the High Court in the issuance of writ of mandamus directing the Union of India to forthwith pay to the respondents the premium of 20% instead of issuing the additional licence in terms of the Circular 11 of 93. Circular 11 of 93 provides that where application for grant of additional licence are pending in respect of the exports made and export proceeds relating to the period prior to 1.3.1992 then instead of issuing the licences, the 20% premium shall be paid. The order passed by the High Court is strictly in conformity with the Circular 11 of 93 issued by the appellants itself.
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0[ds]The application for the additional licence could be made only after the end of the fiscal year, as only thereafter the export house could know its entitlement. The High Court was, therefore, right in holding that the interpretation put by the authorities on the new policy in declining the claim of the respondents for the grant of additional licence was unacceptable. Under the new policy as well, the export houses/trading houses would remain entitled to the additional licence for the exports made during the period when the old policy was in force but subject to the condition that they would be allowed to import against the additional licence such items which are governed by the policy in force at the time of the import of thedo not find any infirmity in the orders passed by the High Court in quashing the orders passed by the authorities rejecting the claim of the respondents for grant of additionaldo not find any infirmity in the orders passed by the High Court in the issuance of writ of mandamus directing the Union of India to forthwith pay to the respondents the premium of 20% instead of issuing the additional licence in terms of the Circular 11 of 93. Circular 11 of 93 provides that where application for grant of additional licence are pending in respect of the exports made and export proceeds relating to the period prior to 1.3.1992 then instead of issuing the licences, the 20% premium shall be paid. The order passed by the High Court is strictly in conformity with the Circular 11 of 93 issued by the appellants
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### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
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licence. 13. Paragraph 204 of Chapter XV of the new policy provides that in the case of exports made prior to 1.4.1990 against which REP licence was issued on or after 1.4.1990, the rate of import replenishment will be as admissible on the date of export but subject to the conditions laid down in 1998-1991 policy book. Chapter XVI deals with deemed exports. Under paragraph 210 the deemed exports will qualify for grant of import replenishment licence. The material provision, however, is contained in Chapter XVIII. Part-A thereof deals with Export Houses/Trading Houses. The objective is similar to that of earlier policy. The eligibility criteria laid down in paragraph 218 for the grant of export/trading housing certificate is to be determined on the basis of NFE earnings from the exports actually made in the preceding three licensing years termed as "base period". The earnings from export of products in Appendix 12 shall not quality for this purpose. Paragraph 220 deals with additional licence and provides, inter alia, that the export houses/trading houses will be eligible for additional licences on the basis of admissible exports made in the preceding licensing year and the value of the licence will be calculated at the rate of 10% NFE earnings on the total eligible exports made in the preceding licensing year. Paragraph 222 deals with transitional arrangements and the same reads as under: "222. Where the applications from Export Houses/Trading Houses for Additional Licence for any of the preceding licensing year, have not been disposed of by the end of the licensing year, licenses will be issued as per the relevant Policy provisions prevailing during the period to which the Additional Licenses relate, subject to the condition that the permissibility of the items allowed for import against such licences will be governed by the relevant provision of the Import Policy in force, at the time of their actual import." 14. Coming to the point raised it is to be noticed that paragraph 215 of the old policy is clear and provides that eligibility to the additional licence was to be determined on the basis of the admissible exports made in the preceding licensing year. Paragraph 222 of the new policy which has been extracted above provides that where the applications from export houses/trading houses for additional licences for any of the preceding year, have not been disposed of by the end of the licensing year, licences will be issued as per the relevant policy provisions prevailing during the period to which the additional licences relate. Meaning thereby that if an application for additional licence for any preceding licensing year is pending which in this case shall be deemed to be pending as the controversy is still alive being adjudicated then the licence has to be issued as per the relevant policy provisions prevailing during the period to which the additional licence relates which in the present case would be under the old policy. The grant of additional licence in paragraph 222 has been made subject to the condition that the permissibility of the items allowed for import against such licences will be governed by the relevant provisions of the import in force at the time of their actual import meaning thereby that the items which can be imported would be relatable to the import policy in force, i.e., the new policy. Traditional arrangements stated in paragraph 222 makes it abundantly clear that the applications from export houses/tradition houses which have not been finally disposed of by the end of the licensing year would be entitled to the issuance of the additional licence as per the relevant policy provisions prevailing during the period to which the additional licence related. The entitlement of the export houses/trading houses to get the additional licence has not been taken away. The only condition to which the additional licence has been subjected is that the permissible items allowable for import against such (additional licensing) would be governed by the provisions of the import policy in force at the time of their actual import. Contentions raised on behalf of the Union of India that the respondents/writ petitioners had to lodge their right/entitlement to get the additional licence under the new policy for the exports made during the period when the old policy was in force cannot be accepted. The application for the additional licence could be made only after the end of the fiscal year, as only thereafter the export house could know its entitlement. The High Court was, therefore, right in holding that the interpretation put by the authorities on the new policy in declining the claim of the respondents for the grant of additional licence was unacceptable. Under the new policy as well, the export houses/trading houses would remain entitled to the additional licence for the exports made during the period when the old policy was in force but subject to the condition that they would be allowed to import against the additional licence such items which are governed by the policy in force at the time of the import of the goods. 15. For the reasons stated above, we do not find any infirmity in the orders passed by the High Court in quashing the orders passed by the authorities rejecting the claim of the respondents for grant of additional licence. 16. Similarly, we do not find any infirmity in the orders passed by the High Court in the issuance of writ of mandamus directing the Union of India to forthwith pay to the respondents the premium of 20% instead of issuing the additional licence in terms of the Circular 11 of 93. Circular 11 of 93 provides that where application for grant of additional licence are pending in respect of the exports made and export proceeds relating to the period prior to 1.3.1992 then instead of issuing the licences, the 20% premium shall be paid. The order passed by the High Court is strictly in conformity with the Circular 11 of 93 issued by the appellants itself.
### Response:
0
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340 |
V. Nagappa Vs. Iron Ore Mines Cess Commissioner & Another
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"the nature of the body to which delegation is made is also, a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation" (at 1244). According to the learned Chief Justice the fact that delegation was made to an elected body responsible to the people including those who paid taxes provided a great check on the elected councillors imposing reasonable rates of tax. Again, guide or control on the limit of taxation could be seen in the expression "purposes of the Act" in S. 113. The power to tax was circumscribed by the need to finance the functions which were made incumbent on the Corporation to perform. The necessity of adopting budget estimates each year as provided under the Act afforded another limit and guideline in the matter. Further, the fact that the Government was made the watchdog to control the actions of the Corporation in the matter of fixing the rates provided another check against arbitrarily exercising the power of taxation vested with the Corporation. The guidance may also take the form of providing maximum rates of tax upto which a local body may be given the discretion to make its choice. Lastly, relying on Kruse v. Johnson, (1898) 2 QB 91 the learned Chief Justice pointed out that in the case of subordinate public representative bodies, such as municipal boards, the reasonableness of their action could be reviewed by the Courts. Thus the majority relied on the safeguards inherent in delegating the power to an elected body and guidelines provided under the various provisions of the Act for upholding the delegation. They observed the power from the angle of its exercise and guaged its propensity for abuse functionally."12. In D. Ramaraju v. State of A. P. AIR 1972 SC 828 the question was about the vires of the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968. Section 3 of that Act provided for levy and collection of drainage cess. According to sub-sec. (1) of that section there shall be levied and collected by the Government, for a period of six years from the date of the commencement of the Act, as a drainage cess on every land in the delta area comprised within a division specified in Column (2) of the Schedule, for the purposes of the Act in that division, a tax at such rate per acre per annum, not exceeding the rate specified in the corresponding entry in column (3) thereof, as the Government may, by notification, specify in respect of that division. The schedule referred to in the section fixed the maximum rate at which drainage cess may be collected and according to it the maximum rate shall be Rs. 10 per acre per annum for the Godavari eastern delta, and the Godavari central delta. Section 8 (l) provides for a cess fund and any moneys received from the Central or State Government or any other source for the purposes of the Act shall be credited to the Fund together with the proceeds of the Drainage Cess as levied and collected under the Act. Sub-section (4) of S. 8 provides that the fund, in so far as it relates to the proceeds of the drainage cess levied and collected in a division, shall be applied towards meeting the cost of the drainage schemes which the Board may, with the concurrence of the Government, undertake in that division.13. In answer to the contention that the section furnishes no sufficient guidelines for exercising the discretion to fix the rate, and therefore, the section was bad on the ground of excessive delegation of legislative power, the Court said that the Act contained sufficient guidelines for the fixation of the rate of cess, that there was enough material on record to justify a uniform rate of cess for each acre of land in a Divison of tile deltaic area and that the imposition of tax on land for raising general revenue substantially different from the levy of cess for implementation of a drainage scheme for the benefit of lands in an area.14. Tested in the light of the reasoning adopted in the cases referred to above, we are of opinion that the Act has furnished definite guidelines for the Government to exercise the power to fix the rate of excise duty.15. Section 3 has specified the purposes for which the excise duty collected is to be utilized. We do not think that the purposes mentioned are vague or indefinite or that the expenses to be incurred for those purposes cannot be calculated with reasonable certainty. The power to levy the duty must be taken to be limited by the expenses required to discharge the statutory function to be performed by the delegate and so, the rate that is to be fixed should be such as would bring in the amount necessary to meet the needs of the delegate for discharging the functions.16. That the amount collected will be expended for the purposes enumerated in S. 3 is ensured firstly by requiring the Government to make an appropriation by means of parliamentary legislation and reports to be published in the official Gazette.17. The policy of the Act has been clearly stated; the purposes for which the tax collected should be expended have been enumerated and the purposes are such that it is reasonably possible for the delegate to calculate the amount necessary to meet them. In these circumstances, we think that the necessary guidance for fixing the rate can be found in the amount of expenditure necessary for carrying out the purposes of the Act. Quite apart from these circumstances, the fact that S. 2 has fixed the maximum rate would indicate that the delegate is not given an uncontrolled discretion in the matter of fixing the rate. The area within which the discretion has to be exercised having been clearly demarcated, it cannot be said that a blanket power to fix the rate has been delegated to Government.
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0[ds]13. In answer to the contention that the section furnishes no sufficient guidelines for exercising the discretion to fix the rate, and therefore, the section was bad on the ground of excessive delegation of legislative power, the Court said that the Act contained sufficient guidelines for the fixation of the rate of cess, that there was enough material on record to justify a uniform rate of cess for each acre of land in a Divison of tile deltaic area and that the imposition of tax on land for raising general revenue substantially different from the levy of cess for implementation of a drainage scheme for the benefit of lands in an area.14. Tested in the light of the reasoning adopted in the cases referred to above, we are of opinion that the Act has furnished definite guidelines for the Government to exercise the power to fix the rate of excise duty.15. Section 3 has specified the purposes for which the excise duty collected is to be utilized. We do not think that the purposes mentioned are vague or indefinite or that the expenses to be incurred for those purposes cannot be calculated with reasonable certainty. The power to levy the duty must be taken to be limited by the expenses required to discharge the statutory function to be performed by the delegate and so, the rate that is to be fixed should be such as would bring in the amount necessary to meet the needs of the delegate for discharging the functions.16. That the amount collected will be expended for the purposes enumerated in S. 3 is ensured firstly by requiring the Government to make an appropriation by means of parliamentary legislation and reports to be published in the official Gazette.17. The policy of the Act has been clearly stated; the purposes for which the tax collected should be expended have been enumerated and the purposes are such that it is reasonably possible for the delegate to calculate the amount necessary to meet them. In these circumstances, we think that the necessary guidance for fixing the rate can be found in the amount of expenditure necessary for carrying out the purposes of the Act. Quite apart from these circumstances, the fact that S. 2 has fixed the maximum rate would indicate that the delegate is not given an uncontrolled discretion in the matter of fixing the rate. The area within which the discretion has to be exercised having been clearly demarcated, it cannot be said that a blanket power to fix the rate has been delegated to Government.
| 0 | 3,684 |
### Instruction:
Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)?
### Input:
"the nature of the body to which delegation is made is also, a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation" (at 1244). According to the learned Chief Justice the fact that delegation was made to an elected body responsible to the people including those who paid taxes provided a great check on the elected councillors imposing reasonable rates of tax. Again, guide or control on the limit of taxation could be seen in the expression "purposes of the Act" in S. 113. The power to tax was circumscribed by the need to finance the functions which were made incumbent on the Corporation to perform. The necessity of adopting budget estimates each year as provided under the Act afforded another limit and guideline in the matter. Further, the fact that the Government was made the watchdog to control the actions of the Corporation in the matter of fixing the rates provided another check against arbitrarily exercising the power of taxation vested with the Corporation. The guidance may also take the form of providing maximum rates of tax upto which a local body may be given the discretion to make its choice. Lastly, relying on Kruse v. Johnson, (1898) 2 QB 91 the learned Chief Justice pointed out that in the case of subordinate public representative bodies, such as municipal boards, the reasonableness of their action could be reviewed by the Courts. Thus the majority relied on the safeguards inherent in delegating the power to an elected body and guidelines provided under the various provisions of the Act for upholding the delegation. They observed the power from the angle of its exercise and guaged its propensity for abuse functionally."12. In D. Ramaraju v. State of A. P. AIR 1972 SC 828 the question was about the vires of the Andhra Pradesh (Krishna and Godavari Delta Area) Drainage Cess Act, 1968. Section 3 of that Act provided for levy and collection of drainage cess. According to sub-sec. (1) of that section there shall be levied and collected by the Government, for a period of six years from the date of the commencement of the Act, as a drainage cess on every land in the delta area comprised within a division specified in Column (2) of the Schedule, for the purposes of the Act in that division, a tax at such rate per acre per annum, not exceeding the rate specified in the corresponding entry in column (3) thereof, as the Government may, by notification, specify in respect of that division. The schedule referred to in the section fixed the maximum rate at which drainage cess may be collected and according to it the maximum rate shall be Rs. 10 per acre per annum for the Godavari eastern delta, and the Godavari central delta. Section 8 (l) provides for a cess fund and any moneys received from the Central or State Government or any other source for the purposes of the Act shall be credited to the Fund together with the proceeds of the Drainage Cess as levied and collected under the Act. Sub-section (4) of S. 8 provides that the fund, in so far as it relates to the proceeds of the drainage cess levied and collected in a division, shall be applied towards meeting the cost of the drainage schemes which the Board may, with the concurrence of the Government, undertake in that division.13. In answer to the contention that the section furnishes no sufficient guidelines for exercising the discretion to fix the rate, and therefore, the section was bad on the ground of excessive delegation of legislative power, the Court said that the Act contained sufficient guidelines for the fixation of the rate of cess, that there was enough material on record to justify a uniform rate of cess for each acre of land in a Divison of tile deltaic area and that the imposition of tax on land for raising general revenue substantially different from the levy of cess for implementation of a drainage scheme for the benefit of lands in an area.14. Tested in the light of the reasoning adopted in the cases referred to above, we are of opinion that the Act has furnished definite guidelines for the Government to exercise the power to fix the rate of excise duty.15. Section 3 has specified the purposes for which the excise duty collected is to be utilized. We do not think that the purposes mentioned are vague or indefinite or that the expenses to be incurred for those purposes cannot be calculated with reasonable certainty. The power to levy the duty must be taken to be limited by the expenses required to discharge the statutory function to be performed by the delegate and so, the rate that is to be fixed should be such as would bring in the amount necessary to meet the needs of the delegate for discharging the functions.16. That the amount collected will be expended for the purposes enumerated in S. 3 is ensured firstly by requiring the Government to make an appropriation by means of parliamentary legislation and reports to be published in the official Gazette.17. The policy of the Act has been clearly stated; the purposes for which the tax collected should be expended have been enumerated and the purposes are such that it is reasonably possible for the delegate to calculate the amount necessary to meet them. In these circumstances, we think that the necessary guidance for fixing the rate can be found in the amount of expenditure necessary for carrying out the purposes of the Act. Quite apart from these circumstances, the fact that S. 2 has fixed the maximum rate would indicate that the delegate is not given an uncontrolled discretion in the matter of fixing the rate. The area within which the discretion has to be exercised having been clearly demarcated, it cannot be said that a blanket power to fix the rate has been delegated to Government.
### Response:
0
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341 |
Gurdit Singh Vs. Mst. Angrez Kaur Alias Gej Kaur Alias Malanand Others
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a custom in the neighbouring districts, which surround the Jullundur District all around, is certainly a relevant consideration for an inference that such a custom may be prevalent in the Jullundur District also, particularly in view of Rattigans opinion that the custom is primarily tribal though also local. If the custom existed among the tribes of Hindu Jats in all the districts surrounding the district of Jullundur, it is probable that a similar custom exists in the district of Jullundur also. The other piece of evidence relied upon was the statements of number of witnesses examined to prove that not only such a custom existed, but also that instances were available showing that there had been divorces in recent times. Respondent No. 1 has examined nine witnesses in this behalf. The learned District Judge, in his report, did not place full reliance on the testimony of these witnesses, but their evidence has been accepted by the High Court. On behalf of the appellant also, a number of witnesses were examined to prove the non-existence of a custom of divorce. It, however, appears that the appellants own witnesses belied his case. Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination-in-chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life-time of her husband. Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband. He can divorce her both verbally as well as in writing. Similarly, Niranjan Singh, another witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination-in-chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life-time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband. In cross-examination, he stated that"there no custom among us for divorcing the wives with mutual consent." All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life-time of her first husband. They all admit that a custom permitting a Hindu Jat to divorce his wife does actually exist in the district of Jullundur. Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there could be separation between the husband and the wife, but, at other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus, the record in the Riwaj-i-am that there is no such custom of divorce among the Hindus of the Jullundur District is proved to be incorrect not only by the evidence of the witnesses examined on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant. In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj-i-am could be held to be reliable in so far as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj-i-am was found in regard to record of customs relating to other matters. 11. There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his life-time. This limited custom sought to be proved by these witnesses does not find support from the Riwaj-i-am, nor is it in line with the, principles laid down by Rattigan in his book on Customary Law. All that he stated in paragraph 74 of his book was that"until the former marriage is validly set aside, a woman cannot marry a second husband in the life-time of her first husband." We have already held that, even according to the witnesses examined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage. On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second husband in the life-time of her first husband. It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living. In these circumstances, the High Court committed no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitting divorce, but also recognised the validity of a second marriage of the divorced wife even in the life-time of her first husband.The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life-time of their husbands and these marriages were recognised as valid marriages by the members of their community.
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0[ds]are unable to find any proposition laying down that, in the district of Jullundur, there is any custom among Hindu Jats permitting divorce as claimed by respondent No. 1. In fact, Rattigan leaves the question open by saying that it has been doubted whether such a custom exists in the Jullundur District. He also mentions the Riwaj-i-am of Jullundur District, but does not attach much importance to it on the ground of its being unreliable. Rattigans book on Customary Law, in these circumstances, appears to us to be of little help in arriving at a conclusion about the existence of a custom on divorce amongst the Jats in Jullundur DistrictIn answer to the questions about the grounds on which a wife may be divorced whether change of religion is a sufficient cause and whether a husband may divorce his wife without assigning any cause, the record states that among all Muhammadans except Rajputs - the Muhammadan Law is followed ; and a husband can divorce his wife without assigning any reason. Among the Muhammadan Rajputs and all Hindus-no divorce is recognised. But an exception is mentioned that the Kambohs of the Nakodar Tehsil also divorce their wives. They are not required to assign any cause. In answer to the question as to what are the formalities which must be observed to constitute a revocable or an irrevocable divorce, it was stated that among Hindus there is no divorce except among Kambohs of the Nakodar Tehsil who give talaq by executing a written deedIt, however, appears that the Riwaj-i-am of Jullundur District is unreliableThere are two reasons why we must reject this contention. The first is that the Riwaj-i-am having been found unreliable in respect of two customs, the inference clearly follows that it was not drawn up carefully and correctly and, consequently, it would not be safe to rely even on other aspects of the Riwaj-i-am. The second, and which is the more important reason, is that, in this particular case which is before us, the evidence tendered by both the parties shows that this Riwaj-i-am has incorrectly recorded the custom about the right of a Hindu husband of this district to divorce his wifeIt, however, appears that the appellants own witnesses belied his case. Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination-in-chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life-time of her husband. Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband. He can divorce her both verbally as well as in writing. Similarly, Niranjan Singh, another witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination-in-chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life-time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband. In cross-examination, he stated that"there no custom among us for divorcing the wives with mutual consent."All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life-time of her first husband. They all admit that a custom permitting a Hindu Jat to divorce his wife does actually exist in the district of Jullundur. Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there could be separation between the husband and the wife, but, at other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus, the record in the Riwaj-i-am that there is no such custom of divorce among the Hindus of the Jullundur District is proved to be incorrect not only by the evidence of the witnesses examined on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant. In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj-i-am could be held to be reliable in so far as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj-i-am was found in regard to record of customs relating to other matters11. There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his life-time. This limited custom sought to be proved by these witnesses does not find support from the Riwaj-i-am, nor is it in line with the, principles laid down by Rattigan in his book on Customary Law. All that he stated in paragraph 74 of his book was that"until the former marriage is validly set aside, a woman cannot marry a second husband in the life-time of her firste have already held that, even according to the witnesses examined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage. On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second husband in the life-time of her first husband. It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living. In these circumstances, the High Court committed no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitting divorce, but also recognised the validity of a second marriage of the divorced wife even in the life-time of her first husband.The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life-time of their husbands and these marriages were recognised as valid marriages by the members of their community.
| 0 | 3,974 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
a custom in the neighbouring districts, which surround the Jullundur District all around, is certainly a relevant consideration for an inference that such a custom may be prevalent in the Jullundur District also, particularly in view of Rattigans opinion that the custom is primarily tribal though also local. If the custom existed among the tribes of Hindu Jats in all the districts surrounding the district of Jullundur, it is probable that a similar custom exists in the district of Jullundur also. The other piece of evidence relied upon was the statements of number of witnesses examined to prove that not only such a custom existed, but also that instances were available showing that there had been divorces in recent times. Respondent No. 1 has examined nine witnesses in this behalf. The learned District Judge, in his report, did not place full reliance on the testimony of these witnesses, but their evidence has been accepted by the High Court. On behalf of the appellant also, a number of witnesses were examined to prove the non-existence of a custom of divorce. It, however, appears that the appellants own witnesses belied his case. Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination-in-chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life-time of her husband. Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband. He can divorce her both verbally as well as in writing. Similarly, Niranjan Singh, another witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination-in-chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life-time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband. In cross-examination, he stated that"there no custom among us for divorcing the wives with mutual consent." All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life-time of her first husband. They all admit that a custom permitting a Hindu Jat to divorce his wife does actually exist in the district of Jullundur. Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there could be separation between the husband and the wife, but, at other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus, the record in the Riwaj-i-am that there is no such custom of divorce among the Hindus of the Jullundur District is proved to be incorrect not only by the evidence of the witnesses examined on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant. In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj-i-am could be held to be reliable in so far as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj-i-am was found in regard to record of customs relating to other matters. 11. There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his life-time. This limited custom sought to be proved by these witnesses does not find support from the Riwaj-i-am, nor is it in line with the, principles laid down by Rattigan in his book on Customary Law. All that he stated in paragraph 74 of his book was that"until the former marriage is validly set aside, a woman cannot marry a second husband in the life-time of her first husband." We have already held that, even according to the witnesses examined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage. On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second husband in the life-time of her first husband. It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living. In these circumstances, the High Court committed no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitting divorce, but also recognised the validity of a second marriage of the divorced wife even in the life-time of her first husband.The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life-time of their husbands and these marriages were recognised as valid marriages by the members of their community.
### Response:
0
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342 |
BANK OF BARODA Vs. KOTAK MAHINDRA BANK LTD
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create a fresh period for enforcing the decree. 16. We clarify that for the purpose of this judgment we have used the expressions, cause country which will mean the country in which the decree was issued (in this case England), and forum country which would mean the country in which the decree is sought to be executed (in this case India). 17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contention. 18. The main argument raised on behalf of the appellant is that sub-section (1) of Section 44A is a deeming provision which provides that the decree shall be executed as if it had been passed by an Indian court. It is urged that this deeming provision should be given its full meaning and when the statute directs an imaginary state of affairs to be taken as real, one should imagine also as real the consequences and incidents which flow from the same. Reference has been made to the judgment in East End Dwellings Co. Ltd. vs. Finsbury Borough Council 1951 (2) All E.R. 587 wherein it was held as follows: …If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit ones imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The aforesaid observations by the House of Lords have been approved by this Court in Income Tax Commissioner vs. S. Teja Singh AIR 1959 SC 352 . The Madras High Court (In Uthamram vs. K. M. Abdul Kasim Co., AIR 1964 Mad 221 ) and the Punjab and Haryana High Court (In Lakhpat Rai Sharma vs. Atma Singh, AIR (58) 1971 P&H 476) have taken the view that the foreign decree has to be executed in India as if it had been passed by an Indian court and the legal fiction must be extended to its logical end. Therefore, the foreign decree must be treated as an Indian decree as on the date it was passed. However, the Punjab and Haryana High Court held in Lakhpat Rai Sharma (supra) that if no step for execution of the decree and no step-in-aid for such an execution is taken in an Indian court on or before the limitation prescribed, then the execution petition has to be dismissed on the ground that it is time barred. It rejected the contention that the application for certificate of non-satisfaction given to the foreign court should be treated to be a step-in-aid and excluded while calculating the period of limitation. 19. Does Section 44A create a fresh period of limitation by extension of the deeming provision?. In our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation. 20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations: (19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation…
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0[ds]From a bare reading of Section 44A CPC it is crystal clear that it applies only to money decrees and not to other decrees13. At the outset, we may note that we are not at all in agreement with the submission of Shri K.K. Venugopal that no limitation is applicable. These are not writ proceedings but execution proceedings. The Act is a complete code in itself and Section 3 clearly sets out that subject to the provisions contained in Section 4 to Section 24 of the Act, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed even if limitation has not been set up as a defence. The word application used is wide enough to include an application filed for execution of a decree, even a foreign decree. Therefore, the principles of delay and laches which may be applicable to writ proceedings cannot be applied to civil proceedings and are not at all attracted in proceedings filed under the CPC which, in our opinion, must be filed within the prescribed period of limitation15. We have carefully considered the matter and at the outset we may note that there is no concept of cause of action in so far as an execution petition is concerned. Cause of action is a concept relating to civil suits and not to execution petitions. Cause of action is nothing but a bundle of facts which gives rise to a legal right enabling the plaintiff to file a suit. On the other hand, a decree is a determination already made by a court on the basis of a reasoned judgment. In case of a decree it becomes enforceable the day it is passed. Therefore, we are clearly of the view that filing of an application under Section 44A will not create a fresh period for enforcing the decree17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contentionIn our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations:(19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation…21. In our view Section 44A only enables the District Court to execute the decree and further provides that the District Court shall follow the same procedure as it follows while executing an Indian decree, but it does not lay down or indicate the period of limitation for filing such an execution petition. We answer question number 1 accordingly24. There is also the issue of conflict of laws between the cause country and the forum country. As far as the present case is concerned, it is not disputed that the limitation for executing a decree in England is 6 years in terms of Section 24 of the Limitation Act of 1980 of the United Kingdom. Rule 40.7 of the Civil Procedure Rules of England provides that a judgment or order takes effect from the date it is given or made or such later date as the court may specify. The decree therefore becomes enforceable on the date when it was passed and as far as this case is concerned, the date of passing of the decree is 20.02.1995. If the limitation is 6 years then obviously the execution petition should have been filed on or before 20.02.2001 and if the limitation was 12 years in terms of Section 136 of the Act, the execution petition would still be barred by limitation as the execution petition was filed in 200933. The view worldwide appears to be that the limitation law of the cause country should be applied even in the forum country. Furthermore, we are of the view that in those cases where the remedy stands extinguished in the cause country it virtually extinguishes the right of the decree-holder to execute the decree and creates a corresponding right in the judgment debtor to challenge the execution of the decree. These are substantive rights and cannot be termed to be procedural. As India becomes a global player in the international business arena, it cannot be one of the few countries where the law of limitation is considered entirely procedural34. We have already clearly indicated that if the law of a forum country is silent with regard to the limitation prescribed for execution of a foreign decree then the limitation of the cause country would apply35. We answer question no. 2 by holding that the limitation period for executing a decree passed by a foreign court (from reciprocating country) in India will be the limitation prescribed in the reciprocating foreign country. Obviously this will be subject to the decree being executable in terms of Section 13 of the CPC36. Coming to the third question, as far as Article 136 of the Act is concerned, we are of the view that the same only deals with decrees passed by Indian courts. The Limitation Act has been framed mainly keeping in view the suits, appeals and applications to be filed in Indian courts and wherever the need was felt to deal with something outside India, the Limitation Act specifically deals with that situation37. When dealing with the applications for execution of decrees the law makers could have easily said including foreign decrees. This having not been said, it appears that the intention of the legislature was that Article 136 would be confined to decrees of Indian courts. Furthermore, Article 136 clearly states that the decree or order should be of a civil court. A civil court, as defined in India, may not be the same as in a foreign jurisdiction. We must also note the fact that the new Limitation Act was enacted in 1963 and presumably the law makers were aware of the provisions of Section 44A of the CPC. When they kept silent on this aspect, the only inference that can be drawn is that Article 136 only deals with decrees passed by Indian civil courts38. Having said so, we are clearly of the view that some clarification needs to be given with regard to the period in which an application under Section 44A can be filed. In this regard, when we read sub-section (1) and sub-section (2) of Section 44A together it is obvious that what is required to be filed is a certified copy of the decree in terms of sub-section (1) and also a certificate from the court in the cause country stating the extent, if any, to which the decree has been satisfied or adjusted. These are the twin requirements and no foreign decree can be executed unless both the requirements are met. It is essential to file not only a certified copy of the decree but also the certificate in terms of sub-section (2). That, however, does not mean that nothing else has to be filed. The only inference is that the decree can be executed only once these documents are filed. The executing court cannot execute this decree and certificate unless the decree holder also provides various details of the judgment debtor that is, his address, etc. in India and the details of the property of the judgment debtor39. Therefore, a party filing a petition for execution of a foreign decree must also necessarily file a written application in terms of Order 21 Rule 11 clause (2) quoted hereinabove. Without such an application it will be impossible for the Court to execute the decree. In our opinion, therefore, this application for executing a foreign decree will be an application not covered under any other article of the Limitation Act and would thus be covered under Article 137 of the Limitation Act and the applicable limitation would be 3 yearsWe can envisage of 2 situations only. The first situation is one where the decree holder does not take any steps for execution of the decree during the period of limitation prescribed in the cause country for execution of decrees in that country. In such a case he has lost his right to execute the decree in the country where the cause of action arose. It would be a travesty of justice if the person having lost his rights to execute the decree in the cause country is permitted to execute the decree in a forum country. This would be against the principle which we have accepted, that the law of limitation is not merely a procedural law. This would mean that a person who has lost his/her right or remedy to execute the foreign decree in the court where the decree was passed could take benefit of the provisions of the Indian law for extending the period of limitation. In the facts of the present case, the limitation in India is 12 years for executing a money decree whereas in England it is 6 years. There may be countries where the limitation for executing such a decree may be more than 12 years. The right of the litigant in the latter situation would not come to an end at 12 years and it would abide by the law of limitation of the cause country which passed the decree. Hence, limitation would start running from the date the decree was passed in the cause country and the period of limitation prescribed in the forum country would not apply. In case the decree holder does not take any steps to execute the decree in the cause country within the period of limitation prescribed in the country of the cause, it cannot come to the forum country and plead a new cause of action or plead that the limitation of the forum country should apply41. The second situation is when a decree holder takes steps-in- aid to execute the decree in the cause country. The proceedings in execution may go on for some time, and the decree may be executed, satisfied partly but not fully. The judgment debtor may not have sufficient property or funds in the cause country to satisfy the decree etc. In such eventuality what would be done? In our considered view, in such circumstances the right to apply under Section 44A will accrue only after the execution proceedings in the cause country are finalised and the application under Section 44A of the CPC can be filed within 3 years of the finalisation of the execution proceedings in the cause country as prescribed by Article 137 of the Act. The decree holder must approach the Indian court along with the certified copy of the decree and the requisite certificate within this period of 3 years42. It is clarified that applying in the cause country for a certified copy of the decree or the certificate of part-satisfaction, if any, of the decree, as required by Section 44A will not tantamount to step-in-aid to execute the decree in the cause country43. We answer the third question accordingly and hold that the period of limitation would start running from the date the decree was passed in the foreign court of a reciprocating country. However, if the decree holder first takes steps-in-aid to execute the decree in the cause country, and the decree is not fully satisfied, then he can then file a petition for execution in India within a period of 3 years from the finalisation of the execution proceedings in the cause country.
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### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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create a fresh period for enforcing the decree. 16. We clarify that for the purpose of this judgment we have used the expressions, cause country which will mean the country in which the decree was issued (in this case England), and forum country which would mean the country in which the decree is sought to be executed (in this case India). 17. If we accept the view urged by Shri K.K. Venugopal, that the date from which the limitation will be considered, will be the date of filing of certified copy of the decree it would lead to ludicrous results. Taking the example of the present case, the limitation to execute a decree in United Kingdom is 6 years. However, in India it is 12 years. The decree becomes enforceable on the date it was passed and, therefore, if the law of the cause country is to apply, the limitation would be 6 years and if the law of forum country were to apply, it would be 12 years. If the view urged is accepted then the decree holder can keep silent for 100 years and, thereafter, file a certified copy of the decree and the certificate and then claim that the decree can be executed. That would make a mockery of the legal process not only of the cause country but also of the forum country. The clock of limitation cannot be kept in abeyance for 100 years at the choice of the decree holder. We, therefore, reject this contention. 18. The main argument raised on behalf of the appellant is that sub-section (1) of Section 44A is a deeming provision which provides that the decree shall be executed as if it had been passed by an Indian court. It is urged that this deeming provision should be given its full meaning and when the statute directs an imaginary state of affairs to be taken as real, one should imagine also as real the consequences and incidents which flow from the same. Reference has been made to the judgment in East End Dwellings Co. Ltd. vs. Finsbury Borough Council 1951 (2) All E.R. 587 wherein it was held as follows: …If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit ones imagination to boggle when it comes to the inevitable corollaries of that state of affairs. The aforesaid observations by the House of Lords have been approved by this Court in Income Tax Commissioner vs. S. Teja Singh AIR 1959 SC 352 . The Madras High Court (In Uthamram vs. K. M. Abdul Kasim Co., AIR 1964 Mad 221 ) and the Punjab and Haryana High Court (In Lakhpat Rai Sharma vs. Atma Singh, AIR (58) 1971 P&H 476) have taken the view that the foreign decree has to be executed in India as if it had been passed by an Indian court and the legal fiction must be extended to its logical end. Therefore, the foreign decree must be treated as an Indian decree as on the date it was passed. However, the Punjab and Haryana High Court held in Lakhpat Rai Sharma (supra) that if no step for execution of the decree and no step-in-aid for such an execution is taken in an Indian court on or before the limitation prescribed, then the execution petition has to be dismissed on the ground that it is time barred. It rejected the contention that the application for certificate of non-satisfaction given to the foreign court should be treated to be a step-in-aid and excluded while calculating the period of limitation. 19. Does Section 44A create a fresh period of limitation by extension of the deeming provision?. In our view, Section 44A is only an enabling provision which enables the District Court to execute the decree as if the decree had been passed by an Indian court and it does not deal with the period of limitation. A plain reading of Section 44A clearly indicates that it only empowers the District Court to execute the foreign decree as if it had been passed by the said District Court. It also provides that Section 47 of the Act shall, from the date of filing of certified copy of the decree, apply. Section 47 deals with the questions to be determined by the court executing a decree. Execution of a decree is governed under Order 21 of CPC and, therefore, the provisions of Section 47 of the Act and Order 21 of CPC will apply. In our considered view, Section 44A has nothing to do with limitation. 20. Section 44-A clearly provides that it is only after the filing of the certified copy and the certificate, that the provision of Section 47 CPC will become applicable. This clearly indicates that this section only lays down the procedure to be followed by the District Court. Though we do not approve of the view taken by the Madras High Court in Sheik Ali (supra), that limitation will start running on filing of an application under Section 44A, we only approve the following observations: (19) To sum up of our conclusions, we are of the view that S. 44-A(1) is confined to the powers and manner of execution and has nothing to do with the law of limitation. The fiction created by the sub-section goes no further and is not for all purposes, but is designed to attract and apply to execution of foreign judgments by the District Court its own powers of execution and the manner of it in relation to its decrees, without reference to limitation…
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A.R. Dahiya Vs. Securities & Exchange Board Of India&Ors
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Target Company made by him during the twelve month period prior to the date of public announcement.13. The first issue that has to be addressed before us is whether the transaction of buy-back of shares which transpired between the Appellant and HSIDC was required to be disclosed in the public announcement dated 24.4.1999. In order to determine this requirement, we must examine the operative clauses of the relevant Regulations. Regulation 3 states that Regulations 10, 11 and 12 shall have no applicability to any transfer of shares from state level financial institutions, including their subsidiaries, to co-promoter(s) of the company pursuant to an agreement between such financial institution and such co-promoter(s). Regulations 10, 11 and 12 mandate the making of a public announcement, if any of the criteria mentioned therein are satisfied. Regulation 16 provides the contents and essential disclosures that are to be made at the time of making a public announcement. Regulation 20 establishes the method of computation to be employed in order to determine the minimum offer price which the acquirer must offer to purchase shares in a public announcement under Regulation 10, 11 or 12. It is evident from a reading of the above Regulations that the buy-back transaction between the Appellant and HSIDC was incapable of triggering Regulation 10, as the said transaction was protected by Regulation 3. However, the acquisition of the entire share capital of Garg by the Appellant attracted Regulation 10 as the acquisition was in excess of 15%. Further, as this transaction was between two promoters, it did not have the protection of Regulation 3. As required under Regulation 10, the Appellant did make a public announcement, but did not disclose its buy-back transaction with HSIDC. The Appellant has vainly and incorrectly attempted to justify his act of non-disclosure by stating that the transaction with HSIDC was protected by Regulation 3, which placed it beyond the ambit of Regulation 10, 11 and 12. In our view, Regulation 3 only protects a transaction between a co-promoter and a State financial institution to the extent that, as a consequence of such transaction a public announcement will not be required to be made as provided under Regulations 10, 11 and 12. However, it does not imply that the said transaction is to be protected from the rigours of other Regulations provided for under the Act. Thus, the transaction between the Appellant and HSIDC will have to be subject to Regulations 16 and 20, and the rate at which the Appellant bought back the shares from HSIDC had to be disclosed in the public announcement. 14. We also find no force whatsoever in the contention of the Learned Counsel for the Appellant that the post-dated cheques forwarded to HSIDC enclosed with letter dated 15.4.1999 were given by way of a guarantee, especially in light of the fact that the same was denied by HSIDC in its letter to SEBI dated 11.1.2001, wherein HSIDC stated that the post-dated cheques had been issued in consideration of the buy-back of shares. 15. The next contention that was raised by the Counsel for the Appellant was that as the cheques presented had been dishonoured on presentation, the said transaction did not culminate in an acquisition. It has already been held beyond doubt that the post-dated cheques issued by the Appellant in favour of HSIDC were in consideration of the buy-back of the shares held by HSIDC in the Target Company. The Appellant had submitted that the cheques were post-dated because he was suffering from a liquidity crunch. In our view, the post-dated cheques amounted to a promise to pay and that promise would be fulfilled on the date mentioned on the cheque. Thus, this promise to pay amounted to a sale of shares/equity. The subsequent dishonouring of the post-dated cheque would have no bearing on the case. At the time of making the public announcement the Appellant had bought back the shares of HSIDC by making payment via the said post-dated cheques. Further, as the buy-back was in pursuance of an agreement, there was consensus ad idem. The Appellant has subsequently shirked his responsibility and has tried to slither away from honouring the agreement, which he cannot be allowed to gain from, as is established by the legal maxim commodum ex injuri su non habere debet. While interpreting the term acquisition, we must conceptualize the intention behind these Regulations which, it seems to us, is to safeguard the shareholders from adverse consequences of acquisitions and takeovers as far as the value of the shares is concerned. Not infrequently, the new management’s endeavour is to manipulate the market price of the shares in a manner calculated to induce the existing shareholders to off load their holdings at a low price. This is achieved by portraying a false picture of their value. In the background of such an intention it would fallacious to suggest that the said transaction did not tantamount to an acquisition. 16. In order to dispel doubts regarding the term ‘acquisition’, the same was subsequently defined in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. Under Regulation 2 Clause (1) Sub-clause (a)- ‘acquisition’ means directly or indirectly acquiring or agreeing to acquire shares or voting rights in, or control over, a Target Company. This definition clarifies that an acquisition takes place the moment the acquirer decides or agrees to acquire, irrespective of the time when the transfer stands completed in all respects. The definition explicates that the actual transfer need not be contemporaneous with the intended transfer and can be in futuro.17. Further, the letter on which the Counsel for the Appellant had placed reliance to prove that there was no acquisition, is dated 9.12.1999, which was well after the public announcement dated 24.4.1999 where the Appellant was required to make disclosures in compliance with the Regulations. This clearly indicates, that at the date of making the public announcement the Appellant was under the impression that the acquisition has taken place.
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0[ds]is evident from a reading of the above Regulations that the buy-back transaction between the Appellant and HSIDC was incapable of triggering Regulation 10, as the said transaction was protected by Regulation 3. However, the acquisition of the entire share capital of Garg by the Appellant attracted Regulation 10 as the acquisition was in excess of 15%. Further, as this transaction was between two promoters, it did not have the protection of Regulation 3. As required under Regulation 10, the Appellant did make a public announcement, but did not disclose its buy-back transaction with HSIDC. The Appellant has vainly and incorrectly attempted to justify his act of non-disclosure by stating that the transaction with HSIDC was protected by Regulation 3, which placed it beyond the ambit of Regulation 10, 11 and 12. In our view, Regulation 3 only protects a transaction between a co-promoter and a State financial institution to the extent that, as a consequence of such transaction a public announcement will not be required to be made as provided under Regulations 10, 11 and 12. However, it does not imply that the said transaction is to be protected from the rigours of other Regulations provided for under the Act. Thus, the transaction between the Appellant and HSIDC will have to be subject to Regulations 16 and 20, and the rate at which the Appellant bought back the shares from HSIDC had to be disclosed in the public announcement.In order to dispel doubts regarding the termthe same was subsequently defined in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. Under Regulation 2 Clause (1) Sub-clause (a)-means directly or indirectly acquiring or agreeing to acquire shares or voting rights in, or control over, a Target Company. This definition clarifies that an acquisition takes place the moment the acquirer decides or agrees to acquire, irrespective of the time when the transfer stands completed in all respects. The definition explicates that the actual transfer need not be contemporaneous with the intended transfer and can be in futuro.17. Further, the letter on which the Counsel for the Appellant had placed reliance to prove that there was no acquisition, is dated 9.12.1999, which was well after the public announcement dated 24.4.1999 where the Appellant was required to make disclosures in compliance with the Regulations. This clearly indicates, that at the date of making the public announcement the Appellant was under the impression that the acquisition has taken place.
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### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
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Target Company made by him during the twelve month period prior to the date of public announcement.13. The first issue that has to be addressed before us is whether the transaction of buy-back of shares which transpired between the Appellant and HSIDC was required to be disclosed in the public announcement dated 24.4.1999. In order to determine this requirement, we must examine the operative clauses of the relevant Regulations. Regulation 3 states that Regulations 10, 11 and 12 shall have no applicability to any transfer of shares from state level financial institutions, including their subsidiaries, to co-promoter(s) of the company pursuant to an agreement between such financial institution and such co-promoter(s). Regulations 10, 11 and 12 mandate the making of a public announcement, if any of the criteria mentioned therein are satisfied. Regulation 16 provides the contents and essential disclosures that are to be made at the time of making a public announcement. Regulation 20 establishes the method of computation to be employed in order to determine the minimum offer price which the acquirer must offer to purchase shares in a public announcement under Regulation 10, 11 or 12. It is evident from a reading of the above Regulations that the buy-back transaction between the Appellant and HSIDC was incapable of triggering Regulation 10, as the said transaction was protected by Regulation 3. However, the acquisition of the entire share capital of Garg by the Appellant attracted Regulation 10 as the acquisition was in excess of 15%. Further, as this transaction was between two promoters, it did not have the protection of Regulation 3. As required under Regulation 10, the Appellant did make a public announcement, but did not disclose its buy-back transaction with HSIDC. The Appellant has vainly and incorrectly attempted to justify his act of non-disclosure by stating that the transaction with HSIDC was protected by Regulation 3, which placed it beyond the ambit of Regulation 10, 11 and 12. In our view, Regulation 3 only protects a transaction between a co-promoter and a State financial institution to the extent that, as a consequence of such transaction a public announcement will not be required to be made as provided under Regulations 10, 11 and 12. However, it does not imply that the said transaction is to be protected from the rigours of other Regulations provided for under the Act. Thus, the transaction between the Appellant and HSIDC will have to be subject to Regulations 16 and 20, and the rate at which the Appellant bought back the shares from HSIDC had to be disclosed in the public announcement. 14. We also find no force whatsoever in the contention of the Learned Counsel for the Appellant that the post-dated cheques forwarded to HSIDC enclosed with letter dated 15.4.1999 were given by way of a guarantee, especially in light of the fact that the same was denied by HSIDC in its letter to SEBI dated 11.1.2001, wherein HSIDC stated that the post-dated cheques had been issued in consideration of the buy-back of shares. 15. The next contention that was raised by the Counsel for the Appellant was that as the cheques presented had been dishonoured on presentation, the said transaction did not culminate in an acquisition. It has already been held beyond doubt that the post-dated cheques issued by the Appellant in favour of HSIDC were in consideration of the buy-back of the shares held by HSIDC in the Target Company. The Appellant had submitted that the cheques were post-dated because he was suffering from a liquidity crunch. In our view, the post-dated cheques amounted to a promise to pay and that promise would be fulfilled on the date mentioned on the cheque. Thus, this promise to pay amounted to a sale of shares/equity. The subsequent dishonouring of the post-dated cheque would have no bearing on the case. At the time of making the public announcement the Appellant had bought back the shares of HSIDC by making payment via the said post-dated cheques. Further, as the buy-back was in pursuance of an agreement, there was consensus ad idem. The Appellant has subsequently shirked his responsibility and has tried to slither away from honouring the agreement, which he cannot be allowed to gain from, as is established by the legal maxim commodum ex injuri su non habere debet. While interpreting the term acquisition, we must conceptualize the intention behind these Regulations which, it seems to us, is to safeguard the shareholders from adverse consequences of acquisitions and takeovers as far as the value of the shares is concerned. Not infrequently, the new management’s endeavour is to manipulate the market price of the shares in a manner calculated to induce the existing shareholders to off load their holdings at a low price. This is achieved by portraying a false picture of their value. In the background of such an intention it would fallacious to suggest that the said transaction did not tantamount to an acquisition. 16. In order to dispel doubts regarding the term ‘acquisition’, the same was subsequently defined in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. Under Regulation 2 Clause (1) Sub-clause (a)- ‘acquisition’ means directly or indirectly acquiring or agreeing to acquire shares or voting rights in, or control over, a Target Company. This definition clarifies that an acquisition takes place the moment the acquirer decides or agrees to acquire, irrespective of the time when the transfer stands completed in all respects. The definition explicates that the actual transfer need not be contemporaneous with the intended transfer and can be in futuro.17. Further, the letter on which the Counsel for the Appellant had placed reliance to prove that there was no acquisition, is dated 9.12.1999, which was well after the public announcement dated 24.4.1999 where the Appellant was required to make disclosures in compliance with the Regulations. This clearly indicates, that at the date of making the public announcement the Appellant was under the impression that the acquisition has taken place.
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344 |
Bishnu Prasad Sinha Vs. State Of Assam
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was observed as under: "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu (1991 3 SCC 471." 60. In Sahdeo & Ors. vs. State of U.P. [(2004) 10 SCC 682] , this Court opined : "As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper mahzar, are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life." 61. In Raju vs. State of Haryana [(2001) 9 SCC 50] , it has been opined by this Court: "However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the confessional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty." 62. Yet, recently in Amrit Singh vs. State of Punjab [2006 AIR SCW 5712], this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 of the Indian Penal Code was made out stating: "Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases." {See also Sheikh Ishaque & Ors. vs. State of Bihar [(1995) 3 SCC 392] , Rony vs. State of Maharashtra [(1998) 3 SCC 625] , Bachan Singh vs. State of Punjab [(1980) 2 SCC 684] and Machhi Singh (supra). 63. This aspect of the matter has recently been considered at some length by this Court in Aloke Nath Dutta (supra). 64. There is another aspect of this matter which cannot be overlooked. Appellant No.1 made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code of Criminal Procedure.
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0[ds]12. We may, at the outset, place on record that this is one of the rare cases where the witnesses examined on behalf of the prosecution, inter alia, were the employees of the company where the appellants had also been working.We have noticed hereinbefore that the parents of the deceased girl (P.Ws.22 and 23) stated in details as to under what circumstances they had to stay in the waiting room. The Cashier of the Net Work TravelsShri Kapil Kumar Paul, who examined himself as P.W.2, apart from his statements which have been noticed hereinbefore, categorically stated that the appellant No.2, together with the driver and conductor of the bus bearingpersuaded pressed him to allow the bus to leave for Jorhat earlier than the scheduled time, and he refused to accede to their request. It is only because of their conduct he suspected their involvement in the crime. This witness also categorically stated that lock and key of the waiting room would always be with the chawkidar.28. We may now consider the manner in which the confessional statement made by the appellant No.1 was recorded. He was admittedly brought to the Court of Smt. Nirupama Rajkumari, the Judicial Magistrate, 1st Class at Guwahati (P.W.8), for getting his statement recorded on 24.7.2002. The voluntariness and truthfulness of the confession is not in dispute. Appellant No.1 was produced before P.W.8 in her official Chamber at about 4.45 p.m. He was warned that the confession made by him might be used in evidence against him. She recorded the confessional statement of the appellant No.1 being satisfied as regards the voluntariness thereof.
| 0 | 9,498 |
### Instruction:
Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal?
### Input:
was observed as under: "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu (1991 3 SCC 471." 60. In Sahdeo & Ors. vs. State of U.P. [(2004) 10 SCC 682] , this Court opined : "As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper mahzar, are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life." 61. In Raju vs. State of Haryana [(2001) 9 SCC 50] , it has been opined by this Court: "However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the confessional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty." 62. Yet, recently in Amrit Singh vs. State of Punjab [2006 AIR SCW 5712], this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 of the Indian Penal Code was made out stating: "Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases." {See also Sheikh Ishaque & Ors. vs. State of Bihar [(1995) 3 SCC 392] , Rony vs. State of Maharashtra [(1998) 3 SCC 625] , Bachan Singh vs. State of Punjab [(1980) 2 SCC 684] and Machhi Singh (supra). 63. This aspect of the matter has recently been considered at some length by this Court in Aloke Nath Dutta (supra). 64. There is another aspect of this matter which cannot be overlooked. Appellant No.1 made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code of Criminal Procedure.
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345 |
Peerless Gen.F.& I.Co.Ltd. Vs. Reserve Bank Of India
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to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud where Frankfurter, J. said in his Inimitable style:"In the utilities, tax and economic regulation cases, there are good reasons for judicial self- restraint if not judicial deference to legislative Judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to er ror the bewildering conflict of the experts, and the number of times the judges have been overruled by events-self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability". 48. It may also be noted that it is not possible for the Court to determine as to how much percentage of deposit of first instalment should be allowed towards expenses which may consist of commission to agents, office expenses etc. Even amongst the three companies-viz. Peerless, Timex and Favourite, there is a difference in this regard. According to the Peerless 25 %, Timex 50 % and Favorite 60 % of the deposits of the first instalment would be necessary for generating the working capital for meeting the genuine expenses. Thus it would depend from company to company based on various factors such as paid-up-capital, percentage of commission paid to the agents, rate of interest paid to the depositors, period of maturity for repayment, office expenses and various other factors necessary to mop up working capital out of the depositors money. We cannot ignore the possibility of persons having no stake of their own starting such business and after collecting huge deposits from the investors belonging to the poor and weaker section of the society residing in rural areas, and to stop such business after a few years and thus devouring the hard earned money of the small investors. It cannot be lot sight that in such kind of business, the agents always take interest in finding new depositors because they get a high rate of commission out of the first instalment, but they do not have same enthusiasm in respect of deposit of subsequent instalments. In these circumstances, if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionally invalid. 49. It has been vehemently contended before us on behalf of the Peerless employees and field agents that in case the impugned directions are not struck down, the Peerless will have to close down its business and several thousands of employees and their family and several lakhs of field agents would be thrown on the street and left with no employment. We do not find any force in the above contention. So far as Peerless is concerned there is no possibility of its closing down such business. It has already large accumulated funds collected by making profits in the past several years. Thus it has enough working capital in order to meet the expenses. 50. We are not impressed with the argument of Mr. Somnath Chatterjee, Learned Senior Advocate for the Peerless that after some years the Peerless will have to close down its business if directions contained in paragraphs 6 and 12 are to be followed. T he working capital is not needed every year as it can be rotated after having invested once. If the entire amount of the subscribers is deposited or invested in the proportion of 10 % in public sector banks, 70 % in approved securities and 20 % in other investments, such amounts will also start earning interest which can be added and adjusted while depositing or investing the subsequent years of deposits of the subscribers. In any case it lies with the new entrepreneurs while entering such field of business to make arrangement of their own resources for working capital and for meeting the expenses and they cannot insist in utilising the money of the depositors for this purpose. So far as the companies already in this field they must have earned profits in the past years which can be utilised as their working capital. It is important to note that the impugned directions of 1987 have been made applicable from 15th May, 1987 prospectively and not retrospectively. Thus under these directions the question of depositing the entire amount of subscriptions would only apply to the deposits made after 15th May, 1987. 51. We may also observe that the impugned directions of 1987 as well as any other directions issued from time to time by the Reserve Bank relating to economic or financial policy are never so sacrosanct that the same cannot be changed. Even the financial budget for every year depends on the economic and financial policy of the Government existing at the relevant time. So far as the impugned directions are concerned if it is found in future that the same are not workable or working against the public interest, the Reserve Bank is always free to change its policy and scrap or amend the directions as and when necessary. We have no doubt that if in times to come the Reserve Bank feels that business of the kind run at present by Peerless and other companies, in terms of the directions of 1987 are not yielding the result as envisaged by the Reserve Bank, it will always be prepared to consider any new proposals which may be conducive both in the interest of the large multitude of the investors as well as the employees of such companies. 52. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the Reserve Bank made a candid statement on behalf of the Reserve Bank that the Reserve Bank would always be pre pared to consider any new proposal which would observe the public interest. 53.
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1[ds]A combined reading of the above provisions unmistakably goes to show that t he Reserve Bank if considers necessary in the public interest so to do can specify the conditions subject to which any prospectus or advertisement soliciting deposits of money from the public may be issued. It can also give directions to non-ban king institutions in respect of any matters relating to or connected with the receipt of deposits, including the rates of interest payable on such deposits, and the periods for which deposits may be received. This latter power flows from sub-s. (3) of Sec. 45K of the Act. The Bank under this provision can give directions in respect of any matters relating to or connected with the receipt of deposits (emphasis added). In our view a very wide power is given to the Reserve Ban k of India to issue directions in respect of any matters relating to or connected with the receipt of deposits. It cannot be considered as a power restricted or limited to receipt of deposits as sought to be argued on behalf of the companies that under this power the Reserve Bank would only be competent to stipulate that deposits cannot be received beyond a certain limit or that the receipt of deposits may be linked with the capital of the company. Such interpretation would be violating the language of Sec. 45K (3) which furnishes a wide power to the Reserve Bank to give any directions in respect of any matters relating to or connected with the receipt of deposits. The Reserve Bank under this provision is entitled to give directions with regard to the manner in which the deposits are to be invested and also the manner in which such deposits are to be disclosed in the balance-sheet or books of accounts of the company. The word `any qualifying matters relating to or connected with the receipt of deposits in the above provision is of great significance and in our view the impugned directions of 1987 are fully covered under Sec. 45 K (3) of the Act, which gives power to the Reserve Bank to issue such directions. As a proposition of law we agree with the contention of the learned counsel for the Reserve Bank that when an authority takes action which is within its competence, it cannot be held to be invalid merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. Learned counsel in this regard has placed reliance on Indian Aluminium Company etc. v. Kerala State Electricity Board, 1976 (1) SCRour view as already held above, the Reserve Bank was competent and authorised to issue the impugned directions of 1987, in exercise of powers conferred under Section 45K (3) of the Act.In the application forms and in the advertisements issued by these companies it is expressly held out to the public that their moneys are safe with the banks and in Government securities. It is the very nature of their business which makes it non-viable if they are to give fair return to the depositors and private security for the repayment of their money. The scheme of control as provided in the directions of 1987 might be harsh but the same is in conformity with t he assertions held out by these companies to the public at large. These directions subject the companies to proper discipline by monitoring their actions and such directions cannot be considered as unreasonable. The reasonableness of the direction s when looked at from the point of view of the depositors for whose safeguard they have been issued, is beyond question. Return provided and the security to be given through proper investment cannot be faulted on any ground. Thus what seems to be an impossible situation for these companies is not due to the impugned directions but because of the nature of business itself. The funds are collected at exhorbitant costs and on that account it becomes difficult for the companies to give a fair return to the depositors. These companies are not genuine investment companies. If they want to do genuine investment business they can do so by choosing freely their investment, but in that case Reserve Bank of India directions applicable to such companies would permit them to accept deposits not exceeding 25 per cent of paid up capital and reserve. The directions of 1987 had not imposed any restriction on the right to carry on business but those directions only place a restriction with respect to one of the modes of raising reserves i.e. through publichas been further argued that the reasonableness of the directions has not to be looked into from the point of view of the company to whom any such restrictions will be irksome and may therefore be regarded as unreasonable. The framing of the directions are only regulatory in nature keeping in view the interest of the depositors without unduly jeopardising the interest of the employees. Keeping this in mind it has been provided that the minimum return would be at 10 per cent, though there are govt. and public sector bonds which pay interest at a much higher rate. Even presently bank deposits and other company deposits give return varying between 13 to 15 per cent. There is no limitation on the quantum of deposits with reference to the overall capital as shown in the case of companies governed by the Companies (Acceptance of Deposits) Rules 1975, Non Banking Financial Companies (Reserve Bank) Directions,view of the low or total non-existent capital of the RNBCs, it was not possible to secure the deposits in this manner. Instead, it has been provided that the entire liability towards the depositors should be invested and no part of the deposits be utilised for payment of commission etc. or incurring other expense. In any event, even if, the directions do not prescribe existence of owners capital as security, it does not imply that it is permissible to use the deposits received to bridge the time gap between income and expenditure. Merely because the directions do not fix a ceiling on the rate of commissions it does not imply that the Reserve Bank has granted its permission to payment of high commission or incurring of large expenses on management etc. The RNBCs are free to incur such expenses and organize their business as they desire as long as the depositors are fully secured at all times. The contention that the business of the RNBCs will close down if the directions of 1987 are to be adhered to is not based on facts and misconceived in law. A perusal of Directors Report of Peerless for the years 1988, 1989 and 1990 clearly go to show that they did not consider the company in any financial difficulty and in fact paid larger dividends even after complying with the impugned directions ofhave heard the arguments of learned counsel for the parties. It may be made clear at the outset that questions raised in these cases regarding the validity of paragraphs 6 and 12 of the directions of 1987 cannot be determined me rely by taking into consideration the working of the financial soundness of the one company alone like Peerles but the matter has to be examined in a broader perspective of all RNBCs. We have to keep in mind, while deciding the controversies raised in the arguments, such RNBCs which are doing the same kind of business of taking deposits and returning the same to the certificate holders after a gap of 7 to 10 years along with interest, bonus etc. In the affidavit submitted before this Court on behalf of Reserve Bank of India it has been stated that prior to 1987 directions, there were 747 such companies which were conducting this business under various deposit schemes. At present they could classify 392 such companies spread over across the entire country. According to the above affidavit, as on 31st March, 1990 in the eastern zone out of 185 companies, only 35 have filed the annual returns and out of which only 30 have filed the balance sheet. Similarly, out of 140 companies in the northern zone only 28 have filed annual returns and 32 have filed balance sheet. A perusal of the returns given by 51 of these companies discloses that 35 companies have a negative net worth (i.e. their losses far exceed their share capital and reserves) which necessarily means that they have not only wiped out the share capital and reserves but their liabilities are far in excess. Only 16 companies have a positive net worth including Pee rless. It has been further pointed out in the affidavit that apart from Peerless the aggregate capital investment by 15 companies is Rs. 158 lacs only. As against this, the negative net worth of the 35 companies aggregated to Rs. 3.6 crores. Des pite large accumulated losses (in some cases with meager or nominal capital) these companies apart from Peerless, have realised deposits to the tune of Rs. 86 crores. Apart from the financial parameters most of these small companies are family co ncerns. Most of such companies have not designated their banks as is required under Paragraph 6 of the directions and in most of such cases amounts deposited in banks and approved securities fall much short of deposit liabilities. It has also been pointed out in the affidavit that the companies operating in these areas also at times become untraceable in that a number of show cause notices issued have been returned as "addressee not known" etc. Thus we have to keep in mind the above mushroom of companies also which have set foot in this sort ofwould also be important to note that most of the depositors in such companies belong to the rural areas and who are persons belonging to lower middle class, small agriculturists and small traders, pensioners etc. These companies advertise their schemes widely in beguiling terms. Through such advertisements they lure the small savings of the poor ignorant villagers through a special structure of agents, special agents, different kinds of organisers and so on. The agents commission for the first years subscription is very high and which offers incentive to the agent s on securing a fresh business and a disincentive to collect subscriptions of subsequentis a matter of common experience and knowledge that most rural folk particularly those belonging to the lower strata of society will not pay their subscriptions regularly unless somebody takes the trouble of collecting their subscription with the same enthusiasm as may be shown in enrolling the subscribers in the beginning. It is no doubt correct that these companies do tap and collect the deposits from such areas where the agents of public sector banks or public sector companies or instrumentalities of the state are unable to reach. Thus these companies mop up a large amount of money for ultimately investing in the nationalised bank or other Govt. owned corporations or companies. However, the Reserve Bank considered the safety of the money of the depositors as the paramount consideration in issuing the direction of 1987. It cannot be disputed that the interest of the employees as well as the field officers and agents have also to be taken into consideration while deciding the reasonableness of the impugnedcontention on behalf of the Reserve Bank is that the directions have been made in public interest of safeguarding the interest of millions of depositors and the Reserve Bank is not concerned and while doing so it was rightly thought necessary by the Reserve Bank that the companies cannot be permitted to incur the expenses out of the corpus of the depositors money. The business carried on by the companies to restructure their organization by curtailing its expenses. If such middlemen or brokers are not able to earn a large profit as was done before the enforcement of the impugned directions, it lies with the companies to continue or not such business when the margin o f profit is curtailed. These companies want to do the business without having any stake of their own. The companies doing such business cannot be subjected to the scheme of control applied to other financial and non-financial companies for the simple reason that they have no capital and their schemes are for a period much longer than three years. After the decision of the Supreme Court in Peerless case these directions of 1987 were issued after mature consideration with the help and advice ofmay also be noted that it is not possible for the Court to determine as to how much percentage of deposit of first instalment should be allowed towards expenses which may consist of commission to agents, office expensesamongst the three companies-viz. Peerless, Timex and Favourite, there is a difference in this regard. According to the Peerless 25 %, Timex 50 % and Favorite 60 % of the deposits of the first instalment would be necessary for generating the working capital for meeting the genuine expenses. Thus it would depend from company to company based on various factors such as paid-up-capital, percentage of commission paid to the agents, rate of interest paid to the depositors, period of maturity for repayment, office expenses and various other factors necessary to mop up working capital out of the depositors money. We cannot ignore the possibility of persons having no stake of their own starting such business and after collecting huge deposits from the investors belonging to the poor and weaker section of the society residing in rural areas, and to stop such business after a few years and thus devouring the hard earned money of the small investors. It cannot be lot sight that in such kind of business, the agents always take interest in finding new depositors because they get a high rate of commission out of the first instalment, but they do not have same enthusiasm in respect of deposit of subsequent instalments. In these circumstances, if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionallydo not find any force in the above contention. So far as Peerless is concerned there is no possibility of its closing down such business. It has already large accumulated funds collected by making profits in the past several years. Thus it has enough working capital in order to meet theare not impressed with the argument of Mr. Somnath Chatterjee, Learned Senior Advocate for the Peerless that after some years the Peerless will have to close down its business if directions contained in paragraphs 6 and 12 are to be followed. T he working capital is not needed every year as it can be rotated after having invested once. If the entire amount of the subscribers is deposited or invested in the proportion of 10 % in public sector banks, 70 % in approved securities and 20 % in other investments, such amounts will also start earning interest which can be added and adjusted while depositing or investing the subsequent years of deposits of the subscribers. In any case it lies with the new entrepreneurs while entering such field of business to make arrangement of their own resources for working capital and for meeting the expenses and they cannot insist in utilising the money of the depositors for this purpose. So far as the companies already in this field they must have earned profits in the past years which can be utilised as their working capital. It is important to note that the impugned directions of 1987 have been made applicable from 15th May, 1987 prospectively and not retrospectively. Thus under these directions the question of depositing the entire amount of subscriptions would only apply to the deposits made after 15th May,may also observe that the impugned directions of 1987 as well as any other directions issued from time to time by the Reserve Bank relating to economic or financial policy are never so sacrosanct that the same cannot be changed. Even the financial budget for every year depends on the economic and financial policy of the Government existing at the relevant time. So far as the impugned directions are concerned if it is found in future that the same are not workable or working against the public interest, the Reserve Bank is always free to change its policy and scrap or amend the directions as and when necessary. We have no doubt that if in times to come the Reserve Bank feels that business of the kind run at present by Peerless and other companies, in terms of the directions of 1987 are not yielding the result as envisaged by the Reserve Bank, it will always be prepared to consider any new proposals which may be conducive both in the interest of the large multitude of the investors as well as the employees of suchregulation intends to pre serve the corpus of the deposits and the interest payable thereon as on date to be a tangible and unencumbered asset at all times, though not repayable. Indisputably the depositors/subscribers stand as unsecured creditors. Undoubtedly every measure cannot be viewed or interpreted in the event of catastrophe overtaking the company. The catchy and alluring but beguiled terms of offer attract the vulnerable segments of the society to subscribe and keep subscribing the small savings for bettermany a time, by the date of maturity, their hopes are belied and aspirations are frustrated or dashed to ground. They remain to be helpless spectators with all disabilities to recover the amounts. Pathetic financial position of some of the companies enumerated herein before would amply demonstrate the agony to which the poor subscribers would be subjected to.
| 1 | 15,406 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud where Frankfurter, J. said in his Inimitable style:"In the utilities, tax and economic regulation cases, there are good reasons for judicial self- restraint if not judicial deference to legislative Judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to er ror the bewildering conflict of the experts, and the number of times the judges have been overruled by events-self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability". 48. It may also be noted that it is not possible for the Court to determine as to how much percentage of deposit of first instalment should be allowed towards expenses which may consist of commission to agents, office expenses etc. Even amongst the three companies-viz. Peerless, Timex and Favourite, there is a difference in this regard. According to the Peerless 25 %, Timex 50 % and Favorite 60 % of the deposits of the first instalment would be necessary for generating the working capital for meeting the genuine expenses. Thus it would depend from company to company based on various factors such as paid-up-capital, percentage of commission paid to the agents, rate of interest paid to the depositors, period of maturity for repayment, office expenses and various other factors necessary to mop up working capital out of the depositors money. We cannot ignore the possibility of persons having no stake of their own starting such business and after collecting huge deposits from the investors belonging to the poor and weaker section of the society residing in rural areas, and to stop such business after a few years and thus devouring the hard earned money of the small investors. It cannot be lot sight that in such kind of business, the agents always take interest in finding new depositors because they get a high rate of commission out of the first instalment, but they do not have same enthusiasm in respect of deposit of subsequent instalments. In these circumstances, if the Reserve Bank has issued the directions of 1987 to safeguard the larger interest of the public and small depositors it cannot be said that the directions are so unreasonable as to be declared constitutionally invalid. 49. It has been vehemently contended before us on behalf of the Peerless employees and field agents that in case the impugned directions are not struck down, the Peerless will have to close down its business and several thousands of employees and their family and several lakhs of field agents would be thrown on the street and left with no employment. We do not find any force in the above contention. So far as Peerless is concerned there is no possibility of its closing down such business. It has already large accumulated funds collected by making profits in the past several years. Thus it has enough working capital in order to meet the expenses. 50. We are not impressed with the argument of Mr. Somnath Chatterjee, Learned Senior Advocate for the Peerless that after some years the Peerless will have to close down its business if directions contained in paragraphs 6 and 12 are to be followed. T he working capital is not needed every year as it can be rotated after having invested once. If the entire amount of the subscribers is deposited or invested in the proportion of 10 % in public sector banks, 70 % in approved securities and 20 % in other investments, such amounts will also start earning interest which can be added and adjusted while depositing or investing the subsequent years of deposits of the subscribers. In any case it lies with the new entrepreneurs while entering such field of business to make arrangement of their own resources for working capital and for meeting the expenses and they cannot insist in utilising the money of the depositors for this purpose. So far as the companies already in this field they must have earned profits in the past years which can be utilised as their working capital. It is important to note that the impugned directions of 1987 have been made applicable from 15th May, 1987 prospectively and not retrospectively. Thus under these directions the question of depositing the entire amount of subscriptions would only apply to the deposits made after 15th May, 1987. 51. We may also observe that the impugned directions of 1987 as well as any other directions issued from time to time by the Reserve Bank relating to economic or financial policy are never so sacrosanct that the same cannot be changed. Even the financial budget for every year depends on the economic and financial policy of the Government existing at the relevant time. So far as the impugned directions are concerned if it is found in future that the same are not workable or working against the public interest, the Reserve Bank is always free to change its policy and scrap or amend the directions as and when necessary. We have no doubt that if in times to come the Reserve Bank feels that business of the kind run at present by Peerless and other companies, in terms of the directions of 1987 are not yielding the result as envisaged by the Reserve Bank, it will always be prepared to consider any new proposals which may be conducive both in the interest of the large multitude of the investors as well as the employees of such companies. 52. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of the Reserve Bank made a candid statement on behalf of the Reserve Bank that the Reserve Bank would always be pre pared to consider any new proposal which would observe the public interest. 53.
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346 |
GURDEV SINGH Vs. UNION OF INDIA
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set aside the judgment and order passed by the learned Single Judge of the High Court.5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the heirs of the original writ petitioner (the original writ petitioner died during the pendency of the appeal before the High Court) have preferred the present appeal.6. We have heard Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants and Shri Chirag M. Shroff, learned Advocate appearing on behalf of Govt. of NCT of Delhi.6.1 Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has vehemently submitted that as such the entitlement of the land in question by the said Hem Singh under the Act as a displaced person cannot be disputed as the authority itself in the year 1985 allotted the land in question in favour of Hem Singh. It is submitted that however, at the relevant time, the father of the appellants was aggrieved by the valuation and the price determined in the order of allotment passed in the year 1985. It is submitted that thereafter the litigation with respect to valuation at the instance of Hem Singh came to be continued. However, ultimately, before the learned Single Judge of the High Court, the allottee – Hem Singh given up his challenge to the valuation and accepted and agreed to pay the price fixed in the year 1985. It is submitted that therefore the dispute with respect to valuation came to an end. It is submitted that, however, as in the meantime number of years have elapsed, the learned Single Judge of the High Court considered the matter on equity and rightly directed the original writ petitioner to pay the price as mentioned in the order of 1985, together with interest @ 10% per annum. It is submitted that the original writ petitioner deposited Rs. 89 lakhs with the High Court, amount as determined pursuant to the order passed by the learned Single Judge. It is submitted that the said amount deposited on 25.08.2010, by now, has come to Rs.1.41 crores. Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has stated at the Bar that looking to the objections raised on behalf of the respondents herein, raised before the Division Bench of the High Court, the appellants are ready and willing to pay some further reasonable amount.7. Having heard the learned counsel for the respective parties and the fact that the entitlement of the plot in question to the original allottee – Hem Singh cannot be disputed and that the authority itself allotted the land in the year 1985 to Hem Singh on a consideration of Rs.26,01,846/- and on certain other terms and conditions and considering the principal grievance of the respondents herein – original appellants before the Division Bench of the High Court that the learned Single Judge erred in directing the respondents herein in the year 2009¬10 to sell the immovable property to the original writ petitioner at a price at which the original writ petitioner had 25 years prior thereto offered to sell the said property though together with interest @ 10% per annum, but without regard to the fact that the market price of the property in the year 2009-10 and which alone was the criteria under the Rules under which the property was offered to be sold to the original writ petitioner, was far far more than the price prevalent, 25 years earlier in the year 1985 together with simple interest thereon @ 10% per annum, we called upon the learned counsel appearing on behalf of the respective parties to file an affidavit regarding the valuation of the said property as on today.8. Pursuant to the same, an additional affidavit along with fresh valuation has been filed on behalf of respondent nos. 4 & 5 – Government of NCT of Delhi. According to the valuation report annexed with the additional affidavit, the total value of the property in question comes to Rs.6,14,79,533/¬, as under:table8.1 Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has submitted that there is an arithmetical error in calculating the cost of the land. It is submitted that the total plot area is 222 Sq. Mtrs. and in the valuation report it is wrongly considered as 272.09 Sq. Mtrs. It is submitted that therefore to that extent the cost of the land is required to be reduced. It is further submitted by Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants that the valuation report contains Rs.42,75,331.20 towards minimum cost of construction. It is submitted that the aforesaid is too exorbitant/high. It is submitted that in any case the appellants would be demolishing the entire structure. He has stated at the Bar that the appellants are ready and willing to pay any further amount, as may be directed by this Court.9. Though the learned Advocate appearing on behalf of Govt. of NCT of Delhi has tried to resist the aforesaid offer, we are of the opinion that if the appellants are directed to pay some more reasonable amount considering the fact that number of years have passed and even the price of the land has also increased, it would meet the ends of justice. At the same time, to direct the appellants to pay the present market value/market price would also be unreasonable. Therefore, taking into over all facts and circumstances of the case, we are of the opinion that if the appellants are directed to pay Rs.3,66,30,000/¬ towards the cost of the land and Rs.20,00,000/- towards the cost of construction of the existing building, it will meet the ends of justice. As observed hereinabove, the appellants have deposited Rs.89 lakhs in the Registry of the High Court on 25.08.2010. It is reported that now the aforesaid amount with interest comes to Rs.1.41 crores. Therefore, the appellants are required to pay the aforesaid determined amount minus Rs.1.41 crores.
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1[ds]7. Having heard the learned counsel for the respective parties and the fact that the entitlement of the plot in question to the original allottee – Hem Singh cannot be disputed and that the authority itself allotted the land in the year 1985 to Hem Singh on a consideration of Rs.26,01,846/- and on certain other terms and conditions and considering the principal grievance of the respondents herein – original appellants before the Division Bench of the High Court that the learned Single Judge erred in directing the respondents herein in the year 2009¬10 to sell the immovable property to the original writ petitioner at a price at which the original writ petitioner had 25 years prior thereto offered to sell the said property though together with interest @ 10% per annum, but without regard to the fact that the market price of the property in the year 2009-10 and which alone was the criteria under the Rules under which the property was offered to be sold to the original writ petitioner, was far far more than the price prevalent, 25 years earlier in the year 1985 together with simple interest thereon @ 10% per annum, we called upon the learned counsel appearing on behalf of the respective parties to file an affidavit regarding the valuation of the said property as on today.Though the learned Advocate appearing on behalf of Govt. of NCT of Delhi has tried to resist the aforesaid offer, we are of the opinion that if the appellants are directed to pay some more reasonable amount considering the fact that number of years have passed and even the price of the land has also increased, it would meet the ends of justice. At the same time, to direct the appellants to pay the present market value/market price would also be unreasonable. Therefore, taking into over all facts and circumstances of the case, we are of the opinion that if the appellants are directed to pay Rs.3,66,30,000/¬ towards the cost of the land and Rs.20,00,000/- towards the cost of construction of the existing building, it will meet the ends of justice. As observed hereinabove, the appellants have deposited Rs.89 lakhs in the Registry of the High Court on 25.08.2010. It is reported that now the aforesaid amount with interest comes to Rs.1.41 crores. Therefore, the appellants are required to pay the aforesaid determined amount minus Rs.1.41 crores.
| 1 | 1,770 |
### Instruction:
From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
### Input:
set aside the judgment and order passed by the learned Single Judge of the High Court.5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the heirs of the original writ petitioner (the original writ petitioner died during the pendency of the appeal before the High Court) have preferred the present appeal.6. We have heard Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants and Shri Chirag M. Shroff, learned Advocate appearing on behalf of Govt. of NCT of Delhi.6.1 Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has vehemently submitted that as such the entitlement of the land in question by the said Hem Singh under the Act as a displaced person cannot be disputed as the authority itself in the year 1985 allotted the land in question in favour of Hem Singh. It is submitted that however, at the relevant time, the father of the appellants was aggrieved by the valuation and the price determined in the order of allotment passed in the year 1985. It is submitted that thereafter the litigation with respect to valuation at the instance of Hem Singh came to be continued. However, ultimately, before the learned Single Judge of the High Court, the allottee – Hem Singh given up his challenge to the valuation and accepted and agreed to pay the price fixed in the year 1985. It is submitted that therefore the dispute with respect to valuation came to an end. It is submitted that, however, as in the meantime number of years have elapsed, the learned Single Judge of the High Court considered the matter on equity and rightly directed the original writ petitioner to pay the price as mentioned in the order of 1985, together with interest @ 10% per annum. It is submitted that the original writ petitioner deposited Rs. 89 lakhs with the High Court, amount as determined pursuant to the order passed by the learned Single Judge. It is submitted that the said amount deposited on 25.08.2010, by now, has come to Rs.1.41 crores. Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has stated at the Bar that looking to the objections raised on behalf of the respondents herein, raised before the Division Bench of the High Court, the appellants are ready and willing to pay some further reasonable amount.7. Having heard the learned counsel for the respective parties and the fact that the entitlement of the plot in question to the original allottee – Hem Singh cannot be disputed and that the authority itself allotted the land in the year 1985 to Hem Singh on a consideration of Rs.26,01,846/- and on certain other terms and conditions and considering the principal grievance of the respondents herein – original appellants before the Division Bench of the High Court that the learned Single Judge erred in directing the respondents herein in the year 2009¬10 to sell the immovable property to the original writ petitioner at a price at which the original writ petitioner had 25 years prior thereto offered to sell the said property though together with interest @ 10% per annum, but without regard to the fact that the market price of the property in the year 2009-10 and which alone was the criteria under the Rules under which the property was offered to be sold to the original writ petitioner, was far far more than the price prevalent, 25 years earlier in the year 1985 together with simple interest thereon @ 10% per annum, we called upon the learned counsel appearing on behalf of the respective parties to file an affidavit regarding the valuation of the said property as on today.8. Pursuant to the same, an additional affidavit along with fresh valuation has been filed on behalf of respondent nos. 4 & 5 – Government of NCT of Delhi. According to the valuation report annexed with the additional affidavit, the total value of the property in question comes to Rs.6,14,79,533/¬, as under:table8.1 Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants has submitted that there is an arithmetical error in calculating the cost of the land. It is submitted that the total plot area is 222 Sq. Mtrs. and in the valuation report it is wrongly considered as 272.09 Sq. Mtrs. It is submitted that therefore to that extent the cost of the land is required to be reduced. It is further submitted by Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the appellants that the valuation report contains Rs.42,75,331.20 towards minimum cost of construction. It is submitted that the aforesaid is too exorbitant/high. It is submitted that in any case the appellants would be demolishing the entire structure. He has stated at the Bar that the appellants are ready and willing to pay any further amount, as may be directed by this Court.9. Though the learned Advocate appearing on behalf of Govt. of NCT of Delhi has tried to resist the aforesaid offer, we are of the opinion that if the appellants are directed to pay some more reasonable amount considering the fact that number of years have passed and even the price of the land has also increased, it would meet the ends of justice. At the same time, to direct the appellants to pay the present market value/market price would also be unreasonable. Therefore, taking into over all facts and circumstances of the case, we are of the opinion that if the appellants are directed to pay Rs.3,66,30,000/¬ towards the cost of the land and Rs.20,00,000/- towards the cost of construction of the existing building, it will meet the ends of justice. As observed hereinabove, the appellants have deposited Rs.89 lakhs in the Registry of the High Court on 25.08.2010. It is reported that now the aforesaid amount with interest comes to Rs.1.41 crores. Therefore, the appellants are required to pay the aforesaid determined amount minus Rs.1.41 crores.
### Response:
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347 |
Ajit Singh Vs. Chief Election Commissioner Of India & Ors
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deny appointment to the appellant as Private Secretary to the Chief Election Commissioner. It must be realised that in reply to the proposal to amend the extant rules the Ministry of Law, Justice and Company Affairs, in Consultation with the Department of Personnel and Administrative Reforms, wrote to the Commission on December 5, 1974 as under: "The post of Private Secretary to the Chief Election Commissioner is borne on the personal staff of the Chief Election Commissioner and appointment thereto is outside the purview of the UPSC vide entry 5 of Schedule to the Union Public Service Commissioner (Exemption from Consultation) Regulations, 1958. The appointment of a person thereto may be made by the Chief Election Commissioner at his discretion without the consultation of the Union Public Service Commission. The appointment to the post of Private Secretary to the Chief Election Commissioner is also co-terminus with the appointment of the Chief Election Commissioner. In view of this position, the Department of Personnel and Administrative Reforms have advised that the Recruitment Rules for the post of Private Secretary to the Chief Election Commissioner need not be made. The Rules for the post as proposed by the Commissioner have therefore not been notified." After the amendment of the 1974 Rules the Commissioner issued an office order dated February 18, 1980 stating that appointment to the post of Private Secretary shall be made in the absolute discretion of the Chief Election Commissioner from amongst persons of suitable class or category serving in the Commission or from outside, as he may deem fit. The words in the absolute discretion of the Chief Election Commissioner were construed by counsel to mean that arbitrary and unfettered power was conferred to the Chief Election Commissioner in the matter of choice of his Private Secretary. The Office order further stated that the appointment of the incumbent to the said post shall be co-terminus with the incumbency in the post of the Chief Election Commissioners. This order shows that after the amendment of the 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief Election Commissioner. 7. It will appear from the above developments that the proposal for the amendment of the relevant recruitment rules was moved way back in July 1970. The advice given by the Law Ministry by their Communication of December 5, 1974 was ultimately accepted by the Commission. By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commissions proposal would be considered at the time of change in the incumbency in the post of the Chief election Commissioner. That was why the process of amendment of the 1974 Rules was delayed until December 1979. The incumbent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruitment rules. It was, therefore, impossible to contend that respondent 1s action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief Election Commissioner. 8. Coming to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance. Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner. Free and fair elections are the basic postulates of any democratic order. A duty is cast on the Chief Election Commissioner to ensure free and fair elections. This makes the post of the Chief Election ensure free and fair elections. This makes the post of the Chief Election Commissioner a sensitive one. The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the government. His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality. He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence. It is, therefore, imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed. He must be a man of impeccable character and integrity, besides being competent in secretarial work. Integrity, honestly and competence are the basic hallmarks for the post. In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith. It is for this reason that the tenure of the post is made co-terminus with the tenure of the Chief Election Commissioner. That is for the obvious reason that a man chosen by the predecessor may not be enjoying the same degree of confidence of his successor. He may like to have his own man of confidence to attend to his secretarial work. It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself. This is nothing new. Similar provision is made for certain other functionaries as can be seen from the Home Departments notification dated September 1, 1958 as amended from time to time. We are, therefore, of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner. We, therefore, do not think that the office order of February 18, 1980 can be struck down. The High Court was, therefore, right in limiting the relief up to December 14, 1979 i.e., till the 1974 Rules became effective. Since consultation with the UPSC was not necessary after the amendment introduced by the 1979 Rules, the Chief Election Commissioner was entitled to choose the man of his confidence as Private Secretary. The Choice of respondent 2 to the post cannot, therefore, be questioned.
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0[ds]After the amendment of the 1974 Rules the Commissioner issued an office order dated February 18, 1980 stating that appointment to the post of Private Secretary shall be made in the absolute discretion of the Chief Election Commissioner from amongst persons of suitable class or category serving in the Commission or from outside, as he may deem fit. The words in the absolute discretion of the Chief Election Commissioner were construed by counsel to mean that arbitrary and unfettered power was conferred to the Chief Election Commissioner in the matter of choice of his Private Secretary. The Office order further stated that the appointment of the incumbent to the said post shall be co-terminus with the incumbency in the post of the Chief Election Commissioners. This order shows that after the amendment of the 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief ElectionIt will appear from the above developments that the proposal for the amendment of the relevant recruitment rules was moved way back in July 1970. The advice given by the Law Ministry by their Communication of December 5, 1974 was ultimately accepted by the Commission. By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commissions proposal would be considered at the time of change in the incumbency in the post of the Chief election Commissioner. That was why the process of amendment of the 1974 Rules was delayed until December 1979. The incumbent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruitment rules. It was, therefore, impossible to contend that respondent 1s action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief ElectionComing to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance. Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner. Free and fair elections are the basic postulates of any democratic order. A duty is cast on the Chief Election Commissioner to ensure free and fair elections. This makes the post of the Chief Election ensure free and fair elections. This makes the post of the Chief Election Commissioner a sensitive one. The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the government. His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality. He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence. It is, therefore, imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed. He must be a man of impeccable character and integrity, besides being competent in secretarial work. Integrity, honestly and competence are the basic hallmarks for the post. In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith. It is for this reason that the tenure of the post is made co-terminus with the tenure of the Chief Election Commissioner. That is for the obvious reason that a man chosen by the predecessor may not be enjoying the same degree of confidence of his successor. He may like to have his own man of confidence to attend to his secretarial work. It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself. This is nothing new. Similar provision is made for certain other functionaries as can be seen from the Home Departments notification dated September 1, 1958 as amended from time to time. We are, therefore, of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner. We, therefore, do not think that the office order of February 18, 1980 can be struck down. The High Court was, therefore, right in limiting the relief up to December 14, 1979 i.e., till the 1974 Rules became effective. Since consultation with the UPSC was not necessary after the amendment introduced by the 1979 Rules, the Chief Election Commissioner was entitled to choose the man of his confidence as Private Secretary. The Choice of respondent 2 to the post cannot, therefore, be questioned
| 0 | 2,462 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
deny appointment to the appellant as Private Secretary to the Chief Election Commissioner. It must be realised that in reply to the proposal to amend the extant rules the Ministry of Law, Justice and Company Affairs, in Consultation with the Department of Personnel and Administrative Reforms, wrote to the Commission on December 5, 1974 as under: "The post of Private Secretary to the Chief Election Commissioner is borne on the personal staff of the Chief Election Commissioner and appointment thereto is outside the purview of the UPSC vide entry 5 of Schedule to the Union Public Service Commissioner (Exemption from Consultation) Regulations, 1958. The appointment of a person thereto may be made by the Chief Election Commissioner at his discretion without the consultation of the Union Public Service Commission. The appointment to the post of Private Secretary to the Chief Election Commissioner is also co-terminus with the appointment of the Chief Election Commissioner. In view of this position, the Department of Personnel and Administrative Reforms have advised that the Recruitment Rules for the post of Private Secretary to the Chief Election Commissioner need not be made. The Rules for the post as proposed by the Commissioner have therefore not been notified." After the amendment of the 1974 Rules the Commissioner issued an office order dated February 18, 1980 stating that appointment to the post of Private Secretary shall be made in the absolute discretion of the Chief Election Commissioner from amongst persons of suitable class or category serving in the Commission or from outside, as he may deem fit. The words in the absolute discretion of the Chief Election Commissioner were construed by counsel to mean that arbitrary and unfettered power was conferred to the Chief Election Commissioner in the matter of choice of his Private Secretary. The Office order further stated that the appointment of the incumbent to the said post shall be co-terminus with the incumbency in the post of the Chief Election Commissioners. This order shows that after the amendment of the 1974 Rules the matter in regard to the choice of personnel for the post of Private Secretary to the Chief Election Commissioner was left to the sole discretion of the Chief Election Commissioner. 7. It will appear from the above developments that the proposal for the amendment of the relevant recruitment rules was moved way back in July 1970. The advice given by the Law Ministry by their Communication of December 5, 1974 was ultimately accepted by the Commission. By the letter of March 19, 1975, the Law Ministry, however, informed the Commission that the Commissions proposal would be considered at the time of change in the incumbency in the post of the Chief election Commissioner. That was why the process of amendment of the 1974 Rules was delayed until December 1979. The incumbent to the post of Chief Election Commissioner at all material times had, therefore, nothing to do with the proposal to amend the recruitment rules. It was, therefore, impossible to contend that respondent 1s action was mala fide and was actuated with the sole desire to deny promotion to the appellant to the post of Private Secretary to the Chief Election Commissioner. 8. Coming to the next limb of attack it must be realised that in a democratic republic like ours the office of the Chief Election Commissioner is of vital importance. Article 324 confers the power of superintendence, direction and control of elections in the Chief Election Commissioner. Free and fair elections are the basic postulates of any democratic order. A duty is cast on the Chief Election Commissioner to ensure free and fair elections. This makes the post of the Chief Election ensure free and fair elections. This makes the post of the Chief Election Commissioner a sensitive one. The Chief Election Commissioner has to deal with several matters which are brought before him by political parties as well as the government. His office is called upon to handle correspondence which require a high degree of secrecy and confidentiality. He would naturally require the services of his Private Secretary for handling such highly secret and confidential files and correspondence. It is, therefore, imperative that the person working as Private Secretary to the Chief Election Commissioner must be one in whom implicit faith and confidence can be placed. He must be a man of impeccable character and integrity, besides being competent in secretarial work. Integrity, honestly and competence are the basic hallmarks for the post. In addition, he must be a person in whom the Chief Election Commissioner has absolute trust and faith. It is for this reason that the tenure of the post is made co-terminus with the tenure of the Chief Election Commissioner. That is for the obvious reason that a man chosen by the predecessor may not be enjoying the same degree of confidence of his successor. He may like to have his own man of confidence to attend to his secretarial work. It is, therefore, not without reason that the choice of personnel to the post of Private Secretary is left to the Chief Election Commissioner himself. This is nothing new. Similar provision is made for certain other functionaries as can be seen from the Home Departments notification dated September 1, 1958 as amended from time to time. We are, therefore, of the opinion that having regard to the special needs of the post it was imperative to leave the matter of choice of personnel in the absolute discretion of the Chief Election Commissioner. We, therefore, do not think that the office order of February 18, 1980 can be struck down. The High Court was, therefore, right in limiting the relief up to December 14, 1979 i.e., till the 1974 Rules became effective. Since consultation with the UPSC was not necessary after the amendment introduced by the 1979 Rules, the Chief Election Commissioner was entitled to choose the man of his confidence as Private Secretary. The Choice of respondent 2 to the post cannot, therefore, be questioned.
### Response:
0
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348 |
Jeeja Ghosh & Another Vs. Union of India & Others
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in the year 1975. The position was reiterated in the Beijing Conclave by the Government of Asian and Pacific Countries that was held from December 01-05, 1992 and in order to convert the resolutions adopted therein into reality, the Indian Parliament also passed the enactment, i.e. Act, 1995. 42. All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination.They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance is that others do not understand them. 43. As pointed out in the beginning, the very first sentence of the book "NO PITY" authored by Joseph P.Shapiro reads: "Non disabled Americans do not understand disabled ones." The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read: "Non disabled people do not understand disabled ones." For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these `invalid people are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathize with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self-reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under-estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non-disabled. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society. Says disability rights activist Judy Heumann: "disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives-job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheel chair." 44. Helen Keller represents the mind of such disabled persons when she says "I am only one; but still I am one. I cannot do everything, but still I can do something; I will not refuse to do something I can do". 45. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nations life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.46. Jeeja Ghosh herself is a living example who has, notwithstanding her disability, achieved so much in life by her sheer determination to overcome her disability and become a responsible and valuable citizen of this country. A little care, a little sensitivity and a little positive attitude on the part of the officials of the airlines would not have resulted in the trauma, pain and suffering that Jeeja Ghosh had to undergo. This has resulted in violation of her human dignity and, thus, her fundamental right, though by a private enterprise (respondent No.3). 47. On our finding that respondent No.3 acted in a callous manner, and in the process violated Rules, 1937 and CAR, 2008 guidelines resulting in mental and physical suffering experienced by Jeeja Ghosh and also unreasonable discrimination against her, we
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1[ds]45. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nations life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.46. Jeeja Ghosh herself is a living example who has, notwithstanding her disability, achieved so much in life by her sheer determination to overcome her disability and become a responsible and valuable citizen of this country. A little care, a little sensitivity and a little positive attitude on the part of the officials of the airlines would not have resulted in the trauma, pain and suffering that Jeeja Ghosh had to undergo. This has resulted in violation of her human dignity and, thus, her fundamental right, though by a private enterprise (respondent
| 1 | 14,489 |
### Instruction:
Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal?
### Input:
in the year 1975. The position was reiterated in the Beijing Conclave by the Government of Asian and Pacific Countries that was held from December 01-05, 1992 and in order to convert the resolutions adopted therein into reality, the Indian Parliament also passed the enactment, i.e. Act, 1995. 42. All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination.They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance is that others do not understand them. 43. As pointed out in the beginning, the very first sentence of the book "NO PITY" authored by Joseph P.Shapiro reads: "Non disabled Americans do not understand disabled ones." The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read: "Non disabled people do not understand disabled ones." For, non-disabled people generally look upon disabled ones with pity. The general feeling is that these `invalid people are incapable of doing anything in life. They are burden on the society which the society bear. Of course, they sympathize with disabled persons. They may even want to willingly bear the burden. They may help them financially or otherwise. However, what they do not understand is the feeling of the people with disabilities. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self-reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under-estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non-disabled. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society. Says disability rights activist Judy Heumann: "disability only becomes a tragedy for me when society fails to provide the things we need to lead our lives-job opportunities, or barrier-free buildings, for example. It is not a tragedy to me that I am living in a wheel chair." 44. Helen Keller represents the mind of such disabled persons when she says "I am only one; but still I am one. I cannot do everything, but still I can do something; I will not refuse to do something I can do". 45. It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nations life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.46. Jeeja Ghosh herself is a living example who has, notwithstanding her disability, achieved so much in life by her sheer determination to overcome her disability and become a responsible and valuable citizen of this country. A little care, a little sensitivity and a little positive attitude on the part of the officials of the airlines would not have resulted in the trauma, pain and suffering that Jeeja Ghosh had to undergo. This has resulted in violation of her human dignity and, thus, her fundamental right, though by a private enterprise (respondent No.3). 47. On our finding that respondent No.3 acted in a callous manner, and in the process violated Rules, 1937 and CAR, 2008 guidelines resulting in mental and physical suffering experienced by Jeeja Ghosh and also unreasonable discrimination against her, we
### Response:
1
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349 |
Dr R. Dinesh Kumar Reddy & Ors Vs. Medical Counselling Committee (MCC) & Ors
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and as a matter of fact, admissions have been closed on 7 May 2022. 9. While considering the rival submissions, it must be noted at the outset that the academic session has been delayed by a period of four months when compared with the schedule which has been prescribed by this Court by its order dated 18 January 2016 in Dr Ashish Ranjan (supra). The schedule which has been prescribed by the order of this Court is tabulated below: Time Schedule for completion of Admission Process for PG (Broad Specialty) Medical Courses for All India Quota and State Quota S. No. Schedule for admission Broad Specialty All India quota State quota 1 Conduct of Entrance Examination Month of December Month of January 2 Declaration of result of the qualifying Exam/Entrance Exam By 15th of January By 15th of February 3 1 st round of counselling/admission Between 12th March to 24th March Between 4th April to 15th April 4 Last date for joining/reporting the allotted college and the course By 3rd April By 22nd April 5 2 nd round of counselling/admission for vacancies Between 23rd April to 30th April Between 11th May to 20th May 6 Last date of joining for the 2nd round of counselling/admission By 10th May By 27th May 7 Commencement of the academic session/terms 1 st May 1 st May 8 Last date up to which students can be admitted/joined against vacancies arising due to any reason - By 31st May 10. The original schedule for NEET-PG 2022-2023 was in the following terms: Processes Timelines Availability of the Information Bulletin 15th January 2022 onwards Online submission of application 15th January 2022 (3 PM onwards) to 4th February 2022 (Till 11:55 PM) Edit window for all the candidates 8 th February 2022 to 11th February 2022 Final edit window to rectify deficient/incorrect images 1. Photograph 2. Signature 3. Thumb Impression 24th February 2022 to 27th February 2022 Issue of Admit Card 7 th March 2022 Examination Date 12th March 2022 Declaration of Result By 31 March 2022 11. The above schedule had to be revised due to the exigencies caused by the Covid-19 pandemic during 2020-2021. The revised schedule for NEET-PG 2022-2023 is set out below: Revised dates for online submission of the application form 15th January 2022 (3 PM onwards) to 25th March 2022 (Till 11:55 PM) Edit window for all the candidates 29th March 2022 to 7th April 2022 Final edit window to rectify deficient/incorrect images 26th April 2022 to 30th April 2022 Date of issuance of Admit Cards 16th May 2022 Date of Examination 21st May 2022 Declaration of Result By 20th June 2022 12. The petitioners and other similarly placed doctors have participated in the counseling process for NEET-PG 2021. They were not barred from registering for NEET-PG 2022. The registration for NEET-PG 2022 for the ensuing year had closed on 25 March 2022. As many as 2,06,541 doctors have registered for the ensuing examination. The submission of the petitioners that a postponement of the examination will cause no prejudice to the Union Ministry of Health and Family Welfare is specious. It must be borne in mind is that there is a large number of student - doctors who have registered for the entrance test. Over two lakh students have registered for the ensuing examination and their schedule would be seriously affected if a further postponement is granted under a direction of this Court. Postponement of exams results in chaos and uncertainty. During the onslaught of the Covid waves, postponements may have been granted by the administering authorities since we were confronted with an unprecedented human crisis. This should not become the norm. Doing so will disturb the sanctity of medical education. As the country gets back on the rails after the dislocation which was caused due to the Covid-19 pandemic, it is necessary that the decision which has been taken by the Union Ministry of Health and Family Welfare of adhering to the time schedule must be accepted. An important consideration which has weighed in the decision not to postpone the NEET-PG 2022 examination is that any delay in conducting the examination will lead to a fewer number of resident doctors in hospitals. Currently, only two batches of resident doctors are available because of the delay in holding the NEET-PG examination, resulting in serious deficiency in the required strength of doctors in hospitals. This impacts patient care and results in back-breaking loads of work for the existing doctors. Their quality of life, dignity and wellbeing are also of concern. 13. In this backdrop, while the request which has been made by the petitioners for a further postponement of the NEET-PG examination may seem innocuous from their perspective, it cannot be entertained for the reason that this would seriously impact the availability of patient care and qualified post-graduate doctors. It is likely to have a cascading effect on patient care and on the careers of those doctors who have already registered in large numbers for the ensuing examination. 14. The concern of the petitioners who have participated in the counselling process for NEET-PG 2021-22 and will now have to immediately undertake the exam for NEET-PG 2022-23 is understandable. However, these matters essentially pertain to the policy domain. Unless the Court is satisfied that the decision which has been taken by the authorities is without application of mind to relevant circumstances or was manifestly arbitrary, there would no reason for the Court to interfere. Postponement of any examination is replete with serious consequences. While one body of the students may be interested in seeking a postponement, there will be a large number of other students who have registered for the examination. Above all, the needs of patient care and treatment must be paramount in the clash of rival interests between those doctors who have registered for the ensuing examination and those who have not registered. Balancing of priorities in administration is a difficult task. The task is entrusted to the executive and not to courts.
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1[ds]5. The second column of the above chart indicates the course of events in the NEET-PG 2021 entrance examination. The first round of counselling took place between 12 and 22 January 2022. The second round took place between 3 February to 12 February 2022 and was extended up to 18 February 2022. Thereafter, mop up/stray rounds have taken place up to 7 May 2022. The States are holding their counselling sessions till 12 May 2022. The NEET-PG 2022 examination was originally scheduled for 12 March 2022 but was postponed due to a clash with the counselling dates for NEET-PG 2021. This was noticed in a judgment of this Court in Shivam Satyarthee and Others vs Union of India and Others 2022 SCS Online SC 492 . In paragraph 4 of the judgment, this Court observed:One of the grounds on which the petition under Article 32 of the Constitution was instituted was that there was a likely clash between the schedule of counselling for NEET-PG 2021-22 and the NEET-PG examination for the ensuing academic year. This aspect of the matter has now been resolved as a result of the postponement of the NEET-PG examination.6. The new date for NEET-PG 2022 has been fixed as 21 May 2022. The results for the examination are expected on 20 June 2022.12. The petitioners and other similarly placed doctors have participated in the counseling process for NEET-PG 2021. They were not barred from registering for NEET-PG 2022. The registration for NEET-PG 2022 for the ensuing year had closed on 25 March 2022. As many as 2,06,541 doctors have registered for the ensuing examination. The submission of the petitioners that a postponement of the examination will cause no prejudice to the Union Ministry of Health and Family Welfare is specious. It must be borne in mind is that there is a large number of student - doctors who have registered for the entrance test. Over two lakh students have registered for the ensuing examination and their schedule would be seriously affected if a further postponement is granted under a direction of this Court. Postponement of exams results in chaos and uncertainty. During the onslaught of the Covid waves, postponements may have been granted by the administering authorities since we were confronted with an unprecedented human crisis. This should not become the norm. Doing so will disturb the sanctity of medical education. As the country gets back on the rails after the dislocation which was caused due to the Covid-19 pandemic, it is necessary that the decision which has been taken by the Union Ministry of Health and Family Welfare of adhering to the time schedule must be accepted. An important consideration which has weighed in the decision not to postpone the NEET-PG 2022 examination is that any delay in conducting the examination will lead to a fewer number of resident doctors in hospitals. Currently, only two batches of resident doctors are available because of the delay in holding the NEET-PG examination, resulting in serious deficiency in the required strength of doctors in hospitals. This impacts patient care and results in back-breaking loads of work for the existing doctors. Their quality of life, dignity and wellbeing are also of concern.13. In this backdrop, while the request which has been made by the petitioners for a further postponement of the NEET-PG examination may seem innocuous from their perspective, it cannot be entertained for the reason that this would seriously impact the availability of patient care and qualified post-graduate doctors. It is likely to have a cascading effect on patient care and on the careers of those doctors who have already registered in large numbers for the ensuing examination.14. The concern of the petitioners who have participated in the counselling process for NEET-PG 2021-22 and will now have to immediately undertake the exam for NEET-PG 2022-23 is understandable. However, these matters essentially pertain to the policy domain. Unless the Court is satisfied that the decision which has been taken by the authorities is without application of mind to relevant circumstances or was manifestly arbitrary, there would no reason for the Court to interfere. Postponement of any examination is replete with serious consequences. While one body of the students may be interested in seeking a postponement, there will be a large number of other students who have registered for the examination. Above all, the needs of patient care and treatment must be paramount in the clash of rival interests between those doctors who have registered for the ensuing examination and those who have not registered. Balancing of priorities in administration is a difficult task. The task is entrusted to the executive and not to courts.
| 1 | 2,393 |
### Instruction:
Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal?
### Input:
and as a matter of fact, admissions have been closed on 7 May 2022. 9. While considering the rival submissions, it must be noted at the outset that the academic session has been delayed by a period of four months when compared with the schedule which has been prescribed by this Court by its order dated 18 January 2016 in Dr Ashish Ranjan (supra). The schedule which has been prescribed by the order of this Court is tabulated below: Time Schedule for completion of Admission Process for PG (Broad Specialty) Medical Courses for All India Quota and State Quota S. No. Schedule for admission Broad Specialty All India quota State quota 1 Conduct of Entrance Examination Month of December Month of January 2 Declaration of result of the qualifying Exam/Entrance Exam By 15th of January By 15th of February 3 1 st round of counselling/admission Between 12th March to 24th March Between 4th April to 15th April 4 Last date for joining/reporting the allotted college and the course By 3rd April By 22nd April 5 2 nd round of counselling/admission for vacancies Between 23rd April to 30th April Between 11th May to 20th May 6 Last date of joining for the 2nd round of counselling/admission By 10th May By 27th May 7 Commencement of the academic session/terms 1 st May 1 st May 8 Last date up to which students can be admitted/joined against vacancies arising due to any reason - By 31st May 10. The original schedule for NEET-PG 2022-2023 was in the following terms: Processes Timelines Availability of the Information Bulletin 15th January 2022 onwards Online submission of application 15th January 2022 (3 PM onwards) to 4th February 2022 (Till 11:55 PM) Edit window for all the candidates 8 th February 2022 to 11th February 2022 Final edit window to rectify deficient/incorrect images 1. Photograph 2. Signature 3. Thumb Impression 24th February 2022 to 27th February 2022 Issue of Admit Card 7 th March 2022 Examination Date 12th March 2022 Declaration of Result By 31 March 2022 11. The above schedule had to be revised due to the exigencies caused by the Covid-19 pandemic during 2020-2021. The revised schedule for NEET-PG 2022-2023 is set out below: Revised dates for online submission of the application form 15th January 2022 (3 PM onwards) to 25th March 2022 (Till 11:55 PM) Edit window for all the candidates 29th March 2022 to 7th April 2022 Final edit window to rectify deficient/incorrect images 26th April 2022 to 30th April 2022 Date of issuance of Admit Cards 16th May 2022 Date of Examination 21st May 2022 Declaration of Result By 20th June 2022 12. The petitioners and other similarly placed doctors have participated in the counseling process for NEET-PG 2021. They were not barred from registering for NEET-PG 2022. The registration for NEET-PG 2022 for the ensuing year had closed on 25 March 2022. As many as 2,06,541 doctors have registered for the ensuing examination. The submission of the petitioners that a postponement of the examination will cause no prejudice to the Union Ministry of Health and Family Welfare is specious. It must be borne in mind is that there is a large number of student - doctors who have registered for the entrance test. Over two lakh students have registered for the ensuing examination and their schedule would be seriously affected if a further postponement is granted under a direction of this Court. Postponement of exams results in chaos and uncertainty. During the onslaught of the Covid waves, postponements may have been granted by the administering authorities since we were confronted with an unprecedented human crisis. This should not become the norm. Doing so will disturb the sanctity of medical education. As the country gets back on the rails after the dislocation which was caused due to the Covid-19 pandemic, it is necessary that the decision which has been taken by the Union Ministry of Health and Family Welfare of adhering to the time schedule must be accepted. An important consideration which has weighed in the decision not to postpone the NEET-PG 2022 examination is that any delay in conducting the examination will lead to a fewer number of resident doctors in hospitals. Currently, only two batches of resident doctors are available because of the delay in holding the NEET-PG examination, resulting in serious deficiency in the required strength of doctors in hospitals. This impacts patient care and results in back-breaking loads of work for the existing doctors. Their quality of life, dignity and wellbeing are also of concern. 13. In this backdrop, while the request which has been made by the petitioners for a further postponement of the NEET-PG examination may seem innocuous from their perspective, it cannot be entertained for the reason that this would seriously impact the availability of patient care and qualified post-graduate doctors. It is likely to have a cascading effect on patient care and on the careers of those doctors who have already registered in large numbers for the ensuing examination. 14. The concern of the petitioners who have participated in the counselling process for NEET-PG 2021-22 and will now have to immediately undertake the exam for NEET-PG 2022-23 is understandable. However, these matters essentially pertain to the policy domain. Unless the Court is satisfied that the decision which has been taken by the authorities is without application of mind to relevant circumstances or was manifestly arbitrary, there would no reason for the Court to interfere. Postponement of any examination is replete with serious consequences. While one body of the students may be interested in seeking a postponement, there will be a large number of other students who have registered for the examination. Above all, the needs of patient care and treatment must be paramount in the clash of rival interests between those doctors who have registered for the ensuing examination and those who have not registered. Balancing of priorities in administration is a difficult task. The task is entrusted to the executive and not to courts.
### Response:
1
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350 |
Vundavalli Ratna Manikyam & another Vs. V.P.P.R.N. Prasada Rao
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to perform his part of the contract and all throughout it was the plaintiff who challenged the acquisition proceedings which shows the bonafides on the part of the plaintiff, the High Court has rightly allowed the appeal and consequently has rightly decreed the suit for specific performance of the agreement to sell dated 7.5.1981. 5.5 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that as such there is no appeal preferred by the defendants challenging the impugned common judgment and order passed by the High Court insofar as dismissing their appeals being Tr.A.S. No. 439/2006 and Tr.A.S. No. 962/2013 by which the High Court specifically confirmed the findings on issue nos. 1 to 5 in O.S. No. 55/1986 and also confirmed the judgment and decree of permanent injunction in favour of the plaintiff in O.S. No. 94/1989. 5.6 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that as such the plaintiff is in possession of the suit property since 1981 and therefore also the present appeal is required to be dismissed. 5.7 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that even otherwise and with a view to put an end to the litigation the plaintiff is ready and willing to pay some more amount than what is required to be paid under the agreement to sell. 5.8 Making the above submissions, it is prayed to dismiss the present appeal. 6. In reply, learned Advocate appearing on behalf of the appellants – original defendants has submitted that if the impugned judgment and order passed by the High Court is set aside and the property/land in question is reverted back to the appellants -, the appellants are ready and willing to pay a handsome amount to the plaintiff. 7. We have heard the learned counsel for the respective parties at length and perused and considered the impugned common judgment and order passed by the High Court as well as the judgment and decree passed by the learned trial Court. 7.1 At the outset, it is required to be noted that the original plaintiff instituted the suit for specific performance of agreement to sell dated 7.5.1981 (Ex.A1). It is not in dispute that under the agreement to sell dated 7.5.1981, the sale deed was to be executed within a period of four months from the date of execution of agreement to sell i.e. 7.5.1981. However, thereafter time was extended by a further period of eight months i.e. up to 6.5.1982. However, before any further steps could be taken by the plaintiff and the original vendor, the suit property was subjected to the acquisition by the State Government. It was the plaintiff who made a representation to the Assistant Collector and requested for deletion of the property from the acquisition. A similar representation was made by the original vendor also. It is required to be noted that in the representations both the vendor and the vendee specifically stated that the land in question has been sold in favour of the plaintiff and that he is in possession. Therefore, the original vendor as such admitted the execution of the agreement to sell dated 7.5.1981 as well as handing over the possession of the suit property to the plaintiff. Therefore, the learned trial Court as such rightly believed the execution of the agreement to sell dated 7.5.1981 as well as handing over of possession to the plaintiff. The same is rightly confirmed by the High Court. 7.2 However, the trial Court dismissed the suit solely on the ground that the suit for specific performance was barred by limitation applying Article 54 of the Limitation Act. On the other hand, it was the specific case on behalf of the plaintiff that in the facts and circumstances of the case Article 113 of the Limitation Act shall be applicable as the suit was filed within a period of three years when the right to sue accrued. According to the plaintiff, the right to sue accrued when the plaintiff served a notice upon the defendants to execute the sale deed and the defendants refused to execute the sale deed. At this stage, it is required to be noted that under the agreement to sell it was for the vendor to settle all the disputes in the property. As the land in question was subjected to the acquisition and thereafter the acquisition proceedings came to be quashed and set aside at the instance of the plaintiff in the year 1984/1985 and thereafter the plaintiff served a legal notice upon the defendants on 20.01.1986 calling upon the defendants to execute the sale deed which came to be refused by reply notice dated 31.1.1986 and thereafter the suit for specific performance was preferred, as rightly observed by the High Court, Article 113 of the Limitation Act would be applicable and not Article 54 of the Limitation Act as applied by the learned trial Court. We are in complete agreement with the view taken by the High Court in applying Article 113 of the Limitation Act. As observed hereinabove, the learned trial Court dismissed the suit solely on the ground that the suit is barred by limitation considering Article 54 of the Limitation Act though all other findings with respect to the execution of agreement to sell., the plaintiff was put in possession etc. were held to be in favour of the plaintiff. 7.3 Therefore applying Article 113 of the Limitation Act to the facts of the case on hand and the conduct of the plaintiff all throughout to protect not only his possession but to protect the property from acquisition and that he was always ready and willing to perform his part of the agreement to sell/contract, the High Court has rightly decreed the suit for specific performance. We are in complete agreement with the view taken by the High Court.
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0[ds]7.1 At the outset, it is required to be noted that the original plaintiff instituted the suit for specific performance of agreement to sell dated 7.5.1981 (Ex.A1). It is not in dispute that under the agreement to sell dated 7.5.1981, the sale deed was to be executed within a period of four months from the date of execution of agreement to sell i.e. 7.5.1981. However, thereafter time was extended by a further period of eight months i.e. up to 6.5.1982. However, before any further steps could be taken by the plaintiff and the original vendor, the suit property was subjected to the acquisition by the State Government. It was the plaintiff who made a representation to the Assistant Collector and requested for deletion of the property from the acquisition. A similar representation was made by the original vendor also. It is required to be noted that in the representations both the vendor and the vendee specifically stated that the land in question has been sold in favour of the plaintiff and that he is in possession. Therefore, the original vendor as such admitted the execution of the agreement to sell dated 7.5.1981 as well as handing over the possession of the suit property to the plaintiff. Therefore, the learned trial Court as such rightly believed the execution of the agreement to sell dated 7.5.1981 as well as handing over of possession to the plaintiff. The same is rightly confirmed by the High Court7.2 However, the trial Court dismissed the suit solely on the ground that the suit for specific performance was barred by limitation applying Article 54 of the Limitation Act. On the other hand, it was the specific case on behalf of the plaintiff that in the facts and circumstances of the case Article 113 of the Limitation Act shall be applicable as the suit was filed within a period of three years when the right to sue accrued. According to the plaintiff, the right to sue accrued when the plaintiff served a notice upon the defendants to execute the sale deed and the defendants refused to execute the sale deed. At this stage, it is required to be noted that under the agreement to sell it was for the vendor to settle all the disputes in the property. As the land in question was subjected to the acquisition and thereafter the acquisition proceedings came to be quashed and set aside at the instance of the plaintiff in the year 1984/1985 and thereafter the plaintiff served a legal notice upon the defendants on 20.01.1986 calling upon the defendants to execute the sale deed which came to be refused by reply notice dated 31.1.1986 and thereafter the suit for specific performance was preferred, as rightly observed by the High Court, Article 113 of the Limitation Act would be applicable and not Article 54 of the Limitation Act as applied by the learned trial Court. We are in complete agreement with the view taken by the High Court in applying Article 113 of the Limitation Act. As observed hereinabove, the learned trial Court dismissed the suit solely on the ground that the suit is barred by limitation considering Article 54 of the Limitation Act though all other findings with respect to the execution of agreement to sell., the plaintiff was put in possession etc. were held to be in favour of the plaintiff7.3 Therefore applying Article 113 of the Limitation Act to the facts of the case on hand and the conduct of the plaintiff all throughout to protect not only his possession but to protect the property from acquisition and that he was always ready and willing to perform his part of the agreement to sell/contract, the High Court has rightly decreed the suit for specific performance. We are in complete agreement with the view taken by the High Court.
| 0 | 3,606 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
to perform his part of the contract and all throughout it was the plaintiff who challenged the acquisition proceedings which shows the bonafides on the part of the plaintiff, the High Court has rightly allowed the appeal and consequently has rightly decreed the suit for specific performance of the agreement to sell dated 7.5.1981. 5.5 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that as such there is no appeal preferred by the defendants challenging the impugned common judgment and order passed by the High Court insofar as dismissing their appeals being Tr.A.S. No. 439/2006 and Tr.A.S. No. 962/2013 by which the High Court specifically confirmed the findings on issue nos. 1 to 5 in O.S. No. 55/1986 and also confirmed the judgment and decree of permanent injunction in favour of the plaintiff in O.S. No. 94/1989. 5.6 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that as such the plaintiff is in possession of the suit property since 1981 and therefore also the present appeal is required to be dismissed. 5.7 It is further submitted by the learned Advocate appearing on behalf of the respondent herein - original plaintiff that even otherwise and with a view to put an end to the litigation the plaintiff is ready and willing to pay some more amount than what is required to be paid under the agreement to sell. 5.8 Making the above submissions, it is prayed to dismiss the present appeal. 6. In reply, learned Advocate appearing on behalf of the appellants – original defendants has submitted that if the impugned judgment and order passed by the High Court is set aside and the property/land in question is reverted back to the appellants -, the appellants are ready and willing to pay a handsome amount to the plaintiff. 7. We have heard the learned counsel for the respective parties at length and perused and considered the impugned common judgment and order passed by the High Court as well as the judgment and decree passed by the learned trial Court. 7.1 At the outset, it is required to be noted that the original plaintiff instituted the suit for specific performance of agreement to sell dated 7.5.1981 (Ex.A1). It is not in dispute that under the agreement to sell dated 7.5.1981, the sale deed was to be executed within a period of four months from the date of execution of agreement to sell i.e. 7.5.1981. However, thereafter time was extended by a further period of eight months i.e. up to 6.5.1982. However, before any further steps could be taken by the plaintiff and the original vendor, the suit property was subjected to the acquisition by the State Government. It was the plaintiff who made a representation to the Assistant Collector and requested for deletion of the property from the acquisition. A similar representation was made by the original vendor also. It is required to be noted that in the representations both the vendor and the vendee specifically stated that the land in question has been sold in favour of the plaintiff and that he is in possession. Therefore, the original vendor as such admitted the execution of the agreement to sell dated 7.5.1981 as well as handing over the possession of the suit property to the plaintiff. Therefore, the learned trial Court as such rightly believed the execution of the agreement to sell dated 7.5.1981 as well as handing over of possession to the plaintiff. The same is rightly confirmed by the High Court. 7.2 However, the trial Court dismissed the suit solely on the ground that the suit for specific performance was barred by limitation applying Article 54 of the Limitation Act. On the other hand, it was the specific case on behalf of the plaintiff that in the facts and circumstances of the case Article 113 of the Limitation Act shall be applicable as the suit was filed within a period of three years when the right to sue accrued. According to the plaintiff, the right to sue accrued when the plaintiff served a notice upon the defendants to execute the sale deed and the defendants refused to execute the sale deed. At this stage, it is required to be noted that under the agreement to sell it was for the vendor to settle all the disputes in the property. As the land in question was subjected to the acquisition and thereafter the acquisition proceedings came to be quashed and set aside at the instance of the plaintiff in the year 1984/1985 and thereafter the plaintiff served a legal notice upon the defendants on 20.01.1986 calling upon the defendants to execute the sale deed which came to be refused by reply notice dated 31.1.1986 and thereafter the suit for specific performance was preferred, as rightly observed by the High Court, Article 113 of the Limitation Act would be applicable and not Article 54 of the Limitation Act as applied by the learned trial Court. We are in complete agreement with the view taken by the High Court in applying Article 113 of the Limitation Act. As observed hereinabove, the learned trial Court dismissed the suit solely on the ground that the suit is barred by limitation considering Article 54 of the Limitation Act though all other findings with respect to the execution of agreement to sell., the plaintiff was put in possession etc. were held to be in favour of the plaintiff. 7.3 Therefore applying Article 113 of the Limitation Act to the facts of the case on hand and the conduct of the plaintiff all throughout to protect not only his possession but to protect the property from acquisition and that he was always ready and willing to perform his part of the agreement to sell/contract, the High Court has rightly decreed the suit for specific performance. We are in complete agreement with the view taken by the High Court.
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351 |
DELHI SUBORDINATE SERVICES SELECTION BOARD & ANR Vs. SEEMA KAPOOR
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by the Central Government. This post is identified as suitable for OH/VH persons only as per the Requisition of the User Department. 3. The respondents date of birth is 10.2.1976 and on the closing date of the receipt of the applications i.e. 15.6.2012, she was more than 36 years of age. The learned Tribunal allowed the OA filed by the respondent holding that she was entitled to age relaxation as the Corporation falls under the ambit of Government Organisation. It is the said order which was affirmed by the High Court. 4. It is admitted by Mr. Jha, learned counsel for the respondent, that the reproduction by the High Court from the advertisement as mentioned in para 4 is a condition in respect of a subsequent selection process initiated vide advertisement in the year 2016. 5. Learned counsel for the appellants argued that as per the conditions of advertisement, the age could be relaxed in case of Government servants and departmental candidates. It is argued that the respondent is not a government servant nor a departmental candidate, therefore, the benefit of age relaxation is not permissible. It is also argued that the Circular of the Government of India dated 27.3.2012 in respect of relaxation of upper age limit allowed to various categories of various Government servants are applicable only to Central Government civilian employees holding civil posts and are not applicable to the personnel working in the autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statutes issued by the concerned administrative Ministries/Departments. The relevant clause reads as under: 3. These instructions are applicable only to Central Government Civilian Employees holding Civil posts and are not applicable to personnel working in autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statute issued by the concerned administrative Ministries/Departments. In certain cases the benefit of age relaxation, was allowed to a specified category of personnel for a limited period. The validity of relaxation in such cases will be for the period specified in the original instructions or as amended from time to time. In case of recruitment through the UPSC and the Staf Selection Commission (SSC), the crucial date for determining the age-limit shall be as advertised by UPSC/SSC. The crucial date for determining age for competitive examination held by UPSC/SSC is fixed as per the instructions in this Departments O.M. No. 42013/1/79- Estt.(D) dated 4.12.1979 and O.M. No. AB. 14017/70/87-Esst. (RR) dated 14.07.1988. 6. It is also argued that in terms of judgment of this Court in Jai Prakash Wadhwa & Ors. v. Lt. Governor, Delhi Admn. & Anr. (1997) 11 SCC 174 , Assistant Teachers in the Municipal Corporations are not government servants holding a post in a substantive, temporary or officiating capacity. In the aforesaid case, the appellants were employed as Assistant Teachers in the schools run by the Municipal Corporation. Such schools were taken over by Delhi Administration in 1970. The appellants sought fixation of pay in terms of provisions of Fundamental Rule 22-C. Such claim was negated by this Court on the ground that teachers in the Municipal Corporation are not the government servants. This Court held as under: 5. Fundamental Rule 22-C, in its own terms is restricted in its application to a government servant holding a post in a substantive, temporary or officiating capacity, who is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him. The appellants were employees of the Municipal Corporation and were not government servants and since they were not government servants they could not invoke the protection of Fundamental Rule 22-C. 7. On the other hand, Mr. Jha argued that the respondent is a departmental candidate working with the Corporation which is evident from the Recruitment Rules for the post of Trained Graduate Teacher (MIL) under the Directorate of Education, Delhi Administration, Delhi(Hereinafter referred to as Recruitment Rules) notified on 30.12.1992 wherein Assistant Teachers are eligible for promotion. It is thus contended that as a teacher working in the Corporation, she has a right to be promoted under the State Government. Therefore, the respondent falls in the feeder cadre leading to inference that she is a departmental candidate. 8. We have heard learned counsel for the parties and find that the order passed by the Central Administrative Tribunal and that of the High Court are not sustainable. Firstly, the High Court has quoted a wrong provision in the order passed relating to subsequent advertisement. Secondly, the benefit of age relaxation is permissible for government servants and departmental candidates. It is not even the stand of the respondent that she is a government servant and, rightly so, as she is employed in an autonomous body i.e. Municipal Corporation established under a specific statute. The expression Departmental Candidates is in respect of the candidates who are working in the concerned Department i.e. Education. The Circular of the Government of India dated 27.3.2012 has made it explicitly clear that the benefit of age relaxation is only meant for civil employees of the Central Government and not to the employees of the autonomous bodies, public sector undertakings etc. Therefore, the respondent, as an employee of the autonomous body, i.e. the Corporation, is not entitled to age relaxation either as a departmental candidate or as a government servant. 9. The argument that the respondent is in the feeder cadre and should be treated as a departmental candidate is again not sustainable. The Recruitment Rules mentioned by the respondent provides a promotion channel to the teachers working in the Municipal Corporation. Such channel of promotion is in no way comparable for appointment to the post as direct recruit. The respondent would be entitled to be considered for promotion in terms of the statutory rules on the basis of her seniority. Therefore, the respondent is not entitled to age relaxation as she cannot be considered as a departmental candidate for appointment by way of direct recruit.
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1[ds]8. We have heard learned counsel for the parties and find that the order passed by the Central Administrative Tribunal and that of the High Court are not sustainable. Firstly, the High Court has quoted a wrong provision in the order passed relating to subsequent advertisement. Secondly, the benefit of age relaxation is permissible for government servants and departmental candidates. It is not even the stand of the respondent that she is a government servant and, rightly so, as she is employed in an autonomous body i.e. Municipal Corporation established under a specific statute. The expression Departmental Candidates is in respect of the candidates who are working in the concerned Department i.e. Education. The Circular of the Government of India dated 27.3.2012 has made it explicitly clear that the benefit of age relaxation is only meant for civil employees of the Central Government and not to the employees of the autonomous bodies, public sector undertakings etc. Therefore, the respondent, as an employee of the autonomous body, i.e. the Corporation, is not entitled to age relaxation either as a departmental candidate or as a government servant.9. The argument that the respondent is in the feeder cadre and should be treated as a departmental candidate is again not sustainable. The Recruitment Rules mentioned by the respondent provides a promotion channel to the teachers working in the Municipal Corporation. Such channel of promotion is in no way comparable for appointment to the post as direct recruit. The respondent would be entitled to be considered for promotion in terms of the statutory rules on the basis of her seniority. Therefore, the respondent is not entitled to age relaxation as she cannot be considered as a departmental candidate for appointment by way of direct recruit.
| 1 | 1,298 |
### Instruction:
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by the Central Government. This post is identified as suitable for OH/VH persons only as per the Requisition of the User Department. 3. The respondents date of birth is 10.2.1976 and on the closing date of the receipt of the applications i.e. 15.6.2012, she was more than 36 years of age. The learned Tribunal allowed the OA filed by the respondent holding that she was entitled to age relaxation as the Corporation falls under the ambit of Government Organisation. It is the said order which was affirmed by the High Court. 4. It is admitted by Mr. Jha, learned counsel for the respondent, that the reproduction by the High Court from the advertisement as mentioned in para 4 is a condition in respect of a subsequent selection process initiated vide advertisement in the year 2016. 5. Learned counsel for the appellants argued that as per the conditions of advertisement, the age could be relaxed in case of Government servants and departmental candidates. It is argued that the respondent is not a government servant nor a departmental candidate, therefore, the benefit of age relaxation is not permissible. It is also argued that the Circular of the Government of India dated 27.3.2012 in respect of relaxation of upper age limit allowed to various categories of various Government servants are applicable only to Central Government civilian employees holding civil posts and are not applicable to the personnel working in the autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statutes issued by the concerned administrative Ministries/Departments. The relevant clause reads as under: 3. These instructions are applicable only to Central Government Civilian Employees holding Civil posts and are not applicable to personnel working in autonomous/statutory bodies, public sector undertakings etc. which are governed by regulations/statute issued by the concerned administrative Ministries/Departments. In certain cases the benefit of age relaxation, was allowed to a specified category of personnel for a limited period. The validity of relaxation in such cases will be for the period specified in the original instructions or as amended from time to time. In case of recruitment through the UPSC and the Staf Selection Commission (SSC), the crucial date for determining the age-limit shall be as advertised by UPSC/SSC. The crucial date for determining age for competitive examination held by UPSC/SSC is fixed as per the instructions in this Departments O.M. No. 42013/1/79- Estt.(D) dated 4.12.1979 and O.M. No. AB. 14017/70/87-Esst. (RR) dated 14.07.1988. 6. It is also argued that in terms of judgment of this Court in Jai Prakash Wadhwa & Ors. v. Lt. Governor, Delhi Admn. & Anr. (1997) 11 SCC 174 , Assistant Teachers in the Municipal Corporations are not government servants holding a post in a substantive, temporary or officiating capacity. In the aforesaid case, the appellants were employed as Assistant Teachers in the schools run by the Municipal Corporation. Such schools were taken over by Delhi Administration in 1970. The appellants sought fixation of pay in terms of provisions of Fundamental Rule 22-C. Such claim was negated by this Court on the ground that teachers in the Municipal Corporation are not the government servants. This Court held as under: 5. Fundamental Rule 22-C, in its own terms is restricted in its application to a government servant holding a post in a substantive, temporary or officiating capacity, who is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying duties and responsibilities of greater importance than those attached to the post held by him. The appellants were employees of the Municipal Corporation and were not government servants and since they were not government servants they could not invoke the protection of Fundamental Rule 22-C. 7. On the other hand, Mr. Jha argued that the respondent is a departmental candidate working with the Corporation which is evident from the Recruitment Rules for the post of Trained Graduate Teacher (MIL) under the Directorate of Education, Delhi Administration, Delhi(Hereinafter referred to as Recruitment Rules) notified on 30.12.1992 wherein Assistant Teachers are eligible for promotion. It is thus contended that as a teacher working in the Corporation, she has a right to be promoted under the State Government. Therefore, the respondent falls in the feeder cadre leading to inference that she is a departmental candidate. 8. We have heard learned counsel for the parties and find that the order passed by the Central Administrative Tribunal and that of the High Court are not sustainable. Firstly, the High Court has quoted a wrong provision in the order passed relating to subsequent advertisement. Secondly, the benefit of age relaxation is permissible for government servants and departmental candidates. It is not even the stand of the respondent that she is a government servant and, rightly so, as she is employed in an autonomous body i.e. Municipal Corporation established under a specific statute. The expression Departmental Candidates is in respect of the candidates who are working in the concerned Department i.e. Education. The Circular of the Government of India dated 27.3.2012 has made it explicitly clear that the benefit of age relaxation is only meant for civil employees of the Central Government and not to the employees of the autonomous bodies, public sector undertakings etc. Therefore, the respondent, as an employee of the autonomous body, i.e. the Corporation, is not entitled to age relaxation either as a departmental candidate or as a government servant. 9. The argument that the respondent is in the feeder cadre and should be treated as a departmental candidate is again not sustainable. The Recruitment Rules mentioned by the respondent provides a promotion channel to the teachers working in the Municipal Corporation. Such channel of promotion is in no way comparable for appointment to the post as direct recruit. The respondent would be entitled to be considered for promotion in terms of the statutory rules on the basis of her seniority. Therefore, the respondent is not entitled to age relaxation as she cannot be considered as a departmental candidate for appointment by way of direct recruit.
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352 |
Vanguard Insurance Company Limited Vs. Commissioner of Income Tax, Madras
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value of investments shall be dealt with as provided in rule 3 for the business of life insurance. "Mr. S. Swaminathan, the learned counsel for the assessee, contends that by virtue of section 4(3)(xii), the income from property cannot be included in the total income of the assessee, and that section 10(7) does not exclude the applicability of section 4(3)(xii). He points out that section 10(7) opens with the words " notwithstanding anything to the contrary contained in section 8, 9, 10, 12 or 18 ". Thus the non-obstante clause does not include anything contained in sections 4 and 6. He further says that section 4(3)(xii) is applicable because although the income from property in the case of a general insurance company is computed in accordance with the Schedule, yet it is still chargeable under the head " income from property ", and there is no practical difficulty in granting exemption to income falling under section 4(3)(xii)4. Mr. A. V. Viswanatha Sastri, the learned counsel for the revenue, contends that an insurance company is assessed on a notional basis and the notional figure arrived at in accordance with the Schedule cannot be varied by anything contained in section 4 of the Act. He contends that the income from property is not computed in accordance with section 9 and is not chargeable under the head " income from property " but is included and charged as a composite thing, i.e., the profits and gains of the business of insurance5. This court had occasion to consider section 10(7) of the Act and the Schedule in two cases. In Life Insurance Corporation of India v. Commissioner of Income-tax the court held that " the assessment of the profits of an insurance business is completely governed by the rules in the Schedule to the Income-tax Act and the Income-tax Officer has no power to do anything not contained in it ; there is no general right to correct the errors in the accounts of an insurance business. " In Pandyan Insurance Co. v. Commissioner of Income-tax the court examined the scheme of the Insurance Act and came to the conclusion that the Insurance Act made detailed provisions to ensure the true valuation of assets and the determination of the true balance of profits of an insurance business. The court further held that rule 3(b) of the Schedule did not empower the Income-tax Officer to adjust the accounts on the basis of a revaluation made by him or to correct the discrepancy between what was entered in the accounts and what was factIt seems to us that insurance companies are assessed on a special basis, though the special basis is different for life insurance companies and companies carrying on general insurance business. In the case of life insurance business, while defining " gross external incomings " in paragraph 5 of the Schedule, it is provided that " incomings, including the annual value of the property occupied by the assessee, which but for the provisions of sub-section (7) of section 10 would have been assessable under section 9, shall be computed upon the basis laid down in the last-named section, and that there shall be allowed from such gross incomings such deductions as are permissible under that section ", but there is no mention of income from property in paragraph 6 of the Schedule. The form of revenue account applicable to fire insurance business, marine insurance and miscellaneous insurance business contains the items on the right side " Interest, Dividends and Rents, less income-tax thereon." Presumably, the rents here would be actual rents received, and not annual value as determined under section 96. The Privy Council had to deal with a similar problem in Commissioner of Income-tax v. Western India Life Insurance Co. Ltd. The Privy Council held that the third proviso to section 4(1) of the Indian Income-tax Act, 1922, which provided that " if in any year the amount of income accruing or arising without British India exceeds the amount brought into British India in that year, there shall not be included in the assessment of the income of that year so much of such excess as does not exceed four thousand five hundred rupees ", did not apply to an assessment of the profits and gains of a life insurance business under rule 2(b) of the Schedule to the Indian Income-tax Act, 1922. The Privy Council observedThe case of Inland Revenue Commissioners v. Australian Mutual Provident Society was decided upon provisions of the British Income Tax Act of 1918, which are not the same as the proviso to section 4 of the Act now in question but the case does draw attention to the distinction between an assessment upon actual income and an assessment upon a notional income and in so far as an average derived from a triennial period is the basis for computation of the income of one year in this Act the case has an important bearing. But apart from authority, their Lordships are of opinion that the appellants contention is correct and they find it impossible to apply the words of the third proviso to section 4(1) to an assessment under rule 2(b) of the Schedule..."7. In our opinion, it is equally impossible to apply the provisions of section 4(3)(xii) to an assessment made under section 10(7), read with paragraph 6 of the Schedule. There is no income chargeable under the head " Income from property " as far as a general insurance business is concerned. The effect of section 10(7) is to delete the heads " Interest on securities ", " Income from property " and " Income from other sources " from section 6 of the Act, as far as general insurance businesses are concerned8. The Bombay High Court came to the same conclusion as we have done in Commissioner of Income-tax v. Asian Assurance Co9. We agree with the High Court that the answer to the question must be in the affirmative and against the assessee.
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0[ds]In our opinion, it is equally impossible to apply the provisions of section 4(3)(xii) to an assessment made under section 10(7), read with paragraph 6 of the Schedule. There is no income chargeable under the head " Income from property " as far as a general insurance business is concerned. The effect of section 10(7) is to delete the heads " Interest on securities ", " Income from property " and " Income from other sources " from section 6 of the Act, as far as general insurance businesses areBombay High Court came to the same conclusion as we have done in Commissioner ofv. Asian Assuranceagree with the High Court that the answer to the question must be in the affirmative and against the assessee.
| 0 | 1,920 |
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value of investments shall be dealt with as provided in rule 3 for the business of life insurance. "Mr. S. Swaminathan, the learned counsel for the assessee, contends that by virtue of section 4(3)(xii), the income from property cannot be included in the total income of the assessee, and that section 10(7) does not exclude the applicability of section 4(3)(xii). He points out that section 10(7) opens with the words " notwithstanding anything to the contrary contained in section 8, 9, 10, 12 or 18 ". Thus the non-obstante clause does not include anything contained in sections 4 and 6. He further says that section 4(3)(xii) is applicable because although the income from property in the case of a general insurance company is computed in accordance with the Schedule, yet it is still chargeable under the head " income from property ", and there is no practical difficulty in granting exemption to income falling under section 4(3)(xii)4. Mr. A. V. Viswanatha Sastri, the learned counsel for the revenue, contends that an insurance company is assessed on a notional basis and the notional figure arrived at in accordance with the Schedule cannot be varied by anything contained in section 4 of the Act. He contends that the income from property is not computed in accordance with section 9 and is not chargeable under the head " income from property " but is included and charged as a composite thing, i.e., the profits and gains of the business of insurance5. This court had occasion to consider section 10(7) of the Act and the Schedule in two cases. In Life Insurance Corporation of India v. Commissioner of Income-tax the court held that " the assessment of the profits of an insurance business is completely governed by the rules in the Schedule to the Income-tax Act and the Income-tax Officer has no power to do anything not contained in it ; there is no general right to correct the errors in the accounts of an insurance business. " In Pandyan Insurance Co. v. Commissioner of Income-tax the court examined the scheme of the Insurance Act and came to the conclusion that the Insurance Act made detailed provisions to ensure the true valuation of assets and the determination of the true balance of profits of an insurance business. The court further held that rule 3(b) of the Schedule did not empower the Income-tax Officer to adjust the accounts on the basis of a revaluation made by him or to correct the discrepancy between what was entered in the accounts and what was factIt seems to us that insurance companies are assessed on a special basis, though the special basis is different for life insurance companies and companies carrying on general insurance business. In the case of life insurance business, while defining " gross external incomings " in paragraph 5 of the Schedule, it is provided that " incomings, including the annual value of the property occupied by the assessee, which but for the provisions of sub-section (7) of section 10 would have been assessable under section 9, shall be computed upon the basis laid down in the last-named section, and that there shall be allowed from such gross incomings such deductions as are permissible under that section ", but there is no mention of income from property in paragraph 6 of the Schedule. The form of revenue account applicable to fire insurance business, marine insurance and miscellaneous insurance business contains the items on the right side " Interest, Dividends and Rents, less income-tax thereon." Presumably, the rents here would be actual rents received, and not annual value as determined under section 96. The Privy Council had to deal with a similar problem in Commissioner of Income-tax v. Western India Life Insurance Co. Ltd. The Privy Council held that the third proviso to section 4(1) of the Indian Income-tax Act, 1922, which provided that " if in any year the amount of income accruing or arising without British India exceeds the amount brought into British India in that year, there shall not be included in the assessment of the income of that year so much of such excess as does not exceed four thousand five hundred rupees ", did not apply to an assessment of the profits and gains of a life insurance business under rule 2(b) of the Schedule to the Indian Income-tax Act, 1922. The Privy Council observedThe case of Inland Revenue Commissioners v. Australian Mutual Provident Society was decided upon provisions of the British Income Tax Act of 1918, which are not the same as the proviso to section 4 of the Act now in question but the case does draw attention to the distinction between an assessment upon actual income and an assessment upon a notional income and in so far as an average derived from a triennial period is the basis for computation of the income of one year in this Act the case has an important bearing. But apart from authority, their Lordships are of opinion that the appellants contention is correct and they find it impossible to apply the words of the third proviso to section 4(1) to an assessment under rule 2(b) of the Schedule..."7. In our opinion, it is equally impossible to apply the provisions of section 4(3)(xii) to an assessment made under section 10(7), read with paragraph 6 of the Schedule. There is no income chargeable under the head " Income from property " as far as a general insurance business is concerned. The effect of section 10(7) is to delete the heads " Interest on securities ", " Income from property " and " Income from other sources " from section 6 of the Act, as far as general insurance businesses are concerned8. The Bombay High Court came to the same conclusion as we have done in Commissioner of Income-tax v. Asian Assurance Co9. We agree with the High Court that the answer to the question must be in the affirmative and against the assessee.
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353 |
M/s. Apex Distributors & Another Vs. M/s. Timex Group India Ltd
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T.S. Thakur, J. 1. In this petition under Section 406 of the Cr.P.C., the petitioners seek transfer of Criminal Complaint No.3960 of 2008 under Section 138 of the Negotiable Instruments Act, 1881 pending before the Metropolitan Magistrate, Patiala House Court at New Delhi to the Court competent to try the same at Pondicherry. The cheque in question appears to have been issued on Vyasya Bank Ltd., Vellore, Tamil Nadu. When presented for encashment the same was dishonoured, whereupon, the respondent got notices issued to the petitioners asking them to pay the cheque amount within the statutory period of fifteen days from the date of the receipt of the said notices.Failure of the petitioners to make the payment led to the filing of criminal complaint No.3960 of 2008 before the Metropolitan Magistrate at Patiala House, New Delhi in which the Court took cognizance and issued summons to the petitioners. The complaint, it is noteworthy, justified the institution of the case in Delhi on the solitary ground that the statutory notices demanding payment of the cheque amount had been issued to the petitioners from Delhi. In para 13 of the complaint, the complainant said: “That the cause of action has arisen within the jurisdiction of this Hon’ble Court in as much as the notice of demand for the Cheque amount was issued to all the Accused from Delhi. Therefore, this Hon’ble Court has the jurisdiction to entertain, try and decide the present complaint.” 2. The petitioners’ case, in the present transfer petition, is that the cheque in question was not in discharge of any debt or liability but had been given to the respondent-company by way of security. Dishonour of any such cheque was not, according to the petitioners, an offence punishable under Section 138 of the Act aforementioned. That apart, the petitioners claim that the Courts in Delhi have no jurisdiction to entertain the complaint. Simply because the statutory notices were issued to the petitioners from Delhi did not clothe the Courts in Delhi to take cognizance of the offence assuming that the same had been committed. Multiple ailments of Petitioner No.2 are also urged as a ground for transfer of the proceedings from Delhi to Pondicherry. 3. The only question that primarily arises for our consideration is whether the Courts in Delhi had the jurisdiction to entertain the complaint in the facts and circumstances of the case especially when issue of statutory notices was the only reason urged by the respondent-complainant for filing a complaint in Delhi. Issue of a statutory notice demanding payment of the cheque amount is, in our opinion, not sufficient to vest the Delhi Courts with the jurisdiction to entertain the complaint and try the case. We say so on the authority of the decision of this Court in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 where this aspect was examined at length. This Court ruled that issue of a statutory notice cannot constitute a valid ground for conferring jurisdiction upon the Court concerned to take cognizance of an offence under Section 138. That position has been reiterated in a recent decision delivered on 1st August, 2014 by this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009. In Dashrath Rupsingh’s case (supra) this Court has overruled the earlier decision delivered by a two-Judge Bench of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 upon which the respondent sought to place reliance in support of their contention that Delhi Court could exercise jurisdiction based on the fact that notice of demand of the cheque amount was issued from Delhi. 4. In the circumstances and keeping in view the admitted factual position that the cheque in question was dishonoured at Vellore where the bank on which it was drawn is located, we see no reason why the complaint filed by the respondents should not be transferred to Vellore for further proceedings. The fact that petitioner No.2 is suffering from several medical problems will also, in our opinion, be taken care by the transfer of the proceedings from Delhi to Vellore.
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1[ds]Issue of a statutory notice demanding payment of the cheque amount is, in our opinion, not sufficient to vest the Delhi Courts with the jurisdiction to entertain the complaint and try the case. We say so on the authority of the decision of this Court in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 where this aspect was examined at length. This Court ruled that issue of a statutory notice cannot constitute a valid ground for conferring jurisdiction upon the Court concerned to take cognizance of an offence under Section 138. That position has been reiterated in a recent decision delivered on 1st August, 2014 by this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009.In the circumstances and keeping in view the admitted factual position that the cheque in question was dishonoured at Vellore where the bank on which it was drawn is located, we see no reason why the complaint filed by the respondents should not be transferred to Vellore for further proceedings. The fact that petitioner No.2 is suffering from several medical problems will also, in our opinion, be taken care by the transfer of the proceedings from Delhi to Vellore.
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T.S. Thakur, J. 1. In this petition under Section 406 of the Cr.P.C., the petitioners seek transfer of Criminal Complaint No.3960 of 2008 under Section 138 of the Negotiable Instruments Act, 1881 pending before the Metropolitan Magistrate, Patiala House Court at New Delhi to the Court competent to try the same at Pondicherry. The cheque in question appears to have been issued on Vyasya Bank Ltd., Vellore, Tamil Nadu. When presented for encashment the same was dishonoured, whereupon, the respondent got notices issued to the petitioners asking them to pay the cheque amount within the statutory period of fifteen days from the date of the receipt of the said notices.Failure of the petitioners to make the payment led to the filing of criminal complaint No.3960 of 2008 before the Metropolitan Magistrate at Patiala House, New Delhi in which the Court took cognizance and issued summons to the petitioners. The complaint, it is noteworthy, justified the institution of the case in Delhi on the solitary ground that the statutory notices demanding payment of the cheque amount had been issued to the petitioners from Delhi. In para 13 of the complaint, the complainant said: “That the cause of action has arisen within the jurisdiction of this Hon’ble Court in as much as the notice of demand for the Cheque amount was issued to all the Accused from Delhi. Therefore, this Hon’ble Court has the jurisdiction to entertain, try and decide the present complaint.” 2. The petitioners’ case, in the present transfer petition, is that the cheque in question was not in discharge of any debt or liability but had been given to the respondent-company by way of security. Dishonour of any such cheque was not, according to the petitioners, an offence punishable under Section 138 of the Act aforementioned. That apart, the petitioners claim that the Courts in Delhi have no jurisdiction to entertain the complaint. Simply because the statutory notices were issued to the petitioners from Delhi did not clothe the Courts in Delhi to take cognizance of the offence assuming that the same had been committed. Multiple ailments of Petitioner No.2 are also urged as a ground for transfer of the proceedings from Delhi to Pondicherry. 3. The only question that primarily arises for our consideration is whether the Courts in Delhi had the jurisdiction to entertain the complaint in the facts and circumstances of the case especially when issue of statutory notices was the only reason urged by the respondent-complainant for filing a complaint in Delhi. Issue of a statutory notice demanding payment of the cheque amount is, in our opinion, not sufficient to vest the Delhi Courts with the jurisdiction to entertain the complaint and try the case. We say so on the authority of the decision of this Court in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 where this aspect was examined at length. This Court ruled that issue of a statutory notice cannot constitute a valid ground for conferring jurisdiction upon the Court concerned to take cognizance of an offence under Section 138. That position has been reiterated in a recent decision delivered on 1st August, 2014 by this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009. In Dashrath Rupsingh’s case (supra) this Court has overruled the earlier decision delivered by a two-Judge Bench of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 upon which the respondent sought to place reliance in support of their contention that Delhi Court could exercise jurisdiction based on the fact that notice of demand of the cheque amount was issued from Delhi. 4. In the circumstances and keeping in view the admitted factual position that the cheque in question was dishonoured at Vellore where the bank on which it was drawn is located, we see no reason why the complaint filed by the respondents should not be transferred to Vellore for further proceedings. The fact that petitioner No.2 is suffering from several medical problems will also, in our opinion, be taken care by the transfer of the proceedings from Delhi to Vellore.
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Employees State Insurance Corporation Vs. S.K. Aggarwal
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representing the employees contribution for the period. (3)................ (4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. (5).................." The term "principal employer" has been defined in Section 2(17) of the Employees State Insurance Act, 1948 as follows:- "2(17): "principal employer" means:- (i) in a factory, the owner or occupier of the factory includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of [the factory under Factories Act, 1948] (63 of 1948); the person so named: (ii).................... (iii) in any other establishment, any person responsible for the supervision and control of the establishment." Section 2(17) defines the "principal employer" in a factory as the owner or occupier of the factory. "Occupier" of a factory is defined in Section 2(15) as having the same meaning assigned to it in the Factories Act, 1948, Section 2(n) of the Factories Act, 1948 as it stood at the relevant time, defined an "Occupier" to mean the person who has ultimate control over the affairs of the factory. Section 100 of the Factories Act dealt with the determination of occupier in certain cases. Under sub-section (2) where the occupier was a company, any directors thereof could be prosecuted and punished for any offence for which the occupier was liable. 4. Section 2(17) of the Employees State Insurance Act, however, defines the principal employer as either owner or occupier - taking care of all eventualities. When the owner of the factory is the principal employer, there is no need to examine who is occupier. The owner will be the principal employer under Section 40. 5. The Employees State Insurance Act does not define the term "employer although under Sections 85B and 85C of that Act the term "employer" is used. 6. The provisions of Section 40 in the light of these definitions have been considered by various High Courts in order to decide whether a director of a limited company can be considered as the principal employer liable to pay contribution under Section 40. A Division Bench of the Bombay High Court in the case Suresh Tulsidas Kilachand and Ors. etc. v. Collector of Bombay and Ors. etc., 1984(17) Labour and Industrial Cases 1614 held that a director of a company by virtue of being a director is not principal employer contemplated by Section 2(17) of the Employees State Insurance Act. He is not personally liable to pay employers contribution under the Act. In the context of Section 2(17) read with Section 2(15) the Court held that whether a person is occupier or not has to be ascertained with reference to whether he is in ultimate control over the factory. When the definition of principal employer in Section 2(17) refers to the "owner" or "occupier" of a factory, the principal employer can be either the owner or the occupier depending upon the facts of each case. When there is an owner of the factory that owner must be considered as the principal employer liable for contribution. 7. Under Section 40 the words "owner" and "occupier" have been used disjunctively. The Court also referred to section 100 of the Factories Act and said that even under the Factories Act, 1948, the Legislature has clearly contemplated that in the case of a factory, a company can be the "occupier". Therefore, when the owner of a factory is a company it is the company which is the principal employer and not its director. The Bombay High Court overruled the judgment of the Single Judge of the Bombay High Court in so deciding. 8. The same view has been taken by the Madhya Pradesh High Court in the case of Employees State Insurance Corporation, Indore v. Kailashchandra and Ors., 1989(22) Labour and Industrial Cases 760. The Madhya Pradesh High Court also said that when there is a default in payment of contribution by the company, the managing director, or other directors cannot be made personally liable. The contribution can be recovered from the company as the principal employer.9. In the case of Employees State Insurance Corporation, Chandigarh v. Gurdial Singh and Ors., 1991(24) Labour and Industrial Cases 52, this Court held that the directors of a private limited company were not personally liable to pay contributions under the Employees State Insurance Act, 1948. The Court was considering a case where a private limited company was the owner of the factory and the occupier of the factory had been duly named under the Factories Act, 1948. The Court said that the directors did not come within the definition of Clause 1 of Section 2(17) of the Employees State Insurance Act. This Court also disapproved of the decision of a Single Judge of the Bombay High Court which has been subsequently overruled by the Division Bench of the Bombay High Court in the case of Suresh Tulsidas Kilachand and Ors. etc. v. Collector of Bombay and Ors. etc. (supra).10. Therefore, even if we read the definition of "principal employer" under the Employees State Insurance Act, 1948 in Explanation 2 to Section 405 of the Indian Penal Code, the directors of the company, in the present case, would not be covered by the definition of "principal employer" when the company itself owns the factory and is also the employer of its employees at the head office.11. In any event, in the absence of any express provision in the Indian Penal Code incorporating the definition of "principal employer" in Explanation 2 to Section 405, this definition cannot be held to apply to the term "employer" in Explanation 2. As the High Court has observed, the term "employer" in Explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its directors either singly or collectively.
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0[ds]9. In the case of Employees State Insurance Corporation, Chandigarh v. Gurdial Singh and Ors., 1991(24) Labour and Industrial Cases 52, this Court held that the directors of a private limited company were not personally liable to pay contributions under the Employees State Insurance Act, 1948. The Court was considering a case where a private limited company was the owner of the factory and the occupier of the factory had been duly named under the Factories Act, 1948. The Court said that the directors did not come within the definition of Clause 1 of Section 2(17) of the Employees State Insurance Act. This Court also disapproved of the decision of a Single Judge of the Bombay High Court which has been subsequently overruled by the Division Bench of the Bombay High Court in the case of Suresh Tulsidas Kilachand and Ors. etc. v. Collector of Bombay and Ors. etc. (supra).10. Therefore, even if we read the definition of "principal employer" under the Employees State Insurance Act, 1948 in Explanation 2 to Section 405 of the Indian Penal Code, the directors of the company, in the present case, would not be covered by the definition of "principal employer" when the company itself owns the factory and is also the employer of its employees at the head office.11. In any event, in the absence of any express provision in the Indian Penal Code incorporating the definition of "principal employer" in Explanation 2 to Section 405, this definition cannot be held to apply to the term "employer" in Explanation 2. As the High Court has observed, the term "employer" in Explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its directors either singly or collectively.
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### Instruction:
Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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representing the employees contribution for the period. (3)................ (4) Any sum deducted by the principal employer from wages under this Act shall be deemed to have been entrusted to him by the employee for the purpose of paying the contribution in respect of which it was deducted. (5).................." The term "principal employer" has been defined in Section 2(17) of the Employees State Insurance Act, 1948 as follows:- "2(17): "principal employer" means:- (i) in a factory, the owner or occupier of the factory includes the managing agent of such owner or occupier, the legal representative of a deceased owner or occupier, and where a person has been named as the manager of [the factory under Factories Act, 1948] (63 of 1948); the person so named: (ii).................... (iii) in any other establishment, any person responsible for the supervision and control of the establishment." Section 2(17) defines the "principal employer" in a factory as the owner or occupier of the factory. "Occupier" of a factory is defined in Section 2(15) as having the same meaning assigned to it in the Factories Act, 1948, Section 2(n) of the Factories Act, 1948 as it stood at the relevant time, defined an "Occupier" to mean the person who has ultimate control over the affairs of the factory. Section 100 of the Factories Act dealt with the determination of occupier in certain cases. Under sub-section (2) where the occupier was a company, any directors thereof could be prosecuted and punished for any offence for which the occupier was liable. 4. Section 2(17) of the Employees State Insurance Act, however, defines the principal employer as either owner or occupier - taking care of all eventualities. When the owner of the factory is the principal employer, there is no need to examine who is occupier. The owner will be the principal employer under Section 40. 5. The Employees State Insurance Act does not define the term "employer although under Sections 85B and 85C of that Act the term "employer" is used. 6. The provisions of Section 40 in the light of these definitions have been considered by various High Courts in order to decide whether a director of a limited company can be considered as the principal employer liable to pay contribution under Section 40. A Division Bench of the Bombay High Court in the case Suresh Tulsidas Kilachand and Ors. etc. v. Collector of Bombay and Ors. etc., 1984(17) Labour and Industrial Cases 1614 held that a director of a company by virtue of being a director is not principal employer contemplated by Section 2(17) of the Employees State Insurance Act. He is not personally liable to pay employers contribution under the Act. In the context of Section 2(17) read with Section 2(15) the Court held that whether a person is occupier or not has to be ascertained with reference to whether he is in ultimate control over the factory. When the definition of principal employer in Section 2(17) refers to the "owner" or "occupier" of a factory, the principal employer can be either the owner or the occupier depending upon the facts of each case. When there is an owner of the factory that owner must be considered as the principal employer liable for contribution. 7. Under Section 40 the words "owner" and "occupier" have been used disjunctively. The Court also referred to section 100 of the Factories Act and said that even under the Factories Act, 1948, the Legislature has clearly contemplated that in the case of a factory, a company can be the "occupier". Therefore, when the owner of a factory is a company it is the company which is the principal employer and not its director. The Bombay High Court overruled the judgment of the Single Judge of the Bombay High Court in so deciding. 8. The same view has been taken by the Madhya Pradesh High Court in the case of Employees State Insurance Corporation, Indore v. Kailashchandra and Ors., 1989(22) Labour and Industrial Cases 760. The Madhya Pradesh High Court also said that when there is a default in payment of contribution by the company, the managing director, or other directors cannot be made personally liable. The contribution can be recovered from the company as the principal employer.9. In the case of Employees State Insurance Corporation, Chandigarh v. Gurdial Singh and Ors., 1991(24) Labour and Industrial Cases 52, this Court held that the directors of a private limited company were not personally liable to pay contributions under the Employees State Insurance Act, 1948. The Court was considering a case where a private limited company was the owner of the factory and the occupier of the factory had been duly named under the Factories Act, 1948. The Court said that the directors did not come within the definition of Clause 1 of Section 2(17) of the Employees State Insurance Act. This Court also disapproved of the decision of a Single Judge of the Bombay High Court which has been subsequently overruled by the Division Bench of the Bombay High Court in the case of Suresh Tulsidas Kilachand and Ors. etc. v. Collector of Bombay and Ors. etc. (supra).10. Therefore, even if we read the definition of "principal employer" under the Employees State Insurance Act, 1948 in Explanation 2 to Section 405 of the Indian Penal Code, the directors of the company, in the present case, would not be covered by the definition of "principal employer" when the company itself owns the factory and is also the employer of its employees at the head office.11. In any event, in the absence of any express provision in the Indian Penal Code incorporating the definition of "principal employer" in Explanation 2 to Section 405, this definition cannot be held to apply to the term "employer" in Explanation 2. As the High Court has observed, the term "employer" in Explanation 2 must be understood as in ordinary parlance. In ordinary parlance it is the company which is the employer and not its directors either singly or collectively.
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355 |
Union Territory Of Goa, Daman And Diu And Anr Vs. Lakshmibai Narayan Patil Etc. Etc.Andsmt. Lakshmi Bai Patil
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many other factors in formulating a scheme of agrarian reforms suitable to a particular State." * The decision, therefore, indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken, rather than laying down a strait-jacket rule for universal application. The observations in Dattatraya Govind Mahajan v. State of Maharashtra were also made while examining an Act fixing ceiling of holdings and in justification of the impugned provisions it was observed that the policy in this regard was initiated following the report of the Agricultural Labour Inquiry conducted in the 1960s and in implementation of this policy the Act under consideration was passed. The implication is that the fixation of ceiling was not essentially involved in agrarian reform but it had to be resorted of in the State of Maharashtra following the conclusion arrived at in the Agricultural Labour Inquiry. 13. The learned counsel for the respondents also placed two cases wherein Article 31-A was held to be inapplicable. In K. K. Kochuni v. State of Madras the question of Article 31-A did arise but in absolutely different context. The immediate predecessor of the petitioner K. K. Kochuni was the sthanee of the properties attached to the various sthanams held by him. On his death in 1925, the petitioner being the senior member became the sthanee and respondents 2 to 17 being the junior members of the tarwad did not get any interest in the properties. In an earlier litigation which was commenced following the passing of an Act in 1932, the petitioners exclusive right was established up to the Privy Council stage. It was held that the members of the tarwad had no interest therein. After the title of the sthanee was thus established, the Madras legislature passed the impugned Act in 1955, which declared that every sthanam satisfying certain conditions mentioned in the Act would be deemed and would always be deemed to have properties belonging to the tarwad. The petitioner K. K. Kochuni challenged the Act as ultra vires before this Court by an application under Article 32 of the Constitution. Two other petitions were also filed, one by his wife and daughters with respect to certain other properties gifted to them and the other by his son. In support of the constitutional validity of the Act it was argued on behalf of the respondents that the petitioners sthanam was an estate within the meaning of Article 31-A and, therefore, enjoyed the protection under that article. The argument was that a law relating inter se the rights of a proprietor in his estate and the junior members of his family was also covered by the wide phraseology used in clause (2)(b) of Article 31-A. This Court rejected the plea, holding that : (SCR p. 900)"The definition of "estate" refers to an existing law relating to land tenures in a particular area indicating thereby that the article is concerned only with the land tenure described as an "estate". The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure-holders. The last clause in that definition, viz., that those rights also include the rights or privileges in respect of land revenue, emphasizes the fact that the article is concerned with land tenure. It is, therefore, manifest that the said article deals with a tenure called "estate " and provides for is acquisition or the extinguishment or modification of the rights of the landholder or the various subordinate tenure-holders in respect of their rights in relation to the estate. The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. It would also enable the State to compel a proprietor to divide his properties, though self-acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before." * The court, thus held that Article 31-A(1)(a) will not apply to an Act which does not contemplate or seek to regulate the rights inter se between the landlords and tenants leaving all their characteristics intact. The court further considered the judgment in Sri Ram Ram Narain and distinguished it on the ground that under the Bombay Act certain rights were conferred on the tenants in respect of their Manufacturing Company v. Bharat Coking Coal Ltd. relied upon by Mr. Nariman is also of no help as the same was dealing with certain legislation in regard to mines and minerals. The question of interpreting Article 31-A(1)(a) did not arise there at all. 14. As has been discussed above, the title to the land shall vest in the tiller and the landlord shall get the compensation. Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act. As a result of the impugned Amendment Act he has been divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession. The impugned provisions must therefore be accepted as measure of land reform. We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform. The Fifth Amendment Act is, therefore, entitled to the protection of Article 31-A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution. The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed. Consequently it is not necessary to deal with the writ petition (W.P. No. 864 of 1988) filed in this Court under Article 32 challenging the inclusion of the impugned Act in the Ninth Schedule of the Constitution and the same is rejected.
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1[ds]9. Article 31-A(1)(a) declares that no law providing for "the acquisition by the State of any estate or of any rights therein or the extinction or modification of any such rights", shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19. The Fifth Amendment Act has received the assent of the President as required by the first proviso. The expression estate is undisputedly applicable in the present case in view of the provisions of clause (2) of the said article. Although Article 31-A(1)(a) does not by express language restrict its application to a particular nature of law, it is now well settled that the protection of the Article is limited to the laws which serve the purpose of agrarian reform, and Mr. R. F. Nariman is right in relying upon the observations at page 901-F of the judgment in Godavari Sugar Mills Ltd. v. S. B. Kamble. The learned counsel has further urged that the other observations in this judgment support his main argument also that in absence of provisions for ceiling a statute cannot be held to be for agrarian reform. We are unable to agree. In that case the constitutional validity of the Act amending certain provisions of the Maharashtra Agricultural (Ceiling and Holdings) Act, 1961 was under challenge and it was sought to be saved inter alia with the aid of Article 31-A. While discussing the scope of Article 31-A, the court at page 902-F relied upon the decision in Balmadies Plantations Ltd. v. State of Tamil Nadu in the following terms : (SCC p. 710, parathe case of Balmadies Plantations Ltd. v. State of Tamil Nadu it was held while dealing with the provisions of Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act that the object and general scheme of the Act was to abolish intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State. The Act, as such, in its broad outlines was held to be a measure of agrarian reform and protected by Article 31-A.As has been discussed above, the title to the land shall vest in the tiller and the landlord shall get the compensation. Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act. As a result of the impugned Amendment Act he has been divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession. The impugned provisions must therefore be accepted as measure of land reform. We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform. The Fifth Amendment Act is, therefore, entitled to the protection of Article 31-A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution. The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed. Consequently it is not necessary to deal with the writ petition (W.P. No. 864 of 1988) filed in this Court under Article 32 challenging the inclusion of the impugned Act in the Ninth Schedule of the Constitution and the same is rejected
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### Instruction:
Assess the case proceedings and provide a prediction: is the court likely to rule in favor of (1) or against (0) the appellant/petitioner?
### Input:
many other factors in formulating a scheme of agrarian reforms suitable to a particular State." * The decision, therefore, indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken, rather than laying down a strait-jacket rule for universal application. The observations in Dattatraya Govind Mahajan v. State of Maharashtra were also made while examining an Act fixing ceiling of holdings and in justification of the impugned provisions it was observed that the policy in this regard was initiated following the report of the Agricultural Labour Inquiry conducted in the 1960s and in implementation of this policy the Act under consideration was passed. The implication is that the fixation of ceiling was not essentially involved in agrarian reform but it had to be resorted of in the State of Maharashtra following the conclusion arrived at in the Agricultural Labour Inquiry. 13. The learned counsel for the respondents also placed two cases wherein Article 31-A was held to be inapplicable. In K. K. Kochuni v. State of Madras the question of Article 31-A did arise but in absolutely different context. The immediate predecessor of the petitioner K. K. Kochuni was the sthanee of the properties attached to the various sthanams held by him. On his death in 1925, the petitioner being the senior member became the sthanee and respondents 2 to 17 being the junior members of the tarwad did not get any interest in the properties. In an earlier litigation which was commenced following the passing of an Act in 1932, the petitioners exclusive right was established up to the Privy Council stage. It was held that the members of the tarwad had no interest therein. After the title of the sthanee was thus established, the Madras legislature passed the impugned Act in 1955, which declared that every sthanam satisfying certain conditions mentioned in the Act would be deemed and would always be deemed to have properties belonging to the tarwad. The petitioner K. K. Kochuni challenged the Act as ultra vires before this Court by an application under Article 32 of the Constitution. Two other petitions were also filed, one by his wife and daughters with respect to certain other properties gifted to them and the other by his son. In support of the constitutional validity of the Act it was argued on behalf of the respondents that the petitioners sthanam was an estate within the meaning of Article 31-A and, therefore, enjoyed the protection under that article. The argument was that a law relating inter se the rights of a proprietor in his estate and the junior members of his family was also covered by the wide phraseology used in clause (2)(b) of Article 31-A. This Court rejected the plea, holding that : (SCR p. 900)"The definition of "estate" refers to an existing law relating to land tenures in a particular area indicating thereby that the article is concerned only with the land tenure described as an "estate". The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure-holders. The last clause in that definition, viz., that those rights also include the rights or privileges in respect of land revenue, emphasizes the fact that the article is concerned with land tenure. It is, therefore, manifest that the said article deals with a tenure called "estate " and provides for is acquisition or the extinguishment or modification of the rights of the landholder or the various subordinate tenure-holders in respect of their rights in relation to the estate. The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. It would also enable the State to compel a proprietor to divide his properties, though self-acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before." * The court, thus held that Article 31-A(1)(a) will not apply to an Act which does not contemplate or seek to regulate the rights inter se between the landlords and tenants leaving all their characteristics intact. The court further considered the judgment in Sri Ram Ram Narain and distinguished it on the ground that under the Bombay Act certain rights were conferred on the tenants in respect of their Manufacturing Company v. Bharat Coking Coal Ltd. relied upon by Mr. Nariman is also of no help as the same was dealing with certain legislation in regard to mines and minerals. The question of interpreting Article 31-A(1)(a) did not arise there at all. 14. As has been discussed above, the title to the land shall vest in the tiller and the landlord shall get the compensation. Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act. As a result of the impugned Amendment Act he has been divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession. The impugned provisions must therefore be accepted as measure of land reform. We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform. The Fifth Amendment Act is, therefore, entitled to the protection of Article 31-A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution. The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed. Consequently it is not necessary to deal with the writ petition (W.P. No. 864 of 1988) filed in this Court under Article 32 challenging the inclusion of the impugned Act in the Ninth Schedule of the Constitution and the same is rejected.
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Union Of India Vs. Ex Lac Nallam Shiva
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appeal be dismissed. 5. After cogitating over the submissions made by both the sides and perusing the record, it is noticed that the charge against the respondent of overstaying the casual leave period without communicating either to his superiors or to the nearest military station, has been duly proved against the respondent. Although the respondent asserted that he had suffered health problem, including mental stress due to matrimonial dispute, he did not choose to go to a Military Hospital. Being a member of the Armed Forces such indiscipline cannot be countenanced. Even the Tribunal has rejected the defence of the respondent in this behalf, by observing thus:-?15. From the above pleadings, it appears that there are some mitigating circumstances for the long absence of the applicant though his absence and his failure to communicate either to his unit or to the nearest Military Station are not condonable……?(emphasis supplied) 6. The Tribunal, nevertheless, was swayed by the justification given by the respondent (which, according to the respondent, prevented him from reporting to duty or for that matter, intimating either to his superiors or to the nearest military station), singularly because it was his first offence. The Tribunal relied on Regulation 754(C) and concluded that since the respondent?s conduct was otherwise exemplary and as it was his first offence and that he had already undergone three months rigorous imprisonment for the stated offence, the order of punishment of dismissal from service was disproportionate and unduly harsh. 7. Regulation 754(C) of the Defence Service Regulations for Armed Forces reads thus:-?Sentences must necessarily vary according to the requirements of discipline but in ordinary circumstances, and for a first offence, a sentence should be light.?Indeed, the respondent may have been charged for the first time for having committed offence of overstaying the casual leave period. The respondent may also have offered explanation about the matrimonial dispute, other family issues and his ill-health, as the cause for not reporting to duty. From the proved facts, however, it is evident that the respondent overstayed for a period of around 1½ years beyond the casual leave period which is indubitably against the requirements of discipline. In that, he was granted casual leave from 20th October, 2012 to 4th November, 2012, but he surrendered only on 11th April, 2014. He did not bother to intimate his whereabouts either to his superiors or to the nearest military station during the intervening period stretched upto around 1½ years. If he was suffering from any illness personally or for that matter if his father suffered a paralytic attack, he ought to have gone to the Military Hospital for treatment. However, he did not choose to go to the Military Hospital but to a quack. This is a serious misconduct and cannot be countenanced in the disciplined force where the respondent was serving. From the established facts it would not warrant a lighter view, much less to direct reinstatement of the respondent, as has been done by the Tribunal. That would send a wrong signal and impact the discipline of the Armed Forces. The respondent had just put in around six years of service when he ventured into committing the stated offence. The fact that he has already undergone punishment of sentence period for the offence of desertion also can be of no avail so as to interdict the decision of the disciplinary authority to dismiss the respondent from service. 8. A priori, reliance placed by the Tribunal on Regulation 754(C) is misplaced in the fact situation of the present case. For, it was not a case of overstaying for couple of days or a technical and trivial offence committed by the respondent. He overstayed beyond the casual leave period for around 1½ years without informing either his superiors or the nearest military station as to his whereabouts. 9. To put it differently, in the fact situation of the present case, it is not possible to hold that the punishment of dismissal was vindictive, unduly harsh or disproportionate to the offence committed by the respondent and especially after the Tribunal has positively concluded that failure of the respondent to communicate either to his unit or to the nearest military station for around 1½ years was uncondonable. Ordinarily, the Tribunal ought not to interfere with the order of punishment except in appropriate cases only after recording a finding that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the delinquent officer. 10. We have no hesitation in concluding that the Tribunal misdirected itself in invoking Regulation 754(C) and to reckon the mitigating circumstance such as respondent has already undergone punishment of sentence for the stated offence. Thus, the Tribunal exceeded its jurisdiction in overturning the order of punishment imposed by the disciplinary authority and instead directing reinstatement of the respondent in service and treating the period between the date of dismissal of the respondent and the date of his rejoining service as non-qualifying service, so as to give him a chance of rehabilitation in service. The judgment under appeal, therefore, deserves to be set aside. 11. Counsel for the respondent made a fervent alternative submission that even if the direction given by the Tribunal to reinstate the respondent in service was to be set aside, this Court may take a sympathetic view as the respondent has already suffered the sentence period for the stated offence. He submitted that this Court may modify the order of dismissal from service to one of discharge from service, so that the respondent may not be disqualified from applying for employment elsewhere, considering that he is young and has to support his family. The counsel for the appellants, in all fairness, submits that so long as the respondent is not ordered to be reinstated in the Indian Air Force Service and there is no financial implication for the department, he may leave it to the discretion of this Court to pass orders as may be deemed appropriate.
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0[ds]5. After cogitating over the submissions made by both the sides and perusing the record, it is noticed that the charge against the respondent of overstaying the casual leave period without communicating either to his superiors or to the nearest military station, has been duly proved against the respondent. Although the respondent asserted that he had suffered health problem, including mental stress due to matrimonial dispute, he did not choose to go to a Military Hospital. Being a member of the Armed Forces such indiscipline cannot bethe respondent may have been charged for the first time for having committed offence of overstaying the casual leave period. The respondent may also have offered explanation about the matrimonial dispute, other family issues and hisas the cause for not reporting to duty. From the proved facts, however, it is evident that the respondent overstayed for a period of around 1½ years beyond the casual leave period which is indubitably against the requirements of discipline., he was granted casual leave from 20th October, 2012 to 4th November, 2012, but he surrendered only on 11th April, 2014. He did not bother to intimate his whereabouts either to his superiors or to the nearest military station during the intervening period stretched upto around 1½ years. If he was suffering from any illness personally or for that matter if his father suffered a paralytic attack, he ought to have gone to the Military Hospital for treatment. However, he did not choose to go to the Military Hospital but to a quack. This is a serious misconduct and cannot be countenanced in the disciplined force where the respondent was serving. From the established facts it would not warrant a lighter view, much less to direct reinstatement of the respondent, as has been done by the Tribunal. That would send a wrong signal and impact the discipline of the Armed Forces. The respondent had just put in around six years of service when he ventured into committing the stated offence. The fact that he has already undergone punishment of sentence period for the offence of desertion also can be of no avail so as to interdict the decision of the disciplinary authority to dismiss the respondent from service.A priori, reliance placed by the Tribunal on Regulation 754(C) is misplaced in the fact situation of the present case. For, it was not a case of overstaying for couple of days or a technical and trivial offence committed by the respondent. He overstayed beyond the casual leave period for around 1½ years without informing either his superiors or the nearest military station as to his whereabouts.To put it differently, in the fact situation of the present case, it is not possible to hold that the punishment of dismissal was vindictive, unduly harsh or disproportionate to the offence committed by the respondent and especially after the Tribunal has positively concluded that failure of the respondent to communicate either to his unit or to the nearest military station for around 1½ years was uncondonable. Ordinarily, the Tribunal ought not to interfere with the order of punishment except in appropriate cases only after recording a finding that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the delinquent officer.We have no hesitation in concluding that the Tribunal misdirected itself in invoking Regulation 754(C) and to reckon the mitigating circumstance such as respondent has already undergone punishment of sentence for the stated offence. Thus, the Tribunal exceeded its jurisdiction in overturning the order of punishment imposed by the disciplinary authority and instead directing reinstatement of the respondent in service and treating the period between the date of dismissal of the respondent and the date of his rejoining service asservice, so as to give him a chance of rehabilitation in service. The judgment under appeal, therefore, deserves to be set aside.
| 0 | 2,436 |
### Instruction:
Delve into the case proceeding and predict the outcome: is the judgment expected to be in support (1) or in denial (0) of the appeal?
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appeal be dismissed. 5. After cogitating over the submissions made by both the sides and perusing the record, it is noticed that the charge against the respondent of overstaying the casual leave period without communicating either to his superiors or to the nearest military station, has been duly proved against the respondent. Although the respondent asserted that he had suffered health problem, including mental stress due to matrimonial dispute, he did not choose to go to a Military Hospital. Being a member of the Armed Forces such indiscipline cannot be countenanced. Even the Tribunal has rejected the defence of the respondent in this behalf, by observing thus:-?15. From the above pleadings, it appears that there are some mitigating circumstances for the long absence of the applicant though his absence and his failure to communicate either to his unit or to the nearest Military Station are not condonable……?(emphasis supplied) 6. The Tribunal, nevertheless, was swayed by the justification given by the respondent (which, according to the respondent, prevented him from reporting to duty or for that matter, intimating either to his superiors or to the nearest military station), singularly because it was his first offence. The Tribunal relied on Regulation 754(C) and concluded that since the respondent?s conduct was otherwise exemplary and as it was his first offence and that he had already undergone three months rigorous imprisonment for the stated offence, the order of punishment of dismissal from service was disproportionate and unduly harsh. 7. Regulation 754(C) of the Defence Service Regulations for Armed Forces reads thus:-?Sentences must necessarily vary according to the requirements of discipline but in ordinary circumstances, and for a first offence, a sentence should be light.?Indeed, the respondent may have been charged for the first time for having committed offence of overstaying the casual leave period. The respondent may also have offered explanation about the matrimonial dispute, other family issues and his ill-health, as the cause for not reporting to duty. From the proved facts, however, it is evident that the respondent overstayed for a period of around 1½ years beyond the casual leave period which is indubitably against the requirements of discipline. In that, he was granted casual leave from 20th October, 2012 to 4th November, 2012, but he surrendered only on 11th April, 2014. He did not bother to intimate his whereabouts either to his superiors or to the nearest military station during the intervening period stretched upto around 1½ years. If he was suffering from any illness personally or for that matter if his father suffered a paralytic attack, he ought to have gone to the Military Hospital for treatment. However, he did not choose to go to the Military Hospital but to a quack. This is a serious misconduct and cannot be countenanced in the disciplined force where the respondent was serving. From the established facts it would not warrant a lighter view, much less to direct reinstatement of the respondent, as has been done by the Tribunal. That would send a wrong signal and impact the discipline of the Armed Forces. The respondent had just put in around six years of service when he ventured into committing the stated offence. The fact that he has already undergone punishment of sentence period for the offence of desertion also can be of no avail so as to interdict the decision of the disciplinary authority to dismiss the respondent from service. 8. A priori, reliance placed by the Tribunal on Regulation 754(C) is misplaced in the fact situation of the present case. For, it was not a case of overstaying for couple of days or a technical and trivial offence committed by the respondent. He overstayed beyond the casual leave period for around 1½ years without informing either his superiors or the nearest military station as to his whereabouts. 9. To put it differently, in the fact situation of the present case, it is not possible to hold that the punishment of dismissal was vindictive, unduly harsh or disproportionate to the offence committed by the respondent and especially after the Tribunal has positively concluded that failure of the respondent to communicate either to his unit or to the nearest military station for around 1½ years was uncondonable. Ordinarily, the Tribunal ought not to interfere with the order of punishment except in appropriate cases only after recording a finding that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of charges proved against the delinquent officer. 10. We have no hesitation in concluding that the Tribunal misdirected itself in invoking Regulation 754(C) and to reckon the mitigating circumstance such as respondent has already undergone punishment of sentence for the stated offence. Thus, the Tribunal exceeded its jurisdiction in overturning the order of punishment imposed by the disciplinary authority and instead directing reinstatement of the respondent in service and treating the period between the date of dismissal of the respondent and the date of his rejoining service as non-qualifying service, so as to give him a chance of rehabilitation in service. The judgment under appeal, therefore, deserves to be set aside. 11. Counsel for the respondent made a fervent alternative submission that even if the direction given by the Tribunal to reinstate the respondent in service was to be set aside, this Court may take a sympathetic view as the respondent has already suffered the sentence period for the stated offence. He submitted that this Court may modify the order of dismissal from service to one of discharge from service, so that the respondent may not be disqualified from applying for employment elsewhere, considering that he is young and has to support his family. The counsel for the appellants, in all fairness, submits that so long as the respondent is not ordered to be reinstated in the Indian Air Force Service and there is no financial implication for the department, he may leave it to the discretion of this Court to pass orders as may be deemed appropriate.
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ADD. COMMISSIONER OF INCOME TAX Vs. BHARAT V. PATEL
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included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries….. 15. The Revenue also contended before the High Court that the amendment brought in by Section 17(2) of the IT Act was clarificatory, hence, retrospective in nature. However, the High Court rejected the stand of the Revenue. The High Court, in its impugned judgment, on the point of the applicability of clause has held as under:- 15. In the case of Commissioner of Income-Tax, Bangalore vs B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act , 1999 w.e.f. 1.4.2000.Morevover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the afore stated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price. For ready reference, Circular No. 710 issued by the CBDT is reproduced hereinbelow:- 202. Taxability of the perequisite on shares issued to employees at less than market price: 1. Chief Commissioners and corporate assessees have been seeking clarification regarding taxability of the perquisite on shares issued to the employees at less than market price. 2. The matter has been considered by the Board. The benefit does amount to a perquisite within the meaning of clause (iii) of sub-section (2) of Section 17 of the Income-Tax Act, 1961. The various situations in this regard have to be dealt with as under: (i) where the shares held by the Government have been transferred to the employee, there will be no perquisite because the employer-employee relationship does not exist between Government and the employee (transferor and the transferee); (ii) where the company offers shares to the employees at the same price as have been offered to the other shareholders or the general public, there will be no perquisite; (iii) where the employer has offered the shares to its employees at a price lower than the one at which the shares have been offered to the other shareholders/public, the difference between the two prices will be taxed as perquisite; (iv) where the shares have been offered only to the employees, the value of perqusite will be the difference between the market price of the shares on the date of acceptance of the offer by the employee and the price at which the shares have been offered. On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent. 17. Alternatively, the Revenue also contended that the case of the Respondent shall come within the ambit of the Section 28(iv) of the IT Act. At this juncture, we deem it appropriate, for the sake of convenience, to refer Section 28(iv) of the IT Act which is reproduced herein below:- 28. Profits and gains of business or profession.-The following income shall be chargeable to income-tax under the head Profits and gains of business or profession- (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability. 18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax.
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0[ds]The word Perquisite in common parlance may be defined as any perk or benefit attached to an employee or position besides salary or remuneration. Broadly speaking, these are usually non-cash benefits given by an employer to an employee in addition to entitled salary or remuneration. It may be said that these benefits are generally provided by the employers in order to retain the talented employees in the organization. There are various instances of perquisite such as concessional rent accommodation provided by the employer, any sum paid by an employer in respect of an obligation which was actually payable by the employee etc. Section 17(2) of the IT Act was enacted by the legislature to give the broad view of term perquisite. On the other hand, the word Capital Gains means a profit from the sale of property or an investment. It may be short term or long term depending upon the facts and circumstances of each case. This gain or profit is charged to tax in the year in which transfer of the capital assets takes place. In the instant case, the fundamental question which arises for consideration before this Court is with regard to the taxability of the amount received by the Respondent on redemption of Stock Appreciation Rights (SARs.)10. It is a matter of record that the Respondent was employed as the Chairman-cum-Managing Director of the (P&G) India Ltd. at the relevant time and the said company is the subsidiary of (P&G) USA through Richardson Vicks Inc. USA and that (P&G) USA owned controlling equity. It is an undisputed fact that the Respondent was working as a salaried employee. The (P&G) USA was the company who had issued the Stock Appreciation Rights (SARs.) to the Respondent without any consideration from 1991 to 1996. The said SARs were redeemed on 15.10.1997 and in lieu of that the Respondent received an amount of Rs 6,80,40,724/- from (P&G) USA. However, when the Respondent filed his return, he claimed this amount as an exemption from the ambit of Income Tax12. It is apposite to note here that, particularly, in order to bring the perquisite transferred by the employer to the employees within the ambit of tax, legislature brought an amendment under Section 17 of the IT Act by inserting Clause (iiia) in Section 17(2) of the IT Act through the Finance Act, 1999 (27 of 1999) with effect from 01.04.2000, which was later on omitted by the Finance Act, 2000.13. The intention behind the said amendment brought by the legislature was to bring the benefits transferred by the employer to the employees as in the instant case, within the ambit of the Income Tax Act, 1961. It was the first time when the legislature specified the meaning of the cost for acquiring specific securities. Only by this amendment, legislature determined what would constitute the specific securities. By this amendment, legislature clearly covered the direct or indirect transfer of specified securities from the employer to the employees during or after the employment. On a perusal of the said clause, it is evident that the case of the Respondent falls under such clause. However, since the transaction in the instant case pertains to prior to 01.04.2000, hence, such transaction cannot be covered under the said clause in the absence of an express provision of retrospective effect. We also do not find any force in the argument of the Revenue that the case of the Respondent would fall under the ambit of Section 17(2) (iii) of the IT Act instead of Section 17(2) (iiia) of the IT Act. It is a fundamental principle of law that a receipt under the IT Act must be made taxable before it can be treated as income. Courts cannot construe the law in such a way that brings an individual within the ambit of Income Tax Act to pay tax who otherwise is not liable to pay. In the absence of any such specific provision, if an individual is subjected to pay tax, it would amount to the violation of his Constitutional Right.14. It is pertinent to note that on the point of applicability of clause (iiia) of Section 17(2) of the IT Act, this Court settled the position in Infosys Technologies Ltd (supra), and has held as under:-17. Be that as it may, proceeding on the basis that there was benefit the question is whether every benefit received by the person is taxable as income? In our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries…..16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price.On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent.On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability.18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax.
| 0 | 3,566 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
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included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries….. 15. The Revenue also contended before the High Court that the amendment brought in by Section 17(2) of the IT Act was clarificatory, hence, retrospective in nature. However, the High Court rejected the stand of the Revenue. The High Court, in its impugned judgment, on the point of the applicability of clause has held as under:- 15. In the case of Commissioner of Income-Tax, Bangalore vs B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act , 1999 w.e.f. 1.4.2000.Morevover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the afore stated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price. For ready reference, Circular No. 710 issued by the CBDT is reproduced hereinbelow:- 202. Taxability of the perequisite on shares issued to employees at less than market price: 1. Chief Commissioners and corporate assessees have been seeking clarification regarding taxability of the perquisite on shares issued to the employees at less than market price. 2. The matter has been considered by the Board. The benefit does amount to a perquisite within the meaning of clause (iii) of sub-section (2) of Section 17 of the Income-Tax Act, 1961. The various situations in this regard have to be dealt with as under: (i) where the shares held by the Government have been transferred to the employee, there will be no perquisite because the employer-employee relationship does not exist between Government and the employee (transferor and the transferee); (ii) where the company offers shares to the employees at the same price as have been offered to the other shareholders or the general public, there will be no perquisite; (iii) where the employer has offered the shares to its employees at a price lower than the one at which the shares have been offered to the other shareholders/public, the difference between the two prices will be taxed as perquisite; (iv) where the shares have been offered only to the employees, the value of perqusite will be the difference between the market price of the shares on the date of acceptance of the offer by the employee and the price at which the shares have been offered. On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent. 17. Alternatively, the Revenue also contended that the case of the Respondent shall come within the ambit of the Section 28(iv) of the IT Act. At this juncture, we deem it appropriate, for the sake of convenience, to refer Section 28(iv) of the IT Act which is reproduced herein below:- 28. Profits and gains of business or profession.-The following income shall be chargeable to income-tax under the head Profits and gains of business or profession- (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability. 18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax.
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Chettian Veettil Ammad and Another Vs. Taluk Land Board and Others
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section 82 (which fixed the ceiling), and if the Legislature decided that the ceiling should be reduced, it is natur al that the deeming provision of section 84 should attach to transfers in excess of the reduced ceiling because the crucial date of invalidation has been stated in section 84, right from the inception of the Act, to be September 15, 1963, irrespective of the law relating to the ceiling. It will be remembered that the Act had not even come into force on September 15, 1963, but it, all the same, invalidated the transfers made after that date in excess of the ceiling it prescribed. So, as lon g as September 15, 1963 continues to remain the date with reference to which the transfers are to be invalidated, the variation in the extent of the ceiling has necessarily to work back to that date. The legislature therefore inserted sub-section (3) in section 84 to clarify that the expression ceiling area in the earlier sub-sections would mean the ceiling area specified in section 82(1) as amended by the Amending Act of 1969, i.e. the reduced ceiling. In taking this view we have only taken into consideration the plain and clear wordings of the sub-section, and if in doing so it so happens that sub-section (3) becomes retroactive in operation, we must hold that it is so. Any other view of the meaning and effect of sub- section (3) will amount to disregarding what the legislature has expressed and reading more in the law than what it provides.It has to be appreciated that, from the inception, the Act forward on voluntary transfers effected after September 15, 1963, for the obvious reason that the Bill was published on that date in the State Gazette and those concerned know that they would be required to surrender the excess lands. It is not surprising that voluntary transfers of land should have been made to get over that eventuality. 30. Section 84 therefore provided from the very beginning that such transfers shall be deemed to be calculated to defeat the provisions of the Act and shall be invalid. When the ceiling fixed by the original section 82 was considerably reduced by the Amending Act of 1969, and when the reduced ceiling was to govern the liability to surrender the excess land, it was only natural that provision should have been made to invalidate voluntary transfers effect ed after September 15, 1963 with reference to that reduced ceiling. It has to be appreciated that even those who did not want to defeat the provisions of the Act by voluntary transfers after September 15, 1963 and retained the lands themselves, we re affected by the amendment which was made by the Amending Act of 1969 and were not entitled to claim that this should not be so merely because the Amending Act came into force later. A doubt was however raised about the matter in V. N . Narayanan Nair and others v. State of Kerala and others(1). It was therefore considered necessary to introduce the Kerala Land Reforms (Amendment) Bill, 1972, clause 15 of which, inter alia, provided for the insertion of the following as sub- section (3) of section 84 of the Act, - (3) For the removal of doubts it is hereby clarified that the expression ceiling area in sub-sections (1) and (2) means the ceiling area specified in sub-section (1) of section 82 as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 or 1969). 31. Notes on clauses were appended to the Bill. In paragraph 10 thereof it was stated as follows:- There have been some doubts as to the scope of the expression ceiling area as used in the section. It is proposed to provide that the ceiling area referred to in the section is the ceiling area under the principal Act as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969). 32. The legislature inserted the sub-s ection without any change. It is true that the intention of the legislature cannot be ascertained from any statement by way of a note on the clauses of a Bill or breviate and, as has been stated, the duty of the court is to find the natural m eaning of the words in a statute, in the context in which they are used, but it has always been considered permissible, and even desirable, for a court, while interpreting a statute, to take note of the history of the statute and t he circumstances in which it was passed or the mischief at which it was directed. The reason is that the meaning which is to be given to a statute should be such as will carry out its object. If sub-section (3) of section 84 is examined with due re gard to all these factors, it will appear that, as has plainly been stated in it, the ceiling area referred to in sub-sections (1) and (2) of that section for examining the question of the validity of the transfers made after September 15, 1963 is the reduced ceiling area specified by the Amending Act of 1969. 33. In fact as has been stated in the Craies on Statute Law, seventh edition, at page 395, to explain a former statute, the subsequent statute has relation back to the time when the earlier Act was passed. In such a case, as the Act is declaratory, the presumption against construing it retrospectively so as to respect vested rights, is not applicable. As sub-section (3) of section 84 in terms clarifie s the meaning of the expression ceiling area with reference to which certain voluntary transfers are to be invalidated, it is clearly retrospective as it is meant to invalidate the transfers made after September 15, 1963 when the Bill of 1963 was published.We are therefore satisfied that the view taken in Narayana Patar v. State of Kerala(1) and others in this respect is quite correct and point No. 3 is decided accordingly.
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0[ds]9. Sub- section (3) of section 1 of the Act10. It therefore provides that: (i) section 1 of the Act shall come into force at once, (ii) the other provisions of the Act shall come into force on such dates as the Government may appoint, (iii) different dates may be appointed for different provisions of the Act, and (iv) any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. The Act was published in the Gazette on January 14, 1964, and, by virtue of section 3 of the Kerala Interpretation and General clauses Act, section 1 came into force on that date. Section 82 as has been stated, came into force on April 1, 1964, and the reference in sub-section (4) of that section to the commencement of this Act meant a reference to the coming into force of that provision with effect from April 1, 1964. It may be that the first three rules or directions contained in sub-section (3) (mentioned above) were spent on the coming into force of section 1 of the Act or its other provisions on the dates appointed for them, but, for obvious reasons, rule (iv) continued to hold the field in as much as it laid down the rule of construction that any reference to the commencement of this Act shall be construed as a reference to the coming into force of that particular provision. It was therefore applicable as a general rule of construction whenever it became necessary to ascertain the date of commencement of a particular provision of the Act other than section 1.It will be recalled that sub-section (4) of section 82, as originally incorporated in the Act, came into force on April 1, 1964. As has been mentioned, sub-section (4) of section 8 2 was emended by section 66 of the Amending Act of 1969, which came into force on January 1, 1970, but that proved to be fortuitous because it was supplanted by section 12 of the Amending Act of 1971 from the same date.11. The sub-section, as amend ed by the Amending Act of 1971, also dealt with the conversion of land into any other class of land after the commencement of this Act, but it added the words or into a plantation and provided that such conversion shall not be taken into consideration for determining the extent of land liable to be surrendered.12. The argument is however untenable on the p lain meaning of the proviso to sub-section (3) of section 1 of the Act which clearly states that any reference in any provision of the Act to the commencement of this Act shall be construed as a reference to the coming into force of that provision. So when the provision of sub-section (4) of section 82 was brought into force on April 1, 1964, its amended version would also come into force from that date. And it will be a matter of no consequence that section 12 of the Amending Act of 1971, w hich amended the sub-section, came into force on January 1, 1970. It will be remembered that section 66 of the Amending Act of 1969 which amended section 82 came into force on January 1, 1970, and as the legislature decided to amend it once again b y section 12 of the Act of 1971, with retrospective effect from the same date (January 1, 1970), it made a specific provision to that effect in section 1 of the Amending Act of 1971 and left the date of commencement of the Act for purposes of sub-sec tion (4) of section 82 to be determined according to the proviso to sub-section (3) of section 1 of the Act which, as has been stated, was a subsisting provision. It would follow that sub-section (4) as amended by the Amending Act of 1971 came into force on April 1, 1964. It may be that, as has been argued by Mr. Venugopal, the expression commencement of this Act is a term of art. We have interpreted it as it stands, without detracting from the value attributed to it by Mr. Venugopa15. A provision is therefore a distinct rule or principle of law in a statute which governs the situation covered by it. So an incomplete idea, even though stated in the form of a section of a statute, cannot be said to be a provision for, by its incompleteness, it cannot really be said to provide a whole rule or principle for observance by those concerned. A provision of law cannot therefore be said to exist if it is incomplete, for then it provides nothing.Examined in this perspective, section 82 of the Act ( as amended by section 12 of the Amending Act of 1971) is, to say the least, a distinct rule or clause for it provides the extent of the ceiling area in the cases mentioned in it (sub-section (1) ), its effect on the lands owned or held individually by the members of a family or jointly by some or all of the members of the family (sub-section (2) ), the taking into account of the shares of the members of the family or an adult unmarried person (sub-section (3)), the effect of conversion of any class of land specified in Schedule II into any other class of land specified in the schedule or into a plantation and the extent of land liable to be surrendered by a person owning or holding such land (sub-section (4) ), lands owned by a private trust or a private institution (sub-section (5) ) and exemption of lands covered by section 81 (sub-section (6) ). The section is therefore a provision by any standard, and it is futile to argue that this is not so merely because the provisions relating to the prohibition on the owning or holding or possessing under a mortgage lands in the aggregate in excess of the ceiling area and the surrender of excess land and its vesting in the State Government have been dealt with in the other sections (83, 85 and 86). Sections 83, 85 and 86 contain certain other provisions relating to the law of ceiling on land, but that cannot detract from the basic fact that section 82 contains a provision-in fact an important provision-of the law relating to the imposition of ceiling on land dealt with in Chapter III. It may well be said that sub-section (4) of section 82 is also a provision of the law by itself, for it lays down a distinct rule relating to conversion of lands for observance by all concerned.We have gone through Saidu Muhammed v. Bhanukuitan, (1) but that was quite a different case where the section which authorised the launching of the prosecution of a defaulter was brought into force, but not the other provision which prescribed the period of limitation for the prosecution, and the High Court, was persuaded to take the view that it was the legislative intent that the prosecution should be governed by the limitation prescribed by the other section. In the case before us, however, the application of section 82 is not dependent on any other section, so as to make it an incomplete provision by itself. It deals with ceiling area and is a provision by itself, so that it could be br ought into force from a date different from section 83 which prohibited the holding of land in excess of the ceiling area. It may be pointed out, that the ceiling prescribed by section 82 was material not only for the purpose of Chapter III of the Act, but had a direct co- relation to some of the provisions of Chapter II e.g. sections 16 and 53.But they were different cases. Thus State of Kerala v. Philomina (supra) related to the transfer of Kayal lands between September 15, 1963 and January 1, 1970. As Chapter III of the Act was not applicable to those lands because of th e exemption under section 81, and as that exemption continued until January 1, 1970 when section 65 of the Amending Act of 1969 came into force, it was held by this Court that as the exemption was not withdrawn until January 1, 1970, the transfers made between September 15, 1963 and January 1, 1970 were valid under the provisions of the Act. The decision in that case thus turned on the meaning of section 83 and 85. That view was noticed by this Court in State of Kerala and others v. K. A. Gangadharan (supra) and it was held that the dominant legislative intent was the imposition of the ceiling on lands and the consequential obligation to surrender lands owned or held in excess of the ceiling area on the notified date, namely, January 1, 1970. The gifts of excess land made on March 28, 1974 were therefore ignored. That was also, therefore, a different case and cannot avail the appellants.The view taken by the High Court in Ramunni Nair v. State of Kerala(1) in regard to the meaning to be attached to the words the commencement of this Act is thus substantially correct and does not call for interference by us. It may be mentioned that learned Advocate General has pointed out that in the Act as it stands amended at present, the expression commencement of this Act refers to the commencement of the Act, and while referring to the commencement of the Amending. Act of 1969, the words used are commencement of the Kerala Land Reforms (Am endment) Act, 1969 and that the Amending Act of 1971 has also been referred to as such. It is therefore futile to contend that the rule of interpretation mentioned in sub-section (3) of section 1 that any reference in a provision of the Act to the commencement of this Act shall be construed as a reference to the coming into force of that provision, shall not be construed as a reference to the coming into force of that provision as originally enacted.17. Mr. Balakrishnan tried to raise the argument that a landholder is, in any event, entitled to the benefit of the exemption under section 81 as amended by the Act of 1969 in respect of the extent of plantation within the ceiling area even if it were converted into a plantation during the period April 1, 1964 to December 31, 1969. The argument is untenable because while sub-section (1) of section 81 provides that the provisions of Chapter III shall not apply to the lands and plantations mentioned in it, that is overridden by, and is subject to, the requirement of sub- section (4) of section 82.18. Point No. 1 is decided against the appellants.Point No. 222. A reading of sub-section (1) of section 85 shows that the question for examination is not that relating to the existence of the tenancy rights of the person who files the statement, but that relating to the bona fides of his belief that the land sought to be excluded by him is liable to be purchased by a cultivating tenant. The Land Tribunal and the Taluk Land Board thus operate in their respective fields and serve the purpose of the Act.Now the certificate of purchase which the Land Tribunal issues (in the prescribed form) evidences the assignment of the assigned land to the purchaser. Sub-section (2) of section 72K of the Act mentioned above merely declares that the certificate shall be conclusive proof of that assignment of the right, title and interest of the land- owner and the intermediaries (if any) to the tenant in respect of the holding concerned (or portion thereof). There is nothing in the sub-section which could be said to declare that the finding recorded by the Tribunal in those proceedings would be conclusive proof of any other matter which it may determine so as to bind the Taluk and Board or any other authority. Sub-section (2) of section 72K therefore does not, in terms or in substance, impinge on the authority of the Taluk Land Board to discharge its own functions under section 85(5) of the Act.23. The Board is thus quite free to cause the particulars mentioned in the statement filed under sub-section (2) of section 85 to be verified and to ascertain whether the person filing the statement owns or holds any other land, and to determine the extent as well as the identity of the excess land which he is required to surrender. If a certificate of purchase is issued by the Land Tribunal to any such person and he tenders it in proceedings before the Taluk Land Board, the Board is required by law to treat it as conclusive proof of the fact that t he right, title and interest of the land owner (and intermediary) over the land mentioned in it has been assigned to him. It is however not the requirement of the law that the certificate of purchase shall be conclusive proof of the surplus or other land held by its holder so as to foreclose the decision of the Taluk Land Board under sub-section (5) of section 85.Mr. Warriyar is not justified in arguing that the Taluk Land Board has power only to determine the identity of the surplus land, leaving every other matter to the Land Tribunal. The argument loses sight of requirement of sub- section (5) of section 85 that the Board shall, inter alia, by order, determine not only the identity of the land to be surrendered but also its24. It would thus appear that even though the certificate of purchase issued under sub-section (1) of section 72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-section (2), that only means that no contrary evidence shall be effective to displace it, unless the so-called conclusive effective is inaccurate on its face, or fraud can be shownIt may be stated that inaccuracy on the face of the certificate is not as wide in its connotation as an error apparent on the face of the record. It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or that the Tribunals finding suffers from any procedural error. What sub-section (2) of section 72K provides is an irrebutable presumption of law, and it may well be regarded as a rule of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under section 85(5) after taking into consideration the conclusive evidentiary value of the certificate of purchase according to section 72K (2) as far as it goes.We are therefore of the opinion that the vie w taken in Kunjanujan Thampuran and others v. Taluk Land Board(1) is not quite correct. While the High Court was justified in taking the view that the scope of the enquiry in the Taluk Land Board is that relating to the surplus land with which t he Land Tribunal is not concerned, the certificate of purchase has its own conclusive evedentiary value to the extent provided in section 72K (2) in proceedings before the Taluk Land Board. It will therefore be for the Board to arrive at it s own decision under sub-section (5) of section 85, according to the law, and it will be permissible for it to examine, where necessary, whether the certificate is inaccurate on its face, or has been obtained by fraud or collusion.is decided accordingly.25. Mr. Bhandare tried to raise an ancillary argument in C.A. No. 2585 of 1977 that if on the date on which the Taluk Land Board undertakes an enquiry for the determination of surplus land, a proceeding is pending before the Land Tribunal for the grant of a certificate of purchase, the Board will have no jurisdiction to examine a matter which falls within the jurisdiction of the Tribunal. We find, however, that no such question was raised for t he consideration of the High Court, where the controversy was confined to the genuineness of the lease, and we are therefore not required to examine the abstract point of law set out by Mr. Bhandare. It will be sufficient for us to say that the ancillary argument can easily be answered in the light of our decision on point No. 2 if and when it arises for consideration in a given case, for the function of the Board is to determine the extent and the identity of the Land to be surrendered and not matters relating to the issue of a certificate of purchase. If a certificate of purchase has a bearing on what the Board is called upon to decide, we have no doubt that the Board will take it into consideration, if it is produced for its consideration, with due regard to the evidentiary value assigned to it under section 72K (2) in the light of our decision on point No. 2. Point No. 3Some of the persons who owned or held lands exceeding the ceiling prescribed by t he Act, had voluntarily transferred some of their lands after the publication of the Kerala Land Reforms Bill, 1963, in the State Gazette on September 15, 1963. Section 84 of the Act therefore provides that, except for the transfers mentioned in the section, the transfers so made shall be deemed to be transfers calculated to defeat the provisions of the Act, and shall be invalid. The section has thus been linked with section 82 which specifies the ceiling area.As has been stated, sub-section (3) of section 84 was inserted on November 2, 1972, and the point for determination is whether it was retrospective or retroactive in operation so as to govern the transfers effected after September 15, 1963 (date of publication of the Bill of 1963) even though the original section 84, read with the original section 82, invalidated only those transfers which were in excess of the higher ceiling prescribed by the original section 82.Section 84 follows section 82 which, it will be recalled, prescribes the ceiling area, and section 83, which prohibits the owning or holding or possession (under a mortgage) land in excess of the ceiling area. As has been observed by this Court in Gangadharans case, section 84 has been enacted with a view to making the provisions of section 83 and 85 effective. It makes references to ceiling area in sub-sections (1) and (2), and sub-section (3) states what exactly is meant thereby.27. The sub-section clarifies that the expression ceiling area in sub-sections ( 1) and (2) of section 84 means the area specified in sub-section (1) of section 82 as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969). As has been mentioned, that amendment was made by section 66 which came into force o n January 1, 1970. It is true that section 15 of the Amending Act of 1972 (which inserted sub-section (3) in section 84 of the Act) does not state that it has been made with retrospective effect, and sub-section (3) does not, in terms, state th at it shall be deemed to have come into force from the date of the amendment which was made by the Amending Act of 1969.28. In doing so, we shall be guided by the plain and clear language of the sub-section, that is the primary rule of construction, for the legislature is intended to mean what it has expressed.29. Section 84 has been enacted for the purpose of making certain voluntary transfers invalid on the ground that they are deemed to be calculated to defeat the provision of the law relating to imposition of ceiling on land. It is therefore co-related to section 82 (which fixed the ceiling), and if the Legislature decided that the ceiling should be reduced, it is natur al that the deeming provision of section 84 should attach to transfers in excess of the reduced ceiling because the crucial date of invalidation has been stated in section 84, right from the inception of the Act, to be September 15, 1963, irrespective of the law relating to the ceiling. It will be remembered that the Act had not even come into force on September 15, 1963, but it, all the same, invalidated the transfers made after that date in excess of the ceiling it prescribed. So, as lon g as September 15, 1963 continues to remain the date with reference to which the transfers are to be invalidated, the variation in the extent of the ceiling has necessarily to work back to that date. The legislature therefore inserted sub-section (3) in section 84 to clarify that the expression ceiling area in the earlier sub-sections would mean the ceiling area specified in section 82(1) as amended by the Amending Act of 1969, i.e. the reduced ceiling. In taking this view we have only taken into consideration the plain and clear wordings of the sub-section, and if in doing so it so happens that sub-section (3) becomes retroactive in operation, we must hold that it is so. Any other view of the meaning and effect of sub- section (3) will amount to disregarding what the legislature has expressed and reading more in the law than what it provides.It has to be appreciated that, from the inception, the Act forward on voluntary transfers effected after September 15, 1963, for the obvious reason that the Bill was published on that date in the State Gazette and those concerned know that they would be required to surrender the excess lands. It is not surprising that voluntary transfers of land should have been made to get over that eventuality.30. Section 84 therefore provided from the very beginning that such transfers shall be deemed to be calculated to defeat the provisions of the Act and shall be invalid. When the ceiling fixed by the original section 82 was considerably reduced by the Amending Act of 1969, and when the reduced ceiling was to govern the liability to surrender the excess land, it was only natural that provision should have been made to invalidate voluntary transfers effect ed after September 15, 1963 with reference to that reduced ceiling. It has to be appreciated that even those who did not want to defeat the provisions of the Act by voluntary transfers after September 15, 1963 and retained the lands themselves, we re affected by the amendment which was made by the Amending Act of 1969 and were not entitled to claim that this should not be so merely because the Amending Act came into force later.32. The legislature inserted the sub-s ection without any change. It is true that the intention of the legislature cannot be ascertained from any statement by way of a note on the clauses of a Bill or breviate and, as has been stated, the duty of the court is to find the natural m eaning of the words in a statute, in the context in which they are used, but it has always been considered permissible, and even desirable, for a court, while interpreting a statute, to take note of the history of the statute and t he circumstances in which it was passed or the mischief at which it was directed. The reason is that the meaning which is to be given to a statute should be such as will carry out its object. If sub-section (3) of section 84 is examined with due re gard to all these factors, it will appear that, as has plainly been stated in it, the ceiling area referred to in sub-sections (1) and (2) of that section for examining the question of the validity of the transfers made after September 15, 1963 is the reduced ceiling area specified by the Amending Act of 1969.33. In fact as has been stated in the Craies on Statute Law,seventh edition, at page 395, to explain a former statute, the subsequent statute has relation back to the time when the earlier Act was passed. In such a case, as the Act is declaratory, the presumption against construing it retrospectively so as to respect vested rights, is not applicable. As sub-section (3) of section 84 in terms clarifie s the meaning of the expression ceiling area with reference to which certain voluntary transfers are to be invalidated, it is clearly retrospective as it is meant to invalidate the transfers made after September 15, 1963 when the Bill of 1963 was published.We are therefore satisfied that the view taken in Narayana Patar v. State of Kerala(1) and others in this respect is quite correct and point No. 3is decided accordingly.38. The view taken by the High Court in regard to the evidentiary value of the purchase certificate is not correct for reasons mentioned by us while dealing with point No. 2.40. Mr. Warriyar has argued that the appellant is a widow and that the ancestral lands have wrongly been treated as her own lands. We have gone through the judgment of the High Court but no such point was raised for its consideration. It cannot be allowed to be raised now and as no other point has been argued in this Court42. Clause (c) of sub-section (1) of section 82 of the Act provides that in the case of a family consisting of more than five members, the ceiling area of the land shall be ten standard acres increased by one standard acre for each member in excess of five, subject to the limit prescribed by the clause.43. And the expression minor has been defined by clause (36A) to mean a person who has not attained the age of eighteen years. So two postulates are necessary for obtaining the benefit of the increase of one standard acre for each member of the family in excess of five, namely, that the member should be in existence, and it should be possible to ascertain that he had not attained the age of eighteen years on the appointed date. Both these conditions cannot be said to exist in the case of a child en ventre sa mere and it will not therefore be regarded as a member of the family for purposes of section 82. We are aware that a child en ventre sa mere has been regard ed in some legal systems as a person in being for the purpose of acquisition of property by the child itself, particularly in regard to gifts, but section 82 of the Act with which we are concerned does not deal with any such contingency or benefit to the unborn child. The view taken by the High Court in Balakrishna Karup case is therefore correct and as it has been rightly followed in the appeal before us,44. It has been argued by Mr. Warriyar that the lands in question should have been treated as joint family property and if that had been done there would have been no excess land for surrender. The claim was advanced on the basis of parol evidence and was rejected by the High Court. It is therefore a finding of fact and does not call for re-examination here.45. It is not disputed that there is a pine-apple-canning factory on 2.15 acres, and there is a pine-apple plantation on the adjoining area of 11 acres. It has been argued that the whole of 13.15 acres should have been exempted from the ceiling limit as it was a commercial site within the meaning of section 2(5) of the Act. But, according to that definition, commercial site means (leaving out the inapplicable portion) any land which is used principally for the purposes of any trade, commerce, industry, manufacture or business. A cross reference to sub-section (5) of section 10 1 shows that such a question has to be decided after taking into account the extent of, the amount invested in, and the income from, the portion so used and the remaining portion and the other relevant matters. It has been held that the 11 acres of land did not fall within this definition and the finding of fact that it is not a commercial site does not call for interference.46. We have made a reference to this appeal in connection with the ancillary argument of Mr. Bhandare on point No. 2.e find however that the High Court did not interfere with the finding of the Taluk Land Board be cause there was no lease deed and there was absolutely no material to prove that the land was held by the tenants. The two demand bills of the Panchayat dated November 1, 1974 could not possibly prove that a lease was in existence before September 15, 1963. There is nothing on the record to show that a certificate of purchase was produced for the Boards consideration, and it is futile to argue that its evidentiary value was ignored by the Board. No such argument was advanced for the consideration of the High Court. The other argument regarding exclusion of 1.75 acres, on the basis of an alleged gift to the appellants son, was not urged for the consideration of the High Court; and does not require consideration by us.47. Mr. Bhatt has argued that the High Court erred in not granting the exemption for the entire area as a coffee plantation; but the finding of fact in this respect is against the appellant. The conversion of the land has also been held to be illegal. On the claim that the land used for growing fuel was exempt as it fell within the definition of plantation under section 2(44) (a) as it was an ancillary purpose also, there is a finding of fact against the Company.48. The controversy before us relates to exclusion of fuel area and rested area The Company has claimed that it has planted red gum as fuel in 924.01 acres as it was required for the manufacture of tea. The Taluk Board found it to be an exorbitant claim and reduced it to 200 acres, but the High Court has restored the entire claim. The General Manager of the Company has stated that fire wood is being supplied to the employees free of cost. So the claim to plant red gum all over is belied by its General Managers statement. Moreover supply of fuel wood cannot be said to be a purpose ancillary to the cultivation of plantation crops. The Land Board has disallowed the claim for exemption of 136.17 acres, but it has been allowed in full by the High Court. Here again the High Court was not justified in interfering with the Boards finding of fact for there was nothing to show that it was an area from which crop was not gathered at the relevant time. If that had been so, it might have been an area within the plantation. In fact it appears from the order of the Board that no other estate had made any such claim49. Mr. Raghavan has argued that the Land Board erred in excluding only 25 cents on account of road and 55 cents for the house site and the approach road. These are findings of fact which have not been shown to be vitiated by any error of law or procedure and the High Court has given its reason for refusing to take additional evidence in regard to the alleged dedication of the road.50. The appellant has been called upon to surrender 8.75 acres of land and the claim to exclude 6.29 acres on account of a will of 1963 in favour of the grand daughter has been rejected as the will has not been found to be genuine. Mr. Raghavan has not been able to show how that finding, which is essentially one of fact, can be said to require reconsideration when it is admitted that the will has not been probated so far.51. Mr. Raghavan has argued that the High Court has erred in rejecting the contention that as the appellant had two unmarried daughters who had attained majority before January 1, 1970, they were entitled to 6 acres each under section 82(1) of the Act. But the two daughters did not have any share in the property under their personal law, and the Act did not give it to them.52. The High Court has remanded the case in some respects, but the grievance here is that although the appellants unmarried daughter Sheela became a major in 1969 and was given a share in the partition held on December 15, 1969, that has not been excluded from the appellants holding. We find that there was no satisfactory evidence to prove the partition and separate possession of the daughter. The finding of fact is therefore against the appellant and does not call for reconsideration here.53. The grievance of the appellant is that the Taluk Land Board has revised its earlier order and raised the excess land for surrender from 7.66 acres to 11.09 acres. But that is permissible under section 85(9) of the Act. The Board has justified the correction with reference to the reports already on the record and it has not been argued before us that they were not read correctly or that that excess land has been incorrectly determined. It may be mentioned that the Collector and the Tahsildars were authorised under section 105A (1) to make the reports which were lost sight of when the first determination of surplus land was made, and all that the Board has done is to rectify the mistake.54. It has been argued by Mr. Harindranath that Mammad son of Mohammad Kutty was a major on January 1, 1970 and he was wrongly taken to be a minor for the determination of the ceiling area. But we find from the High Courts order dated July 5, 1976 that Mohammad Kutty had himself mentioned in the statement which he filed about his holding that his son Mammad was a minor on that date. It is therefore clear that the attempt to show that he was a major on January 1, 1970 was an after thought, and it has rightly been rejected.55. Mr. Harindranath has argued that the house, cattleshed, tank, well and outhouse should have been exempted. But no such argument was advanced in the High Court and it cannot be agitated here. The other argument t hat the land which was on lease with C. Ouseph should have been allowed to be surrendered, is also futile in view of the findings about the alleged lease56. It has been argued that out of the 30 acres of land which was taken on lease on May 2, 1962, from Haji, one Palakkat Varkey was in possession o f 13 acres which he refused to surrender and that land should have been left out of consideration. It has however been found as a fact that the alleged tenancy of Varkey had not been established, and there is nothing wrong if the plea to that effect has been rejected.C.A. No. 895 of 1979 : Kuttikrishnan and another vs. The State of Kerala and others57. We have dealt with the evidentiary value of the purchase certificate while examining point No. 2 which has a bearing on this appeal.58. The only argument which has been advanced before us relates to the question whether the finding about unculturable waste land is correct. That is a finding of fact which has not been shown to have been vitiated for any reason.59. It has been argued by Mr. Sudhakaran that although certificates of purchase had been obtained by some of the tenants, they were not taken into consideration by the Land Board and the High Court. We find that no such argument was advanced in the Board or before the High Court and, as it happens, there is nothing to show that even the existence of the certificate of purchase was brought to the notice of the Board or the High Court. All that was urged in the High Court was that out of 30 acres acquired in 1962, the appellant got possession of only 17 acres, and that there was a lease of some land in favour of Avirah Joseph in 1962. These were questions of fact which the High Court rightly refused to re-examine.60. The controversy relates to the three gift-deeds executed after January 1, 1970. The High Court has refused to exclude the gifted lands, and in view of this Courts decision in Gangadharans case, (supra) that decision is correct as transfers made after January 1, 1970 have to be ignored even if they are of the excepted variety mentioned in section 84 of the Act.The High Court has examined the document concerned and held that the properties were private properties of the executants of the document. This is a finding of fact and there is nothing wrong with the view that the property which fell to Nanikuttys share was her own property.The High Court has upheld that finding after examining the document of 196363. Mr. Nambiyar has argued that the High Court erred in upholding the finding of the Taluk Land Board that the land in question was not forest but paramba and its conversion into plantation after April 1, 1964 had to be ignored under section 82(4) of the Act. But that is a f inding of fact, which has not been shown to have been vitiated, and does not call for interference here.64. The Taluk Land Board made its order on November 21, 1975 determining the extent of the land to be surrendered by the appellant. He applied to the Board much after the period of 60 days prescribed in sub-section (8) of section 85 to have that order set aside. No real attempt was made to explain the delay and the High Court therefore rightly upheld the Boards decision that the application was barred by limitation.65. The Taluk Land Boards earlier order was set aside by the High Court to the extent mentioned in its order dated November 16, 1976 and the Board was directed to dispose of the matter afresh. The Board allowed relief to the extent of 53.59 acres by exempting it as rubber plantation. But it disallowed the claim that 3.41 acres was arecanut garden in a part of the rubber plantation as it was interspersed with in the boundary of the rubber estate, because it was found from the report of the authorised officer that this was not so. The High Court ha s given satisfactory reasons for that view and there is no occasion for us to interfere with that finding.The Taluk Land Board has held that she was minor on January 1, 1970 and was a member of the appellants family. That finding has been based on the entries in the school certificate, and as a certified copy of the birth register was not produced, it cannot be said that the High Court erred in refusing to disturb the Boards finding.The Board gave its finding in this matter after making the necessary enquiries and visiting the lands. The High Court has stated in its order dated October 11, 1976 on the review petition that the question of non-applicability of the Act to non-agricultural lands was not urged for its consideration. As it is essentially a question of fact, it does not require consideration in this Court.68. The evidentiary value of the purchase certificate came up for consideration in this case in the High Court.The Taluk Land Board has held that she was minor on January 1, 1970 and was a member of the appellants family. That finding has been based on the entries in the school certificate, and as a certified copy of the birth register was not produced, it cannot be said that the High Court erred in refusing to disturb the Boards finding.
| 0 | 7,934 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
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section 82 (which fixed the ceiling), and if the Legislature decided that the ceiling should be reduced, it is natur al that the deeming provision of section 84 should attach to transfers in excess of the reduced ceiling because the crucial date of invalidation has been stated in section 84, right from the inception of the Act, to be September 15, 1963, irrespective of the law relating to the ceiling. It will be remembered that the Act had not even come into force on September 15, 1963, but it, all the same, invalidated the transfers made after that date in excess of the ceiling it prescribed. So, as lon g as September 15, 1963 continues to remain the date with reference to which the transfers are to be invalidated, the variation in the extent of the ceiling has necessarily to work back to that date. The legislature therefore inserted sub-section (3) in section 84 to clarify that the expression ceiling area in the earlier sub-sections would mean the ceiling area specified in section 82(1) as amended by the Amending Act of 1969, i.e. the reduced ceiling. In taking this view we have only taken into consideration the plain and clear wordings of the sub-section, and if in doing so it so happens that sub-section (3) becomes retroactive in operation, we must hold that it is so. Any other view of the meaning and effect of sub- section (3) will amount to disregarding what the legislature has expressed and reading more in the law than what it provides.It has to be appreciated that, from the inception, the Act forward on voluntary transfers effected after September 15, 1963, for the obvious reason that the Bill was published on that date in the State Gazette and those concerned know that they would be required to surrender the excess lands. It is not surprising that voluntary transfers of land should have been made to get over that eventuality. 30. Section 84 therefore provided from the very beginning that such transfers shall be deemed to be calculated to defeat the provisions of the Act and shall be invalid. When the ceiling fixed by the original section 82 was considerably reduced by the Amending Act of 1969, and when the reduced ceiling was to govern the liability to surrender the excess land, it was only natural that provision should have been made to invalidate voluntary transfers effect ed after September 15, 1963 with reference to that reduced ceiling. It has to be appreciated that even those who did not want to defeat the provisions of the Act by voluntary transfers after September 15, 1963 and retained the lands themselves, we re affected by the amendment which was made by the Amending Act of 1969 and were not entitled to claim that this should not be so merely because the Amending Act came into force later. A doubt was however raised about the matter in V. N . Narayanan Nair and others v. State of Kerala and others(1). It was therefore considered necessary to introduce the Kerala Land Reforms (Amendment) Bill, 1972, clause 15 of which, inter alia, provided for the insertion of the following as sub- section (3) of section 84 of the Act, - (3) For the removal of doubts it is hereby clarified that the expression ceiling area in sub-sections (1) and (2) means the ceiling area specified in sub-section (1) of section 82 as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 or 1969). 31. Notes on clauses were appended to the Bill. In paragraph 10 thereof it was stated as follows:- There have been some doubts as to the scope of the expression ceiling area as used in the section. It is proposed to provide that the ceiling area referred to in the section is the ceiling area under the principal Act as amended by the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969). 32. The legislature inserted the sub-s ection without any change. It is true that the intention of the legislature cannot be ascertained from any statement by way of a note on the clauses of a Bill or breviate and, as has been stated, the duty of the court is to find the natural m eaning of the words in a statute, in the context in which they are used, but it has always been considered permissible, and even desirable, for a court, while interpreting a statute, to take note of the history of the statute and t he circumstances in which it was passed or the mischief at which it was directed. The reason is that the meaning which is to be given to a statute should be such as will carry out its object. If sub-section (3) of section 84 is examined with due re gard to all these factors, it will appear that, as has plainly been stated in it, the ceiling area referred to in sub-sections (1) and (2) of that section for examining the question of the validity of the transfers made after September 15, 1963 is the reduced ceiling area specified by the Amending Act of 1969. 33. In fact as has been stated in the Craies on Statute Law, seventh edition, at page 395, to explain a former statute, the subsequent statute has relation back to the time when the earlier Act was passed. In such a case, as the Act is declaratory, the presumption against construing it retrospectively so as to respect vested rights, is not applicable. As sub-section (3) of section 84 in terms clarifie s the meaning of the expression ceiling area with reference to which certain voluntary transfers are to be invalidated, it is clearly retrospective as it is meant to invalidate the transfers made after September 15, 1963 when the Bill of 1963 was published.We are therefore satisfied that the view taken in Narayana Patar v. State of Kerala(1) and others in this respect is quite correct and point No. 3 is decided accordingly.
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359 |
GURCHARAN SINGH & ORS Vs. ANGREZ KAUR & ANR
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was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub- section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly. 17. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly covered by expression any decree or order of a Court. When legislature has specifically excluded applicability of clause (b) and (C) with regard to any decree or order of a Court, applicability of Section 17(1)(b) cannot be imported in Section 17(2)(v) by any indirect method. We, thus, are of the considered opinion that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17(2)(vi), which contains exclusion from registration as required in Section 17(1). High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void. 18. Trial Courts view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned counsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be considered. 19. The submission of the learned counsel for the respondent is that since in the suit, which was filed by the defendant, they described the defendant as uncle of the plaintiffs, who were looking after and serving the defendant, which statement having been found not to be proved, it was fraud played on the defendant and the Court. 20. We need to revisit the facts and sequence of events in the case to examine as to whether any fraud was played on the Court or Bhajan Singh in obtaining the decree dated 09.01.1995. Bhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for non-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are correct and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has no wife or children. We, thus, do not find any substance in the submission of the learned counsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot be held to be suffering from any fraud or coercion as contended by the learned counsel for the respondents. 21. We having held that decree dated 09.01.1995 was a valid decree, the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. In view of our above conclusion, we do not find it necessary to consider various submissions raised by the learned counsel for the parties regarding the validity of the registered Will dated 02.09.1986.
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1[ds]The present is a case where by decree dated 09.01.1995 only suit property was made part of the decree. Suit No. 556 was filed with the pleading that Will dated 02.09.1986 as well as Family Settlement dated 15.06.1994, which are specifically pleaded in paragraphs 2 and 3 of the plaint13. In the written statement, the defendant Bhajan Singh prayed that suit of the plaintiffs be decreed as prayed. The pleading in the suit and in the written statement clearly leads to the conclusion that suit was filed on the basis of pre-existing right in favour of plaintiffs, which was basis of the suit. Pre-existing right of the plaintiffs was admitted by the defendant and decree was passed therein14. Thus, the submission of the plaintiffs-respondents that suit was not based on pre-existing right of the plaintiffs cannot be accepted, which is belied by the categorical pleading in the plaint. In view of the above pleadings, we are of the view that very basis of the applicability of the judgment of Bhoop Singh (supra) is knocked out and is not attracted in the present case17. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly covered by expression any decree or order of a Court. When legislature has specifically excluded applicability of clause (b) and (C) with regard to any decree or order of a Court, applicability of Section 17(1)(b) cannot be imported in Section 17(2)(v) by any indirect method. We, thus, are of the considered opinion that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17(2)(vi), which contains exclusion from registration as required in Section 17(1). High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void18. Trial Courts view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned counsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be consideredBhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for non-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are correct and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has no wife or children. We, thus, do not find any substance in the submission of the learned counsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot be held to be suffering from any fraud or coercion as contended by the learned counsel for the respondents21. We having held that decree dated 09.01.1995 was a valid decree, the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. In view of our above conclusion, we do not find it necessary to consider various submissions raised by the learned counsel for the parties regarding the validity of the registered Will dated 02.09.1986.
| 1 | 5,951 |
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was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., any decree or order of a Court. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub- section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly. 17. Reverting back to the facts of the present case, it is clear that the Suit No. 556 of 21.09.1994 filed by the appellants against Bhajan Singh relates to the suit property described in plaint and decree was passed only with regard to suit property A to D. The decree dated 09.01.1995 was, thus, expressly covered by expression any decree or order of a Court. When legislature has specifically excluded applicability of clause (b) and (C) with regard to any decree or order of a Court, applicability of Section 17(1)(b) cannot be imported in Section 17(2)(v) by any indirect method. We, thus, are of the considered opinion that decree and order dated 09.01.1995 did not require registration and were fully covered by Section 17(2)(vi), which contains exclusion from registration as required in Section 17(1). High Court as well as First Appellate Court erred in coming to the conclusion that decree dated 19.01.1995 required registration and due to not registered is null and void. 18. Trial Courts view that decree dated 19.01.1995 being binding on Bhajan Singh, the plaintiffs, who are the daughters of Bhajan Singh cannot avoid the decree. The submission of the learned counsel for the respondent that decree dated 09.01.1995 was obtained by fraud also needs to be considered. 19. The submission of the learned counsel for the respondent is that since in the suit, which was filed by the defendant, they described the defendant as uncle of the plaintiffs, who were looking after and serving the defendant, which statement having been found not to be proved, it was fraud played on the defendant and the Court. 20. We need to revisit the facts and sequence of events in the case to examine as to whether any fraud was played on the Court or Bhajan Singh in obtaining the decree dated 09.01.1995. Bhajan Singh had executed a registered Will dated 02.09.1986, which was a registered Will and pleaded in paragraph 2 of the plaint. In paragraph 3 of the plaint, it was also pleaded that pursuant to a Family Settlement dated 15.06.1994 by which Bhajan Singh decided to allot plaintiffs in equal share and relinquished all his rights in the suit property, which pleadings were admitted by Bhajan Singh in his statement. The decree was passed on 09.01.1995 on the basis of which mutation was sanctioned on 03.03.1995. Bhajan Singh was admittedly alive till 24.04.1998 and in his lifetime, he never objected the decree or mutation in favour of the defendants. It has been accepted by the Courts below that both Bhajan Singh and Gurmail Kaur were divorced and which divorce was recorded in writing on 15.09.1973 as proved before the Courts below. Gurmail Kaur after 15.09.1973 started living with Maghar Singh, brother of Bhajan Singh in Village Jalowal and thereafter never returned to Bhajan Singh. Gurmail Kaur also filed a suit for maintenance against Bhajan Singh, which was dismissed for non-prosecution. The plaintiffs, i.e., Angrez Kaur and Paramjit Kaur, after divorce went with their mother and lived with Maghar Singh and never returned to Bhajan Singh. In her statement, PW1 has admitted that she never came to see her father. The Courts have found that Bhajan Singh lived with the defendants after the divorce, who were taking care of Bhajan Singh. The execution of registered Will by Bhajan Singh on 02.09.1986 in favour of the defendants and further his admission that all the claim of the defendants in Suit No. 556 are correct and accepting that he has relinquished his rights in favour of the plaintiffs, Gurcharan Singh, Gurnam Singh and Kulwant Singh clearly disprove any ground of fraud either on the Court or on Bhajan Singh. The divorce between Bhajan Singh and Gurmail Kaur took place on 15.09.1973 and thereafter for 25 years, Bhajan Singh lived away from his wife and daughters and it was the defendants, who were taking care of Bhajan Singh. Admitting the claim of plaintiffs/appellants in the suit filed against the defendant Bhajan Singh for declaration cannot be termed as any fraud played on Bhajan Singh or the Court. Sequence of events clearly indicate that Bhajan Singh of his own volition wanted to give the entire property to the defendants due to the circumstances of the case, in which Bhajan Singh was placed. It is due to this reason that Bhajan Singh in his Will dated 02.09.1986 stated that he has no wife or children. We, thus, do not find any substance in the submission of the learned counsel for the respondents that any fraud was played in obtaining decree dated 09.01.1995 by the defendants. The decree dated 09.01.1995 cannot be held to be suffering from any fraud or coercion as contended by the learned counsel for the respondents. 21. We having held that decree dated 09.01.1995 was a valid decree, the decision of the trial court dismissing the suit for declaration that decree dated 09.01.1995 was null and void, has to be upheld. In view of our above conclusion, we do not find it necessary to consider various submissions raised by the learned counsel for the parties regarding the validity of the registered Will dated 02.09.1986.
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360 |
Mohan Meakln Breweries Ltd Vs. Excise & Taxation Commer. Chandigarh & Ors
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other narcotic drugs and narcotics;but not including medicinal and toilet preparations containing alcohol or any substance included in sub-para graph (b) of this Entry."The expression countervailing duty is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores v. The State of Orissa and or.([1966] 1 S.C.R. 865.) where it was ob served :"This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51. List II of the Seventh Schedule to the Constitution. The "expression "countervailing duties" has not been defined in . the Constitution or the Bihar &Orissa Act 2 of 1915. We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51. In its etymological sense, it means t o counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Blacks live Dictionary, 4th Edn. 421. This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent. Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State. It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India. The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State. They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing State. It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State. If no alcoholic liquors similar to t hose imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise. It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied."It will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India.5. The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India. It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not. What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh. In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellants distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellants Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which w as not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well. The decision of this Court in Bimal Chandra Banerjee v. State of Madhya Pradesh ([1971] 1 S.C.R. 844.) which is strongly relied upon on behalf of the appellant is not applicable to the present case. In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond. The provisions of sections 25, 26 27, 62(1) and clauses (d) and (h) of section 62(2) of the aforesaid Act. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.6. For the foregoing reasons, the respondents were right in demanding the duty on the shortages.7.
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0[ds]The first contention raised on behalf of appellant is, therefore,the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellants distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellants Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which w as not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well. The decision of this Court in Bimal Chandra Banerjee v. State of Madhya Pradesh ([1971] 1 S.C.R. 844.) which is strongly relied upon on behalf of the appellant is not applicable to the present case. In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) ofthe Madhya Pradesh Excise Act, 1915, in the appellants licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond. The provisions of sections 25, 26 27, 62(1) and clauses (d) and (h) of section 62(2) of the aforesaid Act. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at theirthe foregoing reasons, the respondents were right in demanding the duty on the shortages.
| 0 | 3,692 |
### Instruction:
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other narcotic drugs and narcotics;but not including medicinal and toilet preparations containing alcohol or any substance included in sub-para graph (b) of this Entry."The expression countervailing duty is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores v. The State of Orissa and or.([1966] 1 S.C.R. 865.) where it was ob served :"This bring the consideration of the meaning of the expression "countervailing duties" used in Entry 51. List II of the Seventh Schedule to the Constitution. The "expression "countervailing duties" has not been defined in . the Constitution or the Bihar &Orissa Act 2 of 1915. We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51. In its etymological sense, it means t o counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Blacks live Dictionary, 4th Edn. 421. This would suggest that a countervailing duty is imposed for the purpose of countervailing or to avail against something with equal force or to compensate for something as an equivalent. Entry in List II of the Seventh Schedule to the Constitution gives power to the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods are manufactured of produced in the State. It also gives power to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India. The fact that countervailing duties may be imposed at the same or lower rates suggests that they are meant for counterbalance the duties of excise imposed on goods manufactured in the State. They may be imposed at the same rate as excise duties or at a lower rate, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture of the taxing State. It seems, therefore, that countervailing duties are ment to equalise the burden on alcoholic liquors manufactured or produced in the State. If no alcoholic liquors similar to t hose imported into the state are produced or manufactured, the right to impose counterbalancing duties of excise levied on the goods manufactured in the state will not arise. It may, therefore, be accepted that countervailing duties can only be levied is similar goods are actually produced or manufactured in the state on which excise duties are being levied."It will be seen that section 31 of the Act read with Entry 51 of` List II of the Seventh Schedule to the Constitution permits imposition of (i) excise duty by the state Government on any exisable article imported into or exported from or transported ill accordance with the provisions of section 16 of the Act which means after payment of any duty to which it may be liable under the Act or after execution of a bond for such payment and (ii) countervailing duty inter alia on Alcoholic liquors for human consumption manufactured or produced elsewhere in India.5. The contention advanced on behalf of appellant which seems to proceed on the assumption that the Chandigarh Administration cant impose duty only if liquor is consumed in its territory is erroneous as, according to section 31 of the Act read with the aforesaid Entry 51 of List of the Seventh Schedule to the Constitution, countervailing duty can be imposed on liquor meant for consumption which is manufactured or produced elsewhere in India. It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not. What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh. In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellants distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellants Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which w as not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh but was found short beyond the permissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well. The decision of this Court in Bimal Chandra Banerjee v. State of Madhya Pradesh ([1971] 1 S.C.R. 844.) which is strongly relied upon on behalf of the appellant is not applicable to the present case. In that case, the condition introduced by the state Government in the purported exercise of its power under clause (d) and (h) of section 62(2) of the Madhya Pradesh Excise Act, 1915, in the appellants licenses prescribing the minimum quantity of liquor to be purchased by them from the Government and enjoining them to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of was held to be invalid as it went beyond. The provisions of sections 25, 26 27, 62(1) and clauses (d) and (h) of section 62(2) of the aforesaid Act. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination.6. For the foregoing reasons, the respondents were right in demanding the duty on the shortages.7.
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361 |
Air India Cabin Crew Assn Vs. Union Of India
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for other reliefs, was dismissed by the Delhi High Court, resulting in the Special Leave Petitions. Mr. Singh submitted that there was no substance in the appeals filed since the revised promotion rules had been approved and accepted by all concerned. Mr. Singh urged that it was on account of the continued representations made for placing the cadre of Air Hostesses at par with the cadre of In-Flight Pursers, that the settlement was arrived at and there was no reason to interfere with the same. Mr. Singh submitted that the appeals were, therefore, liable to be dismissed. 47. From the submissions made on behalf of the respective parties, what ultimately emerges for decision is whether the management of Air India was entitled to alter the service conditions of Flight Pursers and Air Hostesses, despite several bilateral agreements arrived at between Air India and its workmen represented by the Air India Cabin Crew Association, and the Executive cadre of In- Flight Pursers and Air Hostesses promoted to the Executive rank and given Grade 29, which was the starting point of the Executive cadre. The other connected question involved is whether those Flight Pursers who had been promoted in terms of the revised promotion policy, would still be governed by the Settlements arrived at between the Management and the Unions, since they were covered by the same prior to their promotion to the Executive cadre. 48. Another question which calls for our attention is with regard to the merger of Cabin Crew effected in 1996, giving rise to the other disputed questions relating to interchangeability of duties between Flight Pursers and Air Hostesses. It may be indicated that during the course of the hearing, Mr. Pramod B. Agarwala urged that the Appellant Association was mainly concerned with the status of In-Flight Supervisors prior to the merger of cadres in 1996. In deciding the aforesaid questions, this Court will have to take into consideration the decisions rendered in Nergesh Meerzas case (supra) and Yeshaswinee Merchants case (supra), although, strictly speaking, we are more concerned with the decision taken in terms of Section 9 of the 1994 Act, to bring about a parity in the service conditions of both Flight Pursers and Air Hostesses, both at the level of workmen and also the Executive cadre. While the Agreements are not altered or vary to any large extent, what has been done is to iron out the differences on account of the revised promotion policy, which exempted some of the workmen, who had been transformed to the category of Executive from the ambit of the said Settlements. It is apparent from a reading of both the judgments delivered in Nergesh Meerzas case and Yeshaswinee Merchants case that the same were rendered in the context of bringing parity between the cadre of In-Flight Supervisors and the cadre of Air Hostesses. It is, in fact, the prerogative of the Management to place an employee in a position where he would be able to contribute the most to the Company. Hence, notwithstanding the decision in Nergesh Meerzas case and in Yeshaswinee Merchants case, the Air India was at liberty to adopt the revised promotion policy which was intended to benefit all the employees.49. As indicated hereinbefore, Mr. Pramod B. Agarwala, representing the Appellant Association, submitted that the appellants were not concerned with the post-revised promotion policy, but with the separate cadre of In-Flight Pursers, as distinct from the cadre of Air Hostesses, with regard to their channel of promotion. We are inclined to agree with Mr. Agarwalas submissions that prior to 1997, there was a category of Cabin Crew referred to as In-Flight Supervisors, which was confined to In-Flight Pursers alone and did not concern the Air Hostesses. However, we are unable to agree with Mr. Agarwalas submissions with regard to treating the duties discharged by In- Flight Supervisors to indicate that “In-Flight Supervisor” was a separate post. We are inclined to accept the submissions made on behalf of Air India that the duties discharged by persons designated as In-Flight Supervisors did not create any separate post and the post remained that of In- Flight Pursers. 50. Accordingly, we are unable to accept the further submissions made on behalf of the appellants that they had been discriminated against in any way on account of the decision in Nergesh Meerzas case and Yeshaswinee Merchants case. As was observed by this Court in Inderpreet Singh Kahlon & Ors. Vs. State of Punjab & Ors. {(2006) 11 SCC 356 ], it is well-settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. Further, it is also well-settled that the ratio of a case must be understood having regard to the fact situation obtaining therein. The position since the decisions rendered in Nergesh Meerzas case and in Yeshaswinee Merchants case, underwent a change with the adoption of the revised promotion policy agreed to between the parties and which replaced all the earlier agreements. In our view, the Management of Air India was always entitled to alter its policies with regard to their workmen, subject to the consensus arrived at between the parties in supersession of all previous agreements. We are also unable to accept the further submission made on behalf of the appellants that those workmen who had been promoted to the Executive category would continue to be governed by the Settlements arrived at when they were workmen and were represented by the Association. In our view, once an employee is placed in the Executive cadre, he ceases to be a workman and also ceases to be governed by Settlements arrived at between the Management and the workmen through the concerned Trade Union. It is not a question of an attempt made by such employees to wriggle out of the Settlements which had been arrived at prior to their elevation to the Executive cadre, which, by operation of law, cease to have any binding force on the employee so promoted by the Management.
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0[ds]e the Agreements are not altered or vary to any large extent, what has been done is to iron out the differences on account of the revised promotion policy, which exempted some of the workmen, who had been transformed to the category of Executive from the ambit of the said Settlements. It is apparent from a reading of both the judgments delivered in Nergesh Meerzas case and Yeshaswinee Merchants case that the same were rendered in the context of bringing parity between the cadre of In-Flight Supervisors and the cadre of Air Hostesses. It is, in fact, the prerogative of the Management to place an employee in a position where he would be able to contribute the most to the Company. Hence, notwithstanding the decision in Nergesh Meerzas case and in Yeshaswinee Merchants case, the Air India was at liberty to adopt the revised promotion policy which was intended to benefit all the employees.49. As indicated hereinbefore, Mr. Pramod B. Agarwala, representing the Appellant Association, submitted that the appellants were not concerned with the post-revised promotion policy, but with the separate cadre of In-Flight Pursers, as distinct from the cadre of Air Hostesses, with regard to their channel of promotion. We are inclined to agree with Mr. Agarwalas submissions that prior to 1997, there was a category of Cabin Crew referred to as In-Flight Supervisors, which was confined to In-Flight Pursers alone and did not concern the Air Hostesses. However, we are unable to agree with Mr. Agarwalas submissions with regard to treating the duties discharged by In- Flight Supervisors to indicate that
| 0 | 10,582 |
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for other reliefs, was dismissed by the Delhi High Court, resulting in the Special Leave Petitions. Mr. Singh submitted that there was no substance in the appeals filed since the revised promotion rules had been approved and accepted by all concerned. Mr. Singh urged that it was on account of the continued representations made for placing the cadre of Air Hostesses at par with the cadre of In-Flight Pursers, that the settlement was arrived at and there was no reason to interfere with the same. Mr. Singh submitted that the appeals were, therefore, liable to be dismissed. 47. From the submissions made on behalf of the respective parties, what ultimately emerges for decision is whether the management of Air India was entitled to alter the service conditions of Flight Pursers and Air Hostesses, despite several bilateral agreements arrived at between Air India and its workmen represented by the Air India Cabin Crew Association, and the Executive cadre of In- Flight Pursers and Air Hostesses promoted to the Executive rank and given Grade 29, which was the starting point of the Executive cadre. The other connected question involved is whether those Flight Pursers who had been promoted in terms of the revised promotion policy, would still be governed by the Settlements arrived at between the Management and the Unions, since they were covered by the same prior to their promotion to the Executive cadre. 48. Another question which calls for our attention is with regard to the merger of Cabin Crew effected in 1996, giving rise to the other disputed questions relating to interchangeability of duties between Flight Pursers and Air Hostesses. It may be indicated that during the course of the hearing, Mr. Pramod B. Agarwala urged that the Appellant Association was mainly concerned with the status of In-Flight Supervisors prior to the merger of cadres in 1996. In deciding the aforesaid questions, this Court will have to take into consideration the decisions rendered in Nergesh Meerzas case (supra) and Yeshaswinee Merchants case (supra), although, strictly speaking, we are more concerned with the decision taken in terms of Section 9 of the 1994 Act, to bring about a parity in the service conditions of both Flight Pursers and Air Hostesses, both at the level of workmen and also the Executive cadre. While the Agreements are not altered or vary to any large extent, what has been done is to iron out the differences on account of the revised promotion policy, which exempted some of the workmen, who had been transformed to the category of Executive from the ambit of the said Settlements. It is apparent from a reading of both the judgments delivered in Nergesh Meerzas case and Yeshaswinee Merchants case that the same were rendered in the context of bringing parity between the cadre of In-Flight Supervisors and the cadre of Air Hostesses. It is, in fact, the prerogative of the Management to place an employee in a position where he would be able to contribute the most to the Company. Hence, notwithstanding the decision in Nergesh Meerzas case and in Yeshaswinee Merchants case, the Air India was at liberty to adopt the revised promotion policy which was intended to benefit all the employees.49. As indicated hereinbefore, Mr. Pramod B. Agarwala, representing the Appellant Association, submitted that the appellants were not concerned with the post-revised promotion policy, but with the separate cadre of In-Flight Pursers, as distinct from the cadre of Air Hostesses, with regard to their channel of promotion. We are inclined to agree with Mr. Agarwalas submissions that prior to 1997, there was a category of Cabin Crew referred to as In-Flight Supervisors, which was confined to In-Flight Pursers alone and did not concern the Air Hostesses. However, we are unable to agree with Mr. Agarwalas submissions with regard to treating the duties discharged by In- Flight Supervisors to indicate that “In-Flight Supervisor” was a separate post. We are inclined to accept the submissions made on behalf of Air India that the duties discharged by persons designated as In-Flight Supervisors did not create any separate post and the post remained that of In- Flight Pursers. 50. Accordingly, we are unable to accept the further submissions made on behalf of the appellants that they had been discriminated against in any way on account of the decision in Nergesh Meerzas case and Yeshaswinee Merchants case. As was observed by this Court in Inderpreet Singh Kahlon & Ors. Vs. State of Punjab & Ors. {(2006) 11 SCC 356 ], it is well-settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. Further, it is also well-settled that the ratio of a case must be understood having regard to the fact situation obtaining therein. The position since the decisions rendered in Nergesh Meerzas case and in Yeshaswinee Merchants case, underwent a change with the adoption of the revised promotion policy agreed to between the parties and which replaced all the earlier agreements. In our view, the Management of Air India was always entitled to alter its policies with regard to their workmen, subject to the consensus arrived at between the parties in supersession of all previous agreements. We are also unable to accept the further submission made on behalf of the appellants that those workmen who had been promoted to the Executive category would continue to be governed by the Settlements arrived at when they were workmen and were represented by the Association. In our view, once an employee is placed in the Executive cadre, he ceases to be a workman and also ceases to be governed by Settlements arrived at between the Management and the workmen through the concerned Trade Union. It is not a question of an attempt made by such employees to wriggle out of the Settlements which had been arrived at prior to their elevation to the Executive cadre, which, by operation of law, cease to have any binding force on the employee so promoted by the Management.
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362 |
Krishi Utpadan Mandi Samiti Vs. M/S. Baidyanath Ayurved Bhawan(P)Ltd&Anr
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processing, manufacturing and selling.” (Emphasis supplied) 13. In The State of A.P. v. M/s. H. Abdul Bakhi and Bros., AIR 1965 SC 531 , while dealing with a similar issue, i.e. defining `Dealer under the provisions of Andhra Pradesh General Sales Tax Act, 1950, held that a person who buys goods for consumption in a process of manufacturing is also a dealer. The Court held that a person who consumes a commodity purchased by him in the course of his trade, or use in manufacturing another commodity for sale, could be regarded as a `Dealer. 14. In Krishi Upaj Mandi Samiti & Ors. v. Orient Paper & Industries Ltd., (1995) 1 SCC 655 , the similar provisions of M.P. Krishi Upaj Mandi Adhiniyam, 1973, were considered by this Court. In the said case, the question arose as to whether the market fee can be levied on agricultural produce brought for sale or sold in the market area in case the mill did not produce the agricultural produce for sale but produce them for use as its raw material for manufacturing the end product. That was a case where the bamboos were purchased for manufacturing of paper. The Court held that once the agricultural produce is brought in the market area and sold therein, it becomes liable to be levied with market fee, as no person can be permitted for sale or purchase of the agricultural produce within the market area without a licence even a raw material for manufacturing some other product. The Court further held as under: “.....It is immaterial for this purpose whether the bamboos are purchased by the respondent-Mills for selling them or for using them as their raw material in the manufacture of paper. The liability of the respondent-Mills to pay the market fees is in no way negated on that account....” (Emphasis added) 15. This case stands squarely covered by the judgment of Constitution Bench of this Court in Ram Chandra Kailash Kumar & Co. & Ors. v. State of U.P. & Anr., AIR 1980 SC 1124 , wherein the provision of the Act 1964, which is involved in the instant case was considered and the Court held as under: “If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist-producer under sub- clause (2) of Section 17 (iii) (b). He cannot be asked to pay market fee over again under sub- clause (3) in relation to the transaction of rice. Nor will it be open to the Market Committee to choose between either of the two n the example just given. Market fee has to be levied and collected in relation to the transaction of paddy alone.” 16. In Virendra Kumar & Ors. v. Krishi Utpadan Mandi Samiti & Ors., (1987) 4 SCC 454 , this Court considered a case where it was claimed that petitioners had been producers in respect of agricultural produce (khandsari), and thus they were not required to take out any license under Section 9(1) of the Act 1964. This court rejected the argument observing that Section 9(1) would not be applicable to a producer of agricultural produce only in case the producer processed, reared, or caught for domestic consumption. In case the agricultural produce is not for domestic consumption, but for sale thereafter in the market area, such a producer will not come within the exception of Section 9(1) of the Act 1964. 17. In view of the above, we are of the considered opinion that as the retail trader cannot sell the agricultural produce in quantity more than prescribed in the circular and also such retailer himself cannot purchase and store more than prescribed in the circular, therefore, the meaning of “domestic consumption” has to be understood in such restricted sense. Thus, meaning thereby for personal use i.e. for the use of family members of the purchaser and not for any production activity, otherwise prescribing the limits of purchase and storage by the retail trader becomes redundant. The parties could not bring to the notice of the High Court the relevant provisions of the Act 1964 which were necessary to be considered to adjudicate upon the issue in controversy. Purchase of agricultural produce in bulk cannot be termed to have been made for “domestic consumption.” The Court cannot travel beyond the pleadings. The meaning of “domestic trade” and “foreign trade”, had not been in issue in the instant case. The “domestic consumption” under the Act 1964 has to be given a very restricted and limited meaning i.e. for personal use of the purchaser, i.e. for the consumption by the family and not for commercial and industrial activities.18. Shri Subramonium Prasad, learned counsel appearing for the respondents, has placed very heavy reliance upon the judgment of this Court in M/s. Kesarwani Zarda Bhandar v. State of Uttar Pradesh & Ors., AIR 2008 SC 2733 , wherein it has been held that market fee is leviable on specified agricultural produce and not on agricultural produce simplicitor. Zarda, the end product of the manufacturing process is not a specified agricultural produce and it can be subjected to payment of market fee provided it is held to be “Tobacco”. Zafrani Zarda, does not answer the description of specified agricultural produce as defined under Section 2(a) of the Act. If it is held that Zafrani Zarda is merely a processed form of “Tobacco”, it could be subjected to levy of market fee, but if it is manufactured it would not.The aforesaid judgment has no application in the instant case for the reason that issue involved in this case is relating to requirement of having a license under Section 9(2) of the Act 1964 for the purchase of a specified agricultural produce from the market area. The appellants have never asked the respondent company to pay market fee on the end product Chawanprash.
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1[ds]17. In view of the above, we are of the considered opinion that as the retail trader cannot sell the agricultural produce in quantity more than prescribed in the circular and also such retailer himself cannot purchase and store more than prescribed in the circular, therefore, the meaning ofas to be understood in such restricted sense. Thus, meaning thereby for personal use i.e. for the use of family members of the purchaser and not for any production activity, otherwise prescribing the limits of purchase and storage by the retail trader becomes redundant. The parties could not bring to the notice of the High Court the relevant provisions of the Act 1964 which were necessary to be considered to adjudicate upon the issue in controversy. Purchase of agricultural produce in bulk cannot be termed to have been made forhe Court cannot travel beyond the pleadings. The meaning of, had not been in issue in the instant case. Theer the Act 1964 has to be given a very restricted and limited meaning i.e. for personal use of the purchaser, i.e. for the consumption by the family and not for commercial and industrial activities.18. Shri Subramonium Prasad, learned counsel appearing for the respondents, has placed very heavy reliance upon the judgment of this Court in M/s. Kesarwani Zarda Bhandar v. State of Uttar Pradesh & Ors., AIR 2008 SC 2733 , wherein it has been held that market fee is leviable on specified agricultural produce and not on agricultural produce simplicitor. Zarda, the end product of the manufacturing process is not a specified agricultural produce and it can be subjected to payment of market fee provided it is held to beZafrani Zarda, does not answer the description of specified agricultural produce as defined under Section 2(a) of the Act. If it is held that Zafrani Zarda is merely a processed form ofit could be subjected to levy of market fee, but if it is manufactured it would not.The aforesaid judgment has no application in the instant case for the reason that issue involved in this case is relating to requirement of having a license under Section 9(2) of the Act 1964 for the purchase of a specified agricultural produce from the market area. The appellants have never asked the respondent company to pay market fee on the end product Chawanprash.
| 1 | 3,789 |
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processing, manufacturing and selling.” (Emphasis supplied) 13. In The State of A.P. v. M/s. H. Abdul Bakhi and Bros., AIR 1965 SC 531 , while dealing with a similar issue, i.e. defining `Dealer under the provisions of Andhra Pradesh General Sales Tax Act, 1950, held that a person who buys goods for consumption in a process of manufacturing is also a dealer. The Court held that a person who consumes a commodity purchased by him in the course of his trade, or use in manufacturing another commodity for sale, could be regarded as a `Dealer. 14. In Krishi Upaj Mandi Samiti & Ors. v. Orient Paper & Industries Ltd., (1995) 1 SCC 655 , the similar provisions of M.P. Krishi Upaj Mandi Adhiniyam, 1973, were considered by this Court. In the said case, the question arose as to whether the market fee can be levied on agricultural produce brought for sale or sold in the market area in case the mill did not produce the agricultural produce for sale but produce them for use as its raw material for manufacturing the end product. That was a case where the bamboos were purchased for manufacturing of paper. The Court held that once the agricultural produce is brought in the market area and sold therein, it becomes liable to be levied with market fee, as no person can be permitted for sale or purchase of the agricultural produce within the market area without a licence even a raw material for manufacturing some other product. The Court further held as under: “.....It is immaterial for this purpose whether the bamboos are purchased by the respondent-Mills for selling them or for using them as their raw material in the manufacture of paper. The liability of the respondent-Mills to pay the market fees is in no way negated on that account....” (Emphasis added) 15. This case stands squarely covered by the judgment of Constitution Bench of this Court in Ram Chandra Kailash Kumar & Co. & Ors. v. State of U.P. & Anr., AIR 1980 SC 1124 , wherein the provision of the Act 1964, which is involved in the instant case was considered and the Court held as under: “If paddy is purchased in a particular market area by a rice miller and the same paddy is converted into rice and sold then the rice miller will be liable to pay market fee on his purchase of paddy from the agriculturist-producer under sub- clause (2) of Section 17 (iii) (b). He cannot be asked to pay market fee over again under sub- clause (3) in relation to the transaction of rice. Nor will it be open to the Market Committee to choose between either of the two n the example just given. Market fee has to be levied and collected in relation to the transaction of paddy alone.” 16. In Virendra Kumar & Ors. v. Krishi Utpadan Mandi Samiti & Ors., (1987) 4 SCC 454 , this Court considered a case where it was claimed that petitioners had been producers in respect of agricultural produce (khandsari), and thus they were not required to take out any license under Section 9(1) of the Act 1964. This court rejected the argument observing that Section 9(1) would not be applicable to a producer of agricultural produce only in case the producer processed, reared, or caught for domestic consumption. In case the agricultural produce is not for domestic consumption, but for sale thereafter in the market area, such a producer will not come within the exception of Section 9(1) of the Act 1964. 17. In view of the above, we are of the considered opinion that as the retail trader cannot sell the agricultural produce in quantity more than prescribed in the circular and also such retailer himself cannot purchase and store more than prescribed in the circular, therefore, the meaning of “domestic consumption” has to be understood in such restricted sense. Thus, meaning thereby for personal use i.e. for the use of family members of the purchaser and not for any production activity, otherwise prescribing the limits of purchase and storage by the retail trader becomes redundant. The parties could not bring to the notice of the High Court the relevant provisions of the Act 1964 which were necessary to be considered to adjudicate upon the issue in controversy. Purchase of agricultural produce in bulk cannot be termed to have been made for “domestic consumption.” The Court cannot travel beyond the pleadings. The meaning of “domestic trade” and “foreign trade”, had not been in issue in the instant case. The “domestic consumption” under the Act 1964 has to be given a very restricted and limited meaning i.e. for personal use of the purchaser, i.e. for the consumption by the family and not for commercial and industrial activities.18. Shri Subramonium Prasad, learned counsel appearing for the respondents, has placed very heavy reliance upon the judgment of this Court in M/s. Kesarwani Zarda Bhandar v. State of Uttar Pradesh & Ors., AIR 2008 SC 2733 , wherein it has been held that market fee is leviable on specified agricultural produce and not on agricultural produce simplicitor. Zarda, the end product of the manufacturing process is not a specified agricultural produce and it can be subjected to payment of market fee provided it is held to be “Tobacco”. Zafrani Zarda, does not answer the description of specified agricultural produce as defined under Section 2(a) of the Act. If it is held that Zafrani Zarda is merely a processed form of “Tobacco”, it could be subjected to levy of market fee, but if it is manufactured it would not.The aforesaid judgment has no application in the instant case for the reason that issue involved in this case is relating to requirement of having a license under Section 9(2) of the Act 1964 for the purchase of a specified agricultural produce from the market area. The appellants have never asked the respondent company to pay market fee on the end product Chawanprash.
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M/s. Chhotobhai jethabhai Patel & Company Vs. Industrial Court, Maharashtra Nagpur Bench, Nagpur & Others
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under the proviso to sub-section (4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso." Clause D of S. 78 (1) was introduced in the Act of Maharashtra by Act. 22, 1965 . Sec. 31 of the Act of 1965 not only introduced Cl. D. but also made changes in paragraphs A and C thereof. The forerunner of Act 22 of 1965 i.e. Bill No. LXVI of 1964, the object of which was to make numerous changes in the Act shows in its Statement of Objects and Reasons that clause 31 of the Bill was meant to "enlarge the powers of the Labour Court under S. 78". According to this clause "The Labour Court is empowered (by paragraph D) to direct temporary withdrawal of any change the legality of which is a matter of issue in any proceedings before it, pending its final decision. The Labour Court was also thereby further empowered "to require an employer to reinstate an employee with full back wages or pay him wages and compensation not exceeding Rs. 2,500/- .... if the employee was dismissed, discharged" etc. 9. The Statement of Objects and Reasons amply demonstrates that by introducing paragraph D in S. 78 (1) the legislature was only seeking to arm the Labour Court with further and more effective powers to grant relief. 10. Under S. 79 (1) proceedings before a Labour Court in respect of disputes falling under clause (a) of paragraph A of sub-s. (1) of Section 78 must be commenced on an application made by any of the parties to the dispute etc. and under sub-s. (2) every application under sub-s. (1) has to be made in the prescribed form and manner. Under S. 84 an appeal lies to the Industrial Court against the decision of a Labour Court in respect of a matter falling under clause (a) or cl. (c) of paragraph A of sub-s. (1) of S. 78 except in the case of lock-out etc. or a decision of such court under paragraph C of sub-s. (1) of the said section. 11. Reading S. 78 as a whole, there is no doubt left in our minds that the legislature wanted the provision to be a comprehensive one. It contains all the powers of the Labour Court in the matter of all disputes mentioned and gives it jurisdiction to punish certain offences under the Act. It does not lay down the procedure for the attraction of such jurisdiction. So far as disputes are concerned the procedure is as laid down in S. 79. 12. It will be noted that no mention is made in S. 84 of paragraph D of S. 78 (1) but inasmuch as orders of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee would come under s. 78 (1) paragraph A, the legislature felt it unnecessary to make any mention of an order under paragraph D in S. 84 Paragraph D, so far as we can see, is not referred to anywhere else in the Act. 13. The question therefore narrows down to this i.e. whether the legislature by inserting paragraph D in S. 78 (1)intended to chalk out a wholly different course of action to that prescribed in Chapter VIII dealing with changes. In our view, there is nothing in the Act which warrants such a conclusion. The scheme of Chapter VIII seems to be that in regard to any "change" in an industrial matter there must be compliance with the provisions of that Chapter. In other words, effort must first be made by the employer intending to effect any change in respect of matters covered by S,. 42 (1) or an employee desiring a change in respect of any order passed by the employer under standing orders which would of necessity include an order of dismissal, to see whether it was possible to come to any agreement and an application to the labour court could only be resorted to after efforts had been made to settle the dispute and no agreement had been arrived at. 14. The scheme of S. 78 (1) seems to be that a Labour Court is to have power to decide all the disputes covered by paragraph A, Paragraph B thereof gives the Labour Court the power to try offences punishable under the Act and cognizance of such offences can only be taken under S. 82. Paragraphs C and D set out what relief the Labour Courts are empowered to give including directions as may be found necessary in that behalf. As already noted, the Statement of Objects and Reasons of clause 31 of the bill which later resulted in Act 22 of 1965, shows that the underlying idea was to enlarge the powers of the Labour Court. The Legislature nowhere intended to make a complete departure from the procedure to be adopted when powers under S. 78 (1) D were to be exercised. 15. Rule 55 of the Bombay, Industrial Relations Rules, 1947 shows how an application is to be made and the period within which it is to be made. 16. It must be held that a person who is dismissed would be an employee within the meaning of S. 3 (13) of the Act and we can see no valid reason for differentiating the case of a dismissed employee from one who complains of some other change. As the scheme of the Act is that disputes should be settled as far as possible and primarily through conciliation and agreement, it does not stand to reasons that an employee should be able to side-step all this by a direct reference to the Labour Court. A Labour Court is a creature of the statute and it can only exercise such jurisdiction as the statute confers on it. If there are certain pre-conditions to the exercise of its jurisdiction, it must refuse to entertain any such application unless such pre-conditions are first complied with.
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1[ds]In our view, there is nothing in the Act which warrants such a conclusion. The scheme of Chapter VIII seems to be that in regard to any "change" in an industrial matter there must be compliance with the provisions of that Chapter. In other words, effort must first be made by the employer intending to effect any change in respect of matters covered by S,. 42 (1) or an employee desiring a change in respect of any order passed by the employer under standing orders which would of necessity include an order of dismissal, to see whether it was possible to come to any agreement and an application to the labour court could only be resorted to after efforts had been made to settle the dispute and no agreement had been arrived at14. The scheme of S. 78 (1) seems to be that a Labour Court is to have power to decide all the disputes covered by paragraph A, Paragraph B thereof gives the Labour Court the power to try offences punishable under the Act and cognizance of such offences can only be taken under S. 82. Paragraphs C and D set out what relief the Labour Courts are empowered to give including directions as may be found necessary in that behalf. As already noted, the Statement of Objects and Reasons of clause 31 of the bill which later resulted in Act 22 of 1965, shows that the underlying idea was to enlarge the powers of the Labour Court. The Legislature nowhere intended to make a complete departure from the procedure to be adopted when powers under S. 78 (1) D were to be exercised15. Rule 55 of the Bombay, Industrial Relations Rules, 1947 shows how an application is to be made and the period within which it is to be made16. It must be held that a person who is dismissed would be an employee within the meaning of S. 3 (13) of the Act and we can see no valid reason for differentiating the case of a dismissed employee from one who complains of some other change. As the scheme of the Act is that disputes should be settled as far as possible and primarily through conciliation and agreement, it does not stand to reasons that an employee should be able to side-step all this by a direct reference to the Labour Court. A Labour Court is a creature of the statute and it can only exercise such jurisdiction as the statute confers on it. If there are certain pre-conditions to the exercise of its jurisdiction, it must refuse to entertain any such application unless such pre-conditions are first complied with.
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Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)?
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under the proviso to sub-section (4) of section 42, no agreement is arrived at in respect of an order, matter or change referred to in the said proviso." Clause D of S. 78 (1) was introduced in the Act of Maharashtra by Act. 22, 1965 . Sec. 31 of the Act of 1965 not only introduced Cl. D. but also made changes in paragraphs A and C thereof. The forerunner of Act 22 of 1965 i.e. Bill No. LXVI of 1964, the object of which was to make numerous changes in the Act shows in its Statement of Objects and Reasons that clause 31 of the Bill was meant to "enlarge the powers of the Labour Court under S. 78". According to this clause "The Labour Court is empowered (by paragraph D) to direct temporary withdrawal of any change the legality of which is a matter of issue in any proceedings before it, pending its final decision. The Labour Court was also thereby further empowered "to require an employer to reinstate an employee with full back wages or pay him wages and compensation not exceeding Rs. 2,500/- .... if the employee was dismissed, discharged" etc. 9. The Statement of Objects and Reasons amply demonstrates that by introducing paragraph D in S. 78 (1) the legislature was only seeking to arm the Labour Court with further and more effective powers to grant relief. 10. Under S. 79 (1) proceedings before a Labour Court in respect of disputes falling under clause (a) of paragraph A of sub-s. (1) of Section 78 must be commenced on an application made by any of the parties to the dispute etc. and under sub-s. (2) every application under sub-s. (1) has to be made in the prescribed form and manner. Under S. 84 an appeal lies to the Industrial Court against the decision of a Labour Court in respect of a matter falling under clause (a) or cl. (c) of paragraph A of sub-s. (1) of S. 78 except in the case of lock-out etc. or a decision of such court under paragraph C of sub-s. (1) of the said section. 11. Reading S. 78 as a whole, there is no doubt left in our minds that the legislature wanted the provision to be a comprehensive one. It contains all the powers of the Labour Court in the matter of all disputes mentioned and gives it jurisdiction to punish certain offences under the Act. It does not lay down the procedure for the attraction of such jurisdiction. So far as disputes are concerned the procedure is as laid down in S. 79. 12. It will be noted that no mention is made in S. 84 of paragraph D of S. 78 (1) but inasmuch as orders of dismissal, discharge, removal, retrenchment, termination of service or suspension of an employee would come under s. 78 (1) paragraph A, the legislature felt it unnecessary to make any mention of an order under paragraph D in S. 84 Paragraph D, so far as we can see, is not referred to anywhere else in the Act. 13. The question therefore narrows down to this i.e. whether the legislature by inserting paragraph D in S. 78 (1)intended to chalk out a wholly different course of action to that prescribed in Chapter VIII dealing with changes. In our view, there is nothing in the Act which warrants such a conclusion. The scheme of Chapter VIII seems to be that in regard to any "change" in an industrial matter there must be compliance with the provisions of that Chapter. In other words, effort must first be made by the employer intending to effect any change in respect of matters covered by S,. 42 (1) or an employee desiring a change in respect of any order passed by the employer under standing orders which would of necessity include an order of dismissal, to see whether it was possible to come to any agreement and an application to the labour court could only be resorted to after efforts had been made to settle the dispute and no agreement had been arrived at. 14. The scheme of S. 78 (1) seems to be that a Labour Court is to have power to decide all the disputes covered by paragraph A, Paragraph B thereof gives the Labour Court the power to try offences punishable under the Act and cognizance of such offences can only be taken under S. 82. Paragraphs C and D set out what relief the Labour Courts are empowered to give including directions as may be found necessary in that behalf. As already noted, the Statement of Objects and Reasons of clause 31 of the bill which later resulted in Act 22 of 1965, shows that the underlying idea was to enlarge the powers of the Labour Court. The Legislature nowhere intended to make a complete departure from the procedure to be adopted when powers under S. 78 (1) D were to be exercised. 15. Rule 55 of the Bombay, Industrial Relations Rules, 1947 shows how an application is to be made and the period within which it is to be made. 16. It must be held that a person who is dismissed would be an employee within the meaning of S. 3 (13) of the Act and we can see no valid reason for differentiating the case of a dismissed employee from one who complains of some other change. As the scheme of the Act is that disputes should be settled as far as possible and primarily through conciliation and agreement, it does not stand to reasons that an employee should be able to side-step all this by a direct reference to the Labour Court. A Labour Court is a creature of the statute and it can only exercise such jurisdiction as the statute confers on it. If there are certain pre-conditions to the exercise of its jurisdiction, it must refuse to entertain any such application unless such pre-conditions are first complied with.
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Indranarayan Vs. Roop Narayan & Anr
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the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the lst defendant. As noticed earlier Dr. Pandit was in his death bed. Therefore he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. That being so we are unable to uphold the plea of the 1st defendant regarding those deposits.25. Now coming to the deposit in the Binod Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced in this case but the contention of the plaintiff is that the letter in question must have been typed on a blank letter-head of Dr. Pandit bearing his signature. There is some basis for this contention. The plaintiff has been able to produce two blank letter-heads of Dr. Pandit bearing his signatures. There is reason to think that Dr. Pandit was signing on blank letter-heads for one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows trial the signatorys band was first and not shaky. This letter is said to have been sent on 30th March 1949, hardly six days before Dr. Pandits death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with his cheque to defendant No. 1, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit as to whether those signatures were his.. Dr. Pandits hands could not have become mare firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of March. It appears to have been made by a perfectly firm hand. Further as seen from the medical evidence Dr. Pandits mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter the fact that Dr. Pandit wanted to make over the deposit to the 1st defendant. The letter says that the transfor to joint names is desired because of Dr. Pandits illness. Hence the case as regards the armed transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank of Indore.26. Now coming to the appeal filed by the plaintiff, we shall first take up the cheque issued by Dr. Pandit to the 1st defendant on March 21, 1949. There is no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. The circumstances under which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the 1st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case to which reference has been made earlier support that conclusion. There is nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000/- to his son who has been very helpful to him.27. So far as the deposit in the name of the second defendant is concerned, the High Courts finding in our opinion is unassailable. It is clear from the evidence that Dr. Pandit was very fond of his daughter-in-law. The evidence of the second defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000/- in his own name and Rs. 50,000/- in his daughter-in-laws name. Thereafter he wrote to her that he has made the deposit in question. Subsequently he handed over the deposit receipt to his daughter-in-law. All these circumstances show that Dr. Pandit wanted to give that money to his daughter-in-law for whom he had great affection. The evidence of the second defendant that her father-in-law had made a present of Rs. 50,000/- to her is clearly acceptable.28. There was some controversy in the High Court as regards the jewels but all that the plaintiffs Counsel wanted us was to correct an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Courts decision on this point is affirmed.29. It was urged on behalf of the plaintiff that he had been kept out of the estate of his father for over 22 years and therefore we may direct the 1st defendant who is now in possession of the properties as Court receiver to pay to him at least half the cash amount that was there at the time of Dr. Pandits death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage the exact cash amount that was there at the time of the death of Dr. Pandit.
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0[ds]It is clear from his letters that Dr. Pandit was under the impression that the plaintiff was lacking in efforts and he could make him to put in his best by an extra doze of rudeness. Plaintiffs reactions to his fathers biting letters was one of bitterness and hostility. He wrote to his father that he was a tyrant and that he was lacking in affection. He called him a worshipper of Memmon. He attributed his failures to his fathers unkindness. The correspondence that passed between Dr. Pandit and the plaintiff from 1936 to 1940 make a very sad reading. There is no doubt that Dr. Pandit was an affectionate father. His one all absorbing ambition was that his son should excel him. Things did not work out in the way he wanted. But he was not the person to reconcile him to the inevitable and chalk out a new path for his son. His obsession of making his son a good medical practitioner was such that he just ignored the realities and went on driving the plaintiff to desperation. The plaintiff was an obstinate type. He was blind to his fathers affection. He appears to have been unduly touched by his fathers harsh words. Possibly because of want of parental affection in the formative period of life he was insolent, resentful and insulting to his father. He repeatedly wrote to his father that his life was blasted by him. There is no doubt that the plaintiff was a highly sensitive type. He was no less rude than his father.6. It is unnecessary to refer in detail to the various letters that passed between the father and the son which have been produced into court. In the initial stages. Dr. Pandit was sending to his son about lb. 300 a year. Later on he cut it down to lb. 200 a year. Evidently Dr. Pandit thought that if the allowance of his son is cut down, he would give more attention to his studies. But that circumstance again appears to have had an adverse effect. The plaintiff was evidently unable to make two ends meet with the allowance that he was getting. From his letters it is clear that thereafter he was more worried about his dayliving than his studies. He began to send cables after cables to his father asking for more remitances but the father continued to be strict. Obviously Dr. Pandit was a very strong willed man.It is seen from that letter that the plaintiff had asked his father to give him at least an allowance of lb. 4/6 S a week. In 1936 Dr. Pandit made it clear to the plaintiff that he would provide him with funds only for three more years to complete his studies and thereafter all remittances would be stopped. The correspondence between Dr. Pandit and the plaintiff between 1936 to 1940 show that the war of words between the father and the son continued. Even after 1936 the plaintiff made little progress in his studies. In 1940 Dr. Pandit wanted the plaintiff to come back from England and for that purpose he deposited with Thomas Cooke and Co., sufficient amount for his passage home with instructions to them not to pay that amount to the plaintiff but only to provide him with the passage. The plaintiff refused to return to India. Thereafter Dr. Pandit is said to have stopped remittances to the plaintiff. But remittances to the plaintiff were made by the 1st defendant as well as by his sister Dr. Shanti Kamath. There is reason to believe that those remittances were made in the names of the 1st defendant and Dr. Shanti Kamath by Dr. Pandit himself. Ultimately the plaintiff came back to India in 1948. At that time the 1st defendant was working at Kolhapur. The plaintiff did not go to Indore where his father was living but he went to Kolhapur where his brother was stationed. Thereafter he got a job in Calcutta and he went to Calcutta. The plaintiffs relationship with the 1st defendant and his sisters were extremely cordial as disclosed by the letters that passed between the plaintiff and the 1st defendant and his sisters. When the plaintiff returned to India evidently Dr. Pandit was very anxious to meet him but he was unwilling to show to his son that he was the first to yield. He wanted that the plaintiff should repent and make amends. The plaintiff was too arrogant a person to submit to his father. The first defendant, evidently at the instance of his father tried to induce the plaintiff to meet his father. He wrote to him to say that mistakes had been made by both sides and the time has come for both of them to forget the past. But the plaintiff was not sure that his father had softened. He wanted to be satisfied that his father had in fact repented for his folly. When things stood thus Dr. Pandit fell ill with an attack of cancer of the lungs. He was shifted to Bombay for treatment in February 1949. The 1st defendant informed this fact to the plaintiff. The plaintiff took leave and went to Bombay and was by the side of his father till his father was in Bombay. In the middle of March 1949, the Doctors at Bombay advised the relations of Dr. Pandit that his end was near and it was best that they shifted him to Indore. Dr. Pandit was removed to Indore on March 14, 1949. The plaintiff, the 1st defendant and the other relations of Dr. Pandit went along with him. The plaintiff remained in Indore till about the last week of March and then returned to Calcutta. The condition of Dr. Pandit deteriorated day by day and he passed away on the early morning of April 6, 1949. The High Court was of the opinion that when the plaintiff was at Indore during the illness of his father he was treated as the paraiah of the family and it was because of that reason he did not come back to Indore after the death of his father.After the death of Dr. Pandit, 1st defendant wrote several letters to the plaintiff informing him about the state of affairs at Indore. He wrote to him about the various details connected with the affairs of the household but he did not inform him about the transfer of the deposits mentioned earlier. From those letters it is clear that the 1st defendant was keeping his brother informed about the family affairs. It appears that sometime after the death of his father, the plaintiff came to know that the 1st defendant was claiming that his father had left a Will bequeathing all his properties to him. It is likely that this information was given to him by hisKamath who was also stationed at Calcutta. The plaintiff was quite indifferent about the matter. At that stage his mood was such that he did not care to have even afrom his fathers estate. But yet he was curious to know whether in fact his father had left a Will. In about the end of May 1949, the 1st defendant sent a copy of the alleged Will to the plaintiff but the plaintiff was anxious to see the original Will. Evidently with the lapse of time, the plaintiff began to take more interest in his fathers estate. In June 1949, the 1st defendant and the second defendant went to Culcutta and showed to the plaintiff the Will alleged to have been executed by Dr. Pandit. The 1st defendant was insistent that the plaintiff should execute a deed of relinquishment but the plaintiff refused to walk into the trap. On April 4, 1950, the plaintiff caused a lawyers notice to be issued to the 1st defendant requiring him either to get the alleged Will of his father probated or refer the matter to the arbitration of some disinterested person. To this notice the 1 st defendant caused a reply to be sent on May 10, 1950.It is necessary to notice that in May 1950 i. e. about a year after the death of Dr. Pandit, the stand taken by the 1st defendant was that he was entitled to the entire estate left by Dr. Pandit because of the Will left by Dr. Pandit. In the registered reply notice, there is no reference to the separation of the plaintiff from the family; nor is there any reference to the gifts later on put forward by the 1st defendant.14. The plaintiff filed the suit from which these appeals arise on April 12, 1951. The 1st defendant filed his written statement on September 16, 1951. In this written statement, there is no reference to the Will left by Dr. Pandit. The alleged will completely disappeared from the scene. On the other hand the 1st defendant took the plea that the plaintiff is not entitled to any share in the properties left by Dr. Pandit as he had separated himself from Dr. Pandit as far back as 1936. The other plea taken up by him was that by transferring the fixed deposits that were standing in Dr. Pandits name to the joint names of Dr. Pandit and himself Dr. Pandit made a gift of the amounts covered by those deposits to him and therefore he is exclusively entitled to those amounts. The second defendant claimed that the deposit made by herin her name was a gift to her. At this stage we may mention that the alleged Will of Dr. Pandit was not produced into Court. As seen earlier in his reply to the registered notice the 1st defendant had asserted that the Will had been signed by Dr. Pandit and attested by respectable witnesses. But whenabout that Will the 1st defendant first stated that it was only a draft. When pressed further he stated that it was pencil draft with numerous erasions but all the same signed by Dr. Pandit and attested by respectable witnesses. There is hardly any doubt that the story of the Will is a faked one. It was evidently a ruse to get a relinquishment deed from the plaintiff who was at one time indifferent about his share in his fathers estate. But the story of the said Will has great significance when we come to examine the defence put up the 1stplea taken in the written statement is a somewhat curious one. There is no allegation that the plaintiff had separated from his family. On the other hand what was pleaded is that the plaintiff had separated from his father. No members of a Hindu family can separate himself from one member of the family and remain joint with others. He is either a member of the joint family or he is not. He cannot be joint with some and separate from others. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. There is no gainsaying the fact that Dr. Pandit and his sons were members of a joint family though that family as such possessed no property. All properties possessed by Dr. Pandit were hisproperties. We agree with the finding of the High Court that there was no separation between the plaintiff and his family. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. There is not an iota of evidence in this case to show that the plaintiff had at any time made any unequivocal declaration that he had separated himself from his family much less there is any evidence that he communicated his intention to separate himself from the family either to the karta or to any of the members of the family. There is no doubt that there was great deal of disagreement between Dr. Pandit and the plaintiff. It is also true that as far back as 1936 Dr. Pandit had threatened tothe plaintiff but these facts by themselves do not prove the factum of separation. The fact that the plaintiff was now and then expressing that he was not interested in his fathers estate do not amount to a declaration of his intention to separate from the family. The High Court rightly considered these statements as emotional outbursts. We have earlier seen that in the reply notice sent on behalf of the 1st defendant there is not even a whisper of the plaintiffs separation from the family. Therefore the plea of the 1st defendant that the plaintiff had separated from the family is clearly an afterthought. It is based on no evidence. To prove that the plaintiff had separated himself from the family, reliance was placed on the testimony of Col. Madhav. His evidence is too vague and too slender to found a case of separation.Even if we accept the evidence of this witness as reliable, it is much too vague and inconclusive. Further it does not bear on the question of separation.Pandit was a highly educated man. He had the assistance of influential friends. He had even the assistance of a solicitor at Bombay. He knew that his end was near but yet he did not choose to make a Will. These circumstances generally speaking militate against the plea of gifts put forward by the 1st defendant. Further as seen earlier in the registered reply notice sent on behalf of the 1st defendant, there is no reference to these gifts. Therefore the evidence relating to those gifts will have to be examined very closely.18. Let us first take up the alleged gift of Rs.We have earlier seen that Dr. Pandit had four fixed deposits in the Bank of Indore. The first defendants case is that on March 25, 1949, with the intention of gifting the amounts covered by those deposits, Dr. Pandit instructed the bank to transfer the deposits to their joint names thereby making it possible to realise the amounts when they become due by either of them or by the survivor. The evidence relating to the letter said to have been sent by Dr. Pandit to the bank is somewhat suspicious. Medical evidence shows that Dr. Pandit was mostly unconscious during the last days of his life. It appears that the secondaries had affected his brain. Dr. Akbarali deposed that some days after his return from Bombay Dr. Pandit was found eatingin the bathroom. It may be as elicited from Dr. Akbarali that on some day he might have been conscious. Under these circumstances, we have to examine the evidence relating to transfer of deposits with great deal of caution. The evidence relating to transfer of deposits had not been examined by the trial Court. The trial Court dismissed the plaintiffs suit solely on the ground that he had separated himself from the family. After carefully examining the evidence bearing on the point, the High Court has not found it possible to accept the 1st defendants case as regards the gift of Rs.The request by Dr. Pandit to transfer the deposits in the Bank of Indore was said to have been made on March 25, 1949. The main witness examined to prove the letter said to have been sent by Dr. Pandit is R. D. Joshi (D. W. 8). According to him he wrote the letter in question. His version is that he had been to the Nursing Home in which Dr. Pandit was on March 21, 1949 in connection with the payment of the amount due from him to Dr. Pandit and it was on that occasion he under instructions from Dr. Pandit wrote out that letter and after getting it signed by him it was delivered at the bank. According to him that letter was sent on March 21, 1949. He goes further and says that after the 21st of March, he did not go to the Nursing Home nor did he see Dr. Pandit. The original letter that was alleged to have been sent to the bank of Indore is not forthcoming. Its genuineness is sought to be proved by the testimony of R. D. Joshi, the Accountant of the bank and its General Manager. The version given by the General Manager of the bank is that after receiving summons from Court, he picked out the letter and kept it in safe custody but he says that from safe custody the letter has disappeared. This is somewhat surprising. R. D. Joshis evidence throws a great deal of doubt on the genuineness of the letter. The letter referred to by R. D. Joshi is purported to have been sent to the bank on the 21st March But the copy of the letter that was produced before the Court bears the date 25th March. There is no explanation for this discrepancy.19. In view of the evidence of the bank officials, the High Court accepted the 1st defendants version that Dr. Pandit did send a letter to the bank on March 25, 1949 asking the bank to transfer the deposits to the joint names of himself and the 1st defendant but all the same it came to the conclusion that the evidence on record is not sufficient to show that Dr. Pandit wanted to make a gift of the amount covered by those deposits to the 1st defendant. We are unable to agree with the High Court that the evidence adduced in this case is satisfactory enough to prove that Dr. Pandit had sent any letter to the bank on March 25, as alleged by the 1st defendant.20. Assuming that Dr. Pandit had sent the letter in question yet from the evidence on record, we are unable to come to the conclusion that by doing so Dr. Pandit intended to make a gift of the amounts in question to the 1st defendant.The 1st defendant hasnot taken a consistent stand as regards the alleged gifts. In the registered reply sent, as seen earlier, there was no reference to these gifts. In the written statement the case taken is one of gifts but the care pleaded in Court is one of advancement. The distinction between gift, benami and advancement has not been clearly borne in mind by the High Court.21. The transfer with which we are concerned in this case cannot be gift because Dr. Pandit continued to be the owner of the amounts in question till his death.There is no presumption of advancement in this country but yet if there had been satisfactory evidence to show that the transfers in question are genuine and further that Dr. Pandit intended that the amounts it question should go to the 1st defendant exclusively after his death, we would have held that the advancement put forward had been satisfactorily proved and the presumption rebutted.22. It was for the 1st defendant to establish that there was a general intention on the part of Dr. Pandit to benefit him and in pursuance of that intention he transferred the deposits to the joint names of himself and the 1st defendant. If he had proved those facts, he would have made good his pleasee Young v. Sealey, (1949) 1 All ER 92; Mrs. Avis Fitzalan Cowdrey v. Imperial Bank of India, AIR 1956 Mad 56; D. Nagarajamma v. State Bank of India, Cuttapah, AIR 1962. But the difficulty in this case is firstly that there is no satisfactory proof of the alleged letter by Dr. Pandit to the Bank of Indore. Secondly there is no evidence of the general intention on the part of Dr. Pandit to give those amount exclusively to the 1st defendant. In the letter said to have been sent by Dr. Pandit to the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the lst defendant. As noticed earlier Dr. Pandit was in his death bed. Therefore he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. That being so we are unable to uphold the plea of the 1st defendant regarding those deposits.25. Now coming to the deposit in the Binod Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced in this case but the contention of the plaintiff is that the letter in question must have been typed on a blankof Dr. Pandit bearing his signature. There is some basis for this contention. The plaintiff has been able to produce two blankof Dr. Pandit bearing his signatures. There is reason to think that Dr. Pandit was signing on blankfor one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows trial the signatorys band was first and not shaky. This letter is said to have been sent on 30th March 1949, hardly six days before Dr. Pandits death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with his cheque to defendant No. 1, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit as to whether those signatures were his.. Dr. Pandits hands could not have become mare firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of March. It appears to have been made by a perfectly firm hand. Further as seen from the medical evidence Dr. Pandits mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter the fact that Dr. Pandit wanted to make over the deposit to the 1st defendant. The letter says that the transfor to joint names is desired because of Dr. Pandits illness. Hence the case as regards the armed transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank ofis no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. The circumstances under which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the 1st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case to which reference has been made earlier support that conclusion. There is nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000/to his son who has been very helpful to him.27. So far as the deposit in the name of the second defendant is concerned, the High Courts finding in our opinion is unassailable. It is clear from the evidence that Dr. Pandit was very fond of hisThe evidence of the second defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000/in his own name and Rs. 50,000/s name. Thereafter he wrote to her that he has made the deposit in question. Subsequently he handed over the deposit receipt to hisAll these circumstances show that Dr. Pandit wanted to give that money to hisfor whom he had great affection. The evidence of the second defendant that herhad made a present of Rs. 50,000/to her is clearly acceptable.28. There was some controversy in the High Court as regards the jewels but all that the plaintiffs Counsel wanted us was to correct an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Courts decision on this point is affirmed.29. It was urged on behalf of the plaintiff that he had been kept out of the estate of his father for over 22 years and therefore we may direct the 1st defendant who is now in possession of the properties as Court receiver to pay to him at least half the cash amount that was there at the time of Dr. Pandits death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage the exact cash amount that was there at the time of the death of Dr. Pandit.
| 0 | 6,761 |
### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
the bank all that is said is that he wanted to put the amount in the joint names of himself and the 1st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the lst defendant. As noticed earlier Dr. Pandit was in his death bed. Therefore he might have thought it prudent to transfer the deposits to the joint names of himself and the 1st defendant to facilitate collection. That being so we are unable to uphold the plea of the 1st defendant regarding those deposits.25. Now coming to the deposit in the Binod Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced in this case but the contention of the plaintiff is that the letter in question must have been typed on a blank letter-head of Dr. Pandit bearing his signature. There is some basis for this contention. The plaintiff has been able to produce two blank letter-heads of Dr. Pandit bearing his signatures. There is reason to think that Dr. Pandit was signing on blank letter-heads for one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows trial the signatorys band was first and not shaky. This letter is said to have been sent on 30th March 1949, hardly six days before Dr. Pandits death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with his cheque to defendant No. 1, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit as to whether those signatures were his.. Dr. Pandits hands could not have become mare firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of March. It appears to have been made by a perfectly firm hand. Further as seen from the medical evidence Dr. Pandits mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter the fact that Dr. Pandit wanted to make over the deposit to the 1st defendant. The letter says that the transfor to joint names is desired because of Dr. Pandits illness. Hence the case as regards the armed transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank of Indore.26. Now coming to the appeal filed by the plaintiff, we shall first take up the cheque issued by Dr. Pandit to the 1st defendant on March 21, 1949. There is no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. The circumstances under which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the 1st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case to which reference has been made earlier support that conclusion. There is nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000/- to his son who has been very helpful to him.27. So far as the deposit in the name of the second defendant is concerned, the High Courts finding in our opinion is unassailable. It is clear from the evidence that Dr. Pandit was very fond of his daughter-in-law. The evidence of the second defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000/- in his own name and Rs. 50,000/- in his daughter-in-laws name. Thereafter he wrote to her that he has made the deposit in question. Subsequently he handed over the deposit receipt to his daughter-in-law. All these circumstances show that Dr. Pandit wanted to give that money to his daughter-in-law for whom he had great affection. The evidence of the second defendant that her father-in-law had made a present of Rs. 50,000/- to her is clearly acceptable.28. There was some controversy in the High Court as regards the jewels but all that the plaintiffs Counsel wanted us was to correct an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Courts decision on this point is affirmed.29. It was urged on behalf of the plaintiff that he had been kept out of the estate of his father for over 22 years and therefore we may direct the 1st defendant who is now in possession of the properties as Court receiver to pay to him at least half the cash amount that was there at the time of Dr. Pandits death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage the exact cash amount that was there at the time of the death of Dr. Pandit.
### Response:
0
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365 |
Union of India and Ors Vs. Ran Singh Dudee
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assessment of the profile of the respondent for those years. The correct approach in the matter is the one which was considered by this Court in Lt. Col. K. D. Gupta v. Union of India and Others 1989 Suppl (1) SCC 416 as under:-?8. The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion. The defence services have their own peculiarities and special requirements. The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioners category and rank. Requisite experience, consequent exposure and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batchmates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioners contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batchmates as the measure.?7. The opinion of the learned Solicitor General dated 01.11.2013 and the consequential order dated 20.11.2013 must be confined to the question of validity and correctness of the General Court Martial proceedings and the benefits which respondent stood denied purely as a result thereof. The concept that he must be granted those promotions which his batchmates or juniors received and the idea that he must also be considered for promotions which are strictly based on selection basis have not been accepted by this Court in K.D. Gupta (supra). The Tribunal therefore completely erred in passing the directions in its order dated 17.01.2017. Since the opinion of the Law Officer dated 30.12.2015 was not consistent with the provisions of the relevant rules and the law declared by this Court in K.D. Gupta (supra), the Department was justified in expressing serious reservations and in generating note dated 03.02.2016. The Tribunal, in our considered view, attached undue importance to the opinion of the Law Officer dated 30.12.2015. 8. Be that as it may, the matter was considered on merits by No.3 Selection Board which found the respondent unfit for selection as Colonel. The matter was analyzed by the Board on six indicia or parameters. The assessment was cumulative taking into account the grading as against those six parameters. Admittedly, the respondent was lower in terms of indicia Nos.(ii), (iv) and (v) as against all other three officers, which included one who was not empanelled at all. Apart therefrom, the entry of reprimand as against indicia No.(vi) also put the case of the respondent in the negative. At this stage we may consider whether the entry of reprimand of the year 1991 was rightly or wrongly taken into account. 9. In terms of Paragraph 10 (f) of the Selection Policy dated 06.05.1987 which has been placed on record by the appellants, disciplinary award forms part of the overall profile of an Officer. Said provision in fact lays down, character, qualities, disciplinary background and decorations form an important input to the overall profile of an Officer and due consideration should be given while assessing border line cases. The action on part of the Selection Board in relying upon the entry of reprimand was thus consistent with Selection Policy and could not be characterized as incorrect or illegal in any manner. In any case that was not the only pointer which weighed with the Selection Board. Even eschewing such entry, the respondent was still found to be lower as against three Officers on other three indicia. It is relevant to note at this juncture that even though one out of those three Officers had fared better than the respondent on those three indicia and also did not have any entry or reprimand, he was not an empanelled Officer. It is precisely for this reason that the law as laid down by this Court is, whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. 10. It is true that overall CR profile of the respondent was better than the last empanelled officer. But the respondent was certainly lower on other three indicia or parameters. It is the cumulative assessment which the Selection Board was expected to and did undertake. Going by the law laid down by this Court, it cannot be said that the assessment of the Selection Board suffered on any count. This case is not where irrelevant factors have been taken into account or relevant factors have been missed out or eliminated from consideration. The Selection Board comprised of high ranked officials from Indian Army. No malafides have been and could be attributed to the actions on part of the members of the Selection Board. The Tribunal was thus wholly unjustified in finding the assessment made by the Selection Board to be perverse. 11. Having considered the matter in its entirety, we cannot support the view taken by the Tribunal. According to us, the approach of the Tribunal and the assessment made by it were completely erroneous. The Tribunal was also not justified in awarding costs of Rupees five lakhs to the respondent. 12. It may be that the respondent was wrongly proceeded against and punished by General Court Martial. He was also awarded sentence of imprisonment and lost out nine years of service. The prejudice is quite apparent. However sympathy cannot outweigh the considerations on merit. He has received time scale promotion to the rank of Colonel after having put in 26 years of regular service. But if he was not found suitable for empanelment by way of selection, the matter must end there.
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1[ds]6. The first question that arises is regarding the significance of the expression consequential benefits as used in the order dated 20.11.2013. The matter which was directly in issue and under consideration was the correctness and validity of General Court Martial proceedings. While annulling the findings and effect of such General Court Martial proceedings, the idea was to confer those benefits which the officer stood denied directly as a result of pendency of such proceedings. Such benefits would therefore be those which are easily quantifiable namely those in the nature of loss of salary, emoluments and other benefits. But the expression cannot be construed to mean that even promotions which are strictly on the basis of comparative merit and selection must also stand conferred upon the officer. It is true that as a result of pendency of the General Court Martial proceedings the respondent was kept out of service for nearly nine years and as such his profile would show inadequacy to a certain extent. On the other hand the Department was also denied of proper assessment of the profile of the respondent for those years.The opinion of the learned Solicitor General dated 01.11.2013 and the consequential order dated 20.11.2013 must be confined to the question of validity and correctness of the General Court Martial proceedings and the benefits which respondent stood denied purely as a result thereof. The concept that he must be granted those promotions which his batchmates or juniors received and the idea that he must also be considered for promotions which are strictly based on selection basis have not been accepted by this Court in K.D. Gupta (supra). The Tribunal therefore completely erred in passing the directions in its order dated 17.01.2017. Since the opinion of the Law Officer dated 30.12.2015 was not consistent with the provisions of the relevant rules and the law declared by this Court in K.D. Gupta (supra), the Department was justified in expressing serious reservations and in generating note dated 03.02.2016. The Tribunal, in our considered view, attached undue importance to the opinion of the Law Officer dated 30.12.2015.Be that as it may, the matter was considered on merits by No.3 Selection Board which found the respondent unfit for selection as Colonel. The matter was analyzed by the Board on six indicia or parameters. The assessment was cumulative taking into account the grading as against those six parameters. Admittedly, the respondent was lower in terms of indicia Nos.(ii), (iv) and (v) as against all other three officers, which included one who was not empanelled at all. Apart therefrom, the entry of reprimand as against indicia No.(vi) also put the case of the respondent in the negative. At this stage we may consider whether the entry of reprimand of the year 1991 was rightly or wrongly taken into account.In terms of Paragraph 10 (f) of the Selection Policy dated 06.05.1987 which has been placed on record by the appellants, disciplinary award forms part of the overall profile of an Officer. Said provision in fact lays down, character, qualities, disciplinary background and decorations form an important input to the overall profile of an Officer and due consideration should be given while assessing border line cases. The action on part of the Selection Board in relying upon the entry of reprimand was thus consistent with Selection Policy and could not be characterized as incorrect or illegal in any manner. In any case that was not the only pointer which weighed with the Selection Board. Even eschewing such entry, the respondent was still found to be lower as against three Officers on other three indicia. It is relevant to note at this juncture that even though one out of those three Officers had fared better than the respondent on those three indicia and also did not have any entry or reprimand, he was not an empanelled Officer. It is precisely for this reason that the law as laid down by this Court is, whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject.It is true that overall CR profile of the respondent was better than the last empanelled officer. But the respondent was certainly lower on other three indicia or parameters. It is the cumulative assessment which the Selection Board was expected to and did undertake. Going by the law laid down by this Court, it cannot be said that the assessment of the Selection Board suffered on any count. This case is not where irrelevant factors have been taken into account or relevant factors have been missed out or eliminated from consideration. The Selection Board comprised of high ranked officials from Indian Army. No malafides have been and could be attributed to the actions on part of the members of the Selection Board. The Tribunal was thus wholly unjustified in finding the assessment made by the Selection Board to be perverse.Having considered the matter in its entirety, we cannot support the view taken by the Tribunal. According to us, the approach of the Tribunal and the assessment made by it were completely erroneous. The Tribunal was also not justified in awarding costs of Rupees five lakhs to the respondent.It may be that the respondent was wrongly proceeded against and punished by General Court Martial. He was also awarded sentence of imprisonment and lost out nine years of service. The prejudice is quite apparent. However sympathy cannot outweigh the considerations on merit. He has received time scale promotion to the rank of Colonel after having put in 26 years of regular service. But if he was not found suitable for empanelment by way of selection, the matter must end there.
| 1 | 5,419 |
### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
### Input:
assessment of the profile of the respondent for those years. The correct approach in the matter is the one which was considered by this Court in Lt. Col. K. D. Gupta v. Union of India and Others 1989 Suppl (1) SCC 416 as under:-?8. The respondents have maintained that the petitioner has not served in the appropriate grades for the requisite period and has not possessed the necessary experience and training and consequential assessment of ability which are a precondition for promotion. The defence services have their own peculiarities and special requirements. The considerations which apply to other government servants in the matter of promotion cannot as a matter of course be applied to defence personnel of the petitioners category and rank. Requisite experience, consequent exposure and appropriate review are indispensable for according promotion and the petitioner, therefore, cannot be given promotions as claimed by him on the basis that his batchmates have earned such promotions. Individual capacity and special qualities on the basis of assessment have to be found but in the case of the petitioner these are not available. We find force in the stand of the respondents and do not accept the petitioners contention that he can be granted promotion to the higher ranks as claimed by him by adopting the promotions obtained by his batchmates as the measure.?7. The opinion of the learned Solicitor General dated 01.11.2013 and the consequential order dated 20.11.2013 must be confined to the question of validity and correctness of the General Court Martial proceedings and the benefits which respondent stood denied purely as a result thereof. The concept that he must be granted those promotions which his batchmates or juniors received and the idea that he must also be considered for promotions which are strictly based on selection basis have not been accepted by this Court in K.D. Gupta (supra). The Tribunal therefore completely erred in passing the directions in its order dated 17.01.2017. Since the opinion of the Law Officer dated 30.12.2015 was not consistent with the provisions of the relevant rules and the law declared by this Court in K.D. Gupta (supra), the Department was justified in expressing serious reservations and in generating note dated 03.02.2016. The Tribunal, in our considered view, attached undue importance to the opinion of the Law Officer dated 30.12.2015. 8. Be that as it may, the matter was considered on merits by No.3 Selection Board which found the respondent unfit for selection as Colonel. The matter was analyzed by the Board on six indicia or parameters. The assessment was cumulative taking into account the grading as against those six parameters. Admittedly, the respondent was lower in terms of indicia Nos.(ii), (iv) and (v) as against all other three officers, which included one who was not empanelled at all. Apart therefrom, the entry of reprimand as against indicia No.(vi) also put the case of the respondent in the negative. At this stage we may consider whether the entry of reprimand of the year 1991 was rightly or wrongly taken into account. 9. In terms of Paragraph 10 (f) of the Selection Policy dated 06.05.1987 which has been placed on record by the appellants, disciplinary award forms part of the overall profile of an Officer. Said provision in fact lays down, character, qualities, disciplinary background and decorations form an important input to the overall profile of an Officer and due consideration should be given while assessing border line cases. The action on part of the Selection Board in relying upon the entry of reprimand was thus consistent with Selection Policy and could not be characterized as incorrect or illegal in any manner. In any case that was not the only pointer which weighed with the Selection Board. Even eschewing such entry, the respondent was still found to be lower as against three Officers on other three indicia. It is relevant to note at this juncture that even though one out of those three Officers had fared better than the respondent on those three indicia and also did not have any entry or reprimand, he was not an empanelled Officer. It is precisely for this reason that the law as laid down by this Court is, whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. 10. It is true that overall CR profile of the respondent was better than the last empanelled officer. But the respondent was certainly lower on other three indicia or parameters. It is the cumulative assessment which the Selection Board was expected to and did undertake. Going by the law laid down by this Court, it cannot be said that the assessment of the Selection Board suffered on any count. This case is not where irrelevant factors have been taken into account or relevant factors have been missed out or eliminated from consideration. The Selection Board comprised of high ranked officials from Indian Army. No malafides have been and could be attributed to the actions on part of the members of the Selection Board. The Tribunal was thus wholly unjustified in finding the assessment made by the Selection Board to be perverse. 11. Having considered the matter in its entirety, we cannot support the view taken by the Tribunal. According to us, the approach of the Tribunal and the assessment made by it were completely erroneous. The Tribunal was also not justified in awarding costs of Rupees five lakhs to the respondent. 12. It may be that the respondent was wrongly proceeded against and punished by General Court Martial. He was also awarded sentence of imprisonment and lost out nine years of service. The prejudice is quite apparent. However sympathy cannot outweigh the considerations on merit. He has received time scale promotion to the rank of Colonel after having put in 26 years of regular service. But if he was not found suitable for empanelment by way of selection, the matter must end there.
### Response:
1
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366 |
Union Of India Vs. M/S. Udho Ram & Sons
|
a goods train, in view of the frequent thefts in running trains between Howrah and Chandanpur, Amounted to the railways taking proper care of the goods delivered to them as carriers and that therefore the railways were not guilty of any negligence and misconduct. It was of the view that the railway protection police which usually travelled in the guards van, could not possibly know what was happening in the wagons at the other end or in the middle of the train during the journey. It therefore dismissed the suit.6. On appeal, the High Court held the railways responsible for the loss which, in its view, was due to its negligence and misconduct inasmuch as there was no evidence on record that the railway protection police took any precautions to see that nobody interfered with the train when it halted for 15 minutes at the Howrah Burdwan Link at night. There was no other arrangement for watch and ward at the Link. There was no evidence as to what was the strength of the railway protection police or to show that it did stir out of the train to see that the wagons were not interfered with. It therefore concluded that the servants of the railway were negligent and did nothing to see that opportunities for theft were eliminated as far as possible, that the railway administration was responsible for the negligence of its employees as it could act through its employees and that therefore the loss of goods was due to the misconduct and negligence of the railways. It therefore reversed the decree of the trial court and decreed the plaintiffs suit for the amount of loss held suffered by the plaintiffs. It is this decree against which the Union of India has obtained the certificate of fitness for appeal from the Punjab High Court and has preferred this appeal.7. There is no evidence on record that the railway protection police which escorted the train was adequate in strength for the purpose of seeing that the goods were not interfered with in transit. In fact, the defendants did not allege in their written statement that any railway protection police escorted the tram. The presence of the railway protection police with the train was just deposed to by Chatterjee, D. W. 10, the then Assistant Station Master at Chandanpur Railway Station. He did not mention that fact in any of his messages or memorandum in which he simply mentioned the presence of the railway protection police at the time of resealing the wagon, the stated in cross examination that be did not remember from memory the events of the occurrence at Chandapur Station on October 1, 1949, and was making his statement on the basis of the record before him. However, both the Courts below have recorded the finding that railway protection police did escort the train. There is no evidence as to why the police force could not see to the non-interference with the wagons when the train halted at the Link where, according to the Courts below, the thieves probably got at the wagon and tampered with its seal and rivets. In the absence of any evidence about the strength of the railway protection police, the contention of the appellant that the force was adequate cannot be accepted.8. It may be true that any precautions taken may not be always successful against the loss in transit on account of theft, but in the present case there is no evidence with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place where the train had to stop. We cannot accept the contention that the railway protection police could not have moved out of the guards van due to the uncertainty of the stoppage of the train at the signal. It was the fob of its members to get down on every stoppage of the train, and to keep an eye at the various waggons, as best as they could. There could be no risk of the train leaving them on the spot suddenly. They could climb up when the train was to move. The wagon in which the plaintiffs goods were, was in the centre of the train. It was the 29th carriage from the other end. It must be taken to be the duty of the railway protection police to get out of the guards van whenever the train stops, be it at the railway platform or at any other place. In fact the necessity to get down and watch the train when it stops at a place other than a station is greater than when the train stops at a Station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the off side.9. The responsibility of the railways under S. 72 of the Indian Railways Act is subject to the provisions of S. 151 of the Indian Contract Act. Section 151 states that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstance, take of his own goods of the same bulk, quality and value as the goods bailed. Needless to say that an ordinary person travelling in a train would be particular in keeping an eye on his goods especially when the train stops. It is not therefore imposing a higher standard of care on the railway administration when it is said that its staff, and especially the railway protection police specially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods.
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0[ds]7. There is no evidence on record that the railway protection police which escorted the train was adequate in strength for the purpose of seeing that the goods were not interfered with in transit. In fact, the defendants did not allege in their written statement that any railway protection police escorted the tram. The presence of the railway protection police with the train was just deposed to by Chatterjee, D. W. 10, the then Assistant Station Master at Chandanpur Railway Station. He did not mention that fact in any of his messages or memorandum in which he simply mentioned the presence of the railway protection police at the time of resealing the wagon, the stated in cross examination that be did not remember from memory the events of the occurrence at Chandapur Station on October 1, 1949, and was making his statement on the basis of the record before him. However, both the Courts below have recorded the finding that railway protection police did escort the train. There is no evidence as to why the police force could not see to the non-interference with the wagons when the train halted at the Link where, according to the Courts below, the thieves probably got at the wagon and tampered with its seal and rivets. In the absence of any evidence about the strength of the railway protection police, the contention of the appellant that the force was adequate cannot be accepted.8. It may be true that any precautions taken may not be always successful against the loss in transit on account of theft, but in the present case there is no evidence with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place where the train had to stop. We cannot accept the contention that the railway protection police could not have moved out of the guards van due to the uncertainty of the stoppage of the train at the signal. It was the fob of its members to get down on every stoppage of the train, and to keep an eye at the various waggons, as best as they could. There could be no risk of the train leaving them on the spot suddenly. They could climb up when the train was to move. The wagon in which the plaintiffs goods were, was in the centre of the train. It was the 29th carriage from the other end. It must be taken to be the duty of the railway protection police to get out of the guards van whenever the train stops, be it at the railway platform or at any other place. In fact the necessity to get down and watch the train when it stops at a place other than a station is greater than when the train stops at a Station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the off side.9. The responsibility of the railways under S. 72 of the Indian Railways Act is subject to the provisions of S. 151 of the Indian Contract Act. Section 151 states that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstance, take of his own goods of the same bulk, quality and value as the goods bailed. Needless to say that an ordinary person travelling in a train would be particular in keeping an eye on his goods especially when the train stops. It is not therefore imposing a higher standard of care on the railway administration when it is said that its staff, and especially the railway protection police specially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods.
| 0 | 1,356 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
a goods train, in view of the frequent thefts in running trains between Howrah and Chandanpur, Amounted to the railways taking proper care of the goods delivered to them as carriers and that therefore the railways were not guilty of any negligence and misconduct. It was of the view that the railway protection police which usually travelled in the guards van, could not possibly know what was happening in the wagons at the other end or in the middle of the train during the journey. It therefore dismissed the suit.6. On appeal, the High Court held the railways responsible for the loss which, in its view, was due to its negligence and misconduct inasmuch as there was no evidence on record that the railway protection police took any precautions to see that nobody interfered with the train when it halted for 15 minutes at the Howrah Burdwan Link at night. There was no other arrangement for watch and ward at the Link. There was no evidence as to what was the strength of the railway protection police or to show that it did stir out of the train to see that the wagons were not interfered with. It therefore concluded that the servants of the railway were negligent and did nothing to see that opportunities for theft were eliminated as far as possible, that the railway administration was responsible for the negligence of its employees as it could act through its employees and that therefore the loss of goods was due to the misconduct and negligence of the railways. It therefore reversed the decree of the trial court and decreed the plaintiffs suit for the amount of loss held suffered by the plaintiffs. It is this decree against which the Union of India has obtained the certificate of fitness for appeal from the Punjab High Court and has preferred this appeal.7. There is no evidence on record that the railway protection police which escorted the train was adequate in strength for the purpose of seeing that the goods were not interfered with in transit. In fact, the defendants did not allege in their written statement that any railway protection police escorted the tram. The presence of the railway protection police with the train was just deposed to by Chatterjee, D. W. 10, the then Assistant Station Master at Chandanpur Railway Station. He did not mention that fact in any of his messages or memorandum in which he simply mentioned the presence of the railway protection police at the time of resealing the wagon, the stated in cross examination that be did not remember from memory the events of the occurrence at Chandapur Station on October 1, 1949, and was making his statement on the basis of the record before him. However, both the Courts below have recorded the finding that railway protection police did escort the train. There is no evidence as to why the police force could not see to the non-interference with the wagons when the train halted at the Link where, according to the Courts below, the thieves probably got at the wagon and tampered with its seal and rivets. In the absence of any evidence about the strength of the railway protection police, the contention of the appellant that the force was adequate cannot be accepted.8. It may be true that any precautions taken may not be always successful against the loss in transit on account of theft, but in the present case there is no evidence with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place where the train had to stop. We cannot accept the contention that the railway protection police could not have moved out of the guards van due to the uncertainty of the stoppage of the train at the signal. It was the fob of its members to get down on every stoppage of the train, and to keep an eye at the various waggons, as best as they could. There could be no risk of the train leaving them on the spot suddenly. They could climb up when the train was to move. The wagon in which the plaintiffs goods were, was in the centre of the train. It was the 29th carriage from the other end. It must be taken to be the duty of the railway protection police to get out of the guards van whenever the train stops, be it at the railway platform or at any other place. In fact the necessity to get down and watch the train when it stops at a place other than a station is greater than when the train stops at a Station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the off side.9. The responsibility of the railways under S. 72 of the Indian Railways Act is subject to the provisions of S. 151 of the Indian Contract Act. Section 151 states that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstance, take of his own goods of the same bulk, quality and value as the goods bailed. Needless to say that an ordinary person travelling in a train would be particular in keeping an eye on his goods especially when the train stops. It is not therefore imposing a higher standard of care on the railway administration when it is said that its staff, and especially the railway protection police specially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods.
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367 |
State Of A.P Vs. Patchimala Vigneswarudu @ Viganna
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Subbarao, who conducted autopsy on 6.8.2001 and prepared Ex. P-22. Describing the condition of the body at the time of post mortem examination, the Medical Officer has stated that eyes of the deceased were closed, mouth was open with tongue protruding between upper and lower teeth, blood stained froth was coming from both nostrils and mouth. Following ante mortem injuries were noted by the doctor: - (i) Ligature mark completely encircling the neck transverse in direction below the thyroid cartilage. Width of ligature mark 4 to 5 mms. (ii) Abrasions were present over the ligature mark. Scratches due to nails are seen over the ligature on the right side. (iii) Abrasion over the middle third of the right arm of size 3 x 3 cm reddish in colour. On internal examination, the Medical Officer (PW-12) found that echymosis and congestion was seen in subcutaneous tissue under the ligature mark. Hyoid bone was intact. Thyroid cartilage was intact. Larynx, trachea and bronchi were congested and filled with frothy blood stained fluid. Haemorrhages were seen in mocosa of larynx. The Medical Officer opined that the deceased had died due to asphyxia caused by strangulation with ligature. PW-12 Dr. A. Subbarao further stated that death could have been occurred by putting saree (MO-1) around the neck of the deceased by tightening it and by pulling with force. The above medical evidence on record proves that the deceased died a homicidal death and cause of death was asphyxia due to strangulation. 11. As far as relation between the accused and the deceased is concerned, the prosecution evidence on record, as stated by PW-1 and PW-2, is corroborated by the fact that the accused himself has admitted his marriage with the deceased, and his strained relations with her. 12. Apart from the above, it is proved on record that on the date of incident, before midnight, the accused took his wife (deceased) to night show of movie. PW-1 Jithuka Nagooru (father of the deceased) and PW-2 Jithuka Veeramma (mother of the deceased) have stated that a day before the dead body of the deceased was found, the accused had come to their house and took his wife on the pretext that he was taking her to night show cinema. 13. Also it is established from the statement of PW-4 Inje Anjaneyulu that he last saw the deceased with the accused walking towards Ayinavilli (the village where later dead body of the deceased was found). PW-5 Jinipe Venkateswara Rao, who is the gatekeeper of Devi Ganesh Theatre at Mukteswaram, told that he knew both accused and the deceased, and they purchased two tickets for last show at 8.00 p.m. Both of these witnesses have proved the fact that soon before her death the deceased was last seen with the accused. 14. Yet another circumstance against the accused brought on the record by PW-6 Jithuka Vijaya Kumar, who has stated that he saw the accused coming alone after midnight from the side of Ayinavilli and boarding quarry lorry heading to Mummidivaram. 15. Lastly, it is stated on record by the prosecution witnesses that the accused absconded after the incident. 16. The recovery of dead body in the morning of 6.8.2001, is proved not only by PW-1 and PW-2, but also by PW-7 Yalla Satyanarayana, PW-8 Ponakala Satyanarayana Murthy and PW-9 Relangi Sri Veera Venkata Satyanarayana, which gets corroborated from Ex. P-2. 17. Succinctly stated, following circumstances are found to have been proved on record: - (i) Admittedly, the deceased was wife of the accused and they had strained relations. (ii) The accused was suffering from venereal disease which he suspected to have sexually transmitted through his wife. (iii) On 5.8.2001 the accused had gone to his in-laws? house and took his wife with him. (iv) The deceased and the accused were last seen in the mid night (intervening night of 5.8.2001 and 6.8.2001) going together from cinema hall after night show, towards village Ayinavilli. (v) The accused was last seen returning alone from village Ayinavilli, after midnight at about 12.30 a.m., i.e. 0030 hrs. on 6.8.2001. (vi) The dead body of the deceased was recovered next morning on 6.8.2001 from village Ayinavilli. (vii) The deceased had died homicidal death and cause of her death was asphyxia due to strangulation. (viii) It is also established that the accused absconded from the village after the incident. 18. In our opinion, above chain of circumstances is complete and leads only to the conclusion that it was the accused/respondent and he alone, who committed murder of the deceased. The view taken by the High Court that the chain of circumstances is not complete merely for the reason that drunkenness of the accused is not established, and that the accused cannot be said to have got sexually transmitted disease through his wife, is the view based on irrelevant considerations and could not have been taken in the present case after re-appreciating the evidence on record. It is proved on the record by PW-11 Dr. Venkata Reddy that the accused was suffering from balanoposthitis, and PW-1 Jithuka Nagooru and PW-2 Jithuka Veeramma have proved the fact that the accused suspected that it might have been transmitted to him through his wife. What is more important is that in his statement under Section 313 of Code of Criminal Procedure, when above evidence was put to the accused, he has accepted said fact. What he denied is that he did not go to take his wife to her parents? house. He further denied that he did not take her to night show of any movie, nor committed her murder. In the above circumstances, we are of the opinion that in the present case only view possible was the one taken by the trial court. As such, it is a fit case where order of acquittal recorded by the High Court requires interference. Therefore, on the basis of the discussion on evidence, as above, we are of the view that this appeal deserves to be allowed.
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1[ds]The view taken by the High Court that the chain of circumstances is not complete merely for the reason that drunkenness of the accused is not established, and that the accused cannot be said to have got sexually transmitted disease through his wife, is the view based on irrelevant considerations and could not have been taken in the present case after re-appreciating the evidence on record. It is proved on the record by PW-11 Dr. Venkata Reddy that the accused was suffering from balanoposthitis, and PW-1 Jithuka Nagooru and PW-2 Jithuka Veeramma have proved the fact that the accused suspected that it might have been transmitted to him through his wife. What is more important is that in his statement under Section 313 of Code of Criminal Procedure, when above evidence was put to the accused, he has accepted said fact. What he denied is that he did not go to take his wife to her parents? house. He further denied that he did not take her to night show of any movie, nor committed her murder. In the above circumstances, we are of the opinion that in the present case only view possible was the one taken by the trial court. As such, it is a fit case where order of acquittal recorded by the High Court requires interference. Therefore, on the basis of the discussion on evidence, as above, we are of the view that this appeal deserves to be allowed
| 1 | 2,516 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
### Input:
Subbarao, who conducted autopsy on 6.8.2001 and prepared Ex. P-22. Describing the condition of the body at the time of post mortem examination, the Medical Officer has stated that eyes of the deceased were closed, mouth was open with tongue protruding between upper and lower teeth, blood stained froth was coming from both nostrils and mouth. Following ante mortem injuries were noted by the doctor: - (i) Ligature mark completely encircling the neck transverse in direction below the thyroid cartilage. Width of ligature mark 4 to 5 mms. (ii) Abrasions were present over the ligature mark. Scratches due to nails are seen over the ligature on the right side. (iii) Abrasion over the middle third of the right arm of size 3 x 3 cm reddish in colour. On internal examination, the Medical Officer (PW-12) found that echymosis and congestion was seen in subcutaneous tissue under the ligature mark. Hyoid bone was intact. Thyroid cartilage was intact. Larynx, trachea and bronchi were congested and filled with frothy blood stained fluid. Haemorrhages were seen in mocosa of larynx. The Medical Officer opined that the deceased had died due to asphyxia caused by strangulation with ligature. PW-12 Dr. A. Subbarao further stated that death could have been occurred by putting saree (MO-1) around the neck of the deceased by tightening it and by pulling with force. The above medical evidence on record proves that the deceased died a homicidal death and cause of death was asphyxia due to strangulation. 11. As far as relation between the accused and the deceased is concerned, the prosecution evidence on record, as stated by PW-1 and PW-2, is corroborated by the fact that the accused himself has admitted his marriage with the deceased, and his strained relations with her. 12. Apart from the above, it is proved on record that on the date of incident, before midnight, the accused took his wife (deceased) to night show of movie. PW-1 Jithuka Nagooru (father of the deceased) and PW-2 Jithuka Veeramma (mother of the deceased) have stated that a day before the dead body of the deceased was found, the accused had come to their house and took his wife on the pretext that he was taking her to night show cinema. 13. Also it is established from the statement of PW-4 Inje Anjaneyulu that he last saw the deceased with the accused walking towards Ayinavilli (the village where later dead body of the deceased was found). PW-5 Jinipe Venkateswara Rao, who is the gatekeeper of Devi Ganesh Theatre at Mukteswaram, told that he knew both accused and the deceased, and they purchased two tickets for last show at 8.00 p.m. Both of these witnesses have proved the fact that soon before her death the deceased was last seen with the accused. 14. Yet another circumstance against the accused brought on the record by PW-6 Jithuka Vijaya Kumar, who has stated that he saw the accused coming alone after midnight from the side of Ayinavilli and boarding quarry lorry heading to Mummidivaram. 15. Lastly, it is stated on record by the prosecution witnesses that the accused absconded after the incident. 16. The recovery of dead body in the morning of 6.8.2001, is proved not only by PW-1 and PW-2, but also by PW-7 Yalla Satyanarayana, PW-8 Ponakala Satyanarayana Murthy and PW-9 Relangi Sri Veera Venkata Satyanarayana, which gets corroborated from Ex. P-2. 17. Succinctly stated, following circumstances are found to have been proved on record: - (i) Admittedly, the deceased was wife of the accused and they had strained relations. (ii) The accused was suffering from venereal disease which he suspected to have sexually transmitted through his wife. (iii) On 5.8.2001 the accused had gone to his in-laws? house and took his wife with him. (iv) The deceased and the accused were last seen in the mid night (intervening night of 5.8.2001 and 6.8.2001) going together from cinema hall after night show, towards village Ayinavilli. (v) The accused was last seen returning alone from village Ayinavilli, after midnight at about 12.30 a.m., i.e. 0030 hrs. on 6.8.2001. (vi) The dead body of the deceased was recovered next morning on 6.8.2001 from village Ayinavilli. (vii) The deceased had died homicidal death and cause of her death was asphyxia due to strangulation. (viii) It is also established that the accused absconded from the village after the incident. 18. In our opinion, above chain of circumstances is complete and leads only to the conclusion that it was the accused/respondent and he alone, who committed murder of the deceased. The view taken by the High Court that the chain of circumstances is not complete merely for the reason that drunkenness of the accused is not established, and that the accused cannot be said to have got sexually transmitted disease through his wife, is the view based on irrelevant considerations and could not have been taken in the present case after re-appreciating the evidence on record. It is proved on the record by PW-11 Dr. Venkata Reddy that the accused was suffering from balanoposthitis, and PW-1 Jithuka Nagooru and PW-2 Jithuka Veeramma have proved the fact that the accused suspected that it might have been transmitted to him through his wife. What is more important is that in his statement under Section 313 of Code of Criminal Procedure, when above evidence was put to the accused, he has accepted said fact. What he denied is that he did not go to take his wife to her parents? house. He further denied that he did not take her to night show of any movie, nor committed her murder. In the above circumstances, we are of the opinion that in the present case only view possible was the one taken by the trial court. As such, it is a fit case where order of acquittal recorded by the High Court requires interference. Therefore, on the basis of the discussion on evidence, as above, we are of the view that this appeal deserves to be allowed.
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368 |
Babu Manmohan Das Shah & Ors Vs. Bishun Das
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equally conceivably be alterations which are not material alterations but nevertheless would substantially diminish the value of the premises. It seems to us that the legislature intended to provide for both the contingencies and where one or the other exists it was intended to furnish a ground to the landlord to sue his tenant without having to obtain the previous permission of the District Magistrate. The construction of Cl. (c) placed by the High Court is. therefore. not correct. 7. As regards the alterations there is no dispute that the respondent carried them out without the permission of the appellants. The question then is whether they were such that they materially altered the accommodation as provided by C1. (c).Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease. The High Court, however, seems to have relied on Hyman v. Rose, 1912 AC 623, where relief against forfeiture of lease was granted inter alia on the ground that the alterations carried out by the lessee had not done any harm to any one and the reversioner was in no way injured. But the question there was one of interpretation of a covenant contained in the lease and whether the alterations constituted waste. The leased premises were intended originally and were used as a chapel but on the leasehold being sold the assignees made the alterations complained of as they desired to use the premises as a cinema theatre. On these facts and the terms of the lease, the House of Lords held that in view of the fact that the lease did not prohibit the contemplated user of the premises as a cinematograph theatre, the alterations in the circumstances of that case did not constitute any breach of the covenant and since the purchasers of the leasehold had offered as a condition of obtaining relief against forfeiture to deposit a sum of money to secure the restoration of the premises to their original condition at the end of the lease relief ought to be granted on the terms so offered. This decision in our view cannot be of assistance. As an illustration as to what a structural alteration means some assistance can be had from the decision in Wates v. Rowland, ((1952) 2 QB 12), though it was a case of interpretation of S. 2 (1) (a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The Court of Appeal there found that whereas substitution of a tiled floor for a wooden floor which had become rotten owing to rise in the water level in the land fell within the description of repairs" within the meaning of S. 2 (1) (a), the laying of the additional concrete bed provided the house with a better substratum than it had before and was an improvement or a structural alteration of the house within the meaning of the said Section. Similarly in Bickmore v. Dimmer, 1903-1 Ch 158, Lord Cozens-Hardy, L. J. construing a covenant against alterations in a lease, made a distinction between alterations intended for the proper user of lease premises and material alterations observing that some limitation must be put on the word "alteration" in such a covenant and that it could not be applied to a change in the wall paper of a room or to the putting up of a gas-bracket, or the fixing of an electric bell, though in fixing it some holes might have to be made in the wall and that the covenant should be limited to something which alters the form or structure of the building. 8. Lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises. In this view the construction carried out by the respondent must fall within the mischief of Cl. (c) and entitles the appellants to maintain their suit for eviction without the permission of the District Magistrate and to a decree for eviction. Both the contentions urged by Mr. Desai must therefore fail. 9. In our view, the High Court was in error in allowing the appeal of the respondent only on the ground that the said alterations did not appear to have caused any harm to the premises or that there was no such finding by either of the two Courts below. The basis of the High Courts judgment was on the interpretation which it sought to put on Cl. (c), an interpretation commended by Mr. Desai for our acceptance. As already stated, even if the alterations did not cause any damage to the premises or did not substantially diminish their value they were material alterations and on that basis alone the appellants were entitled to evict the respondent.
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1[ds]6. In our view Cl. (c) of S. 3 (1) cannot bear the construction suggested by Mr. Desai. The clause is couched in simple and unambiguous language and in its plain meaning provides that it would be a good ground enabling a landlord to sue for eviction without the permission of the District Magistrate if the tenant has made or has permitted to be made without the landlords consent in writing such construction which materially alters the accommodation or is likely substantially to diminish its value. The language of the clause makes it clear that the legislature wanted to lay down two alternatives which would furnish a ground to the landlord to sue without the District Magistrates permission, that is, where the tenant has made such construction which would materially alter the accommodation or which would be likely to substantially diminish its value. The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as where a literal construction would reduce the provision to absurdity or prevent the manifest intention of the legislature from being carried out. There is no reason why the word "or" should be construed otherwise than in its ordinary meaning. If the construction suggested by Mr. Desai were to be accepted and the word "or" were to be construed as meaning "and" it would mean that the construction should not only be such as materially alters the accommodation but is also such that it would substantially diminish its value. Such an interpretation is not warranted for the simple reason that there may conceivably be material alterations which do not, however diminish the value of the accommodation and on the other hand there may equally conceivably be alterations which are not material alterations but nevertheless would substantially diminish the value of the premises. It seems to us that the legislature intended to provide for both the contingencies and where one or the other exists it was intended to furnish a ground to the landlord to sue his tenant without having to obtain the previous permission of the District Magistrate. The construction of Cl. (c) placed by the High Court is. therefore. not correct7. As regards the alterations there is no dispute that the respondent carried them out without the permission of the appellants. The question then is whether they were such that they materially altered the accommodation as provided by C1. (c).Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease. The High Court, however, seems to have relied on Hymanv. Rose, 1912 AC623, where relief against forfeiture of lease was granted inter alia on the ground that the alterations carried out by the lessee had not done any harm to any one and the reversioner was in no way injured. But the question there was one of interpretation of a covenant contained in the lease and whether the alterations constituted waste. The leased premises were intended originally and were used as a chapel but on the leasehold being sold the assignees made the alterations complained of as they desired to use the premises as a cinema theatre. On these facts and the terms of the lease, the House of Lords held that in view of the fact that the lease did not prohibit the contemplated user of the premises as a cinematograph theatre, the alterations in the circumstances of that case did not constitute any breach of the covenant and since the purchasers of the leasehold had offered as a condition of obtaining relief against forfeiture to deposit a sum of money to secure the restoration of the premises to their original condition at the end of the lease relief ought to be granted on the terms so offered. This decision in our view cannot be of assistance. As an illustration as to what a structural alteration means some assistance can be had from the decision ins v. Rowland, ((1952) 2 QB12), though it was a case of interpretation of S. 2 (1) (a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The Court of Appeal there found that whereas substitution of a tiled floor for a wooden floor which had become rotten owing to rise in the water level in the land fell within the description of repairs" within the meaning of S. 2 (1) (a), the laying of the additional concrete bed provided the house with a better substratum than it had before and was an improvement or a structural alteration of the house within the meaning of the said Section. Similarly ine v. Dimmer, 1903-1 Ch158, Lord Cozens-Hardy, L. J. construing a covenant against alterations in a lease, made a distinction between alterations intended for the proper user of lease premises and material alterations observing that some limitation must be put on the word "alteration" in such a covenant and that it could not be applied to a change in the wall paper of a room or to the putting up of a gas-bracket, or the fixing of an electric bell, though in fixing it some holes might have to be made in the wall and that the covenant should be limited to something which alters the form or structure of the building8. Lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises. In this view the construction carried out by the respondent must fall within the mischief of Cl. (c) and entitles the appellants to maintain their suit for eviction without the permission of the District Magistrate and to a decree for eviction. Both the contentions urged by Mr. Desai must therefore fail9. In our view, the High Court was in error in allowing the appeal of the respondent only on the ground that the said alterations did not appear to have caused any harm to the premises or that there was no such finding by either of the two Courts below. The basis of the High Courts judgment was on the interpretation which it sought to put on Cl. (c), an interpretation commended by Mr. Desai for our acceptance. As already stated, even if the alterations did not cause any damage to the premises or did not substantially diminish their value they were material alterations and on that basis alone the appellants were entitled to evict the respondent.
| 1 | 2,564 |
### Instruction:
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### Input:
equally conceivably be alterations which are not material alterations but nevertheless would substantially diminish the value of the premises. It seems to us that the legislature intended to provide for both the contingencies and where one or the other exists it was intended to furnish a ground to the landlord to sue his tenant without having to obtain the previous permission of the District Magistrate. The construction of Cl. (c) placed by the High Court is. therefore. not correct. 7. As regards the alterations there is no dispute that the respondent carried them out without the permission of the appellants. The question then is whether they were such that they materially altered the accommodation as provided by C1. (c).Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the form and structure of the accommodation. The expression material alterations" in its ordinary meaning would mean important alterations, such as those which materially or substantially change the front or the structure of the premises. It may be that such alterations in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of the lease. The High Court, however, seems to have relied on Hyman v. Rose, 1912 AC 623, where relief against forfeiture of lease was granted inter alia on the ground that the alterations carried out by the lessee had not done any harm to any one and the reversioner was in no way injured. But the question there was one of interpretation of a covenant contained in the lease and whether the alterations constituted waste. The leased premises were intended originally and were used as a chapel but on the leasehold being sold the assignees made the alterations complained of as they desired to use the premises as a cinema theatre. On these facts and the terms of the lease, the House of Lords held that in view of the fact that the lease did not prohibit the contemplated user of the premises as a cinematograph theatre, the alterations in the circumstances of that case did not constitute any breach of the covenant and since the purchasers of the leasehold had offered as a condition of obtaining relief against forfeiture to deposit a sum of money to secure the restoration of the premises to their original condition at the end of the lease relief ought to be granted on the terms so offered. This decision in our view cannot be of assistance. As an illustration as to what a structural alteration means some assistance can be had from the decision in Wates v. Rowland, ((1952) 2 QB 12), though it was a case of interpretation of S. 2 (1) (a) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The Court of Appeal there found that whereas substitution of a tiled floor for a wooden floor which had become rotten owing to rise in the water level in the land fell within the description of repairs" within the meaning of S. 2 (1) (a), the laying of the additional concrete bed provided the house with a better substratum than it had before and was an improvement or a structural alteration of the house within the meaning of the said Section. Similarly in Bickmore v. Dimmer, 1903-1 Ch 158, Lord Cozens-Hardy, L. J. construing a covenant against alterations in a lease, made a distinction between alterations intended for the proper user of lease premises and material alterations observing that some limitation must be put on the word "alteration" in such a covenant and that it could not be applied to a change in the wall paper of a room or to the putting up of a gas-bracket, or the fixing of an electric bell, though in fixing it some holes might have to be made in the wall and that the covenant should be limited to something which alters the form or structure of the building. 8. Lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises. In this view the construction carried out by the respondent must fall within the mischief of Cl. (c) and entitles the appellants to maintain their suit for eviction without the permission of the District Magistrate and to a decree for eviction. Both the contentions urged by Mr. Desai must therefore fail. 9. In our view, the High Court was in error in allowing the appeal of the respondent only on the ground that the said alterations did not appear to have caused any harm to the premises or that there was no such finding by either of the two Courts below. The basis of the High Courts judgment was on the interpretation which it sought to put on Cl. (c), an interpretation commended by Mr. Desai for our acceptance. As already stated, even if the alterations did not cause any damage to the premises or did not substantially diminish their value they were material alterations and on that basis alone the appellants were entitled to evict the respondent.
### Response:
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369 |
Hindustan Steelworks Construction Limited Vs. C. Rajasekhar Rao
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of inference and argument it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion. The law on this point is well settled. The Judicial Committee in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. (LR (1922-23) 50 IA 324) clarified that an error of law on the fact of the award means, that one could find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons that for his judgment, some legal proposition which is the basis of the award and which one could then say was erroneous. It did not mean that if in a narrative a reference was made to a contention of one party, that opened the door to seeing first what that contention was, and then going to the contract on which the parties rights depended to see if that contention was sound. It has been further reiterated by this Court in the aforesaid decision relying on Champsey Bhara and Company (LR (1922-23) 50 IA 324), that in dealing with an application to set aside an award the court had not to consider whether the view of the arbitrator on the evidence was justified. The arbitrators adjudication was generally considered binding between the parts, for he was the tribunal selected by the parties and the power of the court to set aside the award was restricted to cases set out in Section 30 of the Arbitration Act. It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. It is not open to the court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award. In this case this is not a speaking award. The learned Umpire has not spoken his mind indicating why he has done what he has done; he has narrated only how he came to make the award. 4. Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted as under. The respondent demurs, to this and its officers have denied having received them in their affidavits and in their oral testimony. No officer of the post office from which the letter was sent by registered post or of the post office through which delivery of that registered letter was effected to the addressee has been summoned to establish that these letters did not emanate from their post offices or that the post office seals affixed on the "certificates of posting" and "postal acknowledgments" were not of those post offices which delivered them to HSCL or that they were forged or fraudulent, nor was anything produced to show that these were not posted or registered from the post offices from which they emanated. 5. Counsel further drew our attention to the statement at page 33 of the award about the losses. Mr. Markandeya contended that these were the reasons given by the learned Umpire. We are unable to accept. What the learned Umpire did not the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings. The Umpire in the operative part of the award observed as under. Whereas I perused and considered the entire record with great care including the record of affidavits, the oral evidence tendered before me, the statement of claim dated October 12, 1983; the counter-statement dated October 27/31, 1983 and the rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narratedI, P. Jaganmohan Reddy, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudicate the dispute between the parties in the claims and counter-claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning the Glass Factory and the contention of the claimant and the respondent in respect of the said claims and counter-claims: "(1) I do hereby make any award, order and direct that the respondent do pay to the claimant a sum of Rs. 31, 740.30, (Rupees thirty-one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the claimant-contractor against the respondent with interest at the rate of six per cent per annum from the date of award.(2) I further award and direct that the counter-claims made by the respondent do stand dismissed.(3) I further award and direct that the parties do bear their respective costs incidental to these proceedings.(4) I further direct that the amounts paid by the parties towards the hearing fees etc., from time to time in respect of the several hearings of these arbitration proceedings and the amount in deposit be appropriated and has/have accordingly been appropriated towards the remuneration of the Umpire." 6. Therefore, in his award as a whole no reasons have been given for the purpose of making the award. In other words, it is not a speaking award at all. The award did not speak as to why the Umpire has awarded as he did. I does not speak the mind of the Umpire. It mentions the events leading to the making of the award. In the award, there is no legal proposition which is unsustainable or improper. In that view of the matter the challenge to the award cannot be accepted.
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0[ds]In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur and had all along been willing to extend time, this will be a fit case, in our opinion, for the extension of time. We accordingly extend the time for giving the award and the award will be deemed to have been given in time. In this case, it appears that under Section 28 and in the light of Section 3 of the First Schedule the parties are allowed to extend the time.Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted asrespondent demurs, to this and its officers have denied having received them in their affidavits and in their oral testimony. No officer of the post office from which the letter was sent by registered post or of the post office through which delivery of that registered letter was effected to the addressee has been summoned to establish that these letters did not emanate from their post offices or that the post office seals affixed on the "certificates of posting" and "postal acknowledgments" were not of those post offices which delivered them to HSCL or that they were forged or fraudulent, nor was anything produced to show that these were not posted or registered from the post offices from which theyCounsel further drew our attention to the statement at page 33 of the award about the losses. Mr. Markandeya contended that these were the reasons given by the learned Umpire. We are unable to accept. What the learned Umpire did not the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings. The Umpire in the operative part of the award observed asI perused and considered the entire record with great care including the record of affidavits, the oral evidence tendered before me, the statement of claim dated October 12, 1983; the counter-statement dated October 27/31, 1983 and the rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narratedI, P. Jaganmohan Reddy, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudicate the dispute between the parties in the claims and counter-claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning the Glass Factory and the contention of the claimant and the respondent in respect of the said claims andI do hereby make any award, order and direct that the respondent do pay to the claimant a sum of Rs. 31, 740.30, (Rupees thirty-one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the claimant-contractor against the respondent with interest at the rate of six per cent per annum from the date ofI further award and direct that the counter-claims made by the respondent do standI further award and direct that the parties do bear their respective costs incidental to theseI further direct that the amounts paid by the parties towards the hearing fees etc., from time to time in respect of the several hearings of these arbitration proceedings and the amount in deposit be appropriated and has/have accordingly been appropriated towards the remuneration of theTherefore, in his award as a whole no reasons have been given for the purpose of making the award. In other words, it is not a speaking award at all. The award did not speak as to why the Umpire has awarded as he did. I does not speak the mind of the Umpire. It mentions the events leading to the making of the award. In the award, there is no legal proposition which is unsustainable or improper. In that view of the matter the challenge to the award cannot be accepted
| 0 | 2,245 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
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of inference and argument it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion. The law on this point is well settled. The Judicial Committee in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. (LR (1922-23) 50 IA 324) clarified that an error of law on the fact of the award means, that one could find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating the reasons that for his judgment, some legal proposition which is the basis of the award and which one could then say was erroneous. It did not mean that if in a narrative a reference was made to a contention of one party, that opened the door to seeing first what that contention was, and then going to the contract on which the parties rights depended to see if that contention was sound. It has been further reiterated by this Court in the aforesaid decision relying on Champsey Bhara and Company (LR (1922-23) 50 IA 324), that in dealing with an application to set aside an award the court had not to consider whether the view of the arbitrator on the evidence was justified. The arbitrators adjudication was generally considered binding between the parts, for he was the tribunal selected by the parties and the power of the court to set aside the award was restricted to cases set out in Section 30 of the Arbitration Act. It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. It is not open to the court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award. In this case this is not a speaking award. The learned Umpire has not spoken his mind indicating why he has done what he has done; he has narrated only how he came to make the award. 4. Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted as under. The respondent demurs, to this and its officers have denied having received them in their affidavits and in their oral testimony. No officer of the post office from which the letter was sent by registered post or of the post office through which delivery of that registered letter was effected to the addressee has been summoned to establish that these letters did not emanate from their post offices or that the post office seals affixed on the "certificates of posting" and "postal acknowledgments" were not of those post offices which delivered them to HSCL or that they were forged or fraudulent, nor was anything produced to show that these were not posted or registered from the post offices from which they emanated. 5. Counsel further drew our attention to the statement at page 33 of the award about the losses. Mr. Markandeya contended that these were the reasons given by the learned Umpire. We are unable to accept. What the learned Umpire did not the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings. The Umpire in the operative part of the award observed as under. Whereas I perused and considered the entire record with great care including the record of affidavits, the oral evidence tendered before me, the statement of claim dated October 12, 1983; the counter-statement dated October 27/31, 1983 and the rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narratedI, P. Jaganmohan Reddy, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudicate the dispute between the parties in the claims and counter-claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning the Glass Factory and the contention of the claimant and the respondent in respect of the said claims and counter-claims: "(1) I do hereby make any award, order and direct that the respondent do pay to the claimant a sum of Rs. 31, 740.30, (Rupees thirty-one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the claimant-contractor against the respondent with interest at the rate of six per cent per annum from the date of award.(2) I further award and direct that the counter-claims made by the respondent do stand dismissed.(3) I further award and direct that the parties do bear their respective costs incidental to these proceedings.(4) I further direct that the amounts paid by the parties towards the hearing fees etc., from time to time in respect of the several hearings of these arbitration proceedings and the amount in deposit be appropriated and has/have accordingly been appropriated towards the remuneration of the Umpire." 6. Therefore, in his award as a whole no reasons have been given for the purpose of making the award. In other words, it is not a speaking award at all. The award did not speak as to why the Umpire has awarded as he did. I does not speak the mind of the Umpire. It mentions the events leading to the making of the award. In the award, there is no legal proposition which is unsustainable or improper. In that view of the matter the challenge to the award cannot be accepted.
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370 |
NARESHBHAI BHAGUBHAI Vs. UNION OF INDIA
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reply given vide letter dated 15.07.2011 does not indicate the decision/order/pre-determination of the Competent Authority. The Competent Authority had informed the objectors to remain present with all material documents at the time of personal hearing, the date of which would be notified later. At the time of arguments before this Court, it was sought to be contended by the Additional Solicitor General for the Union of India that the letter dated 15.07.2011 was an order passed under Section 20D(2) of the Act. We find that the stand taken by the Respondents before the High Court and this Court is completely contradictory, and does not commend acceptance. 11.5. In any event, the order under Section 20D(2) cannot be passed prior to the personal hearing. The mandate of the law is that the order must be passed after the grant of personal hearing, and after any further enquiry is made by the Competent Authority. The whole process of granting a personal hearing would be reduced to an empty formality and a farcical exercise, if the order on the objections precedes the grant of personal hearing. This would be clearly contrary to the provisions of Section 20D(2) of the Act. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.(Nazir Ahmad v. King Emperor, (1875) LR 1 Ch D 426 followed in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 ; State of U.P. v. Singhara Singh, AIR 1964 SC 358 ; J&K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714 ; Kunwar Pal Singh v. State of U.P., (2007) 5 SCC 85. ) The provisions of an expropriatory legislation, which compulsorily deprives a person of his right to property without his consent, must be strictly construed. (Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596; See also Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 ; CCE v. Orient Fabrics (P) Ltd., (2004) 1 SCC 597.) The Railways Act, 1989 being an expropriatory legislation, its provisions have to be strictly construed. (Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 ) 11.6. The Competent Authority being a quasi-judicial authority, is obligated by law to act in conformity with mandatory statutory provisions. It is important to note that this is the only opportunity made available to a land-owner, as on submission of the Report to the Central Government, there is no further consideration that takes place. The Central Government acts upon the Report of the Competent Authority, and issues the Declaration under Section 20E of the said Act. This is in contradistinction with the provisions of the Land Acquisition Act, 1894. Section 6 of the Land Acquisition Act requires the satisfaction of Central Government before the Declaration is issued. 11.7. In the absence of an order passed under Section 20D(2), the subsequent steps taken in the acquisition would consequentially get invalidated. 12. The issue which remains to be decided is that in the absence of an order passed on the objections under Section 20D, should the consequential steps be invalidated. We find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that pre-construction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completed. The Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of land. Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat. In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action. In Savitri Devi v. State of U.P. & Ors., (2015) 7 SCC 21. this Court held that: Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the land owners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (supra) came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the land owners in the form of compensation as well as allotment of developed Abadi land at a higher rate i.e. 10% of the land acquired of each of the land owners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively. (emphasis supplied)
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1[ds]9.2. The statute has mandated a strict procedure to be followed under Section 20D with respect to the submission and hearing of objections. The statute mandates that the order is required to be passed by the Competent Authority after hearing the land-owners. The order cannot precede the hearing of objections. If an order is passed prior to the personal hearing, and enquiry by the Competent Authority, it would be contrary to the statute, invalid, and vitiated by a pre-determined disposition10. In the present case, it is the admitted position that after the personal hearing took place on 30.07.2011, no decision was passed on the objections submitted by the land-owners, either allowing or disallowing their objections; nor was any communication sent to themThis is confirmed by the Affidavit of the Competent Authority dated 18.07.2018 filed before the High Court (pgs. 296 – 301, Volume II),10.1. It is abundantly clear that in the absence of an order being passed as contemplated by Section 20D of the said Act, no further steps could have been taken by the Competent Authority in the acquisition in question10.2. During the hearing of the Special Civil Applications, the High Court called for the office files of the Respondent. On a perusal of the files, the Court chanced upon a hand-written note sent by the Competent Authority to the Chief Project Manager, Dedicated Freight Corridor Corporation of India Limited, which is set out hereinbelow :Finally after due consideration and taking in to view the nationwide infrastructure, long lifetime permanent utility and hence public utility is greater than that of person, all the 59 objection were disallowed by order by the undersigned and their applications for objection were filed at this endThe file noting in the office files of the Competent Authority cannot be considered to be an order on the objections11. Section 20D is a mandatory provision which confers a substantive and valuable right on the land-owners, to object to the proposed acquisition, before they are forcibly divested of their right, title and interest in the land by an expropriatory legislationThe right to file objections under Section 20D of the Railways Act, 1989 is pari materia to Section 5-A of the Land Acquisition Act, 1894 even though the scope of objections may be more limitedThe judgments rendered by this Court on the nature of the right to object under the Land Acquisition Act, 1894 are equally applicable to the Railways ActSub-section (2) of Section 20D mandates the Competent Authority to give the objectors an opportunity of hearing, either in person or through a legal practitionerThe Competent Authority after hearing all objections, and after making such further enquiry, if any, is mandated to pass an order either allowing or disallowing the objections11.1. The limited right given to a land-owner/interested person to file objections, and be granted a personal hearing under Section 20D cannot be reduced to an empty formality, or a mere eye-wash by the Competent Authority. The Competent Authority was duty-bound to consider the objections raised by the Appellants, andpass a reasoned order, which should reflect application of mind to the objections raised by the land-owners. In the present case, there has been a complete dereliction of duty by the Competent Authority in passing a reasoned order on the objections raised by the Appellants11.2. In the present case, it is the undisputed position that no order as contemplated in the eyes of law was passed by the Competent Authority in deciding the objections raised by the AppellantsA statutory authority discharging a quasi-judicial function is required to pass a reasoned order after due application of mind11.3. File Notings and lack of Communication It is settled law that a valid order must be a reasoned order, which is duly communicated to the parties. The file noting contained in an internal office file, or in the report submitted by the Competent Authority to the Central Government, would not constitute a valid order in the eyes of lawIn the present case, there was no order whatsoever passed rejecting the objections, after the personal hearing was concluded on 30.07.2011It is important to note that the Competent Authority did not communicate the contents of the file noting to the Appellants at any stage of the proceedings. The said file noting came to light when the matter was pending before the High Court, and the original files were summonedThe High Court, upon a perusal of the files, came across the file noting recording rejection of the objections only on the ground that the matter pertained to an infrastructure project for public utility11.4. Contradictory Stand taken by the RespondentsThe mandate of the law is that the order on the objections is required to be passed by the Competent Authority after the personal hearing is grantedThe Respondents had filed an Affidavit dated 17.07.2018 before the High Court wherein it was stated that the reply given vide letter dated 15.07.2011 does not indicate the decision/order/pre-determination of the Competent Authority. The Competent Authority had informed the objectors to remain present with all material documents at the time of personal hearing, the date of which would be notified laterAt the time of arguments before this Court, it was sought to be contended by the Additional Solicitor General for the Union of India that the letter dated 15.07.2011 was an order passed under Section 20D(2) of the ActWe find that the stand taken by the Respondents before the High Court and this Court is completely contradictory, and does not commend acceptance11.5. In any event, the order under Section 20D(2) cannot be passed prior to the personal hearing. The mandate of the law is that the order must be passed after the grant of personal hearing, and after any further enquiry is made by the Competent AuthorityThe whole process of granting a personal hearing would be reduced to an empty formality and a farcical exercise, if the order on the objections precedes the grant of personal hearing. This would be clearly contrary to the provisions of Section 20D(2) of the ActIt is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.(Nazir Ahmad v. King Emperor, (1875) LR 1 Ch D 426 followed in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 ; State of U.P. v. Singhara Singh, AIR 1964 SC 358 ; J&K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714 ; Kunwar Pal Singh v. State of U.P., (2007) 5 SCC 85. )The provisions of an expropriatory legislation, which compulsorily deprives a person of his right to property without his consent, must be strictly construed. (Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596; See also Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 ; CCE v. Orient Fabrics (P) Ltd., (2004) 1 SCC 597.) The Railways Act, 1989 being an expropriatory legislation, its provisions have to be strictly construed. (Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 )11.6. The Competent Authority being a quasi-judicial authority, is obligated by law to act in conformity with mandatory statutory provisions. It is important to note that this is the only opportunity made available to a land-owner, as on submission of the Report to the Central Government, there is no further consideration that takes place. The Central Government acts upon the Report of the Competent Authority, and issues the Declaration under Section 20E of the said ActThis is in contradistinction with the provisions of the Land Acquisition Act, 1894. Section 6 of the Land Acquisition Act requires the satisfaction of Central Government before the Declaration is issued11.7. In the absence of an order passed under Section 20D(2), the subsequent steps taken in the acquisition would consequentially get invalidatedWe find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that pre-construction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completedThe Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of landAdmittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, GujaratIn these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of actionThe file noting in the office files of the Competent Authority cannot be considered to be an order on the objections11. Section 20D is a mandatory provision which confers a substantive and valuable right on the land-owners, to object to the proposed acquisition, before they are forcibly divested of their right, title and interest in the land by an expropriatory legislationThe right to file objections under Section 20D of the Railways Act, 1989 is pari materia to Section 5-A of the Land Acquisition Act, 1894 even though the scope of objections may be more limitedThe judgments rendered by this Court on the nature of the right to object under the Land Acquisition Act, 1894 are equally applicable to the Railways ActSub-section (2) of Section 20D mandates the Competent Authority to give the objectors an opportunity of hearing, either in person or through a legal practitionerThe Competent Authority after hearing all objections, and after making such further enquiry, if any, is mandated to pass an order either allowing or disallowing the objections11.1. The limited right given to a land-owner/interested person to file objections, and be granted a personal hearing under Section 20D cannot be reduced to an empty formality, or a mere eye-wash by the Competent Authority. The Competent Authority was duty-bound to consider the objections raised by the Appellants, andpass a reasoned order, which should reflect application of mind to the objections raised by the land-owners. In the present case, there has been a complete dereliction of duty by the Competent Authority in passing a reasoned order on the objections raised by the Appellants11.2. In the present case, it is the undisputed position that no order as contemplated in the eyes of law was passed by the Competent Authority in deciding the objections raised by the AppellantsA statutory authority discharging a quasi-judicial function is required to pass a reasoned order after due application of
| 1 | 9,482 |
### Instruction:
Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)?
### Input:
reply given vide letter dated 15.07.2011 does not indicate the decision/order/pre-determination of the Competent Authority. The Competent Authority had informed the objectors to remain present with all material documents at the time of personal hearing, the date of which would be notified later. At the time of arguments before this Court, it was sought to be contended by the Additional Solicitor General for the Union of India that the letter dated 15.07.2011 was an order passed under Section 20D(2) of the Act. We find that the stand taken by the Respondents before the High Court and this Court is completely contradictory, and does not commend acceptance. 11.5. In any event, the order under Section 20D(2) cannot be passed prior to the personal hearing. The mandate of the law is that the order must be passed after the grant of personal hearing, and after any further enquiry is made by the Competent Authority. The whole process of granting a personal hearing would be reduced to an empty formality and a farcical exercise, if the order on the objections precedes the grant of personal hearing. This would be clearly contrary to the provisions of Section 20D(2) of the Act. It is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner.(Nazir Ahmad v. King Emperor, (1875) LR 1 Ch D 426 followed in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 ; State of U.P. v. Singhara Singh, AIR 1964 SC 358 ; J&K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10 SCC 714 ; Kunwar Pal Singh v. State of U.P., (2007) 5 SCC 85. ) The provisions of an expropriatory legislation, which compulsorily deprives a person of his right to property without his consent, must be strictly construed. (Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596; See also Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 ; CCE v. Orient Fabrics (P) Ltd., (2004) 1 SCC 597.) The Railways Act, 1989 being an expropriatory legislation, its provisions have to be strictly construed. (Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 ) 11.6. The Competent Authority being a quasi-judicial authority, is obligated by law to act in conformity with mandatory statutory provisions. It is important to note that this is the only opportunity made available to a land-owner, as on submission of the Report to the Central Government, there is no further consideration that takes place. The Central Government acts upon the Report of the Competent Authority, and issues the Declaration under Section 20E of the said Act. This is in contradistinction with the provisions of the Land Acquisition Act, 1894. Section 6 of the Land Acquisition Act requires the satisfaction of Central Government before the Declaration is issued. 11.7. In the absence of an order passed under Section 20D(2), the subsequent steps taken in the acquisition would consequentially get invalidated. 12. The issue which remains to be decided is that in the absence of an order passed on the objections under Section 20D, should the consequential steps be invalidated. We find that the challenge before this Court has been made by the Appellants with respect to a stretch of land admeasuring approximately 6 kms, out of the total stretch of 131 kms. The remaining stretch of land comprising of 125 kms has been acquired, and stands vested in the Government. The Respondents have stated on Affidavit that pre-construction activity and earth work has been completed on most parts of the stretch. Furthermore, most of the bridges are either in progress, or have already been completed. The Senior Counsel representing the Appellants in all the present Civil Appeals, after taking instructions from his clients, submitted that since the land was being acquired for a public utility project, his clients would be satisfied if they were granted compensation by awarding the current rate for acquisition of land. Admittedly, no mala fides have been alleged by the Appellants against the Respondents in the acquisition proceedings. The larger public purpose of a railway project would not be served if the Notification under Section 20A is quashed. The public purpose of the acquisition is the construction and operation of a Special Railway Project viz. the Western Dedicated Freight Corridor in District Surat, Gujarat. In these extraordinary circumstances, we deem it fit to balance the right of the Appellants on the one hand, and the larger public purpose on the other, by compensating the Appellants for the right they have been deprived of. The interests of justice persuade us to adopt this course of action. In Savitri Devi v. State of U.P. & Ors., (2015) 7 SCC 21. this Court held that: Thus, we have a scenario where, on the one hand, invocation of urgency provisions under Section 17 of the Act and dispensing with the right to file objection under Section 5A of the Act, is found to be illegal. On the other hand, we have a situation where because of delay in challenging these acquisitions by the land owners, developments have taken in these villages and in most of the cases, third party rights have been created. Faced with this situation, the High Court going by the spirit behind the judgment of this Court in Bondu Ramaswamy and Others (supra) came out with the solution which is equitable to both sides. We are, thus, of the view that the High Court considered the ground realities of the matter and arrived at a more practical and workable solution by adequately compensating the land owners in the form of compensation as well as allotment of developed Abadi land at a higher rate i.e. 10% of the land acquired of each of the land owners against the eligibility and to the policy to the extent of 5% and 6% of Noida and Greater Noida land respectively. (emphasis supplied)
### Response:
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371 |
Collector of Central Excise Vs. Voltas Limited
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as fans. The company also pointed out that the motor and impeller are nothing but integral components of air-conditioners and water coolers and have no independent mounting or speed regulators. The Central Government by order dated September 26, 1980 held that functionally as well as structurally, the impeller motor assembly used by the company in air-conditioners and water coolers are appropriately classifiable as electric fans and chargeable to duty under sub-item (3) of Tariff Item No. 33. To arrive at this conclusion, the Government relied upon the definition in Chapter 84. 11 of the Brussels Tariff Nomenclature. The Government felt that the term "electric fans" would signify that it should (a) perform the function of an electric fan and (b) work through electricity and as these two requirements are satisfied, the company is liable to pay duty.( 5 ) THE decision recorded by the Government was challenged by the company by filing Writ petition No. 261 of 1981 and the learned single Judge by the impugned judgment set aside the conclusion of the Central Government and restored that of the Appellate Collector. The learned judge felt that the reliance on Brussels Tariff Nomenclature by the Central Government was inaccurate as the Central Government failed to notice the contents of Chapter 84. 12 as well as misread the contents of Chapter 84. 11 (c). The learned Judge found that the impeller motor assembly is not an electric fan. The decision of the single Judge is under challenge. Mr. Desai, learned counsel appearing on behalf of the department, submitted that the learned single Judge was in error in disturbing the decision recorded by the Central Government in exercise of powers under Article 226 of the Constitution. The learned counsel also urged that it was not proper to rely upon the definitions in the Brussels Tariff Nomenclature as those definitions do not provide for a safe guide to determine whether the item is liable to duty under central Excise Tariff. Mr. Desai submitted that it was incumbent upon the learned Judge to examine the function and utility of the item and uphold the order of the Central Government. ( 6 ) IT is impossible to find any merit in any of the contentions raised by the learned counsel for the department. It is now well-settled by catena of decisions of the Supreme Court that the definitions set out in Brussels Tariff Nomenclature cannot be relied upon to hold as to whether the item attracts duty under Central Excise Tariff. A reference can be usefully made to the decision in Atul Glass v. Collector, reported in 1986 (25) E. L. T. 473. Mr. Desai is right in his submission that the definition either in Chapter 84. 11 or Chapter 84. 12 of the Brussels Tariff nomenclature cannot determine the issue as to the liability of the company to pay the duty. The difficulty in the way of Mr. Desai is that the Government while exercising power under Section 36 (2) of the Act has merely relied upon the definition in Chapter 84. 11 of the Brussels Tariff nomenclature. The learned single Judge was right in observing that the Government misread the definition in the Nomenclature. The definition clearly sets out that the heading fans and blowers excludes fans and blowers fitted with elements additional to their motors or housing, if such elements give them the characteristics of more complex machines falling within other heading i. e. air heaters not electrically heated, air-conditioners, dust extractors, etc. The Government merely relied upon a part of the definition and ignored the relevant one. The learned Judge is also right in concluding that the definition under Chapter 84. 12 supports the claim of the company. Once the definition given in the Brussels Tariff Nomenclature is ignored, as rightly claimed by Mr. Desai for the department, then there is no material whatsoever to record a finding that the impellers and motors assembly can attract duty under Tariff Item No. 33. The Appellate collector very rightly observed that the impellers and motors are fitted with other components like base pan, condensor coil, evaporator coil, compressor, piping for connecting base pan, condensor coil, etc., and the impellers lose their identity after such assembly and can never attract duty under Tariff Item No. 33. The Appellate Collector also noticed that the fan and motor combination have not their own mounting system, but are mounted in special brackets components forming part and parcel therein. Further, the switching of the fans as well as the speed control does not form part of the fan assembly, but is remotely located as part of the control console. The impellers and motors cannot be used as electrical fans because they do not have a base to stand on. The functions of the impeller and motor when mounted into air-conditioners are quite different from the electric fans. These findings of fact recorded by the appellate Collector are not disturbed by the Central Government while reviewing the decision. In addition to this aspect, the company claimed that motor and impeller assembly is not known as fans in commercial parlance and even that assertion was not controverted by the Central government. The claim of the company that the motors and impellers form integral components of air-conditioners and water coolers is also not challenged. In these circumstances, it is difficult to appreciate on what basis the Government could have disturbed the order of the Appellate collector. In our judgment, the Government was clearly in error in setting at naught the order of the Appellate Collector in exercise of review jurisdiction and more so when there was no material whatsoever to warrant such action. In our judgment, the learned single Judge was perfectly justified in disturbing the order passed by the Central Government. Mr. Desai was unable to point out any material in support of the claim that the integral parts of the air-conditioners or water coolers can be described as electric fans with regulators as provided by tariff Item No. 33.
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0[ds]( 6 ) IT is impossible to find any merit in any of the contentions raised by the learned counsel for the department. It is nowby catena of decisions of the Supreme Court that the definitions set out in Brussels Tariff Nomenclature cannot be relied upon to hold as to whether the item attracts duty under Central Excise Tariff. A reference can be usefully made to the decision in Atul Glass v. Collector, reported in 1986 (25) E. L. T. 473. Mr. Desai is right in his submission that the definition either in Chapter 84. 11 or Chapter 84. 12 of the Brussels Tariff nomenclature cannot determine the issue as to the liability of the company to pay the duty. The difficulty in the way of Mr. Desai is that the Government while exercising power under Section 36 (2) of the Act has merely relied upon the definition in Chapter 84. 11 of the Brussels Tariff nomenclature. The learned single Judge was right in observing that the Government misread the definition in the Nomenclature. The definition clearly sets out that the heading fans and blowers excludes fans and blowers fitted with elements additional to their motors or housing, if such elements give them the characteristics of more complex machines falling within other heading i. e. air heaters not electrically heated,dust extractors, etc. The Government merely relied upon a part of the definition and ignored the relevant one. The learned Judge is also right in concluding that the definition under Chapter 84. 12 supports the claim of the company. Once the definition given in the Brussels Tariff Nomenclature is ignored, as rightly claimed by Mr. Desai for the department, then there is no material whatsoever to record a finding that the impellers and motors assembly can attract duty under Tariff Item No. 33. The Appellate collector very rightly observed that the impellers and motors are fitted with other components like base pan, condensor coil, evaporator coil, compressor, piping for connecting base pan, condensor coil, etc., and the impellers lose their identity after such assembly and can never attract duty under Tariff Item No. 33. The Appellate Collector also noticed that the fan and motor combination have not their own mounting system, but are mounted in special brackets components forming part and parcel therein. Further, the switching of the fans as well as the speed control does not form part of the fan assembly, but is remotely located as part of the control console. The impellers and motors cannot be used as electrical fans because they do not have a base to stand on. The functions of the impeller and motor when mounted intoare quite different from the electric fans. These findings of fact recorded by the appellate Collector are not disturbed by the Central Government while reviewing the decision. In addition to this aspect, the company claimed that motor and impeller assembly is not known as fans in commercial parlance and even that assertion was not controverted by the Central government. The claim of the company that the motors and impellers form integral components ofand water coolers is also not challenged. In these circumstances, it is difficult to appreciate on what basis the Government could have disturbed the order of the Appellate collector. In our judgment, the Government was clearly in error in setting at naught the order of the Appellate Collector in exercise of review jurisdiction and more so when there was no material whatsoever to warrant such action. In our judgment, the learned single Judge was perfectly justified in disturbing the order passed by the Central Government. Mr. Desai was unable to point out any material in support of the claim that the integral parts of theor water coolers can be described as electric fans with regulators as provided by tariff Item No. 33.
| 0 | 1,945 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
### Input:
as fans. The company also pointed out that the motor and impeller are nothing but integral components of air-conditioners and water coolers and have no independent mounting or speed regulators. The Central Government by order dated September 26, 1980 held that functionally as well as structurally, the impeller motor assembly used by the company in air-conditioners and water coolers are appropriately classifiable as electric fans and chargeable to duty under sub-item (3) of Tariff Item No. 33. To arrive at this conclusion, the Government relied upon the definition in Chapter 84. 11 of the Brussels Tariff Nomenclature. The Government felt that the term "electric fans" would signify that it should (a) perform the function of an electric fan and (b) work through electricity and as these two requirements are satisfied, the company is liable to pay duty.( 5 ) THE decision recorded by the Government was challenged by the company by filing Writ petition No. 261 of 1981 and the learned single Judge by the impugned judgment set aside the conclusion of the Central Government and restored that of the Appellate Collector. The learned judge felt that the reliance on Brussels Tariff Nomenclature by the Central Government was inaccurate as the Central Government failed to notice the contents of Chapter 84. 12 as well as misread the contents of Chapter 84. 11 (c). The learned Judge found that the impeller motor assembly is not an electric fan. The decision of the single Judge is under challenge. Mr. Desai, learned counsel appearing on behalf of the department, submitted that the learned single Judge was in error in disturbing the decision recorded by the Central Government in exercise of powers under Article 226 of the Constitution. The learned counsel also urged that it was not proper to rely upon the definitions in the Brussels Tariff Nomenclature as those definitions do not provide for a safe guide to determine whether the item is liable to duty under central Excise Tariff. Mr. Desai submitted that it was incumbent upon the learned Judge to examine the function and utility of the item and uphold the order of the Central Government. ( 6 ) IT is impossible to find any merit in any of the contentions raised by the learned counsel for the department. It is now well-settled by catena of decisions of the Supreme Court that the definitions set out in Brussels Tariff Nomenclature cannot be relied upon to hold as to whether the item attracts duty under Central Excise Tariff. A reference can be usefully made to the decision in Atul Glass v. Collector, reported in 1986 (25) E. L. T. 473. Mr. Desai is right in his submission that the definition either in Chapter 84. 11 or Chapter 84. 12 of the Brussels Tariff nomenclature cannot determine the issue as to the liability of the company to pay the duty. The difficulty in the way of Mr. Desai is that the Government while exercising power under Section 36 (2) of the Act has merely relied upon the definition in Chapter 84. 11 of the Brussels Tariff nomenclature. The learned single Judge was right in observing that the Government misread the definition in the Nomenclature. The definition clearly sets out that the heading fans and blowers excludes fans and blowers fitted with elements additional to their motors or housing, if such elements give them the characteristics of more complex machines falling within other heading i. e. air heaters not electrically heated, air-conditioners, dust extractors, etc. The Government merely relied upon a part of the definition and ignored the relevant one. The learned Judge is also right in concluding that the definition under Chapter 84. 12 supports the claim of the company. Once the definition given in the Brussels Tariff Nomenclature is ignored, as rightly claimed by Mr. Desai for the department, then there is no material whatsoever to record a finding that the impellers and motors assembly can attract duty under Tariff Item No. 33. The Appellate collector very rightly observed that the impellers and motors are fitted with other components like base pan, condensor coil, evaporator coil, compressor, piping for connecting base pan, condensor coil, etc., and the impellers lose their identity after such assembly and can never attract duty under Tariff Item No. 33. The Appellate Collector also noticed that the fan and motor combination have not their own mounting system, but are mounted in special brackets components forming part and parcel therein. Further, the switching of the fans as well as the speed control does not form part of the fan assembly, but is remotely located as part of the control console. The impellers and motors cannot be used as electrical fans because they do not have a base to stand on. The functions of the impeller and motor when mounted into air-conditioners are quite different from the electric fans. These findings of fact recorded by the appellate Collector are not disturbed by the Central Government while reviewing the decision. In addition to this aspect, the company claimed that motor and impeller assembly is not known as fans in commercial parlance and even that assertion was not controverted by the Central government. The claim of the company that the motors and impellers form integral components of air-conditioners and water coolers is also not challenged. In these circumstances, it is difficult to appreciate on what basis the Government could have disturbed the order of the Appellate collector. In our judgment, the Government was clearly in error in setting at naught the order of the Appellate Collector in exercise of review jurisdiction and more so when there was no material whatsoever to warrant such action. In our judgment, the learned single Judge was perfectly justified in disturbing the order passed by the Central Government. Mr. Desai was unable to point out any material in support of the claim that the integral parts of the air-conditioners or water coolers can be described as electric fans with regulators as provided by tariff Item No. 33.
### Response:
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372 |
M/S. Sbhobika Attire Vs. New India Assurance Co. Ltd.
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and glass shelves, as also the glass tops of the sales counters were absolutely intact. It was also indicated that once the mob had set fire to the elevated ground floor, nobody could have entered the basement levels and that since fire in the ground floor had been started a little after 4.00 P.M. and the same was extinguished at around mid-night, nobody could have entered the premises during this period when the elevated ground floor was burning. 12. In view of the above, the surveyors only took into consideration the damage caused to the stock in the elevated ground floor level and the insurance company settled the claim for loss to the stock on the said basis. From the statements of the sales persons who were in the two basement levels, it was sought to be argued that no one from the mob had entered the two levels of the basement as long as the employees were inside and it was doubtful as to whether after they left whether anyone could have entered the two levels of the basement in view of the conditions prevailing in the elevated ground floor. From the submissions made on behalf of the parties, it is evident that in the wake of a series of bomb blasts in the city of Coimbatore on 14th February, 1998, there was wide spread unrest in the city of Coimbatore coupled with mob frenzy, arson and looting. Although, an attempt has been made on behalf of the investigating agency to clinically examine the manner in which the incident involving the appellants firm had occurred, it is doubtful whether the incident which occurred at the showroom of the appellants on 14th February, 1998 can be explained with such clinical precision as to when exactly the sales persons in the two basement levels escaped from the showroom through the elevated ground floor or when the police and fire fighting personnel arrived at the site and when exactly the riotous mob took over the showroom. The statements of the sales persons clearly indicate that when they were fleeing the showroom they saw the mob trying to break through the plate-glass doors and windows leading to the first level of the two basement floors. There is also no denial of the fact that the said plate-glass doors and windows were in fact broken and for which insurance coverage was paid by the National Insurance Company on the basis of a report submitted by M/s. Comtec, Surveyors, Valuers and Assessors. The report submitted by the investigators, M/s. Vasu Associates, proceeds to a large extent on surmises and the conclusion ultimately arrived at by them which reads as follows does not inspire much confidence:- "The owners themselves claim looting, because they did not find some of the textile goods after the incident, but they have no material to strengthen their claim by way of supplying us with substantial evidence which are unassailable. In the absence of substantial evidence they themselves are not for sure, it was looting. From what we have seen and heard, we are also of the opinion that, there could not have been looting at all. Surveyors are also convinced and therefore, they are not also inclined to assess the loss" 13. As will be evident from the above, it will appear that the aforesaid conclusion was arrived at by adopting a negative approach. The investigators reached the aforesaid conclusion merely by stating that the appellants had no material to strengthen their claim by providing unassailable evidence of looting. Such an approach cannot be supported since apart from claiming that the goods in the showroom had been looted and the attendant circumstances, the appellants were not in a position to supply any further evidence. 14. That there was communal unrest in the city of Coimbatore on the date in question is not denied. That the mob attacked and set fire to the showroom of the appellants is also an established fact. That the showroom was attacked by a frenzied mob, which set fire to the elevated ground floor of the showroom and indulged in looting, is also established. At exactly what point of time the mob may have entered into the two basement levels is difficult to determine in the prevailing circumstances and it is quite possible that the looting had taken place before the police and the fire fighting personnel arrived at the site. 15. There is nothing on record to indicate that the stock in trade had been removed from basement levels in anticipation of any such rioting. On the other hand, the bank has clearly supported the case of the appellants by informing the insurance company that the stock insured was for Rs.2 crores and the average stock at any point of time in the insured premises was more than Rs. 2 crores and the bank requested the insurance company to re-consider the claim of the appellant-firm. 16. Although, M/s. Vasu Associates were engaged on a suspicion that the appellants had themselves transported part of the goods from the showroom, there is no real evidence in support thereof. 17. In our view, the appellants had discharged the initial burden regarding destruction, damage of the showroom and the stocks therein by fire and riot in support of the claim under the insurance policy and it was for the insurance company to disprove such claim with evidence, if any. In our view, the insurance company, despite the report of the investigator, failed to establish that the claim of the appellants was not justified and was not covered by the policy of insurance. 18. Inasmuch as, the insurance company was within its rights to cause an inquiry into the incident and it approved the appellants claim of Rs.1,02,38,738/- based on the report of the investigator, we are unable to agree with the submission made on behalf of the appellants that apart from the actual claim, the appellants are also entitled to payment of compensation towards hardship, mental agony and harassment. 19.
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1[ds]In view of the above, the surveyors only took into consideration the damage caused to the stock in the elevated ground floor level and the insurance company settled the claim for loss to the stock on the said basis. From the statements of the sales persons who were in the two basement levels, it was sought to be argued that no one from the mob had entered the two levels of the basement as long as the employees were inside and it was doubtful as to whether after they left whether anyone could have entered the two levels of the basement in view of the conditions prevailing in the elevated ground floor. From the submissions made on behalf of the parties, it is evident that in the wake of a series of bomb blasts in the city of Coimbatore on 14th February, 1998, there was wide spread unrest in the city of Coimbatore coupled with mob frenzy, arson and looting. Although, an attempt has been made on behalf of the investigating agency to clinically examine the manner in which the incident involving the appellants firm had occurred, it is doubtful whether the incident which occurred at the showroom of the appellants on 14th February, 1998 can be explained with such clinical precision as to when exactly the sales persons in the two basement levels escaped from the showroom through the elevated ground floor or when the police and fire fighting personnel arrived at the site and when exactly the riotous mob took over the showroom. The statements of the sales persons clearly indicate that when they were fleeing the showroom they saw the mob trying to break through the plate-glass doors and windows leading to the first level of the two basement floors. There is also no denial of the fact that the said plate-glass doors and windows were in fact broken and for which insurance coverage was paid by the National Insurance Company on the basis of a report submitted by M/s. Comtec, Surveyors, Valuers and Assessors. The report submitted by the investigators, M/s. Vasu Associates, proceeds to a large extent on surmises and the conclusion ultimately arrived at by them which reads as follows does not inspire much confidence:-"The owners themselves claim looting, because they did not find some of the textile goods after the incident, but they have no material to strengthen their claim by way of supplying us with substantial evidence which are unassailable. In the absence of substantial evidence they themselves are not for sure, it was looting. From what we have seen and heard, we are also of the opinion that, there could not have been looting at all. Surveyors are also convinced and therefore, they are not also inclined to assess the loss"As will be evident from the above, it will appear that the aforesaid conclusion was arrived at by adopting a negative approach. The investigators reached the aforesaid conclusion merely by stating that the appellants had no material to strengthen their claim by providing unassailable evidence of looting. Such an approach cannot be supported since apart from claiming that the goods in the showroom had been looted and the attendant circumstances, the appellants were not in a position to supply any further evidenceThat there was communal unrest in the city of Coimbatore on the date in question is not denied. That the mob attacked and set fire to the showroom of the appellants is also an established fact. That the showroom was attacked by a frenzied mob, which set fire to the elevated ground floor of the showroom and indulged in looting, is also established. At exactly what point of time the mob may have entered into the two basement levels is difficult to determine in the prevailing circumstances and it is quite possible that the looting had taken place before the police and the fire fighting personnel arrived at the siteThere is nothing on record to indicate that the stock in trade had been removed from basement levels in anticipation of any such rioting. On the other hand, the bank has clearly supported the case of the appellants by informing the insurance company that the stock insured was for Rs.2 crores and the average stock at any point of time in the insured premises was more than Rs. 2 crores and the bank requested the insurance company to re-consider the claim of the appellant-firmAlthough, M/s. Vasu Associates were engaged on a suspicion that the appellants had themselves transported part of the goods from the showroom, there is no real evidence in support thereofIn our view, the appellants had discharged the initial burden regarding destruction, damage of the showroom and the stocks therein by fire and riot in support of the claim under the insurance policy and it was for the insurance company to disprove such claim with evidence, if any. In our view, the insurance company, despite the report of the investigator, failed to establish that the claim of the appellants was not justified and was not covered by the policy of insurance
| 1 | 2,856 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
and glass shelves, as also the glass tops of the sales counters were absolutely intact. It was also indicated that once the mob had set fire to the elevated ground floor, nobody could have entered the basement levels and that since fire in the ground floor had been started a little after 4.00 P.M. and the same was extinguished at around mid-night, nobody could have entered the premises during this period when the elevated ground floor was burning. 12. In view of the above, the surveyors only took into consideration the damage caused to the stock in the elevated ground floor level and the insurance company settled the claim for loss to the stock on the said basis. From the statements of the sales persons who were in the two basement levels, it was sought to be argued that no one from the mob had entered the two levels of the basement as long as the employees were inside and it was doubtful as to whether after they left whether anyone could have entered the two levels of the basement in view of the conditions prevailing in the elevated ground floor. From the submissions made on behalf of the parties, it is evident that in the wake of a series of bomb blasts in the city of Coimbatore on 14th February, 1998, there was wide spread unrest in the city of Coimbatore coupled with mob frenzy, arson and looting. Although, an attempt has been made on behalf of the investigating agency to clinically examine the manner in which the incident involving the appellants firm had occurred, it is doubtful whether the incident which occurred at the showroom of the appellants on 14th February, 1998 can be explained with such clinical precision as to when exactly the sales persons in the two basement levels escaped from the showroom through the elevated ground floor or when the police and fire fighting personnel arrived at the site and when exactly the riotous mob took over the showroom. The statements of the sales persons clearly indicate that when they were fleeing the showroom they saw the mob trying to break through the plate-glass doors and windows leading to the first level of the two basement floors. There is also no denial of the fact that the said plate-glass doors and windows were in fact broken and for which insurance coverage was paid by the National Insurance Company on the basis of a report submitted by M/s. Comtec, Surveyors, Valuers and Assessors. The report submitted by the investigators, M/s. Vasu Associates, proceeds to a large extent on surmises and the conclusion ultimately arrived at by them which reads as follows does not inspire much confidence:- "The owners themselves claim looting, because they did not find some of the textile goods after the incident, but they have no material to strengthen their claim by way of supplying us with substantial evidence which are unassailable. In the absence of substantial evidence they themselves are not for sure, it was looting. From what we have seen and heard, we are also of the opinion that, there could not have been looting at all. Surveyors are also convinced and therefore, they are not also inclined to assess the loss" 13. As will be evident from the above, it will appear that the aforesaid conclusion was arrived at by adopting a negative approach. The investigators reached the aforesaid conclusion merely by stating that the appellants had no material to strengthen their claim by providing unassailable evidence of looting. Such an approach cannot be supported since apart from claiming that the goods in the showroom had been looted and the attendant circumstances, the appellants were not in a position to supply any further evidence. 14. That there was communal unrest in the city of Coimbatore on the date in question is not denied. That the mob attacked and set fire to the showroom of the appellants is also an established fact. That the showroom was attacked by a frenzied mob, which set fire to the elevated ground floor of the showroom and indulged in looting, is also established. At exactly what point of time the mob may have entered into the two basement levels is difficult to determine in the prevailing circumstances and it is quite possible that the looting had taken place before the police and the fire fighting personnel arrived at the site. 15. There is nothing on record to indicate that the stock in trade had been removed from basement levels in anticipation of any such rioting. On the other hand, the bank has clearly supported the case of the appellants by informing the insurance company that the stock insured was for Rs.2 crores and the average stock at any point of time in the insured premises was more than Rs. 2 crores and the bank requested the insurance company to re-consider the claim of the appellant-firm. 16. Although, M/s. Vasu Associates were engaged on a suspicion that the appellants had themselves transported part of the goods from the showroom, there is no real evidence in support thereof. 17. In our view, the appellants had discharged the initial burden regarding destruction, damage of the showroom and the stocks therein by fire and riot in support of the claim under the insurance policy and it was for the insurance company to disprove such claim with evidence, if any. In our view, the insurance company, despite the report of the investigator, failed to establish that the claim of the appellants was not justified and was not covered by the policy of insurance. 18. Inasmuch as, the insurance company was within its rights to cause an inquiry into the incident and it approved the appellants claim of Rs.1,02,38,738/- based on the report of the investigator, we are unable to agree with the submission made on behalf of the appellants that apart from the actual claim, the appellants are also entitled to payment of compensation towards hardship, mental agony and harassment. 19.
### Response:
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373 |
State of Orissa Vs. Messrs Orissa Road Transport Company Limited, Chief Accounts Officer
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occasional transactions of a business nature involving purchasing, selling, supplying or distribution or goods, whether for commission, remuneration or otherwise. This means that even if a person did not have a systematic or an organised business involving regular transactions of purchases and sales he could still be regarded as a casual dealer if he entered into occasional transactions of a business nature involving purchases, sales etc. of the goods. In the cases cited by Mr. Misra there was no consideration of this aspect at all. 10. It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the said Act. In the case of State of Tamil Nadu Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and Anr. this Court was concerned, inter alia, with the sale of scrap where the definition of the word business in the Madras General Sales Tax Act had done away with motive for making profit as being a relevant consideration in determining whether the assessee carried on business or not. Section 2(d) of the Madras Act was similar to the present definition in Section 2(b) of the Orissa Act and it included the words "whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern". In connection with the sale of scrap it was observed at page 433 as follows: "In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this commodity is liable to tax. It cannot also be said of the assessees advertisement materials at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to its customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore, connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising by the assessee-company which, instead of allowing each of them to have these separately printed or manufactured, itself undertook to do go and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee." * 11. In the District Controller of Stores, Northern Railway, Jodhpur Vs. The Assistant commercial Taxation Officer and Anr. this Court was concerned with a question whether the sales of unserviceable material and scrap by the Northern Railway, Jodhpur, was exigible to sales tax. the Rajasthan Sales Tax Act had been amended and, like the Madras Sales Tax Act and the Orissa Sales Tax Act the definition of business had eliminated the profit making element and keeping this in view this Court held that the activity of the appellant in selling unserviceable material and scrap would be business within clause 1 of the definition of the word business introduced by the amending Act. This Court held even if it be assumed that the activity involved in selling unserviceable material and scrap-iron etc. may not amount to carrying on business in the normal connotation of that term, it would still be business within the meaning of the expression business occurring in the said Act. Such sales were, therefore, to be held to exigible to sales tax.The definition of the word business in the Orissa Act being perimateria with the definition of such expression in the Madras Act as well as the Rajasthan Act, the ratio of the decision in Burmah Shell case (supra) and the District Controllers case (supra) would be clearly applicable in the instant case and, therefore, the respondent will have to be regarded as a dealer carrying on the business of selling spare parts etc. and thereby become liable to pay sales tax on the sale of such items. 12. It was submitted by Mr. Misra that neither the High Court nor the other authorities had gone into the question as to whether the respondent could be regarded as a casual dealer. It is true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into that question. 13. In our opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by it.
|
1[ds]It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the saidis true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into thatour opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by
| 1 | 2,489 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
occasional transactions of a business nature involving purchasing, selling, supplying or distribution or goods, whether for commission, remuneration or otherwise. This means that even if a person did not have a systematic or an organised business involving regular transactions of purchases and sales he could still be regarded as a casual dealer if he entered into occasional transactions of a business nature involving purchases, sales etc. of the goods. In the cases cited by Mr. Misra there was no consideration of this aspect at all. 10. It cannot be denied that the respondent is a business organisation whose activity is that of providing road transport. In the course of its carrying on of the said business some obsolete parts, spare parts etc. are not required by it. As a prudent business organisation the said items, which were obviously used or intended for use in its business, are sold when there is no requirement for them. We find it difficult to accept that such sales cannot even be regarded as occasional sales of a business nature which would make the respondent a casual dealer within the meaning of that expression occurring in Section 2[bb] of the said Act. In the case of State of Tamil Nadu Vs. Burmah Shell Oil Storage and Distributing Co. of India Ltd. and Anr. this Court was concerned, inter alia, with the sale of scrap where the definition of the word business in the Madras General Sales Tax Act had done away with motive for making profit as being a relevant consideration in determining whether the assessee carried on business or not. Section 2(d) of the Madras Act was similar to the present definition in Section 2(b) of the Orissa Act and it included the words "whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern". In connection with the sale of scrap it was observed at page 433 as follows: "In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this commodity is liable to tax. It cannot also be said of the assessees advertisement materials at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to its customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore, connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising by the assessee-company which, instead of allowing each of them to have these separately printed or manufactured, itself undertook to do go and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee." * 11. In the District Controller of Stores, Northern Railway, Jodhpur Vs. The Assistant commercial Taxation Officer and Anr. this Court was concerned with a question whether the sales of unserviceable material and scrap by the Northern Railway, Jodhpur, was exigible to sales tax. the Rajasthan Sales Tax Act had been amended and, like the Madras Sales Tax Act and the Orissa Sales Tax Act the definition of business had eliminated the profit making element and keeping this in view this Court held that the activity of the appellant in selling unserviceable material and scrap would be business within clause 1 of the definition of the word business introduced by the amending Act. This Court held even if it be assumed that the activity involved in selling unserviceable material and scrap-iron etc. may not amount to carrying on business in the normal connotation of that term, it would still be business within the meaning of the expression business occurring in the said Act. Such sales were, therefore, to be held to exigible to sales tax.The definition of the word business in the Orissa Act being perimateria with the definition of such expression in the Madras Act as well as the Rajasthan Act, the ratio of the decision in Burmah Shell case (supra) and the District Controllers case (supra) would be clearly applicable in the instant case and, therefore, the respondent will have to be regarded as a dealer carrying on the business of selling spare parts etc. and thereby become liable to pay sales tax on the sale of such items. 12. It was submitted by Mr. Misra that neither the High Court nor the other authorities had gone into the question as to whether the respondent could be regarded as a casual dealer. It is true that apparently the attention of the High Court was not drawn to Section 2[bb]. This, however, can be of no assistance to the respondent because on the facts as found by the Tribunal it is evident that the provisions of Section 2[bb] are clearly attracted to the instant case. If the High Court has ignored a relevant statutory provision and then come to a wrong conclusion that cannot be a ground for the respondent to contend that Court should also not refer to the said sub-section. The contention of the respondent would have been correct if the applicability of Section 2 [bb] depended on the investigation of facts and that had not been done. However, the facts as found here clearly disclose that the respondent has to be regarded at least as a casual dealer. The mere fact that the High Court over-looked the said provision cannot be a ground for the respondent to contend that this Court should not go into that question. 13. In our opinion the High Court was not right in concluding that the respondent was not a dealer who was liable to pay sales tax on the sales of the spare parts etc. made by it.
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1
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374 |
N.B.C.C. Ltd Vs. J.G. Engineering Pvt. Ltd
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jurisdiction to decide accordingly. 13. However, the contention of the Appellant that the High Court had erred in not allowing the appellant to decide upon the appointment of an arbitrator pursuant to sub-section (2) of Section 15 of the Act must be accepted. Section 15 (2) of the Act provides that where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator replaced. In this connection, it would be appropriate to refer to the relevant portion of the impugned judgment of the High Court, which gives an elaborate observation on the above-mentioned issue raised by the appellant: "The question therefore is, whether in view of section 15 (2) of the 1996 Act, an independent arbitrator can be appointed by this Court as prayed for by the appellant or whether the appellant should once again invoke the Arbitration Clause, call upon the Chairman-cum-Managing Director of the respondent to appoint an arbitrator, wait for a further period of 30 days, to see whether the Chairman-cum-Managing Director acts or not and then make a request to the Honble Chief Justice or his designate under Section 11(6) of the 1996 Act to appoint an arbitrator. Arbitration is an informal, quick and easy alternative mode of adjudication of disputes by agreement of the parties. This Court cannot but take judicial notice of the fact that the Arbitration Clause was invoked way back in May 1996 and almost 10 years have expired since then. The appointment of successive Arbitrator by the Chairman-cum-Managing Director of the respondent has only resulted in delay. When the mandate of an arbitrator is terminated on the ground of delay, the rules applicable to the appointment of the arbitrator are to apply to the appointment of a new arbitrator. It would, however, be a mockery of justice, if every time the mandate of an arbitrator was terminated or the arbitrator resigned or otherwise became unable to proceed, the parties were to start from scratch, by invoking the Arbitration Clause. Once the mandate of the arbitrator terminates, the person required to appoint arbitrator is required to fill up the vacancy with utmost expedition, failing which the provisions of section 11 (6) of the 1996 Act would be attracted. In the instant case, as per the Arbitration agreement the Chairman-cum-Managing Director was required to appoint a new arbitrator in case the arbitrator became unable to continue, whatever be the reason. Even thought the time limit for conclusion of arbitration expired on 30th September, 2005, the Chairman-cum- Managing Director of the respondent did not appoint another arbitrator." 14. We have carefully examined the aforesaid observations of the impugned judgment of the High Court. We are of the view that in view of a three-Judge Bench decision of this Court in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240 ] in which a decision of this Court in Ace Pipeline Contracts Private Limited vs. Bharat Petroleum Corporation Limited [(2007) 5 SCC 304] was also referred to, the application for appointment of an Arbitrator under Section 11 of the Act should be referred back to the High Court for fresh decision. Arijit Pasayat, (as His Lordship then was), heading a three-Judge Bench of this Court after considering the scope and object of the Act particularly Section 11 of the Act concluded the following :- "A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. Xxxxxxxxxxxxxx In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above." In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), held that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment must be set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra). 15. In view of the discussions made hereinabove and particularly, in view of the principles laid down by this Court in Northern Railway Administration (supra),
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1[ds]14. We have carefully examined the aforesaid observations of the impugned judgment of the High Court. We are of the view that in view of a three-Judge Bench decision of this Court in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240 ] in which a decision of this Court in Ace Pipeline Contracts Private Limited vs. Bharat Petroleum Corporation Limited [(2007) 5 SCC 304] was also referred to, the application for appointment of an Arbitrator under Section 11 of the Act should be referred back to the High Court for fresh decision. Arijit Pasayat, (as His Lordship then was), heading a three-Judge Bench of this Court after considering the scope and object of the Act particularly Section 11 of the Act concluded the following :-In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above."In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), held that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment must be set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra)15. In view of the discussions made hereinabove and particularly, in view of the principles laid down by this Court in Northern Railway Administration (supra),
| 1 | 5,887 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
### Input:
jurisdiction to decide accordingly. 13. However, the contention of the Appellant that the High Court had erred in not allowing the appellant to decide upon the appointment of an arbitrator pursuant to sub-section (2) of Section 15 of the Act must be accepted. Section 15 (2) of the Act provides that where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator replaced. In this connection, it would be appropriate to refer to the relevant portion of the impugned judgment of the High Court, which gives an elaborate observation on the above-mentioned issue raised by the appellant: "The question therefore is, whether in view of section 15 (2) of the 1996 Act, an independent arbitrator can be appointed by this Court as prayed for by the appellant or whether the appellant should once again invoke the Arbitration Clause, call upon the Chairman-cum-Managing Director of the respondent to appoint an arbitrator, wait for a further period of 30 days, to see whether the Chairman-cum-Managing Director acts or not and then make a request to the Honble Chief Justice or his designate under Section 11(6) of the 1996 Act to appoint an arbitrator. Arbitration is an informal, quick and easy alternative mode of adjudication of disputes by agreement of the parties. This Court cannot but take judicial notice of the fact that the Arbitration Clause was invoked way back in May 1996 and almost 10 years have expired since then. The appointment of successive Arbitrator by the Chairman-cum-Managing Director of the respondent has only resulted in delay. When the mandate of an arbitrator is terminated on the ground of delay, the rules applicable to the appointment of the arbitrator are to apply to the appointment of a new arbitrator. It would, however, be a mockery of justice, if every time the mandate of an arbitrator was terminated or the arbitrator resigned or otherwise became unable to proceed, the parties were to start from scratch, by invoking the Arbitration Clause. Once the mandate of the arbitrator terminates, the person required to appoint arbitrator is required to fill up the vacancy with utmost expedition, failing which the provisions of section 11 (6) of the 1996 Act would be attracted. In the instant case, as per the Arbitration agreement the Chairman-cum-Managing Director was required to appoint a new arbitrator in case the arbitrator became unable to continue, whatever be the reason. Even thought the time limit for conclusion of arbitration expired on 30th September, 2005, the Chairman-cum- Managing Director of the respondent did not appoint another arbitrator." 14. We have carefully examined the aforesaid observations of the impugned judgment of the High Court. We are of the view that in view of a three-Judge Bench decision of this Court in the case of Northern Railway Administration, Ministry of Railway vs. Patel Engineering Company Ltd. [2008 (10) SCC 240 ] in which a decision of this Court in Ace Pipeline Contracts Private Limited vs. Bharat Petroleum Corporation Limited [(2007) 5 SCC 304] was also referred to, the application for appointment of an Arbitrator under Section 11 of the Act should be referred back to the High Court for fresh decision. Arijit Pasayat, (as His Lordship then was), heading a three-Judge Bench of this Court after considering the scope and object of the Act particularly Section 11 of the Act concluded the following :- "A bare reading of the scheme of Section 11 shows that the emphasis is on the terms of the agreement being adhered to and/or given effect as closely as possible. In other words, the Court may ask to do what has not been done. The court must first ensure that the remedies provided for are exhausted. It is true as contended by Mr. Desai, that it is not mandatory for the Chief Justice or any person or institution designated by him to appoint the named arbitrator or arbitrators. But at the same time, due regard has to be given to the qualifications required by the agreement and other considerations. Xxxxxxxxxxxxxx In all these cases at hand the High Court does not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other considerations necessary to secure the appointment of an independent and impartial arbitrator. It needs no reiteration that appointment of the arbitrator or arbitrators named in the arbitration agreement is not a must, but while making the appointment the twin requirements of Sub-section (8) of Section 11 have to be kept in view, considered and taken into account. If it is not done, the appointment becomes vulnerable. In the circumstances, we set aside the appointment made in each case, remit the matters to the High Court to make fresh appointments keeping in view the parameters indicated above." In the aforesaid decision in the case of Northern Railway Administration (Supra), Arijit Pasayat, J. (as His Lordship then was), held that the High Court in the said case did not appear to have focused on the requirement to have due regard to the qualifications required by the agreement or other conditions necessary to secure the appointment of an independent and impartial arbitrator. In the aforesaid decision, this Court also concluded that since the requirement of sub-section (8) of Section 11 was not at all dealt with by the High Court in its order, the appointment of an arbitrator without dealing with Sub-Section 8 of Section 11 of the Act became vulnerable and accordingly, such appointment must be set aside. Similar is the position in this case. In this case also, before appointing an arbitrator under Section 11(6) of the Act, the High Court had failed to take into consideration the effect of Section 11(8) of the Act as was done in Northern Railway Administration (supra). 15. In view of the discussions made hereinabove and particularly, in view of the principles laid down by this Court in Northern Railway Administration (supra),
### Response:
1
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375 |
Sarpanch, Lonand Grampanchayat Vs. Ramgiri Gosavi & Anr
|
on which the minimum wages or other amount became payable." The second proviso to S. 20 (2) is in these terms:-"Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period." 3.The Authority has a discretion to condone the delay in presenting the application provided sufficient cause for the entire delay is shown to its satisfaction. This discretion like other judicial discretion must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. The discretion is to know through law what is just, see Keighleys case, (l609) l0 Co. Rep 139 a : 77 ER 1136. 4. The wording of the second proviso is similar to the provisions of S. 5 of the Indian Limitation Act. In Krishna v. Chathappan, (1890) ILR 13 Mad 269 the Madras High Court indicated in the following passage how the discretion under S. 5 should be exercised :"We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood : the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellants." This decision received the approval of this Court in Dinabandhu Sahu v Jadumoni Mangaraj. 1955-1 SCR 140 at p. 146 : (AIR 1954 SC 411 at p. 414) and Ramlal Motilal v. Rewa Coalfields Ltd., 1962-2 SCR 762 at p. 767 : (AIR 1962 SC 361 at p. 363). The words "sufficient cause" in the second proviso to S. 20 (2) should receive similar liberal construction. 5. No appeal lies from an order of the Authority under S 20. But the High Court is vested with the power of judicial superintendence over the tribunal under Art 227 of the Constitution.This power is not greater than the power under Art. 226 and is limited to seeing that the tribunal functions within the limits of its authority, see Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam, 1958 SCR 1240 at p. 1272 : (AIR 1958 SC 398 at p. 413). The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires. In Sitaram Ramcharan v. M. N. Nagarshana, l960-1 SCR 875 at p. 884 : (AIR 1960 SC 260 at p. 263) this Court held that a finding of fact by the authority under the similarly worded second proviso to S. 15 (2) of the Payment of Wages Act 1936 could not be challenged in a petition under Art. 227. The High Court may refuse to interfere under Art. 227 unless there is grave miscarriage of justice. 6. In the present case the Authority found that since January 2, 1961 the employees were making complaints to the Government authorities regarding non-payment of overtime wages. On January 2, 1961 the employees wrote to the Inspector, Minimum Wages, Government labour office, Sangli, complaining of overtime work and asking for directions on the appellant to comply with the provisions of the Minimum Wages Act. A reminder was sent to him on January 11, 1961. On January 18, l961 the Inspector wrote that the matter was being followed up. On April 22, l961 the Inspector visited Lonand and directed the appellant to comply with the provisions of the Minimum Wages Act and the rules made thereunder. On April 25, 1961 the Inspector communicated this direction to the employees. On January 1, 1962 the employees lodged a complaint of overtime work with the Commissioner, Poona Division, and asked for a direction for payment of the arrears of overtime wages. On January 3, l962 the Commissioner wrote to the employees that the matter was receiving attention and their application had been sent to the Collector of Satara for disposal. Later in August / September 1962 and early 1963 the Block Development Officer came to Lonand and made inquiries. The revenue officers appointed as inspectors under the Government notification dated May 4, 1955 are under the administrative control of Commissioner and Collector. The inspectors have no power to give relief under S. 20 (2) but they have large powers of supervision and control under S. 19 of the Act. The employees relied upon the assurances of the Inspectors and their superiors that proper steps would be taken for the remedy of their grievances and relying upon those assurances, they refrained from taking steps under S. 20 (2) of the Minimum Wages Act.Having regard to all the circumstances of the case, the employees were not guilty of inaction or negligence and the entire delay in presenting the application was due to their honest though mistaken belief that the relief of overtime wages would be granted to them through the intervention of the inspectors and their superior officers.It is not shown that in condoning the delay the Authority acted arbitrarily or capriciously or in excess of its jurisdiction or that it committed any error apparent on the face of the record. In the application under S. 20 (2), some of the employees claimed overtime wages for periods prior to January 1, 1961. The Authority declined to condone the delay in respect of claims for the period prior to January 1, 1961. On a careful consideration of the relevant materials the Authority condoned the delay in respect of claims subsequent to January 1, 1961 only.The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently.It is not shown that the impugned order led to grave miscarriage of justice. The High Court refused to interfere under Art. 227. We think that this is not a fit case for interference by us under Art. 136.
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0[ds]6. In the present case the Authority found that since January 2, 1961 the employees were making complaints to the Government authorities regarding non-payment of overtime wagesHaving regard to all the circumstances of the case, the employees were not guilty of inaction or negligence and the entire delay in presenting the application was due to their honest though mistaken belief that the relief of overtime wages would be granted to them through the intervention of the inspectors and their superior officers.It is not shown that in condoning the delay the Authority acted arbitrarily or capriciously or in excess of its jurisdiction or that it committed any error apparent on the face of the record. In the application under S. 20 (2), some of the employees claimed overtime wages for periods prior to January 1, 1961. The Authority declined to condone the delay in respect of claims for the period prior to January 1, 1961. On a careful consideration of the relevant materials the Authority condoned the delay in respect of claims subsequent to January 1, 1961 only.The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently.It is not shown that the impugned order led to grave miscarriage of justice. The High Court refused to interfere under Art. 227. We think that this is not a fit case for interference by us under Art. 1364. The wording of the second proviso is similar to the provisions of S. 5 of the Indian Limitation Act. In Krishna v. Chathappan, (1890) ILR 13 Mad 269 the Madras High Court indicated in the following passage how the discretion under S. 5 should be exercised :"We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood : the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellants."This decision received the approval of this Court in Dinabandhu Sahu v Jadumoni Mangaraj.1 SCR 140 at p. 146 : (AIR 1954 SC 411 at p. 414) and Ramlal Motilal v. Rewa Coalfields Ltd.,2 SCR 762 at p. 767 : (AIR 1962 SC 361 at p. 363). The words "sufficient cause" in the second proviso to S. 20 (2) should receive similar liberal construction5. No appeal lies from an order of the Authority under S 20. But the High Court is vested with the power of judicial superintendence over the tribunal under Art 227 of the Constitution.This power is not greater than the power under Art. 226 and is limited to seeing that the tribunal functions within the limits of its authority, see Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam, 1958 SCR 1240 at p. 1272 : (AIR 1958 SC 398 at p. 413). The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires. In Sitaram Ramcharan v. M. N. Nagarshana,1 SCR 875 at p. 884 : (AIR 1960 SC 260 at p. 263) this Court held that a finding of fact by the authority under the similarly worded second proviso to S. 15 (2) of the Payment of Wages Act 1936 could not be challenged in a petition under Art. 227. The High Court may refuse to interfere under Art. 227 unless there is grave miscarriage of justice.
| 0 | 1,380 |
### Instruction:
Evaluate the arguments and evidence in the case and predict the verdict: is an acceptance (1) or rejection (0) of the appeal more probable?
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on which the minimum wages or other amount became payable." The second proviso to S. 20 (2) is in these terms:-"Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period." 3.The Authority has a discretion to condone the delay in presenting the application provided sufficient cause for the entire delay is shown to its satisfaction. This discretion like other judicial discretion must be exercised with vigilance and circumspection according to justice, common sense, and sound judgment. The discretion is to know through law what is just, see Keighleys case, (l609) l0 Co. Rep 139 a : 77 ER 1136. 4. The wording of the second proviso is similar to the provisions of S. 5 of the Indian Limitation Act. In Krishna v. Chathappan, (1890) ILR 13 Mad 269 the Madras High Court indicated in the following passage how the discretion under S. 5 should be exercised :"We think that Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood : the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellants." This decision received the approval of this Court in Dinabandhu Sahu v Jadumoni Mangaraj. 1955-1 SCR 140 at p. 146 : (AIR 1954 SC 411 at p. 414) and Ramlal Motilal v. Rewa Coalfields Ltd., 1962-2 SCR 762 at p. 767 : (AIR 1962 SC 361 at p. 363). The words "sufficient cause" in the second proviso to S. 20 (2) should receive similar liberal construction. 5. No appeal lies from an order of the Authority under S 20. But the High Court is vested with the power of judicial superintendence over the tribunal under Art 227 of the Constitution.This power is not greater than the power under Art. 226 and is limited to seeing that the tribunal functions within the limits of its authority, see Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam, 1958 SCR 1240 at p. 1272 : (AIR 1958 SC 398 at p. 413). The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires. In Sitaram Ramcharan v. M. N. Nagarshana, l960-1 SCR 875 at p. 884 : (AIR 1960 SC 260 at p. 263) this Court held that a finding of fact by the authority under the similarly worded second proviso to S. 15 (2) of the Payment of Wages Act 1936 could not be challenged in a petition under Art. 227. The High Court may refuse to interfere under Art. 227 unless there is grave miscarriage of justice. 6. In the present case the Authority found that since January 2, 1961 the employees were making complaints to the Government authorities regarding non-payment of overtime wages. On January 2, 1961 the employees wrote to the Inspector, Minimum Wages, Government labour office, Sangli, complaining of overtime work and asking for directions on the appellant to comply with the provisions of the Minimum Wages Act. A reminder was sent to him on January 11, 1961. On January 18, l961 the Inspector wrote that the matter was being followed up. On April 22, l961 the Inspector visited Lonand and directed the appellant to comply with the provisions of the Minimum Wages Act and the rules made thereunder. On April 25, 1961 the Inspector communicated this direction to the employees. On January 1, 1962 the employees lodged a complaint of overtime work with the Commissioner, Poona Division, and asked for a direction for payment of the arrears of overtime wages. On January 3, l962 the Commissioner wrote to the employees that the matter was receiving attention and their application had been sent to the Collector of Satara for disposal. Later in August / September 1962 and early 1963 the Block Development Officer came to Lonand and made inquiries. The revenue officers appointed as inspectors under the Government notification dated May 4, 1955 are under the administrative control of Commissioner and Collector. The inspectors have no power to give relief under S. 20 (2) but they have large powers of supervision and control under S. 19 of the Act. The employees relied upon the assurances of the Inspectors and their superiors that proper steps would be taken for the remedy of their grievances and relying upon those assurances, they refrained from taking steps under S. 20 (2) of the Minimum Wages Act.Having regard to all the circumstances of the case, the employees were not guilty of inaction or negligence and the entire delay in presenting the application was due to their honest though mistaken belief that the relief of overtime wages would be granted to them through the intervention of the inspectors and their superior officers.It is not shown that in condoning the delay the Authority acted arbitrarily or capriciously or in excess of its jurisdiction or that it committed any error apparent on the face of the record. In the application under S. 20 (2), some of the employees claimed overtime wages for periods prior to January 1, 1961. The Authority declined to condone the delay in respect of claims for the period prior to January 1, 1961. On a careful consideration of the relevant materials the Authority condoned the delay in respect of claims subsequent to January 1, 1961 only.The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently.It is not shown that the impugned order led to grave miscarriage of justice. The High Court refused to interfere under Art. 227. We think that this is not a fit case for interference by us under Art. 136.
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Messrs. Kamarhatty Co. Ltd Vs. Shri Ushnath Pakrashi
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K.N. Wanchoo J.1. This appeal by special leave against the decision of the Labour Appellate Tribunal of India is limited to the question whether an order of reinstatement can be made on an application under S. 33-A of the Industrial Disputes Act, 1947, (hereinafter called the Act). The brief facts necessary for the decision of this question are these. The appellant is a Jute Mill. There was a dispute pending before an Industrial Tribunal between a number of jute mills in West Bengal and their employees, and the appellant was a party to that dispute. During the pendency of that dispute, the appellant laid-off the respondent who was an employee in the ration shop maintained by the appellant from 19-7-1954, as rationing of food-stuff came to an end from 10-7-1954. The reason for the lay-off was that the ration shop was closed following the end of rationing. This resulted in the staff in that shop becoming surplus. Consequently, nine persons were selected for retrenchment on the principle of "last come first go", and the respondent was one of them. The appellant who applied under S. 33 of the Act to the Industrial Tribunal for permission to retrench the respondent along with others. Shortly before the application under S. 33, the respondent had applied under S. 33-A of the Act and his case was that there was no reason to make any retrenchment on account of the closure of the ration shop and that he was at any rate longer in service than others who had been retained and therefore the principle of "last come first go" had not been followed. It was also said that the respondent had been laid-off as he was an active worker of the union and as such was not in the good books of the appellant. It was therefore prayed that the respondent should be allowed full wages and amenities since the so-called lay-off, which was nothing more nor less than retrenchment and that he should be reinstated.2. The Industrial Tribunal came to the conclusion that the lay-off was justified because of the closure of the ration shop and gave permission to the appellant to retrench the respondent on the principle of "last come first go". The respondent appealed to the Labour Appellate Tribunal. He did not urge there that there was no necessity for retrenchment at all. What was urged there was that the Industrial Tribunal was wrong in holding that the principle of "last come first go" had been followed in this case. The Appellate Tribunal came to the conclusion that the respondent had been in service much longer than others who had been retained and therefore the principle of "last come first go" had been violated. In consequence, the appeal was allowed and the permission to retrench the respondent was refused. The Appellate Tribunal also ordered that the respondent should be reinstated in service without any break to the continuity of service and the order of the appellant in laying him off and discharging him in effect from 19-7-1954, was set aside. Thereupon the appellant came to this Court and was granted special leave on the limited question set out above.3. In our opinion, the answer to the limited question in which the special leave has been granted can only be on one view of the language of S. 33-A. That section lays down that where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it was a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall supply accordingly. It is thus clear that a complaint under S. 33-A of the Act is as good as a reference under S. 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S. 10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman.In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S. 33-A being in the nature of a dispute referred to a tribunal under S. 16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S. 33.4. Learned counsel for the appellant wanted to argue that this was not a case of discharge or dismissal but of lay-off. We did not permit him to raise this argument because the special leave was limited only to the question set out above. The answer to that question has already been indicated above and on that answer the appeal must fail.
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0[ds]3. In our opinion, the answer to the limited question in which the special leave has been granted can only be on one view of the language of S. 33-A. That section lays down that where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it was a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall supply accordingly. It is thus clear that a complaint under S. 33-A of the Act is as good as a reference under S. 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S.It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman.In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S. 33-A being in the nature of a dispute referred to a tribunal under S. 16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S. 33.4. Learned counsel for the appellant wanted to argue that this was not a case of discharge or dismissal but of lay-off. We did not permit him to raise this argument because the special leave was limited only to the question set out above. The answer to that question has already been indicated above and on that answer the appeal must fail.
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Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
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K.N. Wanchoo J.1. This appeal by special leave against the decision of the Labour Appellate Tribunal of India is limited to the question whether an order of reinstatement can be made on an application under S. 33-A of the Industrial Disputes Act, 1947, (hereinafter called the Act). The brief facts necessary for the decision of this question are these. The appellant is a Jute Mill. There was a dispute pending before an Industrial Tribunal between a number of jute mills in West Bengal and their employees, and the appellant was a party to that dispute. During the pendency of that dispute, the appellant laid-off the respondent who was an employee in the ration shop maintained by the appellant from 19-7-1954, as rationing of food-stuff came to an end from 10-7-1954. The reason for the lay-off was that the ration shop was closed following the end of rationing. This resulted in the staff in that shop becoming surplus. Consequently, nine persons were selected for retrenchment on the principle of "last come first go", and the respondent was one of them. The appellant who applied under S. 33 of the Act to the Industrial Tribunal for permission to retrench the respondent along with others. Shortly before the application under S. 33, the respondent had applied under S. 33-A of the Act and his case was that there was no reason to make any retrenchment on account of the closure of the ration shop and that he was at any rate longer in service than others who had been retained and therefore the principle of "last come first go" had not been followed. It was also said that the respondent had been laid-off as he was an active worker of the union and as such was not in the good books of the appellant. It was therefore prayed that the respondent should be allowed full wages and amenities since the so-called lay-off, which was nothing more nor less than retrenchment and that he should be reinstated.2. The Industrial Tribunal came to the conclusion that the lay-off was justified because of the closure of the ration shop and gave permission to the appellant to retrench the respondent on the principle of "last come first go". The respondent appealed to the Labour Appellate Tribunal. He did not urge there that there was no necessity for retrenchment at all. What was urged there was that the Industrial Tribunal was wrong in holding that the principle of "last come first go" had been followed in this case. The Appellate Tribunal came to the conclusion that the respondent had been in service much longer than others who had been retained and therefore the principle of "last come first go" had been violated. In consequence, the appeal was allowed and the permission to retrench the respondent was refused. The Appellate Tribunal also ordered that the respondent should be reinstated in service without any break to the continuity of service and the order of the appellant in laying him off and discharging him in effect from 19-7-1954, was set aside. Thereupon the appellant came to this Court and was granted special leave on the limited question set out above.3. In our opinion, the answer to the limited question in which the special leave has been granted can only be on one view of the language of S. 33-A. That section lays down that where an employer contravenes the provisions of S. 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention, may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it was a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall supply accordingly. It is thus clear that a complaint under S. 33-A of the Act is as good as a reference under S. 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under S. 10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman.In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore a complaint under S. 33-A being in the nature of a dispute referred to a tribunal under S. 16 of the Act, it is certainly which its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of S. 33.4. Learned counsel for the appellant wanted to argue that this was not a case of discharge or dismissal but of lay-off. We did not permit him to raise this argument because the special leave was limited only to the question set out above. The answer to that question has already been indicated above and on that answer the appeal must fail.
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R.B. Chaudhary Raghuraj Singh Vs. Murari Lal & Ors
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he there on the date of the suit and the suit must be with respect to a secured debt. The date, therefore, on which the Court has to see whether the debt in the suit before it is a secured debt or not is the date on which the suit is filed. The High Court seems to be in error when it held that- under the definition of secured debt" only such debts as are secured by a mortgage come in and not debts which are secured by a charge. It seems to have overlooked that part of the definition of the word "mortgage" which lays down that a mortgage will include a charge as defined in S. 100 of the Transfer of Property Act. Therefore, even though a debt may be secured by a charge it will be a secured debt for the purpose of S. 3 provided the charge was there before the date of the suit. We have referred to S. 3 in some details because we are of opinion that the interpretation to be put on S. 3 will have a direct bearing on the interpretation of the words of S. 4 where also the material words are the same as in S. 3.7. Section 4 provides for reduction of debts after passing of decrees, and sub-s. (1) thereof reads thus:"(1) Notwithstanding anything in the Code of Civil Procedure. 1908, or any other law, the Court, which passed a decree to which this Act applies relating to a secured debt, shall, on the application either of the decree-holder or judgment-debtor, proceed as hereinafter stated."Then come provisions as to the reduction of debt: but we are not concerned with the details thereof.8. The question that has been posed before us is the meaning of the words "a decree..... relating to a secured debt". The comparable words in S. 3 are "a suit...relating to a secured debt". As we have already said, so far as S. 3 is concerned, it is the date on which the suit is filed which has to be seen to determine whether the suit relates to a secured debt as defined in the Act. It has been urged on behalf of the appellant that S. 4 applies undoubtedly to a case where the debt was a secured debt at the time the suit was filed. But it is further urged that in an application under S. 4, the Court may also take into account the fact: that though the debt may not have been a secured debt on the date the suit was filed in which the decree was passed, the decree having created a Charge the debt becomes secured and the decree relates to a secured debt, the relevant date in such a case being the date on which the application under S. 4 has been made to the Court. It is said that the words "a decree .....relating to secured debt" means a decree which has secured a debt whether the debt was secured before the suit was filed or not.9. We are of opinion that this meaning cannot be given to the words "a decree.... relating to a secured debt." We have already Indicated that the comparable words in S.3 are the same and there the words "a suit.........relating to secured debt" clearly mean a suit which is based on a debt which was secured before the suit was filed. On the same reasoning when S. 4 speaks of "a decree..... relating to a secured debt" it means a decree passed in a suit which was based on a secured debt as on the date of the suit. The legislature could not have intended by using these words in S. 4 that the fact that the decree created a charge should result in converting what was an unsecured debt into a secured debt for the purpose of S. 4 it seems to us that if one were to ask in a case of this kind whether the decree related to a secured debt or not, the answer would clearly be that the decree does not relate to a secured debt but to an unsecured debt based on a promissory note. It is true that the decree itself created a charge but that is very different from saying that the decree relates to a secured debt. We have no doubt that if the legislature intended that a decree which relates to an unsecured debt but which itself creates a charge for any reason would also be covered by S. 4, it would have used different and appropriate words to convey that idea. Thus to our mind, as the words "suit relating to a secured debt" mean split relating to a debt which was secured on the date the suit was filed, a decree relating to secured debt must also mean the same thing, i.e., decree in respect of a debt which was secured when the suit in which the decree was passed was filed. The mere fact that the decree created a charge for certain reasons, as in this case, under the U. P. Agriculturists Relief Act, is no reason for holding that the decree relates to a secured debt. Whether the debt was secured or otherwise is a matter which in our opinion has to be tested both for S. 4 as well as for S. 3 on the date the suit is filed. If on that date the debt was secured, the suit would be relating to a secured debt and so would be the decree which might later be passed in that suit. But if on the date of the suit the debt was not secured it cannot be said that the decree related to a secured debt simply because the decree created a charge for some reason or other. We are, therefore, of opinion that the High Court was right in the view it took that this case was not covered by S. 4 of the Act.
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0[ds]5. It will be seen from these definitions that a decree in a suit based on any debt is a decree to which the Act applies and such decrees can be of two kinds, namely, (i) those based on a secured debt, and (ii) those based on an unsecured debt. A secured debt is a debt secured by mortgage and includes a debt secured by a charge under S. l00 of the Transfer of Propertyfollow provisions as to the manner in which the debt would be reduced, but we are not concerned with the details thereof. Section 3, therefore, applies to a case where a decree relating to a secured debt had not been passed before the Act came into force. In such a case the Court passing the decree has to reduce the amount in the manner provided in that section. It is, however, clear that before the Court can act under S. 3, it has to come to the conclusion that the debt in question is a secured debt, i. e., a debt secured by a mortgage or a charge under S. l00 of the Transfer of Property Act. The mortgage or the charge must he there on the date of the suit and the suit must be with respect to a secured debt. The date, therefore, on which the Court has to see whether the debt in the suit before it is a secured debt or not is the date on which the suit is filed. The High Court seems to be in error when it held that- under the definition of secured debt" only such debts as are secured by a mortgage come in and not debts which are secured by a charge. It seems to have overlooked that part of the definition of the word "mortgage" which lays down that a mortgage will include a charge as defined in S. 100 of the Transfer of Property Act. Therefore, even though a debt may be secured by a charge it will be a secured debt for the purpose of S. 3 provided the charge was there before the date of the suit. We have referred to S. 3 in some details because we are of opinion that the interpretation to be put on S. 3 will have a direct bearing on the interpretation of the words of S. 4 where also the material words are the same as in S.we have already said, so far as S. 3 is concerned, it is the date on which the suit is filed which has to be seen to determine whether the suit relates to a secured debt as defined in the Act.We are of opinion that this meaning cannot be given to the words "a decree.... relating to a secured debt." We have already Indicated that the comparable words in S.3 are the same and there the words "a suit.........relating to secured debt" clearly mean a suit which is based on a debt which was secured before the suit was filed. On the same reasoning when S. 4 speaks of "a decree..... relating to a secured debt" it means a decree passed in a suit which was based on a secured debt as on the date of the suit. The legislature could not have intended by using these words in S. 4 that the fact that the decree created a charge should result in converting what was an unsecured debt into a secured debt for the purpose of S. 4 it seems to us that if one were to ask in a case of this kind whether the decree related to a secured debt or not, the answer would clearly be that the decree does not relate to a secured debt but to an unsecured debt based on a promissory note. It is true that the decree itself created a charge but that is very different from saying that the decree relates to a secured debt. We have no doubt that if the legislature intended that a decree which relates to an unsecured debt but which itself creates a charge for any reason would also be covered by S. 4, it would have used different and appropriate words to convey that idea. Thus to our mind, as the words "suit relating to a secured debt" mean split relating to a debt which was secured on the date the suit was filed, a decree relating to secured debt must also mean the same thing, i.e., decree in respect of a debt which was secured when the suit in which the decree was passed was filed. The mere fact that the decree created a charge for certain reasons, as in this case, under the U. P. Agriculturists Relief Act, is no reason for holding that the decree relates to a secured debt. Whether the debt was secured or otherwise is a matter which in our opinion has to be tested both for S. 4 as well as for S. 3 on the date the suit is filed. If on that date the debt was secured, the suit would be relating to a secured debt and so would be the decree which might later be passed in that suit. But if on the date of the suit the debt was not secured it cannot be said that the decree related to a secured debt simply because the decree created a charge for some reason or other. We are, therefore, of opinion that the High Court was right in the view it took that this case was not covered by S. 4 of thecomparable words in S. 3 are "a suit...relating to a secured debt". Aswe have already said, so far as S. 3 is concerned, it is the date on which the suit is filed which has to be seen to determine whether the suit relates to a secured debt as defined in the Act.
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Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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he there on the date of the suit and the suit must be with respect to a secured debt. The date, therefore, on which the Court has to see whether the debt in the suit before it is a secured debt or not is the date on which the suit is filed. The High Court seems to be in error when it held that- under the definition of secured debt" only such debts as are secured by a mortgage come in and not debts which are secured by a charge. It seems to have overlooked that part of the definition of the word "mortgage" which lays down that a mortgage will include a charge as defined in S. 100 of the Transfer of Property Act. Therefore, even though a debt may be secured by a charge it will be a secured debt for the purpose of S. 3 provided the charge was there before the date of the suit. We have referred to S. 3 in some details because we are of opinion that the interpretation to be put on S. 3 will have a direct bearing on the interpretation of the words of S. 4 where also the material words are the same as in S. 3.7. Section 4 provides for reduction of debts after passing of decrees, and sub-s. (1) thereof reads thus:"(1) Notwithstanding anything in the Code of Civil Procedure. 1908, or any other law, the Court, which passed a decree to which this Act applies relating to a secured debt, shall, on the application either of the decree-holder or judgment-debtor, proceed as hereinafter stated."Then come provisions as to the reduction of debt: but we are not concerned with the details thereof.8. The question that has been posed before us is the meaning of the words "a decree..... relating to a secured debt". The comparable words in S. 3 are "a suit...relating to a secured debt". As we have already said, so far as S. 3 is concerned, it is the date on which the suit is filed which has to be seen to determine whether the suit relates to a secured debt as defined in the Act. It has been urged on behalf of the appellant that S. 4 applies undoubtedly to a case where the debt was a secured debt at the time the suit was filed. But it is further urged that in an application under S. 4, the Court may also take into account the fact: that though the debt may not have been a secured debt on the date the suit was filed in which the decree was passed, the decree having created a Charge the debt becomes secured and the decree relates to a secured debt, the relevant date in such a case being the date on which the application under S. 4 has been made to the Court. It is said that the words "a decree .....relating to secured debt" means a decree which has secured a debt whether the debt was secured before the suit was filed or not.9. We are of opinion that this meaning cannot be given to the words "a decree.... relating to a secured debt." We have already Indicated that the comparable words in S.3 are the same and there the words "a suit.........relating to secured debt" clearly mean a suit which is based on a debt which was secured before the suit was filed. On the same reasoning when S. 4 speaks of "a decree..... relating to a secured debt" it means a decree passed in a suit which was based on a secured debt as on the date of the suit. The legislature could not have intended by using these words in S. 4 that the fact that the decree created a charge should result in converting what was an unsecured debt into a secured debt for the purpose of S. 4 it seems to us that if one were to ask in a case of this kind whether the decree related to a secured debt or not, the answer would clearly be that the decree does not relate to a secured debt but to an unsecured debt based on a promissory note. It is true that the decree itself created a charge but that is very different from saying that the decree relates to a secured debt. We have no doubt that if the legislature intended that a decree which relates to an unsecured debt but which itself creates a charge for any reason would also be covered by S. 4, it would have used different and appropriate words to convey that idea. Thus to our mind, as the words "suit relating to a secured debt" mean split relating to a debt which was secured on the date the suit was filed, a decree relating to secured debt must also mean the same thing, i.e., decree in respect of a debt which was secured when the suit in which the decree was passed was filed. The mere fact that the decree created a charge for certain reasons, as in this case, under the U. P. Agriculturists Relief Act, is no reason for holding that the decree relates to a secured debt. Whether the debt was secured or otherwise is a matter which in our opinion has to be tested both for S. 4 as well as for S. 3 on the date the suit is filed. If on that date the debt was secured, the suit would be relating to a secured debt and so would be the decree which might later be passed in that suit. But if on the date of the suit the debt was not secured it cannot be said that the decree related to a secured debt simply because the decree created a charge for some reason or other. We are, therefore, of opinion that the High Court was right in the view it took that this case was not covered by S. 4 of the Act.
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Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa & Others
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of this test that the implied power of the Tribunal to add parties must be held to be limited.13. This question has been considered by the Madras High Court in two reported decisions. In P. G. Brookes v. Industrial Tribunal, Madras, AIR 1954 Mad 369 the Division Bench of the said High Court has held that S. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add necessary or proper party. He need not be the employer or the employee. In that particular case, the party added was the Receiver and it was found that unless the Receiver was added as a party to the reference proceedings, the adjudication itself would become ineffective. In the words used by the judgment, the party added was not a rank outsider or a disinterested spectator, but was a Receiver who was vitally concerned with the proceedings before the Tribunal and whose presence was necessary to make the ultimate award effective, valid and enforceable.14. In Radhakrishna Mills Ltd., Peelamedu v. Special Industrial Tribunal Madras, AIR 1954 Mad 686 , a single Judge of the Madras High Court followed the earlier decision, though in this case, a party that was summoned by the Tribunal has been added to the reference by the State Government under S. 10(5) of the Act.15. In Anil Kumar Upadhaya v. P. K. Sarkar, AIR 1961 Cal 60 a learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not the subject-matter of the reference and which are not incidental to the dispute which has been referred.16. That takes us to the question as to whether the appellant is justified in contending that M/s. Hindustan Steel Ltd. is a necessary party to the present proceeding before the Industrial Tribunal, and should, therefore, be added as such. Mr. Chatterji has raised two contentions in support of his plea that M/s. Hindustan Steel Ltd. is a necessary party. The first contention is that if it is ultimately found that the respondents claim for bonus for the relevant year is well founded, as a result of the contract between the appellant and M/s. Hindustan Steel Ltd. the liability to pay the said bonus would rest with the said concern and not with the appellant. The appellant, according to Mr. Chatterji, is a firm constituted only for a single venture for undertaking the execution of the work of construction and foundation and civil engineering works at Rourkela; it has been engaged by the said concern of M/s. Hindustan Steel Ltd. as its agent and in that behalf an agreement has been executed between the parties. Mr. Chatterji referred us to some of the relevant clauses of this agreement in support of his plea that the liability for bonus, if established by the respondents against the appellant, would be not the appellants, but of M/s. Hindustan Steel Ltd. We do not propose to examine the merits of this contention, because we are satisfied that even if Mr. Chatterjis contention is well founded by reference to the relevant clauses of the agreement between the parties, that cannot make M/s. Hindustan Steel Ltd., a necessary party within the meaning of S. 18 (3) (b). This contention raises an entirely different dispute between the appellant and its alleged principal and such a dispute would be wholly foreign to the industrial dispute which has been referred to the Tribunal for its adjudication.17. The next contention raised by Mr. Chatterji is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant. In other words, this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of Orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. ought to be added as a party. In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Unions case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under S. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so,we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under S. 18(3)(b).
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1[ds]It will be noticed that clause(a) refers to all parties to the industrial dispute, whereas clause (b) refers to all other parties summoned to appear. The word "other" seems to suggest that the parties summoned to appear to whom clause (b) refers are not identical with the parties to the "industrial dispute specified by clause (a). Section 2(k) of the Act defines an industrial dispute, inter alia, as meaning any dispute or difference between employers and workmen; so that parties to the industrial dispute under clause (a) would mean persons between whom the dispute has arisen as prescribed by S. 2(k) and so, clause (b) contemplates persons other than those who are actually and directly involved in the dispute which is the subject-matter of reference under section 10.Thus, S. 18 (b) seems to contemplate that persons other than parties to the industrial dispute may be summoned before theis significant that so far as the reference to the Tribunal is concerned, S. 10 (1) (c) empowered the appropriate Government to refer the dispute to the Tribunal, and unlike clause (b) this clause did not take within its sweep any matter appearing to be connected with or relevant to the dispute; so that in regard to the power to refer an industrial dispute to the Tribunal for its adjudication, the appropriate Government could make a reference of the dispute itself and was not expressly clothed with the power to refer any matter appearing to be connected with, or relevant to, such a dispute. The result of these relevant provisions clearly seems to be that if the Industrial Tribunal, while dealing with an industrial dispute, came to the conclusion that persons other than those mentioned as parties to the industrial dispute were necessary for a valid determination of the said dispute, it had the power to summon them; and if such persons were summoned to appear in the proceedings, the award that the Industrial Tribunal may ultimately pronounce would be binding on them. Since in cases where persons were added as parties to an industrial dispute were likely to raise the question as to whether the joinder of the parties was justified or not, S. 18 (b) required that the Tribunal should record its opinion as to whether these persons had been summoned without proper cause. Thus, we are inclined to take the view that Mr. Chatterji is right in contending that S. 18 (b) as it originally stood, postulates that the Tribunal had an implied power to summon parties, other than parties to the industrial dispute, to appear in the proceedings before it. That naturally raises the question about the extent of this power.This question has been considered by the Madras High Court in two reported decisions. In P. G. Brookes v. Industrial Tribunal, Madras, AIR 1954 Mad 369 the Division Bench of the said High Court has held that S. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add necessary or proper party. He need not be the employer or the employee. In that particular case, the party added was the Receiver and it was found that unless the Receiver was added as a party to the reference proceedings, the adjudication itself would become ineffective. In the words used by the judgment, the party added was not a rank outsider or a disinterested spectator, but was a Receiver who was vitally concerned with the proceedings before the Tribunal and whose presence was necessary to make the ultimate award effective, valid and enforceable.14. In Radhakrishna Mills Ltd., Peelamedu v. Special Industrial Tribunal Madras, AIR 1954 Mad 686 , a single Judge of the Madras High Court followed the earlier decision, though in this case, a party that was summoned by the Tribunal has been added to the reference by the State Government under S. 10(5) of the Act.15. In Anil Kumar Upadhaya v. P. K. Sarkar, AIR 1961 Cal 60 a learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not theof the reference and which are not incidental to the dispute which has beendealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Unions case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under S. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so,we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under S. 18(3)(b).
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From the information provided in the case proceeding, infer whether the court's decision will be positive (1) or negative (0) for the appellant.
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of this test that the implied power of the Tribunal to add parties must be held to be limited.13. This question has been considered by the Madras High Court in two reported decisions. In P. G. Brookes v. Industrial Tribunal, Madras, AIR 1954 Mad 369 the Division Bench of the said High Court has held that S. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add necessary or proper party. He need not be the employer or the employee. In that particular case, the party added was the Receiver and it was found that unless the Receiver was added as a party to the reference proceedings, the adjudication itself would become ineffective. In the words used by the judgment, the party added was not a rank outsider or a disinterested spectator, but was a Receiver who was vitally concerned with the proceedings before the Tribunal and whose presence was necessary to make the ultimate award effective, valid and enforceable.14. In Radhakrishna Mills Ltd., Peelamedu v. Special Industrial Tribunal Madras, AIR 1954 Mad 686 , a single Judge of the Madras High Court followed the earlier decision, though in this case, a party that was summoned by the Tribunal has been added to the reference by the State Government under S. 10(5) of the Act.15. In Anil Kumar Upadhaya v. P. K. Sarkar, AIR 1961 Cal 60 a learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not the subject-matter of the reference and which are not incidental to the dispute which has been referred.16. That takes us to the question as to whether the appellant is justified in contending that M/s. Hindustan Steel Ltd. is a necessary party to the present proceeding before the Industrial Tribunal, and should, therefore, be added as such. Mr. Chatterji has raised two contentions in support of his plea that M/s. Hindustan Steel Ltd. is a necessary party. The first contention is that if it is ultimately found that the respondents claim for bonus for the relevant year is well founded, as a result of the contract between the appellant and M/s. Hindustan Steel Ltd. the liability to pay the said bonus would rest with the said concern and not with the appellant. The appellant, according to Mr. Chatterji, is a firm constituted only for a single venture for undertaking the execution of the work of construction and foundation and civil engineering works at Rourkela; it has been engaged by the said concern of M/s. Hindustan Steel Ltd. as its agent and in that behalf an agreement has been executed between the parties. Mr. Chatterji referred us to some of the relevant clauses of this agreement in support of his plea that the liability for bonus, if established by the respondents against the appellant, would be not the appellants, but of M/s. Hindustan Steel Ltd. We do not propose to examine the merits of this contention, because we are satisfied that even if Mr. Chatterjis contention is well founded by reference to the relevant clauses of the agreement between the parties, that cannot make M/s. Hindustan Steel Ltd., a necessary party within the meaning of S. 18 (3) (b). This contention raises an entirely different dispute between the appellant and its alleged principal and such a dispute would be wholly foreign to the industrial dispute which has been referred to the Tribunal for its adjudication.17. The next contention raised by Mr. Chatterji is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant. In other words, this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of Orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. ought to be added as a party. In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Unions case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under S. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so,we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under S. 18(3)(b).
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Raj Lakshmi Dasi And Others Vs. Banamali Sen And Othersbholanath Sen And Othersv.Raj Laksh
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does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was by a special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises on the regular civil side.(21) Next it was urged that the decision given by the Privy Council was ex parte, and it had not the force of res judicata unless the subject-matter of the two proceedings was identical. Reliance for the proposition was placed on certain observations contained in the decision of the House of Lords in New Brunswick Rly. Co. v. British and French Trust Corporation,1939 A.C.1. In that case a view was expressed that in the case of a judgment in default of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it was said that if a writ is issued for a small claim, the defendant may well think it is better to let judgment go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment on one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendant precluded from contesting the last case. These observations have no apposite app1ication to the circumstances of the present case where the judgment of the first two Courts were given after full contest and then a party defaulted in appearing before the privy Council after saying obtained judgments in his favour in the Courts below.(22) A new point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court. The point was that the present suit of Rajlakshmi was barred by S. 47, Code of Civil Procedure inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No. 11 of 1903 and having obtained a decree for possession, her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit. The plea has no substance in it. The decree given in suit No. 11 of 1903 became un-executable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter parts during the lifetime of Katyyani and that was the reason why Katyayanis suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogindras estate. It was for this reason that the privy Council in the 1928 land acquisition case held that it had not the effect of res judicata on Rajlakshmis suit claiming title in the four anna share of Raj Ballavs estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Rajlakshmi the plea of s. 47 in these circumstances can have no validity. Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr., Ghose also fails.(23) Mr. Ghose raised a question of limitation and urged that Rajlalshmis suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to Jogindra and he having failed to file a suit, both Katyayani and Rajlakshmi must be taken to have lost the title to the part of the property in the possession of the Sens. The premises on which this contention is based is erroneous. Jogindra died long before the Sens took possession of the property and therefore Jogindra before his death had no cause of action against the Sens to eject them as they were not in possession. On the other hand, the trustees were holding the property on his behalf. The pleas of limitation and adverse possession were abandoned by the Sens on a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possessions of the Sens during the lifetime of Katyayani could not confer any title on them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise on the death of Katyayani.
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0[ds](14) These two decisions, in our opinion, are conclusive on the point of res judicata raised in the present case and in these circumstances it has to be held that the question of title to the four annas share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a Court having jurisdiction to try it and that decision thus operates as res judicata and estops the Sens and the mortgagees from reagitating that matter in thisThe High Court held that there can be no question that this decision is binding on the Sens and concludes them on the question of their title as against Rajlakshmi and that there could be no question also that it is binding on the mortgagees who were parties to the proceeding. In the concluding part of the judgment they observed as follows :"Our conclusion, therefore, is that there is nothing in the decision of the Privy Council which can operate as rej-judicata against the Dasses, either directly or constructively, on the question of the title of the Sens to the mortgaged properties. They are bound by the decision so far as it goes: just as the Sens can no longer say that the decision in suit No. 11 is not res judicata against them in a question with the plaintiff, both as regards title and the right to possession, so cannot the Dasses say that the decision is not res judicata against the Sens. But their own right to prove the title of the Sens against the plaintiff is in no way affected. This may look anomalous but such anomaly is inherent in the doctrine of res judicata which does not create or destroy title but is only a rule of estoppel."With great respect it seems to us that the conclusion reached as regards the mortgagees is neither illuminating nor sound. The anomalous result arrived at is on account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent in the doctrine of resview of the provisions of Ss. 9, 10, 18 and 30. Land Acquisition Act, it is evident that if the mortgagee actually intervenes in the land acquisition proceedings and makes a claim for the compensation, and any question of title arises about the right of the mortgagor in respect to the land acquired which affects the claim for compensation he has every right to protect that title. In the proceedings commenced in 1928, for the acquisition of 2, Deb Lane, Calcutta as already stated, the mortgagees actually intervened and defended the title of their mortgagors but without success. In those circumstances, the view taken by the High Court that they had no locus standi to make the claim, as it was not based on their own title cannot be sustained because a mortgagee has no other title than the title of his mortgagor. The judgement of the High Court when it says that the Dasses claimed it on the footing that they being creditors of the Sens, with a lien on the property, were entitled to receive the money towards the satisfaction of their debt and their claim therefore was not a claim of title, but only a claim to receive the compensation money, is clearly erroneous as the claim could be established only by proving the title of their mortgagors as against Rajlakshmi. We have further not been able to follow the judgment of the High Court when it says that the land acquisition Court must be presumed to have dismissed the mortgagees claim on the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money. It would have been more accurate if it was said that the land acquisition Court having held the title of the Sens proved to the premises acquired, presumed that the compensation money to which the Sens were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common Cause against Rajlakshmi. The High Court further observed that the mortgagees were bound by the decision of the Privy Council so far as it goes against them. We are not able to see to which part of the decision this remark relates. The only decision that the Privy council gave was on the question of the title at the Sens. The award of compensation to Rajlakshmi was a mere consequence of it, and it the Sens had no title in the four anna share at Raj Ballavs estate, the mortgagees obviously can have no lien on any Part at the property included in that share. The strangest part of the judgment of the High Court is when it says that the right at the Dasses to prove the title of the Sens against the plaintiff was in no way affected by the Privy council decision. It seems to have lost sight of the fact that that right was advanced by the Dasses more than once. It was exercised by them in the litigation of the year 1907 which ended in the decision of the High Court in 1910. It was exercised by them in the 1919 litigation and was again exercised by them in the land acquisition proceedings at 1928. In these circumstances, it appears to us that they had no further right left to establish the title of their mortgagors in the four-anna share of Raj Ballavs estate claimed bycontention is directly opposed to the provisions of s. 58, T. P. Act and the clear provisions of s. 73 which only states the law that prevailed even before then The result is that we are of the opinion that the High Court was in error in holding that the decision of the Privy Council in the land acquisition case of 1928 was not binding on the mortgagees on the question of the title of the Sens to the four anna share of Raj Ballavs estate as againstof his arguments, however, was convincing and might well have been summarily rejected but we think that it is due to Mr. Ghose and his long standing at the Bar that the arguments are noticed andour opinion, this argument is untenable and was negatived by their Lordships of the Privy Council in Bhagwati v. Ram Kali, 66 I. A.145 cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition cases which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the twocondition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by s.11of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was by a special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises on the regular civilplea has no substance in it. The decree given in suit No. 11 of 1903 became un-executable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter parts during the lifetime of Katyyani and that was the reason why Katyayanis suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogindras estate. It was for this reason that the privy Council in the 1928 land acquisition case held that it had not the effect of res judicata on Rajlakshmis suit claiming title in the four anna share of Raj Ballavs estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Rajlakshmi the plea of s. 47 in these circumstances can have no validity. Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr., Ghose alsopremises on which this contention is based is erroneous. Jogindra died long before the Sens took possession of the property and therefore Jogindra before his death had no cause of action against the Sens to eject them as they were not in possession. On the other hand, the trustees were holding the property on his behalf. The pleas of limitation and adverse possession were abandoned by the Sens on a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possessions of the Sens during the lifetime of Katyayani could not confer any title on them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise on the death of Katyayani.
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does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. Ghose that had this matter been decided by a District Judge, then the decision of the Privy Council would have been res judicata but as it was by a special Judge the effect was different. The District Judge when exercising powers of a Court under the Land Acquisition Act, in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises on the regular civil side.(21) Next it was urged that the decision given by the Privy Council was ex parte, and it had not the force of res judicata unless the subject-matter of the two proceedings was identical. Reliance for the proposition was placed on certain observations contained in the decision of the House of Lords in New Brunswick Rly. Co. v. British and French Trust Corporation,1939 A.C.1. In that case a view was expressed that in the case of a judgment in default of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it was said that if a writ is issued for a small claim, the defendant may well think it is better to let judgment go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment on one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendant precluded from contesting the last case. These observations have no apposite app1ication to the circumstances of the present case where the judgment of the first two Courts were given after full contest and then a party defaulted in appearing before the privy Council after saying obtained judgments in his favour in the Courts below.(22) A new point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before the High Court. The point was that the present suit of Rajlakshmi was barred by S. 47, Code of Civil Procedure inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No. 11 of 1903 and having obtained a decree for possession, her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit. The plea has no substance in it. The decree given in suit No. 11 of 1903 became un-executable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that decree was declared null and void at the instance of Rajlakshmi, it still remained binding inter parts during the lifetime of Katyyani and that was the reason why Katyayanis suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by Katyayani for protection of her personal rights and not as a representative of Jogindras estate. It was for this reason that the privy Council in the 1928 land acquisition case held that it had not the effect of res judicata on Rajlakshmis suit claiming title in the four anna share of Raj Ballavs estate which under the partition decree had gone to the Sens. Katyayani in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Rajlakshmi the plea of s. 47 in these circumstances can have no validity. Even as against Katyayani it was untenable and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr., Ghose also fails.(23) Mr. Ghose raised a question of limitation and urged that Rajlalshmis suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to Jogindra and he having failed to file a suit, both Katyayani and Rajlakshmi must be taken to have lost the title to the part of the property in the possession of the Sens. The premises on which this contention is based is erroneous. Jogindra died long before the Sens took possession of the property and therefore Jogindra before his death had no cause of action against the Sens to eject them as they were not in possession. On the other hand, the trustees were holding the property on his behalf. The pleas of limitation and adverse possession were abandoned by the Sens on a former occasion, as already stated in the earlier part of this judgment, and they were negatived by the Privy Council in the land acquisition proceedings. It is evident that the possessions of the Sens during the lifetime of Katyayani could not confer any title on them as against Rajlakshmi, the next reversioner, whose title to the estate could only arise on the death of Katyayani.
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380 |
Central Bank of India Limited Vs. Hari Prasad Jalan & Others
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damaged by floods remained with the Bank and were not delivered to the defendants. We have referred in detail to the documents which full establish that the defendants had taken delivery of the goods. In this connection the receipt exh. 4 read with the letter exh. 1-b of September , 29, 1954 constituted unimpeachable evidence of the defendants having taken delivery of the goods in question. It is significant that in the mortgage bond the defendants admitted the amount which was in excess of the value of the pledged commodities. It is common ground and has not been disputed before us that the value of the goods covered by the receipt exh. 4 was not deducted from the amount of Rs. 1, 64.884.14.3 showns to be in excess of the value of the pledged goods on December 29, 1954. If the delivery of the damaged goods had not been taken by the defendants the mortgage bond would have contained a figure after taking into account the value of the aforesaid goods. Moreover the correctness of the stocks hypothecated as per stock report dated December 31, 1954 was also confirmed together with the balance due by means of the letter exh. 5 (c) on January 1, 1955. The plaintiff sent two notices to the defendants to which reply was sent by them. Even in these replies the defendants never took up the position that the Bank was liable to account for the value of the damaged goods since their delivery had not been taken by the defendants. The most striking feature about the whole matter is that at no. stage the defendants either wrote or protested against the non-delivery of the aforesaid goods. There is nothing even in the pleadings in the written statement which have been extensively referred to by us at an earlier stage from which a case could be made out that goods of the value of Rs. 1, 04, 840/- were not delivered to the defendants although they had executed a receipt and admitted that they had been delivered. We are completely at a loss to understand how in these circumstances any oral evidence could be looked at for determining whether the admissions contained in all the aforesaid documents about the delivery of goods to the defendants were wrong. In our judgment in such circumstances oral evidence would be worthless and would be of no. value even if it could be considered in spite of the serious infirmity in the whole case of the defendants on the point there being complete absence of pleadings and issues. Moreover the High Court appears to have proceeded on several assumptions which were not justified. For instance it has been assumed that the letter exh. 1-b was not voluntarily written by the defendants. We have no. been shown any material from which such an inference could be legitimately drawn. The High Court attached importance to the fact that the peon of the Bank who was on duty at the material time was not examined by the Bank to prove that the defendants had taken delivery of the goods. This illustrates the error into which the High Court fell inasmuch as it proceeded to consider the evidence on the footing that it was for the plaintiff to prove the delivery of the goods. In the presence of so much documentary evidence and other facts and circumstances which fully establish the delivery of the goods to the defendants the burden could not have been placed on the plaintiff Bank to prove the same. It was for the defendants to plead and proved that they never got delivery of the disputed goods. This, in our opinion, they entirely failed to do. It cannot be forgotten that admittedly the goods were lying in the godowns which were in the premises of the mills of the defendants. The Bank had only the key or the keys of the godowns. The process of delivering the goods was quite simple as their physical delivery was not necessary. In the above view no. question of the applicability of S. 151 of the Contract Act could arise. Nor was the question of negligence of the plaintiff as a bailee even raised at any time before the suit despite the previous correspondence and the notices sent by the plaintiff. The defendants would, in normal course, have long before the suit informed the plaintiff that on account of its negligence the pledged good had got damaged and therefore, it was liable for all the consequences. Not one word was said about it at all material stages and it was only when the suit was filed that such a plea was put forward.9. Learned counsel for the defendants-respondents has contended that the goods had been completely destroyed by the floods and therefore they could not have been possibly delivered to the defendants. The High Court , however, came to the conclusion that on the evidence on record it could not be held that any portion of the goods mentioned in exhs. 1-b and 4 had been destroyed by the floods. This finding is a complete answer to the contention raised on behalf of the defendants. In spite of our repeated questions counsel for the defendants could furnish no. explanation for the defendants having never demanded the return of the goods which had been damaged during the floods or the adjustment of their value against the dues of the Bank if the case which was sought to be made out before the High Court had any substance.10. In the High Court it was not disputed that the amount of rupees 1, 16, 309.37 due to the Bank had been correctly calculated. The High Court, however, deducted a sum of Rupees 1, 04, 840/- from that amount on the ground that the damaged goods had not been delivered to the defendants. As according to our decision those goods had been delivered to the defendants this amount cannot be deducted from the sum of Rs. 1,16,309.37.
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1[ds]This, in our opinion, they entirely failed to do. It cannot be forgotten that admittedly the goods were lying in the godowns which were in the premises of the mills of the defendants. The Bank had only the key or the keys of the godowns. The process of delivering the goods was quite simple as their physical delivery was not necessary. In the above view no. question of the applicability of S. 151 of the Contract Act could arise. Nor was the question of negligence of the plaintiff as a bailee even raised at any time before the suit despite the previous correspondence and the notices sent by the plaintiff. The defendants would, in normal course, have long before the suit informed the plaintiff that on account of its negligence the pledged good had got damaged and therefore, it was liable for all the consequences. Not one word was said about it at all material stages and it was only when the suit was filed that such a plea was put forward.9. Learned counsel for thehas contended that the goods had been completely destroyed by the floods and therefore they could not have been possibly delivered to the defendants. The High Court , however, came to the conclusion that on the evidence on record it could not be held that any portion of the goods mentioned in exhs.and 4 had been destroyed by the floods. This finding is a complete answer to the contention raised on behalf of the defendants. In spite of our repeated questions counsel for the defendants could furnish no. explanation for the defendants having never demanded the return of the goods which had been damaged during the floods or the adjustment of their value against the dues of the Bank if the case which was sought to be made out before the High Court had any substance.10. In the High Court it was not disputed that the amount of rupees 1, 16, 309.37 due to the Bank had been correctly calculated. The High Court, however, deducted a sum of Rupees 1, 04, 840/from that amount on the ground that the damaged goods had not been delivered to the defendants. As according to our decision those goods had been delivered to the defendants this amount cannot be deducted from the sum of Rs. 1,16,309.37.
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### Instruction:
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damaged by floods remained with the Bank and were not delivered to the defendants. We have referred in detail to the documents which full establish that the defendants had taken delivery of the goods. In this connection the receipt exh. 4 read with the letter exh. 1-b of September , 29, 1954 constituted unimpeachable evidence of the defendants having taken delivery of the goods in question. It is significant that in the mortgage bond the defendants admitted the amount which was in excess of the value of the pledged commodities. It is common ground and has not been disputed before us that the value of the goods covered by the receipt exh. 4 was not deducted from the amount of Rs. 1, 64.884.14.3 showns to be in excess of the value of the pledged goods on December 29, 1954. If the delivery of the damaged goods had not been taken by the defendants the mortgage bond would have contained a figure after taking into account the value of the aforesaid goods. Moreover the correctness of the stocks hypothecated as per stock report dated December 31, 1954 was also confirmed together with the balance due by means of the letter exh. 5 (c) on January 1, 1955. The plaintiff sent two notices to the defendants to which reply was sent by them. Even in these replies the defendants never took up the position that the Bank was liable to account for the value of the damaged goods since their delivery had not been taken by the defendants. The most striking feature about the whole matter is that at no. stage the defendants either wrote or protested against the non-delivery of the aforesaid goods. There is nothing even in the pleadings in the written statement which have been extensively referred to by us at an earlier stage from which a case could be made out that goods of the value of Rs. 1, 04, 840/- were not delivered to the defendants although they had executed a receipt and admitted that they had been delivered. We are completely at a loss to understand how in these circumstances any oral evidence could be looked at for determining whether the admissions contained in all the aforesaid documents about the delivery of goods to the defendants were wrong. In our judgment in such circumstances oral evidence would be worthless and would be of no. value even if it could be considered in spite of the serious infirmity in the whole case of the defendants on the point there being complete absence of pleadings and issues. Moreover the High Court appears to have proceeded on several assumptions which were not justified. For instance it has been assumed that the letter exh. 1-b was not voluntarily written by the defendants. We have no. been shown any material from which such an inference could be legitimately drawn. The High Court attached importance to the fact that the peon of the Bank who was on duty at the material time was not examined by the Bank to prove that the defendants had taken delivery of the goods. This illustrates the error into which the High Court fell inasmuch as it proceeded to consider the evidence on the footing that it was for the plaintiff to prove the delivery of the goods. In the presence of so much documentary evidence and other facts and circumstances which fully establish the delivery of the goods to the defendants the burden could not have been placed on the plaintiff Bank to prove the same. It was for the defendants to plead and proved that they never got delivery of the disputed goods. This, in our opinion, they entirely failed to do. It cannot be forgotten that admittedly the goods were lying in the godowns which were in the premises of the mills of the defendants. The Bank had only the key or the keys of the godowns. The process of delivering the goods was quite simple as their physical delivery was not necessary. In the above view no. question of the applicability of S. 151 of the Contract Act could arise. Nor was the question of negligence of the plaintiff as a bailee even raised at any time before the suit despite the previous correspondence and the notices sent by the plaintiff. The defendants would, in normal course, have long before the suit informed the plaintiff that on account of its negligence the pledged good had got damaged and therefore, it was liable for all the consequences. Not one word was said about it at all material stages and it was only when the suit was filed that such a plea was put forward.9. Learned counsel for the defendants-respondents has contended that the goods had been completely destroyed by the floods and therefore they could not have been possibly delivered to the defendants. The High Court , however, came to the conclusion that on the evidence on record it could not be held that any portion of the goods mentioned in exhs. 1-b and 4 had been destroyed by the floods. This finding is a complete answer to the contention raised on behalf of the defendants. In spite of our repeated questions counsel for the defendants could furnish no. explanation for the defendants having never demanded the return of the goods which had been damaged during the floods or the adjustment of their value against the dues of the Bank if the case which was sought to be made out before the High Court had any substance.10. In the High Court it was not disputed that the amount of rupees 1, 16, 309.37 due to the Bank had been correctly calculated. The High Court, however, deducted a sum of Rupees 1, 04, 840/- from that amount on the ground that the damaged goods had not been delivered to the defendants. As according to our decision those goods had been delivered to the defendants this amount cannot be deducted from the sum of Rs. 1,16,309.37.
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381 |
Venkatrao Anantdeo Joshi Vs. Sau. Malatibai
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No.1 had no right to transfer it. The Court directed the Collector or any Gazetted subordinate officer to effect the partition of the suit property and separate possession and also directed the Court Commissioner to effect the partition of the suit house and the plot. The Court also directed mesne profits from the date of the suit until delivery of possession.4. Against that preliminary decree, Anantdeo and Malatibai had filed Regular Appeal No. 130/1979, which was dismissed on 31st December, 1981. Thereby, the preliminary decree for partition became final. Pending the said appeal, respondent No.3 Baburao filed a suit being Regular Civil Case No. 288 of 1981 for injunction against Anantdeo and Malatibai, that is, father and wife of the present appellant No.1 praying that they should be permanently restrained from causing interference into the peaceful possession over the suit land and claimed tenancy rights over the suit property bearing Survey No. 60/A. A compromise decree was obtained on 23rd November, 1981.5. Anantdeo died on 8.1.1987. Thereafter, appellant No.1 and his mother sold the entire suit property in favour of rest of the appellants by registered sale deed dated 23.8.1989. Thereafter, on 24.10.1989, appellant applied for passing of the final decree for partition in Civil Suit No. 51 of 1973. The trial Court partly allowed the said application and held that appellants were entitled to 2/3rd share of the suit property. The contention of respondent No.3 was negatived by holding as under:- "......Under such situation to my mind the opponent no.3 was aware about the dispute between the original plaintiffs and Anantdeo and opponent no.1 and hence he could have suo moto joined as defendant in the earlier suit raising the contention that he is tenant in the suit land. Batai Patra alleged to have been executed by Anantdeo in favour of opponent no.3 is not produced on record. Moreover, there is no entry in the record or right of the suit to that effect. Hence, I am of the opinion that the opponent no.3 cannot be said to be in possession of suit land on the basis of Batai Patra and his possession over the suit land is in other capacity. For these reasons I hold that the opponent no.3 is not having right over the suit land since 1977 as contended by him. Therefore, I answer this point in the negative." The decree was sent to the Collector for effecting partition.6. Against that order, appellants preferred appeal [RCA No. 314 of 1993] in respect of remaining 1/3rd share, which was declined by the trial Court. Baburao filed separate appeal claiming tenancy rights qua the agricultural land. In that appeal, the Additional District Judge vide its judgment and order dated 22.1.1997 held that claim of Baburao of being a tenant of agricultural land requires to be decided by a competent authority under the Tenancy Act. Hence, the issue is required to be raised before such Court.7. Against that judgment and order, the appellants filed Appeal from Order in the High Court. The High Court dismissed the same by impugned judgment. Hence, this appeal. 8. At the time of hearing of this appeal, learned counsel for the appellants submitted that the plea of tenancy raised by Baburao is on the face of it, bogus so as to defeat the rights of the appellants which are crystalised at the time of passing of the preliminary decree. Presuming that pending the suit for partition, even if batai patra is executed, it would not confer any rights on Baburao as it is hit by principles of lis pendens. In any case, as the preliminary decree becomes final, it was not open for Baburao to raise such contention at the time of passing of final decree for partition. 9. With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No.51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by appellant No.1 for partition of the property. In that suit, appellant no.1 and his mother had challenged the transfer of land out of Survey No.60/A and also for partition of the suit property. By elaborate judgment and order, the suit filed by the appellants was decreed to the extent that they were entitled to 2/3rd share in the suit properties. The Court had also directed mesne profits. Till the date of the decree, it was contended by Anantdeo that he was in possession of portion of the suit land and remaining portion was in possession of Malatibai, in view of sale deed in her favour. It has also, been specifically contended that for some time, property was in possession of Baburao prior to marriage of Shakuntala Bai and then in possession of one Pandurang Saokar and lastly it was in possession of Malatibai and himself. The Court specifically arrived at the conclusion that Anantdeo was in possession of the suit property and so-called transfer was without any legal and family necessary as alleged and, therefore, appellants were entitled to 2/3rd share in the suit property. In the Revenue Records also, there is no mutation in favour of Baburao. Further, so called compromise decree in Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer any title against the appellant.10. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 of the CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the decree. [Ref, Mool Chand and Others v. Dy Director, Consolidation and Others [(1995) 5 SCC 631] .
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1[ds]9. With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No.51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by appellant No.1 for partition of the property. In that suit, appellant no.1 and his mother had challenged the transfer of land out of Survey No.60/A and also for partition of the suit property. By elaborate judgment and order, the suit filed by the appellants was decreed to the extent that they were entitled to 2/3rd share in the suit properties. The Court had also directed mesne profits. Till the date of the decree, it was contended by Anantdeo that he was in possession of portion of the suit land and remaining portion was in possession of Malatibai, in view of sale deed in her favour. It has also, been specifically contended that for some time, property was in possession of Baburao prior to marriage of Shakuntala Bai and then in possession of one Pandurang Saokar and lastly it was in possession of Malatibai and himself. The Court specifically arrived at the conclusion that Anantdeo was in possession of the suit property and so-called transfer was without any legal and family necessary as alleged and, therefore, appellants were entitled to 2/3rd share in the suit property. In the Revenue Records also, there is no mutation in favour of Baburao. Further, so called compromise decree in Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer any title against the appellant.10. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 of the CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the decree.
| 1 | 1,437 |
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No.1 had no right to transfer it. The Court directed the Collector or any Gazetted subordinate officer to effect the partition of the suit property and separate possession and also directed the Court Commissioner to effect the partition of the suit house and the plot. The Court also directed mesne profits from the date of the suit until delivery of possession.4. Against that preliminary decree, Anantdeo and Malatibai had filed Regular Appeal No. 130/1979, which was dismissed on 31st December, 1981. Thereby, the preliminary decree for partition became final. Pending the said appeal, respondent No.3 Baburao filed a suit being Regular Civil Case No. 288 of 1981 for injunction against Anantdeo and Malatibai, that is, father and wife of the present appellant No.1 praying that they should be permanently restrained from causing interference into the peaceful possession over the suit land and claimed tenancy rights over the suit property bearing Survey No. 60/A. A compromise decree was obtained on 23rd November, 1981.5. Anantdeo died on 8.1.1987. Thereafter, appellant No.1 and his mother sold the entire suit property in favour of rest of the appellants by registered sale deed dated 23.8.1989. Thereafter, on 24.10.1989, appellant applied for passing of the final decree for partition in Civil Suit No. 51 of 1973. The trial Court partly allowed the said application and held that appellants were entitled to 2/3rd share of the suit property. The contention of respondent No.3 was negatived by holding as under:- "......Under such situation to my mind the opponent no.3 was aware about the dispute between the original plaintiffs and Anantdeo and opponent no.1 and hence he could have suo moto joined as defendant in the earlier suit raising the contention that he is tenant in the suit land. Batai Patra alleged to have been executed by Anantdeo in favour of opponent no.3 is not produced on record. Moreover, there is no entry in the record or right of the suit to that effect. Hence, I am of the opinion that the opponent no.3 cannot be said to be in possession of suit land on the basis of Batai Patra and his possession over the suit land is in other capacity. For these reasons I hold that the opponent no.3 is not having right over the suit land since 1977 as contended by him. Therefore, I answer this point in the negative." The decree was sent to the Collector for effecting partition.6. Against that order, appellants preferred appeal [RCA No. 314 of 1993] in respect of remaining 1/3rd share, which was declined by the trial Court. Baburao filed separate appeal claiming tenancy rights qua the agricultural land. In that appeal, the Additional District Judge vide its judgment and order dated 22.1.1997 held that claim of Baburao of being a tenant of agricultural land requires to be decided by a competent authority under the Tenancy Act. Hence, the issue is required to be raised before such Court.7. Against that judgment and order, the appellants filed Appeal from Order in the High Court. The High Court dismissed the same by impugned judgment. Hence, this appeal. 8. At the time of hearing of this appeal, learned counsel for the appellants submitted that the plea of tenancy raised by Baburao is on the face of it, bogus so as to defeat the rights of the appellants which are crystalised at the time of passing of the preliminary decree. Presuming that pending the suit for partition, even if batai patra is executed, it would not confer any rights on Baburao as it is hit by principles of lis pendens. In any case, as the preliminary decree becomes final, it was not open for Baburao to raise such contention at the time of passing of final decree for partition. 9. With regard to lis pendens, learned counsel for the appellants rightly referred to the judgment and decree passed in Regular Civil Suit No.51 of 1973 and contended that presuming that the so-called batai patra was at all executed by Anantdeo, it was not open to him to execute the same pending disposal of the suit filed by appellant No.1 for partition of the property. In that suit, appellant no.1 and his mother had challenged the transfer of land out of Survey No.60/A and also for partition of the suit property. By elaborate judgment and order, the suit filed by the appellants was decreed to the extent that they were entitled to 2/3rd share in the suit properties. The Court had also directed mesne profits. Till the date of the decree, it was contended by Anantdeo that he was in possession of portion of the suit land and remaining portion was in possession of Malatibai, in view of sale deed in her favour. It has also, been specifically contended that for some time, property was in possession of Baburao prior to marriage of Shakuntala Bai and then in possession of one Pandurang Saokar and lastly it was in possession of Malatibai and himself. The Court specifically arrived at the conclusion that Anantdeo was in possession of the suit property and so-called transfer was without any legal and family necessary as alleged and, therefore, appellants were entitled to 2/3rd share in the suit property. In the Revenue Records also, there is no mutation in favour of Baburao. Further, so called compromise decree in Civil Suit No. 288 of 1981 against Anantdeo and Malatibai would not confer any title against the appellant.10. Further, in a suit for partition where preliminary decree is passed, at the time of passing of the final decree it was not open to the respondent to raise the contention that he was a tenant of the suit premises. Section 97 of the CPC specifically provides that where any party aggrieved by the preliminary decree does not appeal from the said decree, he is precluded from disputing its correctness in any appeal which may be preferred from the decree. [Ref, Mool Chand and Others v. Dy Director, Consolidation and Others [(1995) 5 SCC 631] .
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382 |
Colgate Palmolive (India) Ltd Vs. Hindustan Lever Ltd
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laboratory tests that the complainant has found that representation is not correct and it is on this perspective that Mr. Desai also contended that the entire grievance of the complainant has to be decided on the basis of the evidence at the time of the trial but not at any stage prior thereto. As a matter of fact the Commission itself, as noted above, has recorded such a finding, but after recording the same, came to find about Suraksha Chakra and we find some justification in Mr. Desais criticism as regards the non-application of mind in the matter of passing of an order of injunction as impugned in this appeal. On a perusal of the complaint Suraksha Chakra cannot be said to be within ambit, of the foaming action and has been referred therein only to complete the advertisement portion as an incidental issue and obviously the Commission was persuaded more by the U.S. Trade Commissions Report rather than consideration of the allegations in the complaint itself. 42. Mr. Salve appearing for the respondent/complainant strongly contended that by using Suraksha Chakra in the commercial advertisement specially in Hindi, the appellant has, in fact, targeted the ordinary common man in the Hindi belt so as to give an expression that the toothpaste as matter of fact provides a durable and permanent protection with respect to germs, tooth decay and bad breath to the more so by reason of the fact that the Commission has not returned any finding as regards the three principal issues but passed an order of injunction only as regards the Suraksha Chakra by reason of the specific order of the FTC as noticed above.43. The submission of Mr. Salve at the first blush is rather attractive that at this stage we are not really concerned with the factum of establishment of any truth or falsity but merely a prima facie case or an arguable case resulting in establishment of a prima facie case and in that perspective the issue, therefore, emerges as to whether such a prima facie case has been made out or not - we are however afraid that the answer cannot but be the negative. The Federal Trade Commission was confronted with an invisible shield which was protecting the tooth from a coconut, tennis ball and a piece of stone and it is on this factual back-drop that FTC came to a conclusion that withstanding of the pressure of the coconut or resistance by an invisible shield by reason of the user of the toothpaste would not arise. The situation in the present context is however totally dissimilar. No material object is bouncing back after hitting the tooth by reason of "Suraksha Chakra".misapplied and misread the observations of Federal Trade Commission since their is no factual similarity between the two. Prima facie case or at least arguable case does not and cannot possibly suggest an order of injunction without any factual support. There ought to be some such support on facts without which there would not be any justification for grant of an interim order.44. Mr. Salve next contended that the complaint pertains to vindication of a public right and since the public interest is involved, question of any delay for moving the Commission does not arise and more so, it is a remedy to public wrong and not being a personal relief. We are, however, unable to record our concurrence at this juncture. Public wrong, if any, needs to be assessed and proved, without which question of having an order of injunction would not arise. While it is true that the relief prayed for is statutory in nature but that does not clothe the Commission to pass orders de hors the basic principles of law. 45. In fine, the submission of Mr. Desai as regards the bona fides of the application under Section 12A cannot also be brushed aside and in our view non-consideration thereof by the Commission has resulted in a clear error on the part of the Commission. The fact that within a period of 10 days of the application by the appellant herein-before the Commission, the respondent files the instant complaint with an application for an interim prayer - though, however, this "Suraksha Chakra" admittedly, is available in the commercial advertisement since 1985 and in the visual advertisement in Hindi at least since 1987 - there was no lodgment of any protest or complaint in public interest but it only filed as a backlash on the appellants complaint as noticed above and the motive therein in our view cannot also be ruled out. 46. The appeal preferred by the complainant as against the failure of the Commission to pass orders on the other three elements of the advertisement in our view at this stage cannot be entertained and we record our concurrence with the finding of the Commission that without going through the evidence, it is neither feasible not proper in any event to pass any orders thereon at this juncture. We are dismayed however by the fact that after recording a finding on that score as noticed above, the Commission passed an order of injunction in regard to an issue without however any material on record.47. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitutes an unfair trade practice pertaining to "Suraksha Chakra". The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years delay has also not been delved into by the Commission at all.48. In that view of the matter question of there being any order of injunction at this stage of the proceeding on the face of the finding as passed by the Commission itself does not and cannot arise.
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1[ds]45. In fine, the submission of Mr. Desai as regards the bona fides of the application under Section 12A cannot also be brushed aside and in our view non-consideration thereof by the Commission has resulted in a clear error on the part of the Commission. The fact that within a period of 10 days of the application by the appellant herein-before the Commission, the respondent files the instant complaint with an application for an interim prayer - though, however, this "Suraksha Chakra" admittedly, is available in the commercial advertisement since 1985 and in the visual advertisement in Hindi at least since 1987 - there was no lodgment of any protest or complaint in public interest but it only filed as a backlash on the appellants complaint as noticed above and the motive therein in our view cannot also be ruled out.The appeal preferred by the complainant as against the failure of the Commission to pass orders on the other three elements of the advertisement in our view at this stage cannot be entertained and we record our concurrence with the finding of the Commission that without going through the evidence, it is neither feasible not proper in any event to pass any orders thereon at this juncture. We are dismayed however by the fact that after recording a finding on that score as noticed above, the Commission passed an order of injunction in regard to an issue without however any material on record.47. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitutes an unfair trade practice pertaining to "Suraksha Chakra". The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years delay has also not been delved into by the Commission at all.48. In that view of the matter question of there being any order of injunction at this stage of the proceeding on the face of the finding as passed by the Commission itself does not and cannot arise.
| 1 | 9,574 |
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laboratory tests that the complainant has found that representation is not correct and it is on this perspective that Mr. Desai also contended that the entire grievance of the complainant has to be decided on the basis of the evidence at the time of the trial but not at any stage prior thereto. As a matter of fact the Commission itself, as noted above, has recorded such a finding, but after recording the same, came to find about Suraksha Chakra and we find some justification in Mr. Desais criticism as regards the non-application of mind in the matter of passing of an order of injunction as impugned in this appeal. On a perusal of the complaint Suraksha Chakra cannot be said to be within ambit, of the foaming action and has been referred therein only to complete the advertisement portion as an incidental issue and obviously the Commission was persuaded more by the U.S. Trade Commissions Report rather than consideration of the allegations in the complaint itself. 42. Mr. Salve appearing for the respondent/complainant strongly contended that by using Suraksha Chakra in the commercial advertisement specially in Hindi, the appellant has, in fact, targeted the ordinary common man in the Hindi belt so as to give an expression that the toothpaste as matter of fact provides a durable and permanent protection with respect to germs, tooth decay and bad breath to the more so by reason of the fact that the Commission has not returned any finding as regards the three principal issues but passed an order of injunction only as regards the Suraksha Chakra by reason of the specific order of the FTC as noticed above.43. The submission of Mr. Salve at the first blush is rather attractive that at this stage we are not really concerned with the factum of establishment of any truth or falsity but merely a prima facie case or an arguable case resulting in establishment of a prima facie case and in that perspective the issue, therefore, emerges as to whether such a prima facie case has been made out or not - we are however afraid that the answer cannot but be the negative. The Federal Trade Commission was confronted with an invisible shield which was protecting the tooth from a coconut, tennis ball and a piece of stone and it is on this factual back-drop that FTC came to a conclusion that withstanding of the pressure of the coconut or resistance by an invisible shield by reason of the user of the toothpaste would not arise. The situation in the present context is however totally dissimilar. No material object is bouncing back after hitting the tooth by reason of "Suraksha Chakra".misapplied and misread the observations of Federal Trade Commission since their is no factual similarity between the two. Prima facie case or at least arguable case does not and cannot possibly suggest an order of injunction without any factual support. There ought to be some such support on facts without which there would not be any justification for grant of an interim order.44. Mr. Salve next contended that the complaint pertains to vindication of a public right and since the public interest is involved, question of any delay for moving the Commission does not arise and more so, it is a remedy to public wrong and not being a personal relief. We are, however, unable to record our concurrence at this juncture. Public wrong, if any, needs to be assessed and proved, without which question of having an order of injunction would not arise. While it is true that the relief prayed for is statutory in nature but that does not clothe the Commission to pass orders de hors the basic principles of law. 45. In fine, the submission of Mr. Desai as regards the bona fides of the application under Section 12A cannot also be brushed aside and in our view non-consideration thereof by the Commission has resulted in a clear error on the part of the Commission. The fact that within a period of 10 days of the application by the appellant herein-before the Commission, the respondent files the instant complaint with an application for an interim prayer - though, however, this "Suraksha Chakra" admittedly, is available in the commercial advertisement since 1985 and in the visual advertisement in Hindi at least since 1987 - there was no lodgment of any protest or complaint in public interest but it only filed as a backlash on the appellants complaint as noticed above and the motive therein in our view cannot also be ruled out. 46. The appeal preferred by the complainant as against the failure of the Commission to pass orders on the other three elements of the advertisement in our view at this stage cannot be entertained and we record our concurrence with the finding of the Commission that without going through the evidence, it is neither feasible not proper in any event to pass any orders thereon at this juncture. We are dismayed however by the fact that after recording a finding on that score as noticed above, the Commission passed an order of injunction in regard to an issue without however any material on record.47. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitutes an unfair trade practice pertaining to "Suraksha Chakra". The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years delay has also not been delved into by the Commission at all.48. In that view of the matter question of there being any order of injunction at this stage of the proceeding on the face of the finding as passed by the Commission itself does not and cannot arise.
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AHMED ABDULLA AHMED AL GHURAIR (THROUGH THEIR POWER OF ATTORNEY HOLDER MR. BARTHOLOMEW KAMYA) Vs. STAR HEALTH AND ALLIED INSURANCE COMPANY LIMITED
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foreign court: Counsel for the plaintiffs submitted that the Mysore Court was incompetent to deliver an effective judgment in respect of the shares. But by personal compliance with an order for retransfer judgment in favour of the plaintiffs could be rendered effective. Per Hidayatullah, J (Minority) : It only remains to consider the argument in relation to the shares of the Indian Sugars and Refineries Ltd. It was contended that the shares must be deemed to be situated where they could be effectively dealt with and that was Madras, where the Head Office of the Company was situated. Learned counsel relied upon some English cases in support of his contention. It is not necessary to refer to those cases. The situs of shares between the Company and the shareholders is undoubtedly in the country where the business is situated. But in a dispute between rival claimants both within the jurisdiction of a court over shares the court has jurisdiction over the parties and the share scrips which are before the court. The Mysore court was in this position. Between the rival claimants the Mysore High Court could order the share scrips to be handed over to the successful party and if necessary could order transfer of the shares between them and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore courts on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion, this controversy does not arise in this case, which must be decided on the plain words of Section 13 of the Code of Civil Procedure.?6.12 Keeping in view of the abovesaid principles of law,let us consider the issues raised before us. Admittedly, the defendant no. 2 is a foreign entity governed by the laws of Dubai. The Plaintiffs are its shareholders. Therefore, any dispute between them will have to be resolved under the laws of Dubai. Hence, the contention of the learned Senior Counsel appearing for the plaintiffs that they are stepping into the shoes of the defendant no. 2 seeking a relief against the defendant no. 1 cannot be countenanced. This is also for the reason that there must be declaration in clear terms qua the status of a beneficial interest holder before seeking a relief against the defendant no. 1. More so, when defendant no. 2 itself denies it. 6.13 In the case on hand, the fundamental and core facts are not in dispute. They are with respect to the consolidation and deconsolidation of defendant No. 2 by the defendant No. 11. Similarly a decision of the general body of a ETA Group, the Board of Directors and the participation of the plaintiffs in that are also not in dispute. These undisputed happenings lead to the draft financial statement of the defendant No. 11. This draft financial statement confirms two things. One is with respect to the deconsolidation and the other is removal of status over the shares held by the individuals. The decision was to implement it with retrospective effect from 10.01.2014. It is an admitted case that the decision of the ETA Group and the draft financial statement of defendant No. 11 would make the trustees of the holders f the respective shares involving beneficial interest as absolute owners. The plaintiffs may have grievance over this, but their remedy will lie elsewhere. That is the reason why one of the plaintiffs after issuing notice on behalf of the defendant No. 11 to defendant No. 1, has chosen to file the suit along with the other in the status of shareholders. May be it is also for the reason that the defendant No. 11 cannot wriggle out of the decision of ETA Group followed by its draft financial statement. If we see the cause of action as recorded above, it is abundantly clear that what has triggered the present suit is the aforesaid facts. 6.14 The decision of the ETA Group, which consists of numerous entities, applies to every shareholder of the Group. Accordingly, the status of a registered owner would get transferred into one of absolute ownership. Therefore, even if we go by the averments in the plaint while eschewing the defence of the defendant No. 2, no relief can be claimed before this Court. It is an indirect way of challenging the decision of the ETA Group, in which, the plaintiffs were also parties. Any adjudication on this though indirectly, will have a serious spiralling effect, as settled things would get unsettled for the reason that it might have an adverse impact on other shareholders of other entities coming under the umbrella of the ETA Group. The logic and rationale behind the decision of a foreign entity cannot be adjudicated here. Be that as it may, certainly the remedy lies elsewhere. We should also keep in mind the defendants 2 and 11 are admittedly situated outside the jurisdiction of the Court though the plaintiffs contend that defendants 3 to 7, despite being non resident Indians are permanent residents of Chennai. This is nothing but an attempt to review the decision made already by the ETA Group as acknowledged by the defendant No. 11 in the draft financial statement. After all, the relief that is sought against the defendant No. 1 is a mere consequential one. When once the plaintiffs succeed against defendant Nos. 2 to 7 then defendant No. 1 is bound to give effect to it. For doing so, the remedy for the plaintiffs against defendants Nos. 2 to 7 lies elsewhere.?57.
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0[ds]From the material facts in this behalf, as mentioned in the plaint itself, specifically in paragraphs 54 and 55 of the plaint, while making the averments qua the cause of action and territorial jurisdiction, it becomes apparent that the plaintiffs got aggrieved by the draft Consolidated Financial Statement of Defendant No. 11 (which is again a Dubai company and a parent company) and this statement records deconsolidation of its account with those of Defendant No. 2. Thereal dispute, thus, is whether Defendant Nos. 3 to 7 in whose name shares to the extent of 6.16% of Indian Company stand, are the real owners or it is Defendant no. 2 Company which has the beneficial interest in the said shares.Though, the plaintiffs claim beneficial interest of Defendant No. 2, Defendant Nos. 3 to 7 deny the same. Interestingly, even Defendant No. 2 Company, whose beneficial interest in these shares is claimed by the plaintiffs, refutes such a claim of the plaintiffs. Thus, in reality, it is the dispute between the plaintiffs and Defendant nos. 3 to 7 who are all residents of Dubai. Even Defendant No. 2 whose beneficial interest is claimed by the plaintiffs is a Company incorporated in Dubai, UAE. Merely, because the dispute is about those shares which are issued by Indian Company would not lead to the conclusion that cause of action has arisen in India. It is obvious that insofar as Defendant No. 1/Indian Company is concerned it has nothing to do with the dispute. The relief of declaration which is sought is that Defendant Nos. 3 to 7 are not the real owners of such shares and its actual/beneficial owner is Defendant No. 2. Such a dispute would not bring jurisdiction of Chennai courts simply because Defendant No. 1/Indian Company has its registered office in Chennai. Even if it is presumed that the plaintiffs ultimately succeed in their action, when brought in a competent court in Dubai, and a declaration of the aforesaid nature is given by the said court, Defendant No. 1 can always act thereupon.Mr. Gopal Subramanium, had referred to the provisions of Section 89(1) and (8) of the Companies Act, 2013. As per(1) of Section 89, a person whose name is entered in the register of Members of the Company as the holders of shares in that Company but does not hold beneficial interest in such shares, he shall make declaration within the prescribed time to the Company specifying the name and address of the person who hold the beneficial interest.(8) provides that if such a declaration is not made right in this behalf cannot be enforced by other person claiming through the beneficial owner. Prima facie, it appears that court in India on the application of the aforesaid provision would not be in a position to give any relief to the plaintiffs in the instant suit. The High Court has discussed in detail the nature of derivative action as well as the meaning that is to be ascribed to the term ‘beneficial interest?. It is rightly pointed out that the suit for derivative action is an exception to the general principle of locus. It can be claimed only in a particular situation. Such a situation has to be seen contextually from the point of view of the entity, on whose behalf the suit is filed. Incidentally, the inter se relationship between the plaintiffs and the beneficial owner, which may be a company is also of relevance. It may involve a case of deceit, fraud, inability or incapacity. However, the fundamental factor to be considered is the relationship between the plaintiff and the party, which the plaintiff seeks to represent.As it can be discerned from the definition of ‘Beneficial interest? provided in Section 3 of the Indian Trust Act, 1882, there are two parties involved in an issue governing beneficial interest. One is a beneficiary named as ‘beneficial owner? and the other is the owner named as ‘registered owner? being the trustee of the property or the asset in question. Thus, one can deduce the underlining principle that the ownership is nonetheless legal over the trust property, which vests on him but he also acts as a trustee of the beneficiary. A beneficial owner may include a person who stands behind the registered owner when he acts like a trustee, legal representative or an agent.The High Court is also right in its observation that for applying the principles governing a derivative action one fundamental test has to be passed, viz., such an action will necessary have the sanction of law and this shall have no obligation to a foreign entity having beneficial interest which can be enforced in India especially when there are provisions dealing with such a situation.(1990) 1 FC 199While considering the territorial jurisdiction over a suit initiated to protect the beneficial interest, the issue qua the existence of such an interest can only be decided on the condition that the same is amenable to such a jurisdiction. Defendant no. 2 is admittedly not amenable to the jurisdiction of Madras High Court.The High Court in the impugned judgment has also discussed in detail the meaning and scope of ‘cause of action? by referring to various judgments including A.B.C. Laminart (Pvt.) Ltd. and Another vs. A.P. Agencies, Salem. It has also considered the scope of Clause 12 of the Letters Patent which is peculiar to Madras High Court, where a leave is required to be obtained when part of cause of action arises within the territorial jurisdiction of the said court. In such a situation, as rightly contended by Mr. Mukul Rohatgi, the principles of forum convenience would become applicable as laid down in the case of Kusum Ingots and Alloys Ltd. vs. Union of India and Another. We find that court in Dubai would be more convenient forum to decide the dispute between the parties who are residents of Dubai and which revolves around Defendant no. 2, again a Company registered and situate in Dubai.The High Court also appears to be right in holding that the relief sought for against Indian Company, at best, is a consequential one and cannot give a cause of action. Even Defendant no. 2 cannot seek such(2004) 6 SCC 254 a relief without resolving its dispute as against Defendant nos. 3 to 7. Such a dispute can only be dealt with by competent forum in Dubai as per the law prevailing in Dubai, UAE.
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### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
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foreign court: Counsel for the plaintiffs submitted that the Mysore Court was incompetent to deliver an effective judgment in respect of the shares. But by personal compliance with an order for retransfer judgment in favour of the plaintiffs could be rendered effective. Per Hidayatullah, J (Minority) : It only remains to consider the argument in relation to the shares of the Indian Sugars and Refineries Ltd. It was contended that the shares must be deemed to be situated where they could be effectively dealt with and that was Madras, where the Head Office of the Company was situated. Learned counsel relied upon some English cases in support of his contention. It is not necessary to refer to those cases. The situs of shares between the Company and the shareholders is undoubtedly in the country where the business is situated. But in a dispute between rival claimants both within the jurisdiction of a court over shares the court has jurisdiction over the parties and the share scrips which are before the court. The Mysore court was in this position. Between the rival claimants the Mysore High Court could order the share scrips to be handed over to the successful party and if necessary could order transfer of the shares between them and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore courts on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion, this controversy does not arise in this case, which must be decided on the plain words of Section 13 of the Code of Civil Procedure.?6.12 Keeping in view of the abovesaid principles of law,let us consider the issues raised before us. Admittedly, the defendant no. 2 is a foreign entity governed by the laws of Dubai. The Plaintiffs are its shareholders. Therefore, any dispute between them will have to be resolved under the laws of Dubai. Hence, the contention of the learned Senior Counsel appearing for the plaintiffs that they are stepping into the shoes of the defendant no. 2 seeking a relief against the defendant no. 1 cannot be countenanced. This is also for the reason that there must be declaration in clear terms qua the status of a beneficial interest holder before seeking a relief against the defendant no. 1. More so, when defendant no. 2 itself denies it. 6.13 In the case on hand, the fundamental and core facts are not in dispute. They are with respect to the consolidation and deconsolidation of defendant No. 2 by the defendant No. 11. Similarly a decision of the general body of a ETA Group, the Board of Directors and the participation of the plaintiffs in that are also not in dispute. These undisputed happenings lead to the draft financial statement of the defendant No. 11. This draft financial statement confirms two things. One is with respect to the deconsolidation and the other is removal of status over the shares held by the individuals. The decision was to implement it with retrospective effect from 10.01.2014. It is an admitted case that the decision of the ETA Group and the draft financial statement of defendant No. 11 would make the trustees of the holders f the respective shares involving beneficial interest as absolute owners. The plaintiffs may have grievance over this, but their remedy will lie elsewhere. That is the reason why one of the plaintiffs after issuing notice on behalf of the defendant No. 11 to defendant No. 1, has chosen to file the suit along with the other in the status of shareholders. May be it is also for the reason that the defendant No. 11 cannot wriggle out of the decision of ETA Group followed by its draft financial statement. If we see the cause of action as recorded above, it is abundantly clear that what has triggered the present suit is the aforesaid facts. 6.14 The decision of the ETA Group, which consists of numerous entities, applies to every shareholder of the Group. Accordingly, the status of a registered owner would get transferred into one of absolute ownership. Therefore, even if we go by the averments in the plaint while eschewing the defence of the defendant No. 2, no relief can be claimed before this Court. It is an indirect way of challenging the decision of the ETA Group, in which, the plaintiffs were also parties. Any adjudication on this though indirectly, will have a serious spiralling effect, as settled things would get unsettled for the reason that it might have an adverse impact on other shareholders of other entities coming under the umbrella of the ETA Group. The logic and rationale behind the decision of a foreign entity cannot be adjudicated here. Be that as it may, certainly the remedy lies elsewhere. We should also keep in mind the defendants 2 and 11 are admittedly situated outside the jurisdiction of the Court though the plaintiffs contend that defendants 3 to 7, despite being non resident Indians are permanent residents of Chennai. This is nothing but an attempt to review the decision made already by the ETA Group as acknowledged by the defendant No. 11 in the draft financial statement. After all, the relief that is sought against the defendant No. 1 is a mere consequential one. When once the plaintiffs succeed against defendant Nos. 2 to 7 then defendant No. 1 is bound to give effect to it. For doing so, the remedy for the plaintiffs against defendants Nos. 2 to 7 lies elsewhere.?57.
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384 |
Neta Ram Vs. Jiwan Lal
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for an order directing the tenant to put the landlord in possession* * *(iii) in the case of any building, if he requires it for the re- erection of that building or for its replacement by another building, or for the erection of other buildings;* * *(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller, and if the Controller is not so satisfied he shall make an order rejecting the application.* * *(4) Where a landlord who has obtained possession of building or rented land in pursuance of an order under... sub-paragraph (iii) of the aforesaid paragraph (a) puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly............... "8. Reading these provisions as a whole, it is obvious that if the landlords need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If, however, he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances. In our opinion, the interpretation placed by the Punjab High Court (in the decision of Gosain, J.) puts too narrow a construction, and leaves very little for the Controller to decide. It is well-known that Rent Restriction Acts were passed in view of the shortage of houses and the high rent which were being demanded by landlords. The very purpose of the Rent Restriction Acts would be defeated if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them etc. The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had he made any attempt to face cross-examination as a party. They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed. With such clear findings, one would expect that a revising Court, however wide its powers may be, would, at least, go into the question over again, if it was going to depart from this unanimous conclusion. It is hardly necessary to go into the question of the extent of the powers of the High Court under S. 15(5) of the Rent Restriction Act. They have been adverted to in the ruling of this Court, above mentioned. They do not, however, include the power to reverse concurrent findings without shoeing how those findings are erroneous. In the present case, the learned Judge has given his conclusion without adverting to a single piece of evidence, from which his conclusion was drawn. In these circumstances, it cannot be said that he had examined the propriety of the order sought to be revised, even under the provisions of the law he was administering.9. Learned counsel relying upon the case to which we have already referred, said that there the sanction by the Municipal Committee was taken into consideration in deciding the need of the landlord. The facts in that case are not fully stated, and from the observations, it would appear that there was other evidence besides the sanction by the Municipal Committee, on which the conclusion of the High Court was supported. In any event, a case cannot be an authority on a point of fact, and each case will have to be examined in the light of the circumstances existing in it. In the present case, the two Tribunals specially appointed to consider these matters, went thoroughly into the question and discussed it from a correct angle if they bad examined the fact after instructing themselves correctly about the, law, a court of revision should be slow to interfere with the decision thus reached, unless it demonstrates by its own decision, the impropriety of the order which it seeks to revise. No attempt of this kind has been made in the case and in our opinion, High Court was not justified in reversing the clear finding.
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1[ds]8. Reading these provisions as a whole, it is obvious that if the landlords need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If, however, he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances. In our opinion, the interpretation placed by the Punjab High Court (in the decision of Gosain, J.) puts too narrow a construction, and leaves very little for the Controller to decide. It is well-known that Rent Restriction Acts were passed in view of the shortage of houses and the high rent which were being demanded by landlords. The very purpose of the Rent Restriction Acts would be defeated if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them etc. The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had he made any attempt to face cross-examination as a party. They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed. With such clear findings, one would expect that a revising Court, however wide its powers may be, would, at least, go into the question over again, if it was going to depart from this unanimous conclusion. It is hardly necessary to go into the question of the extent of the powers of the High Court under S. 15(5) of the Rent Restriction Act. They have been adverted to in the ruling of this Court, above mentioned. They do not, however, include the power to reverse concurrent findings without shoeing how those findings are erroneous. In the present case, the learned Judge has given his conclusion without adverting to a single piece of evidence, from which his conclusion was drawn. In these circumstances, it cannot be said that he had examined the propriety of the order sought to be revised, even under the provisions of the law he was administering.9. Learned counsel relying upon the case to which we have already referred, said that there the sanction by the Municipal Committee was taken into consideration in deciding the need of the landlord. The facts in that case are not fully stated, and from the observations, it would appear that there was other evidence besides the sanction by the Municipal Committee, on which the conclusion of the High Court was supported. In any event, a case cannot be an authority on a point of fact, and each case will have to be examined in the light of the circumstances existing in it. In the present case, the two Tribunals specially appointed to consider these matters, went thoroughly into the question and discussed it from a correct angle if they bad examined the fact after instructing themselves correctly about the, law, a court of revision should be slow to interfere with the decision thus reached, unless it demonstrates by its own decision, the impropriety of the order which it seeks to revise. No attempt of this kind has been made in the case and in our opinion, High Court was not justified in reversing the clear finding.
| 1 | 2,588 |
### Instruction:
Given the specifics of the case proceeding, anticipate the court's ruling: will it favor (1) or oppose (0) the appellant’s request?
### Input:
for an order directing the tenant to put the landlord in possession* * *(iii) in the case of any building, if he requires it for the re- erection of that building or for its replacement by another building, or for the erection of other buildings;* * *(b) The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller, and if the Controller is not so satisfied he shall make an order rejecting the application.* * *(4) Where a landlord who has obtained possession of building or rented land in pursuance of an order under... sub-paragraph (iii) of the aforesaid paragraph (a) puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly............... "8. Reading these provisions as a whole, it is obvious that if the landlords need be genuine and he satisfies the Controller, he can obtain possession of the building or the land, as the case may be. If, however, he does not re-erect the building and puts it to any other use or lets it out to another tenant, the former tenant can apply to be put back in possession. Clause (b) clearly shows both affirmatively and negatively that the landlord must satisfy the Controller about his claim, before he can obtain an order in his favour. The Controller has to be satisfied about the genuineness of the claim. To reach this conclusion, obviously the Controller must be satisfied about the reality of the claim made by the landlord, and this can only be established by looking at all the surrounding circumstances such as the condition of the building, its situation, the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however strongly, said to be entertained by him. The clause speaks not of the bona fides of the landlord, but says on the other hand, that the claim of the landlord that he requires the building for reconstruction and re-erection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances. In our opinion, the interpretation placed by the Punjab High Court (in the decision of Gosain, J.) puts too narrow a construction, and leaves very little for the Controller to decide. It is well-known that Rent Restriction Acts were passed in view of the shortage of houses and the high rent which were being demanded by landlords. The very purpose of the Rent Restriction Acts would be defeated if the landlords were to come forward and to get tenants turned out, on the bare plea that they want to reconstruct the houses, without first establishing that the plea is bona fide with regard to all the circumstances, viz., that the houses need reconstruction or that they have the means to reconstruct them etc. The two Tribunals below had gone into the matter thoroughly, and had agreed that the landlord had neither the means to reconstruct the building nor had he made any attempt to face cross-examination as a party. They were also of the opinion that the building was in a good state and did not need to be pulled down or reconstructed. With such clear findings, one would expect that a revising Court, however wide its powers may be, would, at least, go into the question over again, if it was going to depart from this unanimous conclusion. It is hardly necessary to go into the question of the extent of the powers of the High Court under S. 15(5) of the Rent Restriction Act. They have been adverted to in the ruling of this Court, above mentioned. They do not, however, include the power to reverse concurrent findings without shoeing how those findings are erroneous. In the present case, the learned Judge has given his conclusion without adverting to a single piece of evidence, from which his conclusion was drawn. In these circumstances, it cannot be said that he had examined the propriety of the order sought to be revised, even under the provisions of the law he was administering.9. Learned counsel relying upon the case to which we have already referred, said that there the sanction by the Municipal Committee was taken into consideration in deciding the need of the landlord. The facts in that case are not fully stated, and from the observations, it would appear that there was other evidence besides the sanction by the Municipal Committee, on which the conclusion of the High Court was supported. In any event, a case cannot be an authority on a point of fact, and each case will have to be examined in the light of the circumstances existing in it. In the present case, the two Tribunals specially appointed to consider these matters, went thoroughly into the question and discussed it from a correct angle if they bad examined the fact after instructing themselves correctly about the, law, a court of revision should be slow to interfere with the decision thus reached, unless it demonstrates by its own decision, the impropriety of the order which it seeks to revise. No attempt of this kind has been made in the case and in our opinion, High Court was not justified in reversing the clear finding.
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385 |
Sushila Devi And Anr Vs. Hari Singh And Ors
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contention of the plaintiffs that the agreement to lease was frustrated. In appeal a Division Bench of the High Court of Jammu and Kashmir agreed with the trial Court that the contract referred to in the plaint was frustrated because of the supervening circumstances. It opined that the doctrine of frustration applied to leases as well. It further held that under the contract Vidya Wati was expected to deliver actual possession of the property to the plaintiffs and that she had neither delivered physical nor even symbolic possession of the same to the plaintiffs. In the result it affirmed the decision of the trial Court. Thereafter this appeal has been brought by special leave. During the pendency of the appeal to the High Court Vidyawati died and the present appellants were brought on record as her legal representatives.7. The only question that falls for decision in this appeal is whether the contract referred to in the plaint has become void in view of the circumstances established. In other words had the performance of the contract become impossible in view of the prolonged and widespread communal troubles and the long drawn out tension that prevailed between India and Pakistan. The law of frustration is embodied in S. 56 of the Contract Act. That section to the extent material for our present purpose reads :"A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promiser could not prevent unlawful becomes void when the act becomes imposib1e or unlawful."8. The conclusion of the Division Bench of the Jammu and Kashmir High Court that S. 56 of the Contract Act applies to leased as well cannot be accepted as correct Section 56 applies only to contract. Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer see Raja Dhruv Dev Chand v. Harmohinder Singh, (1968) 3 SCR 339 = (AIR 1968 SC. 1024 ). In view of that decision the view taken by some of the High Court that S. 56 of the Contract Act applies to leases cannot be accepted as correct. Further the English decisions bearing on the point can have no further relevance.9. But in this case, there was no lease. There was only an agreement to lease. As seen earlier, the agreement between the parties was that the properties in question should be leased to the plaintiffs for a period of three years. Such a lease could not have been validly made except under a registered instrument. As seen earlier the contract between the parties provided that the lease deed should be registered within 15 days from the date of the acceptance of the tender. For one reason or the other, the contemplated lease deed was neither executed nor registered. Therefore we have before us only an agreement to lease and not a lease. Such an agreement comes within the scope of S.56 of the Contract Act.10. We agree with the trial Court that under the terms of agreement Vidya Wati was not expected to deliver actual possession of the properties sought to be leased. The contract between the parties provided that:"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed."11. In our opinion on this point the conclusion of the appellate Court is not sustainable. But in fact, as found by the trial Court as well as by the appellate Court, it was impossible for the plaintiffs to even get into Pakistan. Both the trial Court as well as the appellate Court have found that because of the prevailing circumstances, it was impossible for the plaintiffs to either take possession of the properties intended to be leased or even to collect rent from the cultivators. For that situation the plaintiffs were not responsible in any manner. As observed by this Court in Satyabrata Ghose v. Mugneeram Bangur and Co, 1954 SCR 310 = (AIR 1954 SC 44 ) the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of S. 56 of the Indian Contract Act. The view that S. 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration is not correct. Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The impossibility contemplated by S. 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.12. From the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others. That object became impossible because of the supervening events. Further the terms of the agreement between the parties relating to taking possession of the properties also became impossible of performance. Therefore we agree with the trial Court as well as the appellate Court that the contract had become impossible of performance.
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0[ds]8. The conclusion of the Division Bench of the Jammu and Kashmir High Court that S. 56 of the Contract Act applies to leased as well cannot be accepted as correct Section 56 applies only to contract. Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer see Raja Dhruv Dev Chand v. Harmohinder Singh, (1968) 3 SCR 339 = (AIR 1968 SC. 1024 ). In view of that decision the view taken by some of the High Court that S. 56 of the Contract Act applies to leases cannot be accepted as correct. Further the English decisions bearing on the point can have no further relevance.9. But in this case, there was no lease. There was only an agreement to lease. As seen earlier, the agreement between the parties was that the properties in question should be leased to the plaintiffs for a period of three years. Such a lease could not have been validly made except under a registered instrument. As seen earlier the contract between the parties provided that the lease deed should be registered within 15 days from the date of the acceptance of the tender. For one reason or the other, the contemplated lease deed was neither executed nor registered. Therefore we have before us only an agreement to lease and not a lease. Such an agreement comes within the scope of S.56 of the Contract Act.10. We agree with the trial Court that under the terms of agreement Vidya Wati was not expected to deliver actual possession of the properties sought to be leased. The contract between the parties providedlessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed.In our opinion on this point the conclusion of the appellate Court is not sustainable. But in fact, as found by the trial Court as well as by the appellate Court, it was impossible for the plaintiffs to even get into Pakistan. Both the trial Court as well as the appellate Court have found that because of the prevailing circumstances, it was impossible for the plaintiffs to either take possession of the properties intended to be leased or even to collect rent from the cultivators. For that situation the plaintiffs were not responsible in any manner. As observed by this Court in Satyabrata Ghose v. Mugneeram Bangur and Co, 1954 SCR 310 = (AIR 1954 SC 44 ) the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of S. 56 of the Indian Contract Act. The view that S. 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration is not correct. Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The impossibility contemplated by S. 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.12. From the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others. That object became impossible because of the supervening events. Further the terms of the agreement between the parties relating to taking possession of the properties also became impossible of performance. Therefore we agree with the trial Court as well as the appellate Court that the contract had become impossible of performance.
| 0 | 2,056 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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contention of the plaintiffs that the agreement to lease was frustrated. In appeal a Division Bench of the High Court of Jammu and Kashmir agreed with the trial Court that the contract referred to in the plaint was frustrated because of the supervening circumstances. It opined that the doctrine of frustration applied to leases as well. It further held that under the contract Vidya Wati was expected to deliver actual possession of the property to the plaintiffs and that she had neither delivered physical nor even symbolic possession of the same to the plaintiffs. In the result it affirmed the decision of the trial Court. Thereafter this appeal has been brought by special leave. During the pendency of the appeal to the High Court Vidyawati died and the present appellants were brought on record as her legal representatives.7. The only question that falls for decision in this appeal is whether the contract referred to in the plaint has become void in view of the circumstances established. In other words had the performance of the contract become impossible in view of the prolonged and widespread communal troubles and the long drawn out tension that prevailed between India and Pakistan. The law of frustration is embodied in S. 56 of the Contract Act. That section to the extent material for our present purpose reads :"A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promiser could not prevent unlawful becomes void when the act becomes imposib1e or unlawful."8. The conclusion of the Division Bench of the Jammu and Kashmir High Court that S. 56 of the Contract Act applies to leased as well cannot be accepted as correct Section 56 applies only to contract. Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer see Raja Dhruv Dev Chand v. Harmohinder Singh, (1968) 3 SCR 339 = (AIR 1968 SC. 1024 ). In view of that decision the view taken by some of the High Court that S. 56 of the Contract Act applies to leases cannot be accepted as correct. Further the English decisions bearing on the point can have no further relevance.9. But in this case, there was no lease. There was only an agreement to lease. As seen earlier, the agreement between the parties was that the properties in question should be leased to the plaintiffs for a period of three years. Such a lease could not have been validly made except under a registered instrument. As seen earlier the contract between the parties provided that the lease deed should be registered within 15 days from the date of the acceptance of the tender. For one reason or the other, the contemplated lease deed was neither executed nor registered. Therefore we have before us only an agreement to lease and not a lease. Such an agreement comes within the scope of S.56 of the Contract Act.10. We agree with the trial Court that under the terms of agreement Vidya Wati was not expected to deliver actual possession of the properties sought to be leased. The contract between the parties provided that:"The lessee shall be personally responsible to get the possession of the lands under Patta after the registration of lease deed."11. In our opinion on this point the conclusion of the appellate Court is not sustainable. But in fact, as found by the trial Court as well as by the appellate Court, it was impossible for the plaintiffs to even get into Pakistan. Both the trial Court as well as the appellate Court have found that because of the prevailing circumstances, it was impossible for the plaintiffs to either take possession of the properties intended to be leased or even to collect rent from the cultivators. For that situation the plaintiffs were not responsible in any manner. As observed by this Court in Satyabrata Ghose v. Mugneeram Bangur and Co, 1954 SCR 310 = (AIR 1954 SC 44 ) the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of S. 56 of the Indian Contract Act. The view that S. 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration is not correct. Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties. The impossibility contemplated by S. 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract.12. From the facts found in this case it is clear that the plaintiffs sought to take on lease the properties in question with a view to enjoy those properties either by personally cultivating them or by sub-leasing them to others. That object became impossible because of the supervening events. Further the terms of the agreement between the parties relating to taking possession of the properties also became impossible of performance. Therefore we agree with the trial Court as well as the appellate Court that the contract had become impossible of performance.
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386 |
Jagdish Mitter Vs. Union Of India
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would thus be noticed that the four cases which we have considered by way of illustration dealt with different aspects of the problem pertaining to temporary servants who are discharged or reverted and naturally, on each occasion, observations were made in relation to the particular aspect with which the Court was concerned. We are satisfied that the principles laid down in all these decisions are in no sense inconsistent. 20. Let us now revert to the facts of the present case. We have already stated that before the services of the appellant were terminated, some enquiry was held on the complaint of one Sham Lal and at this enquiry it transpired that Vishwa Mitter, the brother of the appellant, had used a reply-paid post card sent by Sham Lal without scoring the address of Sham Lal written on it by him. In fact, it appears that Vishwa Mitter admitted that he had illegally used the said card. But we do not know when this enquiry was held, how it commenced and what was the final order passed as a result of it. Unfortunately, the paper book filed by the appellant who has been allowed to appeal as a pauper does not include the relevant papers, and so, it would not be possible to hold that the enquiry in question was held with a view to take disciplinary action against the appellant, or that the order of discharge which was ultimately passed against him flowed from the finding made at the said enquiry. It is quite possible that even if the respondent intended to hold a formal enquiry with a view to take disciplinary action against the appellant, it may have thought that a preliminary investigation in that behalf may first be conducted and then a decision may be taken as to whether a formal enquiry should be held or not. If that was the scope of the enquiry which was apparently held in this case, the appellant cannot rely upon the said enquiry in support of his plea that his discharge amounts to dismissal. 21. However, the appellants contention that the order of discharge passed against him on the face of it shows that it is not discharge but dismissal, cannot be rejected. We have already observed that Art. 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one months notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Art. 311 (2). The appellants contention is that in the present case, the order itself shows that it is not a discharge but a dismissal, and that naturally involves the question as to the construction of the order. The order reads thus: "Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a months notice of discharge with effect from November 1, 1949. No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one months notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one months notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must he held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under S. 240(3) of the Government of India Act, 1935, or Art. 311 (2) of the Constitution, and so, the order cannot be sustained.
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1[ds]7. The true legal position in regard to the scope and effect of the provisions of Art. 311 in respect of persons employed in civil capacities under the Union or a State on a temporary or probationary basis is now fairly well established. It is, however, necessary to state the said legal position briefly before dealing with the merits of the dispute between the parties in the present appeal10. It is true that the tenure held by a temporary public servant or a probationer is of a precarious character. His services can be terminated by one months notice without assigning any reason either under the terms of contract which expressly provide for such termination or under the relevant statutory rules governing temporary appointments or appointments of probationers. Such a temporary servant can also be dismissed in a punitive way; that means that the appropriate authority possesses two powers to terminate the services of a temporary public servant; it can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, it would be a straightforward and direct case of discharge and nothing more; in such a case, Art. 311 will not apply. The authority can also act under its power to dismiss a temporary servant and make an order of dismissal in a straightforward way; in such a case, Art. 311 will applyWe have already stated that before the services of the appellant were terminated, some enquiry was held on the complaint of one Sham Lal and at this enquiry it transpired that Vishwa Mitter, the brother of the appellant, had used a reply-paid post card sent by Sham Lal without scoring the address of Sham Lal written on it by him. In fact, it appears that Vishwa Mitter admitted that he had illegally used the said card. But we do not know when this enquiry was held, how it commenced and what was the final order passed as a result of it. Unfortunately, the paper book filed by the appellant who has been allowed to appeal as a pauper does not include the relevant papers, and so, it would not be possible to hold that the enquiry in question was held with a view to take disciplinary action against the appellant, or that the order of discharge which was ultimately passed against him flowed from the finding made at the said enquiry. It is quite possible that even if the respondent intended to hold a formal enquiry with a view to take disciplinary action against the appellant, it may have thought that a preliminary investigation in that behalf may first be conducted and then a decision may be taken as to whether a formal enquiry should be held or not. If that was the scope of the enquiry which was apparently held in this case, the appellant cannot rely upon the said enquiry in support of his plea that his discharge amounts to dismissal21. However, the appellants contention that the order of discharge passed against him on the face of it shows that it is not discharge but dismissal, cannot be rejected. We have already observed that Art. 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one months notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Art. 311 (2). The appellants contention is that in the present case, the order itself shows that it is not a discharge but a dismissal, and that naturally involves the question as to the construction of the orderNo doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one months notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one months notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must he held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under S. 240(3) of the Government of India Act, 1935, or Art. 311 (2) of the Constitution, and so, the order cannot be sustainedIt is thus clear that every order terminating the services of a public servant who is either a temporary servant, or a probationer, will not amount to dismissal or removal from service within the meaning of Art. 311. It is only when the termination of the public servants services can be shown to have been ordered by way of punishment that it can be characterised either as dismissal or removal from service13. But since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasised that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and as a result of the said findings, his services are terminated, the fact that the order by which his services are terminated, ostensibly purports, to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounts to the dismissal of the temporary servant. That is why the form of the order is inconclusive: it is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to the order. Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides, the authority refers to certain facts justifying the order of discharge and these facts relate to the misconduct, negligence or in efficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the considerations set out in the said plea. What the court will have to examine in each case wound be, having regard to the material facts existing up to the time of discharge, is the order of discharge in substance one of dismissal? If the answer is that notwithstanding the form which the order took, the appointing authority, in substance, really dismissed the temporary public servant, Art. 311 would be attracted14. It would thus be noticed that the problem raised by complaints made by temporary public servants who have been discharged, presents several facts, and in dealing with one fact or the other presented to the court by the special facts in each case, emphasis has naturally shifted. But the main principles which have been accepted by this Court and applied in dealing with cases of temporary servants who have been discharged, are no longer in doubt.
| 1 | 6,263 |
### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
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would thus be noticed that the four cases which we have considered by way of illustration dealt with different aspects of the problem pertaining to temporary servants who are discharged or reverted and naturally, on each occasion, observations were made in relation to the particular aspect with which the Court was concerned. We are satisfied that the principles laid down in all these decisions are in no sense inconsistent. 20. Let us now revert to the facts of the present case. We have already stated that before the services of the appellant were terminated, some enquiry was held on the complaint of one Sham Lal and at this enquiry it transpired that Vishwa Mitter, the brother of the appellant, had used a reply-paid post card sent by Sham Lal without scoring the address of Sham Lal written on it by him. In fact, it appears that Vishwa Mitter admitted that he had illegally used the said card. But we do not know when this enquiry was held, how it commenced and what was the final order passed as a result of it. Unfortunately, the paper book filed by the appellant who has been allowed to appeal as a pauper does not include the relevant papers, and so, it would not be possible to hold that the enquiry in question was held with a view to take disciplinary action against the appellant, or that the order of discharge which was ultimately passed against him flowed from the finding made at the said enquiry. It is quite possible that even if the respondent intended to hold a formal enquiry with a view to take disciplinary action against the appellant, it may have thought that a preliminary investigation in that behalf may first be conducted and then a decision may be taken as to whether a formal enquiry should be held or not. If that was the scope of the enquiry which was apparently held in this case, the appellant cannot rely upon the said enquiry in support of his plea that his discharge amounts to dismissal. 21. However, the appellants contention that the order of discharge passed against him on the face of it shows that it is not discharge but dismissal, cannot be rejected. We have already observed that Art. 311 applies to temporary servants or probationers, so that if it is shown that instead of terminating their services by one months notice under the terms of the contract or the relevant rules, the authority proceeds to dismiss them, it is incumbent on the authority to afford to the said temporary servants or probationers the protection guaranteed by Art. 311 (2). The appellants contention is that in the present case, the order itself shows that it is not a discharge but a dismissal, and that naturally involves the question as to the construction of the order. The order reads thus: "Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a months notice of discharge with effect from November 1, 1949. No doubt the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one months notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense, must be held to be an order of dismissal and not a mere order of discharge. The learned Additional Solicitor-General attempted to argue that what the order really meant was that Government did not think it desirable or necessary to continue the appellant in its employment. He fairly conceded that the words used in the order were somewhat unfortunate, but he urged that the order should be liberally construed and should be held to have been passed by the authority by virtue of its power to terminate the services of the appellant on one months notice. We are not prepared to accept this argument. It is obvious that to say that it is undesirable to continue a temporary servant is very much different from saying that it is unnecessary to continue him. In the first case, a stigma attaches to the servant, while in the second case, termination of service is due to the consideration that a temporary servant need not be continued, and in that sense, no stigma attaches to him. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must he held, in substance, to amount to dismissal. That being so, we are satisfied that the High Court was in error in coming to the conclusion that the appellant had not been dismissed, but had been merely discharged. It is conceded that if the impugned order is construed as one of dismissal the appellant has been denied the protection guaranteed to temporary servants under S. 240(3) of the Government of India Act, 1935, or Art. 311 (2) of the Constitution, and so, the order cannot be sustained.
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387 |
V/O Tractor Export, Moscow Vs. M/S. Tarapore & Company & Anr
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Wood & Son Ltd., supra)21. The language in the relevant article of the Convention of 1958 had also undergone a change. According to Article II, the term "agreement in writing" was to include an arbitral clause in a contract or an arbitration agreement and that term was stated to mean something by which the parties undertook to submit to arbitration all or any differences which had arisen or which might arise between them in respect of any defined legal relationship whether contractual or not concerning a subject-matter capable of settlement by arbitration. Thus, the term "agreement in writing" embraced an arbitral clause or an agreement simpliciter to refer to arbitration as also an actual submission of the disputes to the arbitrator. It was equivalent to Arbitration Agreement as defined in the Act. By not using that term and by employing the expression submission in Section 3 the Parliament appears to have indicated an intention to restrict the meaning of that expression to an actual submission or a complete reference22. Whatever way Section 3 of the Act is looked at, it is difficult to reach the conclusion that submission means an agreement to refer or an arbitral clause and does not mean an actual submission or completed reference, and that the word "agreement" means a commercial contract and not an agreement to refer or an arbitral clause23. The next question is whether the High Court was justified in granting an interim injunction restraining the Russian Firm from proceeding with arbitration at Moscow. The position of the Russian Firm is that neither it nor the Foreign Trade Arbitration Commission of the U. S. S. R. Chamber of Commerce which is seized of the arbitration proceedings is amenable to the jurisdiction of the courts is India. The presence in India of the party sought to be injuncted is a condition pre-requisite for the grant of an injunction. Alternatively, the Indian Firm has been guilty of breach of the agreement to refer the matter to arbitration at Moscow and therefore it has disentitled itself to the exercise of the Courts discretion in its favour in the matter of granting an injunction24. Now, it is common ground that the point about the Russian Firm having no representative in India was not agitated before the High Court. The position taken up in the plaint was that the Russian Firm was carrying on business in the U. S. S. R. and at Madras. The controversy before the High Court appears to have been confined only to what is stated in Para 5 of the counter-affidavit of the Russian Firm, namely, that in the presence of the Arbitration agreement in the contract entered into between the parties, the only proper remedy for the Indian Firm was to submit the disputes to the arbitration tribunal at Moscow25. The rule as stated in Halsburys Laws of England, Vol. 21, at page 407, is that with regard to foreign proceedings, the court will restrain a person within its jurisdiction from instituting or prosecuting suits in a foreign court whenever the circumstances of the case make such an interposition necessary or proper. This jurisdiction will be exercised whenever there is vexation or oppression. In England, courts, have been very cautions and have largely refrained from granting stay of proceedings in foreign courts (Cheshires Private Industrial Law, 7th Ed., pages 108-110). The injunction is, however, issued against a party and not a foreign court26. Although it is a moot point whether Section 35 of the Arbitration Act, 1940, will be applicable to the present case, in Shiva Jute Baling Limited v. Hindley & Company Limited, it was assumed that Section 35 applied to protocol arbitration and the principle embodied in that section cannot be completely ignored while considering the question of injunction. According to the section no reference nor award can be rendered invalid by reason only of the commencement of legal proceedings upon the subjects of the reference, but when legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, all further proceedings in a pending reference shall, unless a stay of proceedings is granted under Section 34, be invalid27. If the venue of the arbitration proceedings had been in India and if the provisions of the Arbitration Act of 1940, had been applicable, the suit and the arbitration proceedings could not have been allowed to go on simultaneously and either the suit would have been stayed under Section 34 or if it was not stayed, and the arbitrators were notified about the pendency of the suit, they would have had to stay the arbitration proceedings because under Section 35 such proceedings would become invalid if there was identity between the subject-matter of the reference and the suit. In the present case, when the suit is not being stayed under Section 3 not to grant an injunction restraining the Russian Firm from proceeding with the arbitration at Moscow. The principle essentially is that the arbitrators should not proceed with the arbitration side by side in rivalry or in competition as if it were a Civil Court28. Ordinarily, a party which has entered into a contract of which an arbitral clause forms an integral party should not receive the assistance of the court when it seeks to resile from it. But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the suit. The only proper course to follow is to restrain the Russian Firm which has gone to the Moscow Tribunal for adjudication of the disputes from getting the matter decided by the tribunal so long as the suit here is pending and has not been disposed of
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1[ds]18. It is true by taking the above view the purpose and object behind the Protocol and the conventions may not be fully carried out. The intention underlying Article 4 of the Protocol of 1923 and Article 2 of the Convention of 1958 undoubtedly appears to be that whenever the parties have agreed that their differences arising out of a commercial contract be referred to an arbitration, the court of a contracting State when seized of an action in the matter, shall refer the parties to an arbitrations unless it finds that the agreement is null and void or is inoperative or incapable of being performed. We apprehend it would hardly be conducive to international commercial arbitration not to have legislation giving full and complete effect to what is provided by the Protocol and the Conventions. We also share in full measure the anxiety and the effort of those who desire to respect the terms of international Protocols and Conventions in letters and spirit. But we arethe Indian Firm has been guilty of breach of the agreement to refer the matter to arbitration at Moscow and therefore it has disentitled itself to the exercise of the Courts discretion in its favour in the matter of granting anIf the venue of the arbitration proceedings had been in India and if the provisions of the Arbitration Act of 1940, had been applicable, the suit and the arbitration proceedings could not have been allowed to go on simultaneously and either the suit would have been stayed under Section 34 or if it was not stayed, and the arbitrators were notified about the pendency of the suit, they would have had to stay the arbitration proceedings because under Section 35 such proceedings would become invalid if there was identity between the subject-matter of the reference and the suit. In the present case, when the suit is not being stayed under Section 3 not to grant an injunction restraining the Russian Firm from proceeding with the arbitration at Moscow. The principle essentially is that the arbitrators should not proceed with the arbitration side by side in rivalry or in competition as if it were a Civil Court28. Ordinarily, a party which has entered into a contract of which an arbitral clause forms an integral party should not receive the assistance of the court when it seeks to resile from it. But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the suit. The only proper course to follow is to restrain the Russian Firm which has gone to the Moscow Tribunal for adjudication of the disputes from getting the matter decided by the tribunal so long as the suit here is pending and has not been disposedthe present case if there was any such reference to arbitration it was only on November 4, 1967, that is, about three weeks after the suit has been filed in the HighSection 3 of the Act. Even at the time of the Act of 1889, the word "submission" had received a special meaning as including a mere agreement to refer to arbitration as well as an actual reference or submission to arbitration and this special manner. In the Arbitration Clauses (Protocol) Act, 1924 the phrase "submission made in pursuance of the agreement" is used and the word "submission" is employed in the statutory sense. In any the Indian Arbitration Act, 1889, Section 4(b) defines submission in exactly the same terms as Section 27 of the English Act of 1889. In the English Arbitration Act of 1934 the word "agreement" is defined in Section 21(2) as a "written agreement to submit present or future differences to arbitration whether the arbitrator is named therein or not". It is clear, therefore, that expression "arbitration agreement" and the word "submission" are synonymous and connote the same idea. In my opinion the expression "submission made in pursuance of an agreement" in Section 3 of the Act must be construed in its historical setting. The word "submission" must, therefore, be interpreted to mean that the arbitral clause itself and the word "agreement" as the commercial or the business agreement which includes or embodies that clause. In other words the word "submission" in the opening words of the section means an agreement to refer to arbitration and the words "the agreement to which the Convention set forth in the schedule applies" mean the business agreement or contract containing the arbitral clause. It follows, therefore, that if there is an arbitral clause whether this is followed by actual reference to arbitration or not, the very existence of this clause in the commercial agreement would render the stay of the suit mandatory under Section 3 of the Act39. The view that I have expressed is also consistent with the rule of construction that as far as practicable the municipal law must be interpreted by the courts in conformity with international obligations which the law may seek to effectuate. It is well settled that if the language of a section is ambiguous or is capable of more than one meaning the protocol itself becomes relevant for there is prima facie presumption that Parliament does not intend to act in breach of international law, including specific treaty obligations. In the words of Diplock, L. J., in Salomonv. Commissioners of Customs andthis principle to the present case it is manifest that Article 2 of the Convention which is contained in the Schedule to the Act imposes a duty on the court of a contracting State when seized of such an action to refer the parties to arbitration. Section 3 of the Act must, therefore, be read in consonance with this international obligation or impose a refinement not warranted by the Convention itself will not bethis principle to the present case it is manifest that Article 2 of the Convention which is contained in the Schedule to the Act imposes a duty on the court of a contracting State when seized of such an action to refer the parties to arbitration. Section 3 of the Act must, therefore, be read in consonance with this international obligation or impose a refinement not warranted by the Convention itself will not bet is, however, maintained by the respondent that the words "submission" and "agreement" must be given their natural and grammatical meaning and the words "submission made in pursuance of an agreement" can only mean and actual submission of the disputes to the arbitral tribunal. So the word "agreement" can have reference to had can be constructed only in the sense of an arbitration agreement or arbitral clause in a commercial contract. The contention is that if submission has to be taken in the sense of an arbitration agreement it would render the words "submission made in pursuance of an agreement" meaningless and unintelligible.Civil Appeal Nos. 1208 and 1833 of 1969 arise out of the application No. 106 of 1968 filed by the first respondent for injunction to restrain the first respondent for taking further part in the arbitration proceedings in Moscow. Ramamurti, J., took the view that since the application No. 2604 of 1967 for stay of the proceedings in the pending suit C. S. 118 of 1967 had been dismissed the first respondents injunction petition should be allowed on the ground that the two forums were mutually exclusive. In the connected appeals I have taken the view that the appellant would be entitled to an order of stay of the proceedings in C. S. 118 of 1967 under Section 3 of Act 45 of 1961. Even assuming that Section 3 of the Act is not applicable this is not a proper case in which the High Court should have issued an injunction restraining the appellant from proceeding with the arbitration. As a rule the Court has to exercise its discretion will great circumspection for it is imperative that the right of access to the tribunals of a country should not be lightly interfered with. It is not sufficient merely to show that two actions have started for it is not prima facie vexatious to commence two actions about the same subject-matter, one here and one abroad. (See McHenry v. Lewis. The reason of this reluctance to exercise the jurisdiction is that owing to a possible difference between the law of the two countries, the stay of one of the actions may deprive the plaintiff of some advantages which he is justified in pursuing48. Thus he may have a personal remedy in one country and a remedy only against the goods in another; or a remedy against land in one State but no such remedy in another. The rule, therefore, is that a plea of lis alibi pendens will not succeed and the court will order a stay of proceedings unless the defendant proves vexation in point of facts. He must show that the continued prosecution of both actions is oppressive or embarrassing, an onus which he will find it difficult to discharge if the plaintiff can indicate some material advantage that is likely to result from each separate action. Each case, therefore, depends upon the a setting of its own facts and circumstances.
| 1 | 7,284 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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Wood & Son Ltd., supra)21. The language in the relevant article of the Convention of 1958 had also undergone a change. According to Article II, the term "agreement in writing" was to include an arbitral clause in a contract or an arbitration agreement and that term was stated to mean something by which the parties undertook to submit to arbitration all or any differences which had arisen or which might arise between them in respect of any defined legal relationship whether contractual or not concerning a subject-matter capable of settlement by arbitration. Thus, the term "agreement in writing" embraced an arbitral clause or an agreement simpliciter to refer to arbitration as also an actual submission of the disputes to the arbitrator. It was equivalent to Arbitration Agreement as defined in the Act. By not using that term and by employing the expression submission in Section 3 the Parliament appears to have indicated an intention to restrict the meaning of that expression to an actual submission or a complete reference22. Whatever way Section 3 of the Act is looked at, it is difficult to reach the conclusion that submission means an agreement to refer or an arbitral clause and does not mean an actual submission or completed reference, and that the word "agreement" means a commercial contract and not an agreement to refer or an arbitral clause23. The next question is whether the High Court was justified in granting an interim injunction restraining the Russian Firm from proceeding with arbitration at Moscow. The position of the Russian Firm is that neither it nor the Foreign Trade Arbitration Commission of the U. S. S. R. Chamber of Commerce which is seized of the arbitration proceedings is amenable to the jurisdiction of the courts is India. The presence in India of the party sought to be injuncted is a condition pre-requisite for the grant of an injunction. Alternatively, the Indian Firm has been guilty of breach of the agreement to refer the matter to arbitration at Moscow and therefore it has disentitled itself to the exercise of the Courts discretion in its favour in the matter of granting an injunction24. Now, it is common ground that the point about the Russian Firm having no representative in India was not agitated before the High Court. The position taken up in the plaint was that the Russian Firm was carrying on business in the U. S. S. R. and at Madras. The controversy before the High Court appears to have been confined only to what is stated in Para 5 of the counter-affidavit of the Russian Firm, namely, that in the presence of the Arbitration agreement in the contract entered into between the parties, the only proper remedy for the Indian Firm was to submit the disputes to the arbitration tribunal at Moscow25. The rule as stated in Halsburys Laws of England, Vol. 21, at page 407, is that with regard to foreign proceedings, the court will restrain a person within its jurisdiction from instituting or prosecuting suits in a foreign court whenever the circumstances of the case make such an interposition necessary or proper. This jurisdiction will be exercised whenever there is vexation or oppression. In England, courts, have been very cautions and have largely refrained from granting stay of proceedings in foreign courts (Cheshires Private Industrial Law, 7th Ed., pages 108-110). The injunction is, however, issued against a party and not a foreign court26. Although it is a moot point whether Section 35 of the Arbitration Act, 1940, will be applicable to the present case, in Shiva Jute Baling Limited v. Hindley & Company Limited, it was assumed that Section 35 applied to protocol arbitration and the principle embodied in that section cannot be completely ignored while considering the question of injunction. According to the section no reference nor award can be rendered invalid by reason only of the commencement of legal proceedings upon the subjects of the reference, but when legal proceedings upon the whole of the subject-matter of the reference have been commenced between all the parties to the reference and a notice thereof has been given to the arbitrators or umpire, all further proceedings in a pending reference shall, unless a stay of proceedings is granted under Section 34, be invalid27. If the venue of the arbitration proceedings had been in India and if the provisions of the Arbitration Act of 1940, had been applicable, the suit and the arbitration proceedings could not have been allowed to go on simultaneously and either the suit would have been stayed under Section 34 or if it was not stayed, and the arbitrators were notified about the pendency of the suit, they would have had to stay the arbitration proceedings because under Section 35 such proceedings would become invalid if there was identity between the subject-matter of the reference and the suit. In the present case, when the suit is not being stayed under Section 3 not to grant an injunction restraining the Russian Firm from proceeding with the arbitration at Moscow. The principle essentially is that the arbitrators should not proceed with the arbitration side by side in rivalry or in competition as if it were a Civil Court28. Ordinarily, a party which has entered into a contract of which an arbitral clause forms an integral party should not receive the assistance of the court when it seeks to resile from it. But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the suit. The only proper course to follow is to restrain the Russian Firm which has gone to the Moscow Tribunal for adjudication of the disputes from getting the matter decided by the tribunal so long as the suit here is pending and has not been disposed of
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P. J. Irani Vs. The State Of Madras
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legitimately entitled to be."The learned Judges of the High Court held that the reasons which led the Government to grant the exemption were not those which were countenanced by the policy or purpose of the Act and that the order of exemption was, therefore, invalid. In doing so the learned Judges said:"Reasons 1, 2, and 4 go together and have reference to the order of the High Court in 1940 directing the Receivers to execute a lease for seven years to the appellant and after the expiry of that period to grant a lease for fourteen years to the second respondents father. It is undoubtedly true that but for the application of the Act, the second respondents father would have obtained possession of the premises after the expiry of lease in favour of the appellant. That could be said of thousands of cases in which the leases in favour of tenants have expired and, but for the Act the owners would be entitled to obtain possession of the demised premises. If this circumstance alone is sufficient to exempt any premises from the operation of the Act, then the Act itself should be repealed ........... There is no policy or principle involved in this circumstance."We agree with the learned Judges in the view here expressed. The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondents tenancy cannot afford a justification for Government to say that he deserved to be evicted. It the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted.18. Learned counsel for the appellant urged that the High Court had failed to notice that the present case was one where there was a contest between two tenants and not between a landlord and a tenant and that they erred in approximating the position of the appellant to that of the landlord. We see no force in this contention because a lessee of the reversion stands in the same position as a landlord and cannot have any higher rights, nor can the appellant derive any assistance from the fact that the second respondent declined to be a lessee for any term longer than seven years when that option was offered to him by the High Court in April-May 1940.The position of the second respondent cannot be worse than if he had taken a lease for a definite term of seven years with a covenant to restore possession at the end of the period. The fact that in May 1940, the second respondent had an option to take a lease for a longer term, but of which he did not avail himself, does not make any difference or render that a ground for withdrawing from him the protection of the statute.19. We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had no other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protection was his liability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non-residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by S. 7.20. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949, etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further.21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long.The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.
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0[ds]Writ Appeal 28 of 1953 was thereafter dealt with on its merits and it was this examination which resulted in its being allowed In our opinion, therefore, the two judgments have to be read together and as really part of one proceeding ,though for convenience and with a view to define the scope of the arguments the Court expressed its opinion on the constitutional point at an earlier stage. We also consider that it is doubtful if an appeal would have lain from the judgment of the High Court dated October 23, 1953, and even assuming that it did in view of the matters which we have set out earlier, the respondent cannot be precluded from contesting the correctness of the conclusion of the High Court, by reason of his not having moved this Court under Art, 136 of the Constitution. We therefore consider that the respondent is entitled to support the judgment in his favour by attacking those portions of that judgment which are againstwas not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government which however could be used not for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the context of the present case, to prevent unreasonable eviction of tenants. The learned Judges of the High Court, therefore, held that while s. 13 of the Act was constitutionally valid, any individual order of exemption passed by the Government could be the subject of judicial review by the Courts for finding out whether (a) it was discriminatory so as to offend Art. 14 of the Constitution. (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise mala fide.12. We find ourselves in complete agreement with the approach and conclusion of the learned Judges of the High Court to the consideration of the question of the constitutional validity of S. 13 of thethe High Court were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by S. 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event Art. 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed, it was on the ground that individual orders passed by Government by virtue of the power conferred upon it by S. 13 of the Act were examinable by the Court for their violating Art. 14 that the constitutionality of S. 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides even if the order did not violate Art. 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by S. 13 of the Act,we see no substance in the contention that the Court lacks power under Art. 226 to set aside as ultra vires order vitally affecting a persons right to statuary protection against eviction. We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well for otherentire basis for upholding the constitutional validity of S. 13 of the Act and considering that it did not offend the equal protection of the law guaranteed by Art. 14 of the Constitution was, that the discretion or the power conferred upon Government was not unguided, uncanalised or arbitrary but that it had to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement in which event it would have been for the party challenging the validity of the order to establish to the satisfaction of the Court that it was mala fide or had been passed on grounds not contemplated by or extraneous to, the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance, if the exemption had been in favour of a particular class of buildings, say those belonging to charities - religious or secular - the classification would have been apparent in the very order of exemption. Where, however, the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specified building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality or the order is challenged, its intra vires character could be sustained only by disclosing the reasons which led to the passing of themere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondents tenancy cannot afford a justification for Government to say that he deserved to be evicted. It the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted.We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had no other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protection was his liability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non-residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by S. 7.20. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949, etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further.21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long.The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.
| 0 | 6,455 |
### Instruction:
Considering the arguments and evidence in case proceeding, predict the verdict: is it more likely to be in favor (1) or against (0) the appellant?
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legitimately entitled to be."The learned Judges of the High Court held that the reasons which led the Government to grant the exemption were not those which were countenanced by the policy or purpose of the Act and that the order of exemption was, therefore, invalid. In doing so the learned Judges said:"Reasons 1, 2, and 4 go together and have reference to the order of the High Court in 1940 directing the Receivers to execute a lease for seven years to the appellant and after the expiry of that period to grant a lease for fourteen years to the second respondents father. It is undoubtedly true that but for the application of the Act, the second respondents father would have obtained possession of the premises after the expiry of lease in favour of the appellant. That could be said of thousands of cases in which the leases in favour of tenants have expired and, but for the Act the owners would be entitled to obtain possession of the demised premises. If this circumstance alone is sufficient to exempt any premises from the operation of the Act, then the Act itself should be repealed ........... There is no policy or principle involved in this circumstance."We agree with the learned Judges in the view here expressed. The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondents tenancy cannot afford a justification for Government to say that he deserved to be evicted. It the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted.18. Learned counsel for the appellant urged that the High Court had failed to notice that the present case was one where there was a contest between two tenants and not between a landlord and a tenant and that they erred in approximating the position of the appellant to that of the landlord. We see no force in this contention because a lessee of the reversion stands in the same position as a landlord and cannot have any higher rights, nor can the appellant derive any assistance from the fact that the second respondent declined to be a lessee for any term longer than seven years when that option was offered to him by the High Court in April-May 1940.The position of the second respondent cannot be worse than if he had taken a lease for a definite term of seven years with a covenant to restore possession at the end of the period. The fact that in May 1940, the second respondent had an option to take a lease for a longer term, but of which he did not avail himself, does not make any difference or render that a ground for withdrawing from him the protection of the statute.19. We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had no other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protection was his liability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non-residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by S. 7.20. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949, etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further.21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long.The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.
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389 |
Commissioner Of Income-Tax, Gujarat Vs. Jayantilal Amratlal, Ahmedabad
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26, 1954, reported in Unreported Income-tax Judgments of the Bombay High Court, Book One, Published by "Western India Regional Council of the Institute of Chartered Accountant of India, Bombay p. 314 at p. 316. "The first answer to this contention is that the trustees would be committing a breach of the law if they were to advance moneys to themselves. There is a clear prohibition under S. 54 of the Trusts Act." 13. If we do not ignore the provisions of the Bombay Public Trust Act and the general principles applicable to public trusts, the question arises whether on a true interpretation of the first proviso to S. l6(l)(c) the powers reserved to the settlor under the Trust Deed come within its mischief. The learned counsel says that the words of the proviso are very wide. He points out the reasons why Parliament has inserted this proviso. He draws our attention to the following observations of Lord MacMillian in Chamberlain v. Inland Revenue Commissioners, (l943) 25 Tax Cas 317 at p. 329 quoted in Tulsidas Kilachand v. Commissioner of Income-tax, (1961) 42 ITR 1 at p. 4 = (AIR 1961 SC 1023 at p. 1025):"The legislation.... (is) designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlements. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly." This Court held in that case that these observations applied also to the Section under consideration, and the Indian provision is enacted with the same intent and for the same purpose. But even so. Lord Simonds observed while construing a similar provision En Wolfson v. Commissioners of Inland Revenue, (1950) 31 Tax Cas 141 at p. 169 :"It was urged that the construction that I favour leaves an easy loophole through which the evasive taxpayer may find escape. That may be so; but I will repeat what has been said before. It is not the function of a court of law to give to words a strained and unnatural meaning because only thus will a taxing Section apply to a transaction which, had the legislature thought of it, would have been covered by appropriate words." Viscount Simonds observed again in Saunders v. Commissioners of Inland Revenue, (1957) 87 Tax Cas 416 at p. 431 in construing a similar provision occurring in the English Act :"I am assuredly not going to depart from the fair meaning of words in a taxing Section in order that tax may be exacted." What then is the fair meaning of S. l6(l)(c), proviso 1?It seems to us that the words "reassume power" give indication to the correct meaning of the proviso. The latter part of the proviso contemplates that the settlor should be able, by virtue of something contained in the Trust Deed, to take back the power he had over the assets or income previous to the execution of the Trust Deed, provision enabling the settlor to give directions to trustees to employ the assets or funds of the trust in a particular manner or for a particular charitable object contemplated by the trust cannot be said to confer a right to reassume power within the first proviso. Otherwise a settlor could never name himself a sole trustee.It seems to us that the latter part of the proviso contemplates a provision which would enable the settlor to take the income or assets outside the provisions of the Trust Deed. Mr. Desai says that if a settlor can derive some direct or indirect benefit under a trust deed the trust deed would fall within the first proviso.But the first proviso does not use these words. The words "direct or indirect benefit" occur only in the third proviso. This Court held in Commissioner of Income-tax, Punjab v. S. Raghbir Singh, 1965-57 ITR 408 = (AIR 1966 SC 18 ) that although the settlor in that case obtained a benefit from the trust- payment of his debts-the first proviso was not attracted. 14. Coming to the various clauses of the Trust Deed there is no doubt that the settlor has retained power to see that his wishes are carried out while he is alive. But he can only direct the carrying out of his wishes within the terms of the Trust Deed. What he can direct under clause 4 is the application of income to a particular charitable purpose. Similarly under clause 6 he can nominate the charitable object and the fund or investment which should be utilised for that object. This is in no sense a power to reassume control. Clause 8 enables the settlor to delegate the carrying out of a particular charitable object. For instance, he could direct some contributions to be made to a hospital or a school without obliging the trustees to see that the hospital or the school does not misapply the funds.Clauses 10 and 11 which enable the settlor to give directions regarding the investment must be read subject to the provisions of the Bombay Public Trust Act and the general principles of law relating to trusts. We have already said that he could not legally direct a loan to be made to himself. Further it is difficult to subscribe to the proposition that a loan to a company in which the settlor is interested would give power to the settlor over the assets within the meaning of the first proviso. Clause 21 only shows the wide powers which the settlor has reserved to himself. None of these clauses comes within the purview of Proviso 1.
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0[ds]14. Coming to the various clauses of the Trust Deed there is no doubt that the settlor has retained power to see that his wishes are carried out while he is alive. But he can only direct the carrying out of his wishes within the terms of the Trust Deed. What he can direct under clause 4 is the application of income to a particular charitable purpose. Similarly under clause 6 he can nominate the charitable object and the fund or investment which should be utilised for that object. This is in no sense a power to reassume control. Clause 8 enables the settlor to delegate the carrying out of a particular charitable object. For instance, he could direct some contributions to be made to a hospital or a school without obliging the trustees to see that the hospital or the school does not misapply the funds.Clauses 10 and 11 which enable the settlor to give directions regarding the investment must be read subject to the provisions of the Bombay Public Trust Act and the general principles of law relating to trusts. We have already said that he could not legally direct a loan to be made to himself. Further it is difficult to subscribe to the proposition that a loan to a company in which the settlor is interested would give power to the settlor over the assets within the meaning of the first proviso. Clause 21 only shows the wide powers which the settlor has reserved to himself. None of these clauses comes within the purview of Proviso 110. Let us now examine the Trust Deed. This indenture was made between Jayantilal Amratlal, hereinafter called the settlor, and Jayantilal Amratlal, Padmavati wife of the said Jayantilal Amratlal, Ramanlal Amratlal, Hariprasad Amratlal, Kasturlal Chandulal Parikh and Bhagubhai Chandulal hereinafter called the Trustees. Clause 1 vests the shares and the other trust properties and income in the trustees. Clause 2 gives the name of the trust. Clause 3 obliges the trustees to get and collect income of the trust properties and pay expenses, etc. Clause 4 creates the trust for the relief of poor, and for education, medical relief, etc. It further provides"The Trustees shall at the direction of the Settlor during his lifetime and after his death at their discretion set aside any portion of the income of the Trust Premises to provide cash, food and clothes for any temple or temples of the Pushti Marg Sampradaya. In applying the income of the Trust Premises for all or any of the objects hereinbefore specified the Trustees may consider the claims of any needy or poor person belonging to the Visa Porwad Community."Clause 5 enables the settlor to give direction to the trustees to accent contributions or donations to the Trust from other persons Clause 6 provides as follows :"The Settlor may at any time or times by writing direct that any specific funds or investments or property forming part of the Trust Premises and/or the income thereof shall be utilised and applied exclusively for any one more of the aforesaid charitable objects and the Settlor may by writing at any time or times vary or revoke any such directions previously given by him and Trustees shall be bound to carry into effect all such directions given by the Settlor."Clause 7 enables the Trustees to utilise tha whole or any portion of the Trust Premises for all or any of the charitable objects if the Settlor so directs. Clause 8 may be set out in full :"8. The Trustees shall from time to time at the direction of the settlor during his life time and after his death may at any time at their discretion deliver or hand over the income of the Trust premises or any part of such income to any institution, association or society to be applied for all or any of the purposes of these presents without being bound to see to the application thereof or being liable for the loss or misapplication thereof."Clause 9 enables the Trustees to invest the residue, etc., and to accumulate the same and apply towards the objects of the Trust. Clause 10 inter alia empowers the Settlor to give directions regarding the investment of moneys"as are authorised by law for investment of trust premises or in ordinary or preference shares of joint stock companies, whether partly or fully paid, or in debentures or in giving loans to any public company or firm of good standing and reputation or in the purchase or mortgage of any movable or immovable property with power to the Trustees with the like direction to vary or transpose the said investments into or for others of the same or of a like nature."Clause 11 inter alia enables the Settlor to direct the Trustees to vary the investments. Out of the other clauses we need only mention clause 21 which reads as follows:"All questions arising in the management and administration of the trusts or powers hereof and all differences of opinion amongst the Trustees shall be disposed of in accordance with the opinion of the Settlor during his lifetime and on and after the death of the settlor in accordance with the opinion of the majority of the Trustees in the case of their being equally divided the trustee senior most in age shall have a casting vote. The learned counsel for the appellant says that these clauses read fairly would enable the Settlor to direct the Trustees to give a loan to him and he could give directions to the Trustees in such a way as toreassume controlover the assets. He says that as a matter of fact thex Officer did find that the Settlor has been utilising these powers for his own benefit. There is no doubt that under the Trust Deed the Settlor has very wide powers and the Settlor could direct the Trustees to grant loan to him. The Trustees could even grant loan to a firm in which he was interested. But this would be contrary to the provisions of the Bombay Public Trust Act. Section 35(1) of the Bombay Public Trust Act provides:"35 (1). Investment of Public Trust Money :Where the trust propertly consists of money and cannot be applied immediately or at an early date for the purposes of the public trusts the trustee shall be bound (notwithstanding any direction contained in the Instrument of the Trust) to deposit the money in any scheduled bank as defined in the Reserve Bank of India Act, 1934, in the Postal Savings Bank or in ae Bank approved by the State Government for the purpose or to invest it in Public Security;Provided . .Provided further that the Charity Commissioner may by general or special order permit the Trustee of any public trust or classes of such trusts to invest the money in any other manner."We are unable to accept this submission. The Bombay Public Trust Act must, to the extent it operates, override any provisions in the Trust Deed. As Shelat, J., observed"when proviso 1 talks about a right to reassume power, prima facie, that must mean that there is such power lawfully given under the deed oft seems to us that the legislature in proviso 1 to S. 16(1)(c) is thinking of powers lawfully given and powers lawfully exercised. Any person can commit breach of trust and assume power over the income or assets but for that reason the income of the trust cannot be treated as the income of the settlor under the proviso.12. The Calcutta High Court in Commissioner ofWest Bengal v. S. M. Bose. (1952) 25 ITR 135 at p. 141 (Cal) observed:"The first proviso to S. l6(1)(c) only contemplates cases where the settlor can lawfully reassume power over the income or the assets. Unless that was so, the proviso would cover every trust where a settlor has made himself trustee because a trustee acting dishonestly could always assume control over the income."We agree with these observations. Similarly, in an unreported judgment (Commissioner ofx Bombay North v. Mathuradas Mangaldas Parekh)*the Bombay High Court repelled a similar argument by observing :*I. T. Ref. No. 4 of 1954, judgment dated August 26, 1954, reported in Unreportedx Judgments of the Bombay High Court, Book One, Published by "Western India Regional Council of the Institute of Chartered Accountant of India, Bombay p. 314 at p. 316"The first answer to this contention is that the trustees would be committing a breach of the law if they were to advance moneys to themselves. There is a clear prohibition under S. 54 of the Trusts Act."What then is the fair meaning of S. l6(l)(c), proviso 1?It seems to us that the words "reassume power" give indication to the correct meaning of the proviso. The latter part of the proviso contemplates that the settlor should be able, by virtue of something contained in the Trust Deed, to take back the power he had over the assets or income previous to the execution of the Trust Deed, provision enabling the settlor to give directions to trustees to employ the assets or funds of the trust in a particular manner or for a particular charitable object contemplated by the trust cannot be said to confer a right to reassume power within the first proviso. Otherwise a settlor could never name himself a sole trustee.It seems to us that the latter part of the proviso contemplates a provision which would enable the settlor to take the income or assets outside the provisions of the Trust Deed. Mr. Desai says that if a settlor can derive some direct or indirect benefit under a trust deed the trust deed would fall within the first proviso.But the first proviso does not use these words. The words "direct or indirect benefit" occur only in the third proviso. This Court held in Commissioner ofPunjab v. S. Raghbir Singh,7 ITR 408 = (AIR 1966 SC 18 ) that although the settlor in that case obtained a benefit from the trustpayment of hise first proviso was not attracted14. Coming to the various clauses of the Trust Deed there is no doubt that the settlor has retained power to see that his wishes are carried out while he is alive. But he can only direct the carrying out of his wishes within the terms of the Trust Deed. What he can direct under clause 4 is the application of income to a particular charitable purpose. Similarly under clause 6 he can nominate the charitable object and the fund or investment which should be utilised for that object. This is in no sense a power toreassume. Clause 8 enables the settlor to delegate the carrying out of a particular charitable object. For instance, he could direct some contributions to be made to a hospital or a school without obliging the trustees to see that the hospital or the school does not misapply the funds.Clauses 10 and 11 which enable the settlor to give directions regarding the investment must be read subject to the provisions of the Bombay Public Trust Act and the general principles of law relating to trusts. We have already said that he could not legally direct a loan to be made to himself. Further it is difficult to subscribe to the proposition that a loan to a company in which the settlor is interested would give power to the settlor over the assets within the meaning of the first proviso. Clause 21 only shows the wide powers which the settlor has reserved to himself. None of these clauses comes within the purview of Proviso
| 0 | 4,590 |
### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
26, 1954, reported in Unreported Income-tax Judgments of the Bombay High Court, Book One, Published by "Western India Regional Council of the Institute of Chartered Accountant of India, Bombay p. 314 at p. 316. "The first answer to this contention is that the trustees would be committing a breach of the law if they were to advance moneys to themselves. There is a clear prohibition under S. 54 of the Trusts Act." 13. If we do not ignore the provisions of the Bombay Public Trust Act and the general principles applicable to public trusts, the question arises whether on a true interpretation of the first proviso to S. l6(l)(c) the powers reserved to the settlor under the Trust Deed come within its mischief. The learned counsel says that the words of the proviso are very wide. He points out the reasons why Parliament has inserted this proviso. He draws our attention to the following observations of Lord MacMillian in Chamberlain v. Inland Revenue Commissioners, (l943) 25 Tax Cas 317 at p. 329 quoted in Tulsidas Kilachand v. Commissioner of Income-tax, (1961) 42 ITR 1 at p. 4 = (AIR 1961 SC 1023 at p. 1025):"The legislation.... (is) designed to overtake and circumvent a growing tendency on the part of taxpayers to endeavour to avoid or reduce tax liability by means of settlements. Stated quite generally, the method consisted in the disposal by the taxpayer of part of his property in such a way that the income should no longer be receivable by him, while at the same time he retained certain powers over, or interests in, the property or its income. The Legislatures counter was to declare that the income of which the taxpayer had thus sought to disembarrass himself should, notwithstanding, be treated as still his income and taxed in his hands accordingly." This Court held in that case that these observations applied also to the Section under consideration, and the Indian provision is enacted with the same intent and for the same purpose. But even so. Lord Simonds observed while construing a similar provision En Wolfson v. Commissioners of Inland Revenue, (1950) 31 Tax Cas 141 at p. 169 :"It was urged that the construction that I favour leaves an easy loophole through which the evasive taxpayer may find escape. That may be so; but I will repeat what has been said before. It is not the function of a court of law to give to words a strained and unnatural meaning because only thus will a taxing Section apply to a transaction which, had the legislature thought of it, would have been covered by appropriate words." Viscount Simonds observed again in Saunders v. Commissioners of Inland Revenue, (1957) 87 Tax Cas 416 at p. 431 in construing a similar provision occurring in the English Act :"I am assuredly not going to depart from the fair meaning of words in a taxing Section in order that tax may be exacted." What then is the fair meaning of S. l6(l)(c), proviso 1?It seems to us that the words "reassume power" give indication to the correct meaning of the proviso. The latter part of the proviso contemplates that the settlor should be able, by virtue of something contained in the Trust Deed, to take back the power he had over the assets or income previous to the execution of the Trust Deed, provision enabling the settlor to give directions to trustees to employ the assets or funds of the trust in a particular manner or for a particular charitable object contemplated by the trust cannot be said to confer a right to reassume power within the first proviso. Otherwise a settlor could never name himself a sole trustee.It seems to us that the latter part of the proviso contemplates a provision which would enable the settlor to take the income or assets outside the provisions of the Trust Deed. Mr. Desai says that if a settlor can derive some direct or indirect benefit under a trust deed the trust deed would fall within the first proviso.But the first proviso does not use these words. The words "direct or indirect benefit" occur only in the third proviso. This Court held in Commissioner of Income-tax, Punjab v. S. Raghbir Singh, 1965-57 ITR 408 = (AIR 1966 SC 18 ) that although the settlor in that case obtained a benefit from the trust- payment of his debts-the first proviso was not attracted. 14. Coming to the various clauses of the Trust Deed there is no doubt that the settlor has retained power to see that his wishes are carried out while he is alive. But he can only direct the carrying out of his wishes within the terms of the Trust Deed. What he can direct under clause 4 is the application of income to a particular charitable purpose. Similarly under clause 6 he can nominate the charitable object and the fund or investment which should be utilised for that object. This is in no sense a power to reassume control. Clause 8 enables the settlor to delegate the carrying out of a particular charitable object. For instance, he could direct some contributions to be made to a hospital or a school without obliging the trustees to see that the hospital or the school does not misapply the funds.Clauses 10 and 11 which enable the settlor to give directions regarding the investment must be read subject to the provisions of the Bombay Public Trust Act and the general principles of law relating to trusts. We have already said that he could not legally direct a loan to be made to himself. Further it is difficult to subscribe to the proposition that a loan to a company in which the settlor is interested would give power to the settlor over the assets within the meaning of the first proviso. Clause 21 only shows the wide powers which the settlor has reserved to himself. None of these clauses comes within the purview of Proviso 1.
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0
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390 |
Saifuddin Hussinbhay Siamwala Vs. Burma Cycle Trading Company
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against the respondent and another on the ground that the premises were required bone fide for their own use, occupation and business and that the tenant had sub-let a portion of the premises. The application for eviction was filed by all the four appellants who were stated to be carrying on business under the name and style of Saleh Bros. The tenant filed a written statement raising various pleas but it was no where alleged or stated that any contract of tenancy had been entered into by the partnership of which the four appellants were the partners.3. Before the Rent Controller the only issues raised were : whether the landlords bone fide required the premises for their own use and occupation and whether there had been any sub-letting but upheld their claim of bona fide requirement for their own use and occupation. An appeal was taken to the Court of Small Causes, Madras under Section 23 of the Act. During the pendency of the appeal an admission appears to have been made on behalf of the appellants in some miscellaneous petition that they were carrying on business in partnership. Certain other points also arose and the Chief Judge, Small Causes Court, framed some additional issues on which he called for the finding of the Rent Controller. After the remand it was held by him that the application for eviction was not maintainable because the premises were actually required for the purpose of the firm in which only two of the appellants were partners.4. The appellant filed a petition for revision in the High Court. The learned Judge found that all the four appellants were partners of the firm Saleh Bros., and it was the partnership which was asking for the possession of the premises in the occupation of the tenant. As only two of them were shown in the register of firms as partners their petition for eviction was not maintainable under the Act since it was a proceeding to enforce a right arising out of a contract within the meaning of Section 69(3) of the Partnership Act. He even expressed the view that although the landlords of the premises in question prima facie were the four appellants but in reality and in the eye of law it was an unregistered partnership which owned the premises. As the requirement of an unregistered partnership had to be considered it could not be said that all the appellants were entitled to the possession of the building within the meaning of Section 10(3)(a)(iii) of the Act.5. Section 69 of the Partnership Act, to the extent, it is relevant is in the following terms :"Section 69. - (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted by or any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.(2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect -(a)..........."6. The High Court, as previously stated, considered that the application for eviction which had been filed by the appellants was in the nature of a proceeding to enforce a right arising from a contract. It is difficult to understand the decision on the point. It is common ground that when the property was purchased by the appellants the tenant attorned to them. It had neither been pleaded nor proved that there was any contract of tenancy between the firm Saleh Bros., and the tenant, the present respondent. In the absence of any pleading on the point by the respondent no issue had been raised by the Rent Controller, quite rightly, on the property belonging to the partnership firm or the latter being the real landlord. It is indeed axiomatic that no proof or evidence can be allowed to be adduced on matters which are neither pleaded nor put into issue. It is quite clear that Section 69(3) of the Indian Partnership Act had no applicability in such circumstances and the High Court was in error in going into this matter at all.7. The allegations in the eviction petition were simple. The four appellants claimed that they were the owners of the premises and that they required the same for their own occupation and business. The plea of the tenant was that the appellants had not purchased the premises for their business nor was it required by them for their own occupation or business. The other matter related to sub-letting which was alleged by the appellants but was denied by the respondent. The only issues, therefore, which were framed related to these points and before the Rent Controller it was never claimed on behalf of the respondent that any other issue required determination. The statement in para 5 of the eviction application that the landlords were carrying on business under the name and style of Saleh Bros. and its denial by the respondent by saying that all the applicants were not the partners of that firm did not and could not give rise to any issue of the nature which was determined by the High Court. Once it was held that the High Court could not have decided the case on the basis of the bar contained in Section 69(3) of the Partnership Act there can be no doubt and it has not been disputed that the order of the Rent Controller had been correctly made.
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1[ds]6. The High Court, as previously stated, considered that the application for eviction which had been filed by the appellants was in the nature of a proceeding to enforce a right arising from a contract. It is difficult to understand the decision on the point. It is common ground that when the property was purchased by the appellants the tenant attorned to them. It had neither been pleaded nor proved that there was any contract of tenancy between the firm Saleh Bros., and the tenant, the present respondent. In the absence of any pleading on the point by the respondent no issue had been raised by the Rent Controller, quite rightly, on the property belonging to the partnership firm or the latter being the real landlord. It is indeed axiomatic that no proof or evidence can be allowed to be adduced on matters which are neither pleaded nor put into issue. It is quite clear that Section 69(3) of the Indian Partnership Act had no applicability in such circumstances and the High Court was in error in going into this matter at all.7. The allegations in the eviction petition were simple. The four appellants claimed that they were the owners of the premises and that they required the same for their own occupation and business. The plea of the tenant was that the appellants had not purchased the premises for their business nor was it required by them for their own occupation or business. The other matter related towhich was alleged by the appellants but was denied by the respondent. The only issues, therefore, which were framed related to these points and before the Rent Controller it was never claimed on behalf of the respondent that any other issue required determination. The statement in para 5 of the eviction application that the landlords were carrying on business under the name and style of Saleh Bros. and its denial by the respondent by saying that all the applicants were not the partners of that firm did not and could not give rise to any issue of the nature which was determined by the High Court. Once it was held that the High Court could not have decided the case on the basis of the bar contained in Section 69(3) of the Partnership Act there can be no doubt and it has not been disputed that the order of the Rent Controller had been correctly made.
| 1 | 1,221 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
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against the respondent and another on the ground that the premises were required bone fide for their own use, occupation and business and that the tenant had sub-let a portion of the premises. The application for eviction was filed by all the four appellants who were stated to be carrying on business under the name and style of Saleh Bros. The tenant filed a written statement raising various pleas but it was no where alleged or stated that any contract of tenancy had been entered into by the partnership of which the four appellants were the partners.3. Before the Rent Controller the only issues raised were : whether the landlords bone fide required the premises for their own use and occupation and whether there had been any sub-letting but upheld their claim of bona fide requirement for their own use and occupation. An appeal was taken to the Court of Small Causes, Madras under Section 23 of the Act. During the pendency of the appeal an admission appears to have been made on behalf of the appellants in some miscellaneous petition that they were carrying on business in partnership. Certain other points also arose and the Chief Judge, Small Causes Court, framed some additional issues on which he called for the finding of the Rent Controller. After the remand it was held by him that the application for eviction was not maintainable because the premises were actually required for the purpose of the firm in which only two of the appellants were partners.4. The appellant filed a petition for revision in the High Court. The learned Judge found that all the four appellants were partners of the firm Saleh Bros., and it was the partnership which was asking for the possession of the premises in the occupation of the tenant. As only two of them were shown in the register of firms as partners their petition for eviction was not maintainable under the Act since it was a proceeding to enforce a right arising out of a contract within the meaning of Section 69(3) of the Partnership Act. He even expressed the view that although the landlords of the premises in question prima facie were the four appellants but in reality and in the eye of law it was an unregistered partnership which owned the premises. As the requirement of an unregistered partnership had to be considered it could not be said that all the appellants were entitled to the possession of the building within the meaning of Section 10(3)(a)(iii) of the Act.5. Section 69 of the Partnership Act, to the extent, it is relevant is in the following terms :"Section 69. - (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted by or any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.(2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect -(a)..........."6. The High Court, as previously stated, considered that the application for eviction which had been filed by the appellants was in the nature of a proceeding to enforce a right arising from a contract. It is difficult to understand the decision on the point. It is common ground that when the property was purchased by the appellants the tenant attorned to them. It had neither been pleaded nor proved that there was any contract of tenancy between the firm Saleh Bros., and the tenant, the present respondent. In the absence of any pleading on the point by the respondent no issue had been raised by the Rent Controller, quite rightly, on the property belonging to the partnership firm or the latter being the real landlord. It is indeed axiomatic that no proof or evidence can be allowed to be adduced on matters which are neither pleaded nor put into issue. It is quite clear that Section 69(3) of the Indian Partnership Act had no applicability in such circumstances and the High Court was in error in going into this matter at all.7. The allegations in the eviction petition were simple. The four appellants claimed that they were the owners of the premises and that they required the same for their own occupation and business. The plea of the tenant was that the appellants had not purchased the premises for their business nor was it required by them for their own occupation or business. The other matter related to sub-letting which was alleged by the appellants but was denied by the respondent. The only issues, therefore, which were framed related to these points and before the Rent Controller it was never claimed on behalf of the respondent that any other issue required determination. The statement in para 5 of the eviction application that the landlords were carrying on business under the name and style of Saleh Bros. and its denial by the respondent by saying that all the applicants were not the partners of that firm did not and could not give rise to any issue of the nature which was determined by the High Court. Once it was held that the High Court could not have decided the case on the basis of the bar contained in Section 69(3) of the Partnership Act there can be no doubt and it has not been disputed that the order of the Rent Controller had been correctly made.
### Response:
1
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391 |
Bihari Mills and Another Vs. Ahmedabad Municipalcorporation
|
Board of Appeal that the appellants have appealed to this Court, on obtaining special leave.Section 30 of the Act of 1915 lays down the duties of the Arbitrator in some detail, running into ten clauses, and a number of sub-clauses. The decision of the Arbitrator, except on matters covered by sub-sections (3A), (3B), (3C), (4), (6) and (9) of s. 30 have been declared by s. 31 to be final. The matters in respect of which his decision has not been declared to be final, as aforesaid, the Arbitrators conclusions have been characterised as proposals by s. 32 of the Act of 1915, and those matters were to be submitted to the Tribunal of Arbitration, constituted under s. 33 (1), for its decision. It would thus appear that on certain matters which came under the purview of the Arbitrators powers, the decision of the Arbitrator was final, and in other matters they were merely proposals to be submitted for the decision of the Tribunal of Arbitration. When the Act of 1915 was repealed by the Act, it saved certain orders and proceedings by s. 90, which will be set out and discussed later. Under the Act, s. 31 contemplates the appointment of a Town Planning officer, who is a substitute of the Arbitrator under the Act of 1915. Section 32 lays down in great detail the duties of the Town Planning officer, which may be equated with s. 30 of the Act of 1915. Section 33 declares certain decisions except under s. 32 (1), cls. (v), (vi), (viii), (ix), (x) and (xiii), of the Town Planning officer to be final and conclusive and binding on all persons, while decisions of the Town Planning officer, under the above clauses, are subject to appeal to the Board of Appeal, under s. 34, to be constituted under s. 35. It will thus appear that the Act has equated the Arbitrator under the Act of 1915 with the Town Planning officer and the Tribunal of Arbitration with the Board of Appeal. Though under the former Act the Arbitrator is a part of the Tribunal of Arbitration, under the Act certain decisions of the Town Planning officer are appealable to the Board of Appeal. It is common ground that Shri Parikh, the Arbitrator under the Act of 1915, has not been, in terms, appointed the Town Planning officer under the Act.After setting out the relevant provisions of the Act of 1915 and the Act, it is necessary to State that the decision given by the Arbitrator, Shri R.N. Parikh, functioning under the Act of 1915, could be reviewed by the Tribunal of Arbitration, but as there was no such Tribunal in existence on and after that date, the appellants preferred appeals to the Board of Appeal, constituted under the Act. Those appeals were disposed of by the Board by its order dated January 23, 1959. It is the legality of that order that is in question before us.3. It is submitted on behalf of the appellants that they preferred their appeals to the Board, which was the only appellate authority in existence, and which mistakenly they were advised to be the competent tribunal to deal with the appeals. It was -further argued that on a true construction of the provisions of the Act and the Act of 1915, it is clear that the Board of Appeal had no jurisdiction to render any judgment in respect of the decisions or proposals of the Arbitrator. In our opinion, this contention is well-founded. Reliance was placed in this connection on the provisions of s. 90 of the Act, the relevant portions of which may be set out below : "(1) The Bombay Town Planning Act, 1915, is hereby repealed. (2) Notwithstanding the repeal of the said Act any appointment made of an arbitrator, any proceedings pending before the Arbitrator ... under the repealed Act shall, in so far as it is not inconsistent with this Act, continue in force thereunder and provisions of this Act shall have effect in relation to such proceedings It is clear that the saving clause was effective to continue the appointment of the Arbitrator made under the repealed Act, and also to keep alive the proceedings before him. But the proposals made by him had to be dealt with by the Tribunal of Arbitration, which was not continued by the saving clause, aforesaid. The board of Appeal constituted under s. 35 of the Act was competent to deal with any decision of the Town Planning officer, but the Arbitrator under the old Act did not ipso facto become, without an express order of the Government appointing him, a Town Planning officer; and any decision or order by the Arbitrator would not have the effect of an order by the latter. That lacuna does not appear to have been removed by any subsequent legislation or order of the Government of Gujrat, under the Act. Some lacunae were discovered in the working of the Act and the Government of Maharashtra came out with the Bombay Town Planning (Amendment and Proceedings Validation) Act, 1960 (Maharashtra Act XXIV of 1960). By s. 2, sub-s. (4) of this Act, it has been provided that "reference to Town Planning officer In this Act shall -include reference to an Arbitrator whose appointment is continued in force under sub-section (2)" set out above. No such action was taken by the Government of Gujrat, nor any validating Act passed by the Gujrat Legislature. It is thus manifest that the appeals preferred by the appellants against the order of the Arbitrator as such did not lie to the Board of Appeal, and, therefore the Board was incompetent to deal with them, with the result I that the orders purported to have been passed -by the Board on those appeals are without jurisdiction. We need not go into the further question as to the effect of the orders of the Arbitrator which had been challenged by the appellants as it now appears without effect.
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1[ds]It will thus appear that the Act has equated the Arbitrator under the Act of 1915 with the Town Planning officer and the Tribunal of Arbitration with the Board of Appeal. Though under the former Act the Arbitrator is a part of the Tribunal of Arbitration, under the Act certain decisions of the Town Planning officer are appealable to the Board of Appeal. It is common ground that Shri Parikh, the Arbitrator under the Act of 1915, has not been, in terms, appointed the Town Planning officer under theour opinion, this contention isis clear that the saving clause was effective to continue the appointment of the Arbitrator made under the repealed Act, and also to keep alive the proceedings before him. But the proposals made by him had to be dealt with by the Tribunal of Arbitration, which was not continued by the saving clause, aforesaid. The board of Appeal constituted under s. 35 of the Act was competent to deal with any decision of the Town Planning officer, but the Arbitrator under the old Act did not ipso facto become, without an express order of the Government appointing him, a Town Planning officer; and any decision or order by the Arbitrator would not have the effect of an order by the latter. That lacuna does not appear to have been removed by any subsequent legislation or order of the Government of Gujrat, under the Act. Some lacunae were discovered in the working of the Act and the Government of Maharashtra came out with the Bombay Town Planning (Amendment and Proceedings Validation) Act, 1960 (Maharashtra Act XXIV of 1960). By s. 2, sub-s. (4) of this Act, it has been provided that "reference to Town Planning officer In this Act shall -include reference to an Arbitrator whose appointment is continued in force under sub-section (2)" set out above. No such action was taken by the Government of Gujrat, nor any validating Act passed by the Gujrat Legislature. It is thus manifest that the appeals preferred by the appellants against the order of the Arbitrator as such did not lie to the Board of Appeal, and, therefore the Board was incompetent to deal with them, with the result I that the orders purported to have been passed -by the Board on those appeals are without jurisdiction. We need not go into the further question as to the effect of the orders of the Arbitrator which had been challenged by the appellants as it now appears without effect.
| 1 | 1,519 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
### Input:
Board of Appeal that the appellants have appealed to this Court, on obtaining special leave.Section 30 of the Act of 1915 lays down the duties of the Arbitrator in some detail, running into ten clauses, and a number of sub-clauses. The decision of the Arbitrator, except on matters covered by sub-sections (3A), (3B), (3C), (4), (6) and (9) of s. 30 have been declared by s. 31 to be final. The matters in respect of which his decision has not been declared to be final, as aforesaid, the Arbitrators conclusions have been characterised as proposals by s. 32 of the Act of 1915, and those matters were to be submitted to the Tribunal of Arbitration, constituted under s. 33 (1), for its decision. It would thus appear that on certain matters which came under the purview of the Arbitrators powers, the decision of the Arbitrator was final, and in other matters they were merely proposals to be submitted for the decision of the Tribunal of Arbitration. When the Act of 1915 was repealed by the Act, it saved certain orders and proceedings by s. 90, which will be set out and discussed later. Under the Act, s. 31 contemplates the appointment of a Town Planning officer, who is a substitute of the Arbitrator under the Act of 1915. Section 32 lays down in great detail the duties of the Town Planning officer, which may be equated with s. 30 of the Act of 1915. Section 33 declares certain decisions except under s. 32 (1), cls. (v), (vi), (viii), (ix), (x) and (xiii), of the Town Planning officer to be final and conclusive and binding on all persons, while decisions of the Town Planning officer, under the above clauses, are subject to appeal to the Board of Appeal, under s. 34, to be constituted under s. 35. It will thus appear that the Act has equated the Arbitrator under the Act of 1915 with the Town Planning officer and the Tribunal of Arbitration with the Board of Appeal. Though under the former Act the Arbitrator is a part of the Tribunal of Arbitration, under the Act certain decisions of the Town Planning officer are appealable to the Board of Appeal. It is common ground that Shri Parikh, the Arbitrator under the Act of 1915, has not been, in terms, appointed the Town Planning officer under the Act.After setting out the relevant provisions of the Act of 1915 and the Act, it is necessary to State that the decision given by the Arbitrator, Shri R.N. Parikh, functioning under the Act of 1915, could be reviewed by the Tribunal of Arbitration, but as there was no such Tribunal in existence on and after that date, the appellants preferred appeals to the Board of Appeal, constituted under the Act. Those appeals were disposed of by the Board by its order dated January 23, 1959. It is the legality of that order that is in question before us.3. It is submitted on behalf of the appellants that they preferred their appeals to the Board, which was the only appellate authority in existence, and which mistakenly they were advised to be the competent tribunal to deal with the appeals. It was -further argued that on a true construction of the provisions of the Act and the Act of 1915, it is clear that the Board of Appeal had no jurisdiction to render any judgment in respect of the decisions or proposals of the Arbitrator. In our opinion, this contention is well-founded. Reliance was placed in this connection on the provisions of s. 90 of the Act, the relevant portions of which may be set out below : "(1) The Bombay Town Planning Act, 1915, is hereby repealed. (2) Notwithstanding the repeal of the said Act any appointment made of an arbitrator, any proceedings pending before the Arbitrator ... under the repealed Act shall, in so far as it is not inconsistent with this Act, continue in force thereunder and provisions of this Act shall have effect in relation to such proceedings It is clear that the saving clause was effective to continue the appointment of the Arbitrator made under the repealed Act, and also to keep alive the proceedings before him. But the proposals made by him had to be dealt with by the Tribunal of Arbitration, which was not continued by the saving clause, aforesaid. The board of Appeal constituted under s. 35 of the Act was competent to deal with any decision of the Town Planning officer, but the Arbitrator under the old Act did not ipso facto become, without an express order of the Government appointing him, a Town Planning officer; and any decision or order by the Arbitrator would not have the effect of an order by the latter. That lacuna does not appear to have been removed by any subsequent legislation or order of the Government of Gujrat, under the Act. Some lacunae were discovered in the working of the Act and the Government of Maharashtra came out with the Bombay Town Planning (Amendment and Proceedings Validation) Act, 1960 (Maharashtra Act XXIV of 1960). By s. 2, sub-s. (4) of this Act, it has been provided that "reference to Town Planning officer In this Act shall -include reference to an Arbitrator whose appointment is continued in force under sub-section (2)" set out above. No such action was taken by the Government of Gujrat, nor any validating Act passed by the Gujrat Legislature. It is thus manifest that the appeals preferred by the appellants against the order of the Arbitrator as such did not lie to the Board of Appeal, and, therefore the Board was incompetent to deal with them, with the result I that the orders purported to have been passed -by the Board on those appeals are without jurisdiction. We need not go into the further question as to the effect of the orders of the Arbitrator which had been challenged by the appellants as it now appears without effect.
### Response:
1
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392 |
Natvarlal Punjabhai And Another Vs. Dadubhai Manubhai And Others
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accept it, except on terms which would apply to any other transfer of immovable property so far as prior alienees are concerned. This, in our opinion, involves a total misapprehension of the nature and legal effect of surrender by a Hindu widow as we have already explained. Surrender is not alienation of an interest of the widow in favour of the reversioner, and no acceptance by the reversioner is necessary as a condition precedent to the vesting of the estate in him. The estate vests in the reversioner under operation of law without any act on his part. It is also difficult to see why the learned Judge looked upon surrender as a matter of contract between the widow and the reversioner. It is true that the widow at the time of surrendering her husbands estate can, if she likes, stipulate for a right to be maintained out of the properties for lifetime; but reservation of such small benefit absolutely necessary for her maintenance does not invalidate a surrender as has been held by the Privy Council in more cases than one (Vide Sureswar Misra v. Maheshrani, 47 I.A. 233.). Mr. Ayyangar argues that a widow, who requires to be maintained out of her husbands property, cannot be said to have suffered death. But this argument is fallacious. Nobody says that the surrendering widow actually dies. It is a fiction of law pure and simple and it is for the law to determine under what circumstances this fiction of natural or civil death would arise. There is such a legal fiction involved in adoption also when a son is adopted by a widow subsequent to the death of her husband. Such adopted son is given the rights of posthumous son and the fiction is that he was in existence from before the date of the proprietors death, although the fact is otherwise. So far as the legal consequences are concerned, there is no material difference between an adoption and an act of surrender by the widow. In our opinion, there is not warrant in Hindu law for the proposition that in case of alienation by a Hindu widow of her husbands property without any justifying necessity, or in the case of a stranger acquiring title by adverse possession against her, the interest created is to be deemed to be severed from the inheritance and if a surrender is made subsequently by the widow, the surrenderee must take it subject to such prior interest. Sulaiman J. in the Allahabad case (Vide Lachmi Chand v. Lachho, I.L.R. 49 All. 334.) cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to split up the husbands estate into two parts or to give to the alienee an interest necessarily co-extensive with her lifetime. The reversionary right to challenge it is not part of the widows estate at all and, therefore, could not be surrendered to the reversioner. The first line of reasoning, therefore, seems to us to be of no substance.22. The second ground upon which the Madras decisions purport to be based is manifestly untenable. The widow herself may be incapable of derogating from her own grant and disputing the alienation which she has herself made; but as has been said already, surrender is not an alienation and as the reversioner does not derive his title from her, there is not principle of law under which the acts of the widow could bind him. As Sulaiman J. pointed out in the case just referred to, that if the reversioner were a grantee from the widow, he would not only have been estopped from challenging the alienation during her lifetime, but would have been equally estopped from challenging it after her death; admittedly that is not the case (Vide I.L.R. 49 All. 334 at 346.). It is true that the surrender benefits the reversioner but the benefit comes to him under the provision of general law as a result of self-effacement by the widow. No estopped can possibly be founded on the receipt of such benefit.23. Coming now to the third ground, it certainly true that a surrender is a voluntary act on the part of the widow and she under no legal or moral obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widows lifetime. On the other hand, a person, who takes transfer from a Hindu widow, acts with his eyes open. If the transfer is without any legal necessity, there is a risk always attached to the transaction, and there is no law, as we have already explained, which secures to him necessarily an estate for life. A man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner. Be that as it may, even assuming that the court is not incompetent to impose conditions on the reversioners right of recovering possession of the property during the widows lifetime on the grounds of equity, justice and good conscience in proper cases, it is clear that in the case before us no equitable considerations at all arise. The appellants are not alienees from the widow; they came upon the land as trespassers without any right and it is the law of limitation that has legalized what was originally a clear act of usurpation. They have enjoyed their property since 1925, and as the title which they have acquired is not available against the reversionary interest, we do not see any reason sanctioned by law or equity for not allowing the reversioners their full legal rights.24.
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0[ds]The word "surrender" cannot be said to be free from ambiguity. If it connotes nothing more than the English doctrine of merger and a Hindu widow, whose interest is usually, though incorrectly, likened to that of a life tenant under the English law, merely accelerates the reversion by surrendering her limited interest in favour of the reversioner, undoubtedly no surrender can be effective if the widow has already parted with her interest in the property by a voluntary act of her own or her rights therein have been extinguished by adverse possession of a stranger. The English doctrine of merger, though it may have influenced some of the judicial pronouncements in our country has really speaking no application to a Hindu widows estate. The law of surrender by a Hindu widow, as it stands at present, is for the most part, judge-made law, though it may not be quite correct to say that there is absolutely no textual authority upon which the doctrine could be founded, at least, impliedly. So far as the Dayabhag law is concerned, its origin is attributed to Jimutabahans commentary on the well known text of Katyayana which describes the interest of a childless widow in the estate left by her husband and the rights of the reversioners after herEnglish law the reversioner or remainder man has a vested interest in the property and his rights are simply augmented by the surrender of the life estate. In the Hindu law, on the other hand, the widow, so long as she is alive, fully represents her husbands estate, though her powers of alienation are curtailed and the property after her death goes not to her but to her husbands heirs. The presumptive reversioner has got no interest in the property during the lifetime of the widow. He has a mere chance of succession which may not materialise at all. He can succeed to the property at any particular time only if the widow dies at that very moment. The whole doctrine of surrender is based upon this analogy or legal fiction of the widows death. The widows estate is an interposed limitation or obstruction which prevents or impedes the course of succession in favour of the heirs of her husband. It is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husbands estate altogether. If she does that, the consequence is the same as if she died a natural death and the next heirs of her husband then living step in at once under the ordinary law of inheritance. In spite of some amount of complexity which is unavoidable in a law evolved by judicial decisions, this fundamental basis of the doctrine of surrender can be said to be established beyondsurrender is not really an act of alienation of the widow of her rights in favour of the reversioner. The reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her. He derives his title from the last male holder as his successor-in-law and the rights of succession are opened out by the act of self-effacement on the part of the widow which operates in the same manner as her physical death. It is true that a surrender may and in the majority of cases does take the form of transfer, e.g., when the widow conveys the entire estate of her husband, without consideration and not as a mere device to share the estate with the reversioner, in favour of thesurrender conveys nothing in law and merely causes extinction of the widows rights in her husbands estate, there is no reason why it should be necessary that the estate must remain with the widow before she could exercise her power of surrender. The widow might have alienated the property to a stranger or some one might have been in adverse possession of the same for more than the statutory period. If the alienation is for legal necessity, it would certainly be binding upon the estate and it could not be impeached by any person under any circumstance. But if the alienation is not for legal necessity, or if a squatter has acquired title by adverse possession against the widow, neither the alienation nor the rights of the adverse possessor could affect the reversioners estate at all. These rights have their origin in acts or missions of the widow which are not binding on the husbands estate. They are in reality dependent upon the widows estate and if the widows estate is extinguished by any means known to law, e.g., by her adopting a son or marrying again, these rights must also cease to exist. The same consequences should follow when the widow withdraws herself from her husbands estate by an act of renunciation on her part. Whether any equitable principle can be invoked in favour of a third party who has acquired rights over the property by any act or omission of the widow may be a matter for consideration. But the learned counsel for the appellants is not right when he says that as adverse possession extinguished the rights of the widow, no fresh extinction by an act of surrender was possible. As the rights acquired by adverse possession are available only against the widow and not against the husbands heirs, the husbands estate still remain undestroyed and the widow may withdraw herself from that estate leaving it open to the reversioners to asks possession of it at once as heirs of the last male holder unless there is any other rule of law or equity which prevent them from doing so. The first branch of the appellants contention cannot, therefore,second ground is, that as the widow herself is incapable of disputing the title of the alienee or of the person who has acquired interest by adverse possession against her, a like disability attaches to the reversioner also who could not have obtained the properties but for the surrender made by the widow. The third ground assigned is that the law of surrender being a judge-made law, the courts in recognising the right of surrender by a Hindu widow can and ought to impose conditions on the exercise of her power based on considerations of justice, equity and good conscience, and surrender being a purely voluntary act on the part of the widow, she could not be allowed by her own act to prejudice the interests which she had already created.
| 0 | 7,588 |
### Instruction:
Based on the legal narrative and evidentiary details in the case proceeding, predict the court's stance: favorable (1) or unfavorable (0) to the appellant.
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accept it, except on terms which would apply to any other transfer of immovable property so far as prior alienees are concerned. This, in our opinion, involves a total misapprehension of the nature and legal effect of surrender by a Hindu widow as we have already explained. Surrender is not alienation of an interest of the widow in favour of the reversioner, and no acceptance by the reversioner is necessary as a condition precedent to the vesting of the estate in him. The estate vests in the reversioner under operation of law without any act on his part. It is also difficult to see why the learned Judge looked upon surrender as a matter of contract between the widow and the reversioner. It is true that the widow at the time of surrendering her husbands estate can, if she likes, stipulate for a right to be maintained out of the properties for lifetime; but reservation of such small benefit absolutely necessary for her maintenance does not invalidate a surrender as has been held by the Privy Council in more cases than one (Vide Sureswar Misra v. Maheshrani, 47 I.A. 233.). Mr. Ayyangar argues that a widow, who requires to be maintained out of her husbands property, cannot be said to have suffered death. But this argument is fallacious. Nobody says that the surrendering widow actually dies. It is a fiction of law pure and simple and it is for the law to determine under what circumstances this fiction of natural or civil death would arise. There is such a legal fiction involved in adoption also when a son is adopted by a widow subsequent to the death of her husband. Such adopted son is given the rights of posthumous son and the fiction is that he was in existence from before the date of the proprietors death, although the fact is otherwise. So far as the legal consequences are concerned, there is no material difference between an adoption and an act of surrender by the widow. In our opinion, there is not warrant in Hindu law for the proposition that in case of alienation by a Hindu widow of her husbands property without any justifying necessity, or in the case of a stranger acquiring title by adverse possession against her, the interest created is to be deemed to be severed from the inheritance and if a surrender is made subsequently by the widow, the surrenderee must take it subject to such prior interest. Sulaiman J. in the Allahabad case (Vide Lachmi Chand v. Lachho, I.L.R. 49 All. 334.) cited above enunciated the law with perfect precision when he said that the effect of an alienation by a widow is not to split up the husbands estate into two parts or to give to the alienee an interest necessarily co-extensive with her lifetime. The reversionary right to challenge it is not part of the widows estate at all and, therefore, could not be surrendered to the reversioner. The first line of reasoning, therefore, seems to us to be of no substance.22. The second ground upon which the Madras decisions purport to be based is manifestly untenable. The widow herself may be incapable of derogating from her own grant and disputing the alienation which she has herself made; but as has been said already, surrender is not an alienation and as the reversioner does not derive his title from her, there is not principle of law under which the acts of the widow could bind him. As Sulaiman J. pointed out in the case just referred to, that if the reversioner were a grantee from the widow, he would not only have been estopped from challenging the alienation during her lifetime, but would have been equally estopped from challenging it after her death; admittedly that is not the case (Vide I.L.R. 49 All. 334 at 346.). It is true that the surrender benefits the reversioner but the benefit comes to him under the provision of general law as a result of self-effacement by the widow. No estopped can possibly be founded on the receipt of such benefit.23. Coming now to the third ground, it certainly true that a surrender is a voluntary act on the part of the widow and she under no legal or moral obligation to surrender her estate. Instances do arise where an alienee has paid valuable and substantial consideration for a property on the expectation of enjoying so long as the widow would remain alive and his expectations have been cut short by a surrender on the part of the widow, which no doubt benefits the reversioner in the sense that he gets the inheritance even during the widows lifetime. On the other hand, a person, who takes transfer from a Hindu widow, acts with his eyes open. If the transfer is without any legal necessity, there is a risk always attached to the transaction, and there is no law, as we have already explained, which secures to him necessarily an estate for life. A man making a purchase of this character is not expected to pay the same value which he would pay if the purchase were made from a full owner. Be that as it may, even assuming that the court is not incompetent to impose conditions on the reversioners right of recovering possession of the property during the widows lifetime on the grounds of equity, justice and good conscience in proper cases, it is clear that in the case before us no equitable considerations at all arise. The appellants are not alienees from the widow; they came upon the land as trespassers without any right and it is the law of limitation that has legalized what was originally a clear act of usurpation. They have enjoyed their property since 1925, and as the title which they have acquired is not available against the reversionary interest, we do not see any reason sanctioned by law or equity for not allowing the reversioners their full legal rights.24.
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393 |
PRAKASH SAHU Vs. SAULAL AND OTHERS
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Leave granted. 1. We have heard learned counsel for the parties. 2. The short question in the present appeal is whether an unregistered agreement of sale can be seen for collateral purposes under the proviso to Section 49 of the Registration Act, 1908. 3. The Trial Court based its reasoning on a decision of this Court in S. Kaladevi vs. V.R. Somasundaram & Ors. (2010) 5 SCC 401 elucidating as follows:- (I) In that situation it is essential for the registration of the document, if, unregistered is not admissible in evidence under Section 49 of the Registration Act. (ii) Yet, such unregistered document can be used by way of collateral evidences provided in the proviso to the Section 49 of the Registration Act. (iii) For effecting with the collateral transaction, whose registration is required by law should be free from the transaction or be divisible from that. (iv) Collateral transaction should be such a transactionwhich may not be automatically expected of effecting by the registered document, i.e. Rupees One Hundred or any transaction or instrument or right or interest in any immovable property of the value of more than Rupees One Hundred. (v) If the document is inadmissible in evidence in the absence of registration then any of its estopple cannot be admitted in evidence and for use of the document for purposes of proving important part, it would not be utilized by way of collateral purpose. 4. The High Court failed to consider the aforesaid while holding that the unregistered document could not be taken into consideration for collateral purposes.
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1[ds]4. The High Court failed to consider the aforesaid while holding that the unregistered document could not be taken into consideration for collateral purposes.
| 1 | 299 |
### Instruction:
Based on the information in the case proceeding, determine the likely outcome: acceptance (1) or rejection (0) of the appellant/petitioner's case.
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Leave granted. 1. We have heard learned counsel for the parties. 2. The short question in the present appeal is whether an unregistered agreement of sale can be seen for collateral purposes under the proviso to Section 49 of the Registration Act, 1908. 3. The Trial Court based its reasoning on a decision of this Court in S. Kaladevi vs. V.R. Somasundaram & Ors. (2010) 5 SCC 401 elucidating as follows:- (I) In that situation it is essential for the registration of the document, if, unregistered is not admissible in evidence under Section 49 of the Registration Act. (ii) Yet, such unregistered document can be used by way of collateral evidences provided in the proviso to the Section 49 of the Registration Act. (iii) For effecting with the collateral transaction, whose registration is required by law should be free from the transaction or be divisible from that. (iv) Collateral transaction should be such a transactionwhich may not be automatically expected of effecting by the registered document, i.e. Rupees One Hundred or any transaction or instrument or right or interest in any immovable property of the value of more than Rupees One Hundred. (v) If the document is inadmissible in evidence in the absence of registration then any of its estopple cannot be admitted in evidence and for use of the document for purposes of proving important part, it would not be utilized by way of collateral purpose. 4. The High Court failed to consider the aforesaid while holding that the unregistered document could not be taken into consideration for collateral purposes.
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KALI PRASAD SINGH Vs. THE STATE OF UTTAR PRADESH
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supported by general diary entry. Thus, it appears that correction had been made at the time of reducing the FIR to writing at the relevant time and no dent is caused to the prosecution cast as to the time of incident. The date of recording of FIR was 18.02.2000. There is no scope for ante timing the FIR within two hours of night available on 18.02.2000. The FIR cannot be said to be ante timed.15. Coming to the question of reliability of solitary eye witness Rejendra Singh (PW-1). We have gone through the entire deposition anxiously with the help of learned senior counsel for the appellants. We find that his version is quite truthful. He has clearly stated that one week before the incident he had come from Allahabad to Varanasi. He went out strolling to search for his brother and when he reached near Mahavir temple he met his brother Surendra Singh and they both started walking towards home. While they were returning back, he was 5-6 paces ahead of Surendra, his brother. When they reached in front of the house of Pramod Dubey at about 10 p.m. Kali Prasad and Santosh appeared from the Western side street. Both of them were having pistols in their hands. They caught his brother Surendra and fired at his temple and neck. His brother fell down. Thereafter on hearing the hue and cry Constable Nepal Singh came out of the house. He challenged the accused persons and ran towards them to catch them but the accused persons fled away towards north side and disappeared. His brother died on the spot. He went to his house and immediately, reduced the report to writing, then went to the police station and lodged the report in the night itself. In the cross examination, it has been deposed that the reason for killing was that there was enmity between them and the accused Kali Prasad had a doubt that deceased was also involved in murder of his brother. On further cross examination, he has clearly stated that there was a case pending regarding beating incident between the parties also under Section 107, IPC. He has also stated that Pramod Dubey and several other persons came out of their houses after hearing hue and cry. There is nothing brought in the cross examination as to doubt the version given by the witness that is medically corroborated also and substantially corroborated by the version of Nepal Singh (PW-3), who came to the spot immediately after gun shots were fired.16. When we consider the statement of Nepal Singh (PW-3), he has clearly stated that he knew complainant Rajendra Singh. He used to live in the house adjacent to the house where he lived. Rajendra Singh was studying at Allahabad but occasionally he used to stay at Varanasi. The incident took place at about 10 p.m., on 18.2.2000. He was in his house, when he distinctly heard the sound of gun fire, he came out shouting and saw Rajendra Singh (PW-1) was running towards his house and on seeing him complainant, came to him and started narrating the incident. He saw two people running away to the North side. Body was lying in the pool of blood in front of the house of Pramod Dubey. A bicycle was also lying near the body. Thus, he has corroborated version of complainant. He has narrated about the presence of Rajendra Singh at the spot.17. Coming to the question whether there was any source of light, we find that the height of the house of Pramod Dubey was 2-1/2 feet whereas the height of boundary wall of plot of Dr. S.N. Singh was 6-8 feet as is apparent from the depositions of witnesses. The height of house boundary wall of Dr. S.N. Singh is hardly material for the purpose of the case. The fact remains that there was source of light from the house of Pramod Dubey and boundary wall was stated to be 2-1/2 feet which could not have obstructed the light as suggested in cross examination. Thus, as to the visibility and source of light, we have no doubt as to the version of complainant.18. It was further submitted that intimation of first information report has not been sent promptly to the police station. A perusal of the first intimation report dated 18.02.2000 and its receipt indicates that it has been dispatched on 19.2.2000 as it had been sent by post to the Magistrate and received on 21.2.2000. In the circumstances of the case, it cannot be said to be a case of belated intimation particularly, when it was sent by post. In the facts of the case, it cannot be said that the shape has been given to the story later on or that there was delay in receipt of the intimation of the report by the Magistrate. The submission on behalf of accused has no legs to stand in the aforesaid factual matrix of the case.19. Coming to the submission with respect to the non- presence of the blackening powder, it appears that gun shots have been fired from a close range but exact distance has not been put to Rajendra Singh(PW-1) who is eye witness of the incident. It is apparent and was not disputed rightly that considering the nature of injuries the gun shots were fired from a close range; what was the exact distance has not been brought out. Apart from that, since the deceased was wearing a hooded Jacket, obviously the absence of blackening on the skin could not be found. In the case of hooded Jacket, there may be blackening of the Jacket portion only but at the same time the skin may not have marks. That explains the version of the doctor that no blackening marks were found on injuries Nos.1 to 3.20. Thus, we find that the prosecution has proved case beyond reasonable doubt and the High Court and trial Court have rightly convicted the appellants for offence under Section 302, IPC.
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0[ds]We have gone through the entire deposition anxiously with the help of learned senior counsel for the appellants. We find that his version is quite truthful. He has clearly stated that one week before the incident he had come from Allahabad to Varanasi. He went out strolling to search for his brother and when he reached near Mahavir temple he met his brother Surendra Singh and they both started walking towards home. While they were returning back, he was 5-6 paces ahead of Surendra, his brother. When they reached in front of the house of Pramod Dubey at about 10 p.m. Kali Prasad and Santosh appeared from the Western side street. Both of them were having pistols in their hands. They caught his brother Surendra and fired at his temple and neck. His brother fell down. Thereafter on hearing the hue and cry Constable Nepal Singh came out of the house. He challenged the accused persons and ran towards them to catch them but the accused persons fled away towards north side and disappeared. His brother died on the spot. He went to his house and immediately, reduced the report to writing, then went to the police station and lodged the report in the night itself. In the cross examination, it has been deposed that the reason for killing was that there was enmity between them and the accused Kali Prasad had a doubt that deceased was also involved in murder of his brother. On further cross examination, he has clearly stated that there was a case pending regarding beating incident between the parties also under Section 107, IPC. He has also stated that Pramod Dubey and several other persons came out of their houses after hearing hue and cry. There is nothing brought in the cross examination as to doubt the version given by the witness that is medically corroborated also and substantially corroborated by the version of Nepal Singh (PW-3), who came to the spot immediately after gun shots were fired.16. When we consider the statement of Nepal Singh (PW-3), he has clearly stated that he knew complainant Rajendra Singh. He used to live in the house adjacent to the house where he lived. Rajendra Singh was studying at Allahabad but occasionally he used to stay at Varanasi. The incident took place at about 10 p.m., on 18.2.2000. He was in his house, when he distinctly heard the sound of gun fire, he came out shouting and saw Rajendra Singh (PW-1) was running towards his house and on seeing him complainant, came to him and started narrating the incident. He saw two people running away to the North side. Body was lying in the pool of blood in front of the house of Pramod Dubey. A bicycle was also lying near the body. Thus, he has corroborated version of complainant. He has narrated about the presence of Rajendra Singh at the spot.17.Coming to the question whether there was any source of light,we find that the height of the house of Pramod Dubey was 2-1/2 feet whereas the height of boundary wall of plot of Dr. S.N. Singh was 6-8 feet as is apparent from the depositions of witnesses. The height of house boundary wall of Dr. S.N. Singh is hardly material for the purpose of the case. The fact remains that there was source of light from the house of Pramod Dubey and boundary wall was stated to be 2-1/2 feet which could not have obstructed the light as suggested in cross examination. Thus, as to the visibility and source of light, we have no doubt as to the version ofperusal of the first intimation report dated 18.02.2000 and its receipt indicates that it has been dispatched on 19.2.2000 as it had been sent by post to the Magistrate and received on 21.2.2000. In the circumstances of the case, it cannot be said to be a case of belated intimation particularly, when it was sent by post. In the facts of the case, it cannot be said that the shape has been given to the story later on or that there was delay in receipt of the intimation of the report by the Magistrate. The submission on behalf of accused has no legs to stand in the aforesaid factual matrix of the case.19. Coming to the submission with respect to the non- presence of the blackening powder, it appears that gun shots have been fired from a close range but exact distance has not been put to Rajendra Singh(PW-1) who is eye witness of the incident. It is apparent and was not disputed rightly that considering the nature of injuries the gun shots were fired from a close range; what was the exact distance has not been brought out. Apart from that, since the deceased was wearing a hooded Jacket, obviously the absence of blackening on the skin could not be found. In the case of hooded Jacket, there may be blackening of the Jacket portion only but at the same time the skin may not have marks. That explains the version of the doctor that no blackening marks were found on injuries Nos.1 to 3.20. Thus, we find that the prosecution has proved case beyond reasonable doubt and the High Court and trial Court have rightly convicted the appellants for offence under Section 302, IPC.
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### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
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supported by general diary entry. Thus, it appears that correction had been made at the time of reducing the FIR to writing at the relevant time and no dent is caused to the prosecution cast as to the time of incident. The date of recording of FIR was 18.02.2000. There is no scope for ante timing the FIR within two hours of night available on 18.02.2000. The FIR cannot be said to be ante timed.15. Coming to the question of reliability of solitary eye witness Rejendra Singh (PW-1). We have gone through the entire deposition anxiously with the help of learned senior counsel for the appellants. We find that his version is quite truthful. He has clearly stated that one week before the incident he had come from Allahabad to Varanasi. He went out strolling to search for his brother and when he reached near Mahavir temple he met his brother Surendra Singh and they both started walking towards home. While they were returning back, he was 5-6 paces ahead of Surendra, his brother. When they reached in front of the house of Pramod Dubey at about 10 p.m. Kali Prasad and Santosh appeared from the Western side street. Both of them were having pistols in their hands. They caught his brother Surendra and fired at his temple and neck. His brother fell down. Thereafter on hearing the hue and cry Constable Nepal Singh came out of the house. He challenged the accused persons and ran towards them to catch them but the accused persons fled away towards north side and disappeared. His brother died on the spot. He went to his house and immediately, reduced the report to writing, then went to the police station and lodged the report in the night itself. In the cross examination, it has been deposed that the reason for killing was that there was enmity between them and the accused Kali Prasad had a doubt that deceased was also involved in murder of his brother. On further cross examination, he has clearly stated that there was a case pending regarding beating incident between the parties also under Section 107, IPC. He has also stated that Pramod Dubey and several other persons came out of their houses after hearing hue and cry. There is nothing brought in the cross examination as to doubt the version given by the witness that is medically corroborated also and substantially corroborated by the version of Nepal Singh (PW-3), who came to the spot immediately after gun shots were fired.16. When we consider the statement of Nepal Singh (PW-3), he has clearly stated that he knew complainant Rajendra Singh. He used to live in the house adjacent to the house where he lived. Rajendra Singh was studying at Allahabad but occasionally he used to stay at Varanasi. The incident took place at about 10 p.m., on 18.2.2000. He was in his house, when he distinctly heard the sound of gun fire, he came out shouting and saw Rajendra Singh (PW-1) was running towards his house and on seeing him complainant, came to him and started narrating the incident. He saw two people running away to the North side. Body was lying in the pool of blood in front of the house of Pramod Dubey. A bicycle was also lying near the body. Thus, he has corroborated version of complainant. He has narrated about the presence of Rajendra Singh at the spot.17. Coming to the question whether there was any source of light, we find that the height of the house of Pramod Dubey was 2-1/2 feet whereas the height of boundary wall of plot of Dr. S.N. Singh was 6-8 feet as is apparent from the depositions of witnesses. The height of house boundary wall of Dr. S.N. Singh is hardly material for the purpose of the case. The fact remains that there was source of light from the house of Pramod Dubey and boundary wall was stated to be 2-1/2 feet which could not have obstructed the light as suggested in cross examination. Thus, as to the visibility and source of light, we have no doubt as to the version of complainant.18. It was further submitted that intimation of first information report has not been sent promptly to the police station. A perusal of the first intimation report dated 18.02.2000 and its receipt indicates that it has been dispatched on 19.2.2000 as it had been sent by post to the Magistrate and received on 21.2.2000. In the circumstances of the case, it cannot be said to be a case of belated intimation particularly, when it was sent by post. In the facts of the case, it cannot be said that the shape has been given to the story later on or that there was delay in receipt of the intimation of the report by the Magistrate. The submission on behalf of accused has no legs to stand in the aforesaid factual matrix of the case.19. Coming to the submission with respect to the non- presence of the blackening powder, it appears that gun shots have been fired from a close range but exact distance has not been put to Rajendra Singh(PW-1) who is eye witness of the incident. It is apparent and was not disputed rightly that considering the nature of injuries the gun shots were fired from a close range; what was the exact distance has not been brought out. Apart from that, since the deceased was wearing a hooded Jacket, obviously the absence of blackening on the skin could not be found. In the case of hooded Jacket, there may be blackening of the Jacket portion only but at the same time the skin may not have marks. That explains the version of the doctor that no blackening marks were found on injuries Nos.1 to 3.20. Thus, we find that the prosecution has proved case beyond reasonable doubt and the High Court and trial Court have rightly convicted the appellants for offence under Section 302, IPC.
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Hindustan Lever Mazdoor Sabha Vs. Hindustan Lever Limited and Others
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and the ad hoc allowance granted by the Tribunal and confirmed by the learned Judge. We have already discussed them in the context of the dearness allowance and have pointed out, as indeed the Tribunal has also done, that the workmen were entitled to them even otherwise since they were granted to the subordinate staff under the settlement of December 2, 1983. The service conditions of the subordinate staff and the workmen involved in the reference have always been uniform. The parity between them was disturbed for no reason in 1979 and 1983, and all that the Tribunal has done, by awarding the said allowances is to resote it. The more important aspect of these allowance is that they were granted in lie of the increase in the basic wages to save the financial burden on the Company resulting from the computation of other benefits on the basis of the basic wage, had an equivalent addition been made to the basic wages. The Company could not dispute this position. We are, therefore, unable to appreciate the resistance of the Company to these allowances.46. The next grievance of the Company is against the revision of the wage scales. The contention is that in view of the existing total wage packet, when in fact there was a need for a ceiling on dearness allowance, the revision of the wage structure was unjustified. It was also submitted that the tribunal had not granted the entire demand of the company in respect of the dearness allowance. The Tribunal had conceded the demand only partially. It was further submitted that in any case the tribunal had granted the revision in wages because it had placed the ceiling on the rate of dearness allowance payable to workmen drawing basic salary above Rs. 500/- a month. If the ceiling introduced by the Tribunal is to be done away with at the instance of the workmen, there is no justification for retaining the revised wages. That would place the Company in a double jeopardy in that while it will lose whatever advantage it has gained due to the introduction of the ceiling on dearness allowance, the revised wage structure would entail further burden on it, under the existing system of dearness allowance.47. We have already pointed out earlier the nature of the revision in pay scales granted by the Tribunal. The wage scales were first revised in 1974 by the Chitale Award. They were slightly revised in 1977 by the Bhojwani Award by increasing the maximum of the scale of each of the category. As the Tribunal has itself observed since 1977 the cost of living index had increase more than double from 1400 to 2900 in December, 1985 which is the date of the award. According to the Tribunal, the workmen were, therefore, justified in claiming the revision. The Tribunal has also then added as follows :"Apart from that, I have fixed the ceiling on dearness allowance. As such also it is necessary to revise the basic wages payable to the workmen. The basic wages payable to workmen in TOMCO are more at least at the maximum and, it is, therefore, necessary to increase the maximum basic wage scale in each category of workmen."The Tribunal has given a third reason for increasing the basic wages in the same paragraph 53 of the award, when it has observed that besides the aforesaid two reasons, at least in some categories of hourly rated workmen, the Company had increased their basic wages either at the minimum or at the maximum level. The Tribunal has then gone on to observes as follows:"I therefore, find that it would be just to increase the minimum wages of C-1, C-2 and T-1, T-2 by one increment. As the ceiling on dearness allowance is imposed at the basic salary of Rs. 500/-, any increase in basic wages above Rs. 500/- would not be saddled with a further increase in the dearness allowance. Considering all these facts. I revise the wage scales as follows."We have already held above that there is no case made out for changing the existing system of dearness allowance and if, therefore, the existing system of dearness allowance is to continue then it is not disputed that the revised wage scales would further add proportionately to the wage packets of all the workmen.48. We have commented upon the approach of the Tribunal and the learned Judge by observing that to the extent that they have mixed-up the considerations for increasing the wage scale with those for fixing the dearness allowance, they have committed on error apparent on the face of the record. It cannot also be gainsaid that one of the main considerations, which has weighed with the Tribunal, while introducing the revised pay-scale is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500/- per month. In fact, as pointed out earlier what the Tribunal has done is to give by way of some increase in the maximum of the pay scale, particularly to those in category C-3, C-4 and T-3 and T-4, what it has taken away from them by reduction in dearness allowance. Thus both the revision of salary and introduction of the new dearness allowance system are interlinked. Since we are setting aside the award with regard to the dearness allowance and directing the continuation of the existing dearness allowance system, it is only fair that we remand the matter to the Tribunal to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it. We are aware that this would involve prolongation of the litigation between the parties. But in the circumstance it is unavoidable. We, therefore, set aside the award with regard to the revision of wage scales and remand the demand of the workman for the revision of wage scales to the tribunal for fresh consideration in the light of what we have stated hereinabove.
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1[ds]p.m. are disentitled to receive any dearness allowance or that they are disentitled to dearness allowance above a fixed amount. The Award has placed a ceiling on the variable rate at which the dearness allowance was payable under the existing system to those drawing salary above Rs. 500/per month and has made the same variable rate of dearness allowance applicable to them at which it is payable to those who draw basic wage of Rs.In other words, the dearness allowance payable to workmen who draw a basic wage of Rs. 500/and above will be at the same rate which is applicable to those who draw salary of Rs. 500/per month. There is thus a ceiling on the variable rate of dearness allowance payable and not on its quantum. Nor is any workman disentitled to receive the dearnessis necessary to emphasise that the present is not a case where the dearness allowance is being introduced for the first time. The present is a case where the existing dearness allowance system is sought to be replaced by a new one which deprives the workmen of the available benefits. The question to be answered in the present case is not, therefore, whether one rather than the other system is more rational, scientific or realistic and in the general interests, but whether it should be made applicable in the present concern at this stage. Very different considerations apply to twothe present case, it is not the case of the company that it is financially incapable of bearing the burden of dearness allowance and the Tribunal has itself found that the existing system does not result inas admitted by the company in an earlier adjudication proceeding. Yet the Tribunal has chosen to disturb the existing system which has been prevalent in the company for the last more than 32 years on the ground that theindustry formula required that the totalshould be reduced and that the existing system resulted in the subordinates getting totalmore than those of theiris no other establishment which is comparable with the company. Hence the industry part of theformula is admittedly inapplicable to the facts of the present case. As regards the region part of the formula , there are many concerns in the region in which there is no ceiling on the payment of dearness allowance and the wages paid to the workmen in those concerns are comparable to the wages of the workmen of the company.It is these rival contentions with regard to the proposed change that we have to deal with in the present case. It is unnecessary to emphasise that dearness allowance has been looked upon by the industrial Tribunals, Court and official panels as an indispensible device meantcompensate changes in the cost of living or changes in purchasing power, and(ii) protect to a greater or lesser extent the real income of wage and salaryis also now acknowledged on all hands that the rate at which the rise in the cost of living has to be neutralised may be uniform for all wage groups, but so far as the lowest paid workmen in any establishment is concerned, his wages have to be protected to the full extent if he is not to fall below the subsistence level, although the rates of neutralisation may differ and vary at a sliding scale as the incomes rise above the subsistence level.Before we proceed to comment upon the merits and demerits of the different methods of neutralising the rise in the cost of living, it is necessary to emphasis that we are undertaking this exercise with a good deal of apprehension in our mind since the path in not much lighted by a discussion on the point by many adjudicating authorities or the courts of law or the expert commission or committee. Our search for a guidance on the point did not yield much result since it appears that this question was hardly ever raised and specifically answered. The only exception to our aforesaid observation are the two reports, namely the Report of the Bhoothalingam Committee (1978) andformed by the Employees Federation of India (1978) (supra) and some observations in the decision of the Supreme Court reported in 1986(1) L.L.J. 520 (Monthly Rated Workmen of Indian Hume Pipe Co. Ltd. v. Indian Hume Pipe Co. Ltd.)1, and of the Patna High Court reported in 1987(1) L.L.J. 725 (Chhotanagar Chamber of Commerce, Singhbhum Chamber of Commerce and Industriesanother v. State of Biharanother )2. We are therefore, deeply aware of the limitation, and trade the path with a good deal of caution more so because it may have consequences beyond the parties before us. Our endeavour is to find out a formula which, while conforming to reality will also be consistent with the principles for the grant of dearness allowance to have been accepted over the years by the Courts and the expert Waged Boards. We must once again emphasises at the cost of repetition that the object of the formula that we are trying to evolve is only to find out whether there isunder a given existing system of payment of dearness allowance. The object is not to prescribe the method of neutralization for all purposes. That is beyond our scope. Hence it should not be construed that the method we adopt here has to be followed for other purposes as well, such as when as dearness allowance system is sought to be introduced for the first time, or a system less beneficial to the workmen is sought to be replaced or a separate set of service conditions are sought to be prescribed for new entrants, if permissible in law, etc.17. (i) As regards method A, its attraction to the employers lies undoubtedly in the fact that it is the least burdensome among the four methods. Its logic at first blush, appeals. Since it has all along been held that the purpose of dearness allowance is tothe rise in the cost of living, it is naive to suggest that the variable dearness allowance to be paid to the employees should maintain only the value of dearness allowance paid in the base year. This argument, however, ignores that the dearness allowance is paid in the base year to maintain the value of the basic wage of that year, the object of the dearness allowance being to protect the wage against the rise in the cost of living. The dearness allowance or the rate at which it is paid cannot be fixed and is not fixed independently of the basic wage. It is fixed on the basis of and in relation to it. Hence the dearness allowance cannot be divorced from the basic wage without making it unrealistic and negativing the very object for which it is paid. If, therefore, the dearness allowance is to serve its real purpose, the rate at which it is paid must constantly reflect the basic wage which it seeks to protect. The object is not achieved by this method, since it is designed only to protect the value of the dearness allowance paid in the base year. That is why, as the illustration given shows, as the cost of living index increases, it protects the basic wage in an inverse proportion. The method forgets that it is the basic wage and the dearness allowance taken together which protects the value of the basic wage in a given year.(ii) Method B avoids this error and also fulfils to a great extent the object of the dearness allowance. It constantly protects the value of the basic wage by taking into account not only the dearness allowance paid in the base year but also the basic wage. It has, therefore, the merit of maintaining the value of the total income constant in spite of the changes in the cost ofmust confess that we are unable to appreciate this contention because it presumes that the dearness allowance paid in the base year takes care of the value of the basic wage in that year against all future increase in the cost of living. Thus it ignores that the basic wage has to be protected against all increases in the cost of living and not only against the increase in the base year. The dearness allowance paid at a particular cost of living index protects the value of the basic wage only at that cost of living index. We may illustrate this by pointing out that on the basis of the figures which we have already assumed earlier, if the basket of the goods and services consumed by the worker had cost him Rs. 1100/in the base year, and if the price of that basket doubles, the C.P.I. having risen from 1,000 to 2,000, the worker will have spend Rs. 2,200/to buy it. However, if, according to the contention of the employer, it is not method B, but method A is to be employed, then in spite of the doubling of the price of the basket the worker would get only Rs. 2100/instead of Rs. 2,200/thereby reducing the value of his basic wage by about 4.7 per cent. If, on the other hand the value of the basic wage of Rs. 100/is to be maintained constant, the dearness allowance to be paid must protect the entire wage packet of Rs. 1,100/which has to be taken as the basic emolument of the base year. If this is done, then as shown in the illustration of the second method earlier, Rs. 2,100/will be payable as dearness allowance instead of Rs.which latter amount only tries to protect the value of the dearness allowance, and not of the total wage packet), and the total wage packet will be Rs. 2,200/which will maintain the value of the total wage packet of Rs. 1,100/in the base year. This method, according to us, does not neutralise the rise in the cost of living which is already neutralised but protects the value of the entire wage packet of the base year. The criticism forgets that it is the total wage packet of the base year which needs to be protected and not merely the dearness allowance of thatyear.This method is not flawless. The first defect it suffers from is the same from which method C i.e. the method suggested by the Boothalingam Committee may suffer. It presumes that the lowest wage in every establishment is a subsistence wage. It may or may not be so. It may be lower or higher than that. If it is lower, the payment of dearness allowance at the rate of neutralisation worked out on its basis will do injustice to the workman and if it is higher, the dearness allowance paid may neutralise the rise in prices ofIn the absence of a proper data and also in the absence of an agreed quantum of the subsistence wage, it is not possible to accept any particular quantum as a subsistence wage. The wages fixed under the Minimum Wages Act also cannot furnish us any guide in the matter, firstly, because they relate to the scheduled industries and secondly, they vary with categories of workman and from place to place and industry to industry. Thirdly, and this is the extended aspect of the first flaw, since the nature of the lowest paid wage cannot be so determined, the wages paid to the higher categories also defy description. Fourthly, the quantum of the subsistence wage does not remain static and keeps varying with the passage of time on account of severalthe basic wage nor the dearness allowance alone is capable or maintaining the real value of the basic wage paid to the workmen in the base year or the preceding year, as the case may be . With respect, therefore, we are unable to endorse the method adopted by the High Court in this case.23. It will thus be seen that, in so far as method A does not protect the value of the wage packet of the base year but only tends to protect the dearness allowance paid in that year, it does not fulfil the object for which dearness allowance is paid. What remains, therefore, for consideration are methods B and C. We have discussed the merits and demerits of these two methods earlier. A comparison between the two is now necessary to choose one of the two. Method C, as stated earlier, has the merit of protecting fully the total wage packet of the lowest paid workmen in the establishment. It also ensures the off setting of the rise in the prices of essential goods and services for all income groups, low or high. It further conforms to the other principle of fixation of dearness allowance, namely that the dearness allowance should be paid on a declining scale as the income rises since the amount of dearness allowance paid goes on tapering in terms of its percentage to the wages, as the incomes rise. The only defect pointed out in this method is that since a uniform amount of dearness allowance is paid to all the income groups, as the C.P.I. rises it tends to narrow the wage differentials and such narrowing down of the differential acts as disincentive to improved efforts and affects production and productivity, particularly of the skilled workers. As has been pointed out earlier, the National Labour Commission has countered this criticism by observing that the criticism assumes that the current differentials are justifiable on the grounds of productivity, and that our commitment to socialist pattern of society will not eventually abridge these distances. There is little justification for this assumption.There is no doubt that the system of uniform rate of dearness allowance is in the present circumstances an ideal one and as has been pointed out by Bhoothalingam Committee in paragraph 7.29 of Chapter VII of its report, this system is already prevalent in about 2/3rds of the public enterprises as also in cement and steel industries. However, the expert wage bodies and the courts have also held that if the system of payment of dearness allowance already prevalent in the establishment is more beneficial to the workmen, the same should not be disturbed unless there are compelling reason to do so.The introduction of the uniform rate of dearness allowance worked out on the basis of the total wage packet of the lowest paid workman, that is the unskilled workman in the establishment or on the basis of the lowest paid workman in the categories with which we are concerned namelyis admittedly bound to affect adversely the workmen in the higher wage income groups since under the existing system they get more amount as dearness allowance. There is also, as we will point out a little later, no compelling reason made out by the company for introducing a less beneficial system to the workmen.27. One of the grounds on which the learned Judge has justified the introduction of the new system is that the present systemthe rise in the cost of living. As pointed out earlier, the tribunal on this point has taken a contrary view and has held that on the admission of the Company made in the earlier adjudication proceedings, there was no such over neutralization effected by the existing system. The Companys contention is that admission was made erroneously and they are entitled to show that it was so. We have therefore, gone into the different calculations and tables produced by both the sides on this issue. For compiling the tables, year 1970 is taken as the base year by consent of the parties since the last meaningful revision of the wage structure was made by Chitale Award of 1974 with retrospective effect from 1970. Bhojwani Award which modified the maximum of the pay scales of each category as prescribed by Chitale Award was also made effective from 1979. Hence the following calculations are made with reference to the basic wage and the dearness allowance payable in 1970 and the cost of price index of thatwill thus be clear from the calculations produced by the two sides that whereas the company has calculated the rate of neutralisation by taking into account only the percentage increase in the dearness allowance over that paid in the base year, the Unions have calculated it by taking the percentage increase over the total wage packet paid in the base year. The company has thus used method A, while, the Unions have used method B discussed above. This, therefore, essentially is a difference in the methods of computing the neutralisation rate. Admittedly if method B is adopted, there is noas shown in the Unions calculations.28. For reasons, which we have already already discussed earlier, method A cannot be adopted to find out whether there isor not, since the neutralisation rate worked out by that method is only on the basis of the amount of dearness allowance paid. Method C again gives neutralisation rate only for the lowest wage packet in the establishment and cannot furnish a guideline to find out whether there isof the wage packets of all the grades and categories of the workmen. We are then left with only Method B which can furnish a true picture of neutralization, for this method works out neutralization for all grades and categories and shows us whether the existingunder neutralises the rise in the cost of living for each of them. The Unions calculations which are arrived at by this method give us the wage packets accordingly as compared to the one payable under the existing system and also the comparative neutralization of the cost of living under the existing system.29. It will thus be seen from the above calculations that, according to Method B, wage packets of the workman should be more both at minimum and maximum level of each grade of both the categories with which we are concerned here than what they get under the existing dearness system. Hence there is noof the increase in the cost of living under the existing system.30. It is further to be noted that the demand in the present case is not for replacing the existing dearness allowance system either by an uniform rate of neutralization or by the rate of neutralization worked out by Method B. The original demand is as mentioned in paragraph 7 above. What is now defended by the company is the Uniform rate of neutralization for the workmen drawing a salary of Rs. 500/and above as granted by the Tribunal. We have pointed out earlier that the award would effect in all 500 workmen and those who would be affected immediately would be 115. As against the total work force of 2.500 employees, the company seeks the introduction of the new system of payment of dearness allowance for this small section of its work force, because their basic salary exceeds Rs. 500/per month.31. It is now necessary to deal with the reasons which both the Tribunal and the learned Judge have given for replacing the existing system. As stated earlier, the Tribunal has negatived the contention of the company that the present systemthe cost of living, and in paragraph 33, it has observed that since the company had in its statement filed before the industrial Tribunal presided over by Shri Chitale had itself stated that the percentage of neutralization at the lowest category was 97.4% and at the highest at 86% there was no substance in the companys case ofWe have already pointed out above that, according to method B, the rate of neutralization in the present case does not exceed 100% for any of the categories. We have also given reasons as to why method B in the proper method to be adopted to find out the rate of neutralization.However, the learned Single Judge has come to the conclusion that there is aneffected by the present dearness allowance system . For this purpose he has relied on the companys statement showing the variations in the salary of the Metharu. That statement which is incorporated in the impugned judgement is, as the note shows, calculated by the method adopted by the Patna High Court in Chotanagpur case (Supra), which is more or less similar to method A discussed above. We have already pointed out the fallacy of the said method since it ignores the value of the basic wage paid in the base year, and determines the neutralization rate only on the basis of the dearness allowance paid in the base year. This is clear from what is stated in the judgement itself. The learned Judge has negatived the contention of the unions that the rate of neutralisation should be calculated on the basis of the total wage packet of the base year and has accepted the companys contention that is should be calculated on the basis only of the dearness allowance paid in the base year. If we are right, then, with respect, this is an error from which the impugned judgment suffers. Hence the learned Judges conclusion that the present system results inof the cost of living is notdoes, therefore, appear that one of the reasons which weighed with the Tribunal to replace the existing system is that it tends to neutralise the increase in the cost of living of the workmen in the pay slabs above Rs. 450/00 by more than 80% and that the said rate ofis considerably higher. The Tribunal has not given any reason why it has chosen to call it higher. There is no dispute that under the existing system the percentage of neutralisation goes on declining with the increase in the salary slabs. The Tribunal itself has accepted this fact in paragraphs 33 and 34 of the award. But the Tribunal has concluded that the tapering is not on a sufficiently declining scale because the percentage of neutralization of the higher income groups in the comparable concerns compared to that in the company has a steeper fall. This is obvious from the Tribunals discussion from paragraph 35 onwards. It is, therefore, necessary to examine the validity of thiscomparison, according to us, is faulty. In the first instance, admittedly neither TOMCO nor GODREJ nor COLGATE are comparable because of their smaller size. COLGATE is admittedly not in the industry, Secondly, there is no ceiling on payment of dearness allowance either in TOMCO or GODREJ and, thirdly, the Tribunal has not compared the other service conditions of the employees in TOMCO, GODREJ and COLGATE with those in the company. It is not rational to pick up only one of the several service conditions to compare it in insolation. Nor is it permissible to compare different concerns for different service conditions. The comparison must be with the total benefits in a comparable concerns. The Tribunal has thus fallen in an obvious error.33. The Tribunal has than relied on the so called trend of placing a ceiling on dearness allowance, and has for this purpose referred to the industrial awards in the case of Indian Huma Pipe Limited, Foto Engineering, Mazgaon Docks Limited, Hind Cycles and Voltas, Suffice it to point out that the Supreme Court has since reversed the award in Indian Huma Pipe Limited (Supra), and has made observations discouraging replacement of the existing system by a new system which deprives the workmen of the existing benefits, unless it is necessitated by compelling reason. The award in Mazgaon Docks Limited is in appeal. This is apart from the fact that neither of the concerns are comparable nor are the service conditions in them.34. The Tribunal has also referred to the repercussions on other industries in region if the companys demand for placing the ceiling on dearness allowance was not conceded. It is difficult to share this concern. In the first instance, there is no material on record to voice such concern. Whether a mere absence of ceiling on dearness allowance paid to the workmen would have an adverse repercussion on other industries is a matter of speculation in which, in the absence of sufficient material on record, no adjudicating body should indulge. Secondly, on the Tribunals own conclusion there was no other concern in the industry, much less comparable with the company. Thirdly, the Tribunal has lost sight of the fact that the existing system has worked in the company smoothly for over 50 years. Theof the company shows that the wage bill of the company does not exceed 5% of its total expenses even with the existing system. The Tribunal was not introducing the dearness allowance for the first time but was replacing the existing system by a new one. Fourthly, we are sure that the Tribunal is not oblivious to the fact that the present company being incomparable, the other concerns cannot be obliged to follow the dearness allowance system in the company irrespective of their financial conditions. Lastly, although the system has been in vogue in the present company for about 50 years no such repercussions as feared by the tribunal have ensued.The Tribunal has then rightly observed that the dearness allowance cannot be increased to approach the ideal of living wage. We are in complete agreement with these observations. The principles on which the wages are fixed are different from those on which dearness allowance is fixed, the purpose of the two beingmaking these observations and justifying the placing of ceiling on the rate of dearness allowance on the ground that it was going to increase the basic wages, the Tribunal has obviously forgotten what it has stated earlier, namely that the principles of fixation of wages should not be mixed up with the principles of fixing the dearness allowance. The Tribunal has thus fallen in an error which is apparent on the face of the record. It has fixed the ceiling on the rate of dearness allowance on a ground impermissible incannot, therefore, be any comparison between the wage packet of a senior workmen and the wage packet of a beginner executive. Unless, therefore, it is shown that a workmen with the same years of service gets salary more than an executive with the same number of years of service, it cannot be said that the case of distortions in wage structure is made out. Lastly, it is not enough that only the wage packets of the two are compared. The comparison has to be between the total service conditions of the two which should include also the value of the perquisites available to the executives. No such material was before the learned Judge, when he arrived at the said conclusion. It may be mentioned in this connection that the Tribunal has neither discussed the said ground nor has it placed the ceiling on dearness allowance on thatwill thus be apparent that the case of the Company before the Tribunal and the learned Judge (and since the same record was also before the learned Judge) was that the workmen and the officers were paid commensurate with their work and responsibility, and there was no question of compassion between the remuneration paid to the two. Hence the attempt now made before us to show that the wages of the clerical staff exceed those of the junior executive without producing the necessary documents to compare the total service conditions of the two, and without giving an opportunity to the workmen to test the said statement byis rightly objected to on behalf of the Unions and we must uphold the said objection.But even on merits we find that the statement produced by the Company compares the salaries of a few of the workmen involved in the present reference with a few of the Junior Departmental Supervisors ("JDS") and Senior Departmental Supervisors ("SDS") only Admittedly these posts were created by the Company only after the Chitale Award of 1974. The JDS and SDS earlier belonged tocategory involved in the present reference. They are, therefore, in fact workmen though the Company has chosen to classify them as supervisors to take them out of the Industrial Disputes Act. They admittedly belong tostaff. They are, therefore, not synonymous with junior and senior Executives. There are no SDS and JDS in the Head Office of the Company. They are only in the factory. Further, the employees incategory who are in the Andheri Establishment and to which the present Award is applicable consist also of scientists who cannot be said to be of a lower level than JDS and SDS. This is why the contention of the Unions that the Company has tried to compare the salaries of the workmen involved in the present reference with those only of the JDS and SDS and not of the other executives, assumes, importance. A legitimate inference can, therefore, be drawn that the wage packets of the workmen involved in the present reference do not exceed those of the executives properly so called in any case.38. The third reason given by the learned Judge for upholding the ceiling on the rate of dearness allowance is that the Tribunal has granted other benefits while placing the ceiling. The other benefits to which the learned Judge has made reference are the revision ofspecial allowance, social security allowance and ad hoc allowance, classification of workmen fromcategory, the extra wages for work on weekly or public holidays, meal allowance and dinner allowance etc. The learned Judge has also emphasised that tribunal has specifically mentioned that he had awarded these additional benefits keeping in view the fact that the he had put a ceiling on the dearness allowance.With respect to the learned Judge and the Tribunal we must point out that the considerations on which these benefits are granted, have nothing to do with the principles on which the dearness allowance is fixed and to the extent that both the Tribunal and the learned Judge have mixed up the two, both have fallen in the same error. It is also necessary to analyse the nature of these benefits to find out if they have any relevance to the ceiling on dearnesswill be seen that as far as Categorieswhich are going to be affected immediately by the ceiling on dearness allowance, the Tribunal has revised only the maximum of the scale keeping the initial salary and the increments in tact. It has to be remembered in this connection that the ceiling on the rate of dearness allowance is to operate on salaries above Rs. 500/and the revision of their maximum salary will give workmen benefit only when they reach the maximum at theof their service. But at that stage, they will also suffer a reduction in the dearness allowance which would have been available to them under the existing system. Thus what the Tribunal had done is to take away from one hand what it has given by the other and what is worse, what it has given is less than what the workmen would have got under the existing system with the existing pay scale. The benefits sought to be conferred on these workmen by the revised wage scale are thus not only illusory allowance viz. special allowance, social security allowance andalready given to the subordinate staff in the head office and branch office under the settlement dated December 2, 1983. The service conditions of the subordinate staff and the service conditions of the workmen involved in the present reference, namely those belonging to C and T categories of monthly rated staff were always uniform and the parity between the service conditions of the two which was maintained throughout, was first disturbed by settlement effected in 1979 between the Company and the hourly rated subordinate staff working in the Sewree Factory of the Company. The second occasion on which it was disturbed was in 1983 by the Settlement referred to above. There was no good reason to deny the same to the present workmen. What is more interesting to note is that the Tribunal itself has observed in paragraph 115 of the impugned Award that all these allowances were granted in lieu of the increase in the basic wages to avoid proportionate rise in bonus and retirement benefits of the workmen. Thus the allowance are nothing but contrivances to avoid an increase in basic salary to which the workmen were entitled. The Company has in fact saved the burden of the other benefits which would otherwise be calculated on the basis of the increased basic wages. To the extent, therefore, that both the Tribunal and the learned Judge have taken these allowance also into consideration for imposing the ceiling on dearness allowance, they have indeed committed anotherare afraid that it is not possible to support this reasoning. We have already pointed out above that there is nounder the existing system. We have also shown that the additional benefits granted to the workmen by way of revision of pay scales are illusory and the allowance concerned have in fact denied the workmen their legitimate dues. There is further no material to show that the workmen are earning more than the junior executives. What remains to be considering is whether the basic wages paid to the workmen are "much higher" than the subsistence wage. In the first instance, no such contention seems to have been raised before the Tribunal. There is also no material on record to support this observation. In fact, with the material at our command it is difficult to hold that the basic wage paid to the workmen is so above the minimum or subsistence level as to deny the protection of its entire value against the rise in the cost ofhave requoted these observations in this context to point out that assuming that there is material to show that the wages paid are much higher than the subsistence level, the are admittedly nowhere near the living wage. Hence all the reasons given by the learned Judge to justify the ceiling on the dearness allowance are insupportable both in law and on facts.40. What is, with respect further forgotten both by the Tribunal and the learned Judge is that the existing system of dearness allowance was introduced by the Thakore Award on 1952 as a package deal. This is clear from paragraphs 62 to 64 of that award. The Company had offered new grades on the basis of the revised scale of dearness which it had offered, continuing. The Union had made counter proposals for basic wages also on the basis of the said scale of dearness allowance offered by the Company. The Tribunal accepted the Companys offer of wage scales since it came to the conclusion that if the scales were to be accepted they should be adopted as a whole. Thus the present dearness allowance system was the one which was offered by the Company as far back as in 1952 and was accepted by the Tribunal as a part of the package. Since then as pointed out elsewhere there has been little change in wage scales except the one introduced in 1974 by Chitale Award which was slightly modified in 1977 by the Bhojwani Award. This, therefore, is also a strong circumstance against replacingare also vast disparities in the incomes of the workmen in the organised sector itself depending upon the concerns they work in. The incomes of the workmen in concerns such as the present one are described as high island groups and it was urged that in view of the low average earnings of the workmen all over the country high incomes to workmen of one or the other unit were not justified. This consideration should also weigh with the Court in upholding the ceiling on dearness allowance. The arguments ignores certain primary facts. In the first instance we are dealing here not with the basic wages but the dearness allowance which is meant to protect the basic wages. Even assuming that the basic wages paid are above the subsistence level, there is no data to show how much above they are and whether they are at the lower, middle or the higher level of the fair wage. The level of the basic wage at which the ceiling is sought to be fixed, viz. Rs. 500/can hardly be described as high. The consideration may become relevant while revising the basic wage structure, if it is shown that the proposed structure is quite out of proportion with the general level of income. Secondly, in the absence of a national income policy, it is neither proper nor practicable for the Courts to curb incomes only in one or the other establishment. It should not be forgotten that wage and salary earners do not form a major section of the society nor do wages and salaries form a major portion of the national income. So long as therefore the other incomes are not controlled or disciplined there is no justification for controlling only the wages and salaries. Thirdly, the moneys saved by a concern on account of the denial to its workmen the higher wage packet due to him, do not flow to any national fund for levelling up the incomes of the lower income groups elsewhere. They only add up to the coffers of the employer. The acceptance of the contention therefore does not serve its underlying purpose, assuming that is its purpose.In this connection it is necessary to remind that the Forth Pay Commission has accepted the need to protect the real incomes of the employees and has recommended 100% neutralization upto the basic pay of as high as Rs. 3,500/per month, 75% neutralization to those between Rs. 3,501/and Rs. 6000/and 65% to those drawing salaries above Rs.This was in June, 1986 and these recommendations have been implemented as pointed out earlier. The High Power Pay Committee, as stated earlier, has endorsed the said recommendations and has in terms observed that there is no justification for asking only the wage and salary earners to make sacrifices and that if equality of sacrifice is to be enforced for larger society purpose, there are other more rational ways of enforcing it than through the medium of inflation.42. To sum up the present dearness allowance system, as shown above, does not result inof the cost of living index at any level of the income group. It maintains a taperings scale though not a steeply declining one. The system also does not result in distortion of total incomes either of the workmen inter se or between the workmen and their superiors, namely, the executive staff. The Company does not plead any financial inability. Theformula does not warrant its replacement. There are no other compelling reasons why the existing system which is beneficial to the workmen should be replaced by the new one which is less beneficial to the them and which would result in steep decline in their incomes they would otherwise gain. It is well recognised principle of industrial adjudication that the Courts, Wage Bodies and the Industrial Adjudicators should not tinker with the existing benefit available to the workmen unless it becomes unavoidable and obligatory to do so. The Company has failed to make out any suchTribunal has granted automatic promotion on the ground that this benefit existed in the Company in the past but it was done away with at the time of the settlement in 1961 whereunder the scales of pay were merged and extended. The Tribunal has further held that a long time had elapsed since then and since in some other companies such as PHILIPS, JOHN WYETH, there was a practice of giving automatic promotions, the demand was justified in the present case also. The Tribunal has further held that the span of wage scales revised by the impugned Award was about 22 years and many employees would get at least one promotion in the course of their services. There would thus be very few employees who would reach the maximum of the pay scale and yet would not get any promotion. Hence such employees deserved one automatic promotion in the higher grade. The Tribunal has, therefore, granted the demand for one automatic promotion on reaching the maximum of scale only if the employee has not received any promotion in the course of his service. The Tribunal has further held that since the demand for automatic promotion was accepted by it, there was no justification for a demand for stagnation increment, the supporting reasons for which were the same.The learned Judge has reserved the finding of the Tribunal and has held that the automatic promotion was not justified since it would undermine merit and lead to frustration amongst the meritorious workers. The learned Judge has, however, held that instead of automatic promotion what was justified was the stagnation increment, since grant of such increment did not suffer from the vice suffered by automatic promotion. Since the demand was made only on behalf of these from the head office specifically, by consent of the Company, the learned Judge has granted stagnation increment both to the workers from the head office as well as from the factory as per the demand quoted above.While the Unions have made a grievance against the setting aside of the Tribunals Award granted automatic promotion, the Company has made a grievance against the grant of stagnation increment. We are not inclined to interfere with the order of the learned Single Judge in that behalf for the following reasons. It is true that the practice of granting automatic promotion was prevalent in the Company prior to 1961 and it is also prevalent in some other concerns at present. We do not have enough material before is to know in what circumstances such promotion is granted in the other concerns. Besides, the practice was stopped under a settlement in 1961 because the pay scales were merged and also extended. It therefore appears to be a package deal. Secondly, on principle we can hardly find fault with the reasoning of the learned Judge. Promotions are normally granted on the basis of the performance. Automatic promotion would therefore undermine the very raison deter of promotion. There will be hardly any incentive left to put in good performance if the promotion are taken for granted, whatever the nature of the performance. Instead, what was in the circumstance necessary was a monetary compensation in the nature of increments which the learned Judge has rightly granted. The Company has made a grievance against it only because the workmen have challenged the rejection of their demand for automatic promotion. Even new pay scale which are granted by the Tribunal do not cover more than 22 years of the employees service. Unless therefore, a workman is promoted to a higher grade in the meanwhile he is bound to stagnate for a number of years after reaching the maximum. This will undoubtedly have an unhealthy effect on his further performance. To remain at the same salary packet for a number of years, particularly at the advanced stage in life, when family commitments also increase, is not conducive to the good performance of the workman. It is, therefore, both in the interests of the welfare of the workmen as well as in the larger interests of the Company that some additional incentive in the form of stagnation increments is granted to the workmen. We, therefore, find no justification in the grievance of the Company in that behalf. Hence we maintain the order of the learned Single Judge rejecting the demand for automatic promotion and granting the demand of stagnationdemand is sought to be justified on the ground that there was a paucity of housing accommodation and the prices of accommodation have been soaring out of proportion and that the loan facility was available to the management personal. The company opposed this demand on the ground that the service conditions of management personal cannot be taken into consideration while fixing the service conditions of the workmen. The Company also pointed out that even for the workmen involved in the reference, at present there is a facility of housing loan equal to the amount of gratuity of their credit.Before us the workers have modified their demand. They state that they would be satisfied if the loan advanced to them for the purpose is equal to the gratuity on the modified scale which is admittedly more than the gratuity which was available to them when the earlier agreement with the Sabha, (i.e. one of the Unions involved), was entered into with regard to the housing loan. The Company tried to contend that when that agreement was entered into, it was so done because the gratuity amount at that time was less than what is payable today. We are unable to understand this argument, which can only be described as cussed. The loan amount is linked to the gratuity for an obvious reason. In any case, a workman would be entitled to gratuity on his retirement as a matter of right if he is otherwise not disqualified. The disqualification further extends only upto the amount of the loss caused to the employer. Hence what would be payable to him at the end of his service can be paid to the workman in advance as a loan with interest. If this facility is available today upto the amount equivalent to the gratuity on the old scale there is no reason why it should not be extended to cover the increased amount. Hence we set aside the Award as well as the order of the learned Judge, in so far as they have rejected the said demand and direct the Company to give housing loan to the workmen (in the head office whose behalf alone the demand is raised) equivalent to the gratuity payable to the workmen on the present scale or on he scale on which it may become payable from time to time on the same conditions on which it is given under the existinghave already discussed them in the context of the dearness allowance and have pointed out, as indeed the Tribunal has also done, that the workmen were entitled to them even otherwise since they were granted to the subordinate staff under the settlement of December 2, 1983. The service conditions of the subordinate staff and the workmen involved in the reference have always been uniform. The parity between them was disturbed for no reason in 1979 and 1983, and all that the Tribunal has done, by awarding the said allowances is to resote it. The more important aspect of these allowance is that they were granted in lie of the increase in the basic wages to save the financial burden on the Company resulting from the computation of other benefits on the basis of the basic wage, had an equivalent addition been made to the basic wages. The Company could not dispute this position. We are, therefore, unable to appreciate the resistance of the Company to these allowances.We have already pointed out earlier the nature of the revision in pay scales granted by the Tribunal. The wage scales were first revised in 1974 by the Chitale Award. They were slightly revised in 1977 by the Bhojwani Award by increasing the maximum of the scale of each of the category. As the Tribunal has itself observed since 1977 the cost of living index had increase more than double from 1400 to 2900 in December, 1985 which is the date of thehave already held above that there is no case made out for changing the existing system of dearness allowance and if, therefore, the existing system of dearness allowance is to continue then it is not disputed that the revised wage scales would further add proportionately to the wage packets of all the workmen.48. We have commented upon the approach of the Tribunal and the learned Judge by observing that to the extent that they havethe considerations for increasing the wage scale with those for fixing the dearness allowance, they have committed on error apparent on the face of the record. It cannot also be gainsaid that one of the main considerations, which has weighed with the Tribunal, while introducing the revisedis that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500/per month. In fact, as pointed out earlier what the Tribunal has done is to give by way of some increase in the maximum of the pay scale, particularly to those in category4, what it has taken away from them by reduction in dearness allowance. Thus both the revision of salary and introduction of the new dearness allowance system are interlinked. Since we are setting aside the award with regard to the dearness allowance and directing the continuation of the existing dearness allowance system, it is only fair that we remand the matter to the Tribunal to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it. We are aware that this would involve prolongation of the litigation between the parties. But in the circumstance it is unavoidable. We, therefore, set aside the award with regard to the revision of wage scales and remand the demand of the workman for the revision of wage scales to the tribunal for fresh consideration in the light of what we have stated hereinabove.
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and the ad hoc allowance granted by the Tribunal and confirmed by the learned Judge. We have already discussed them in the context of the dearness allowance and have pointed out, as indeed the Tribunal has also done, that the workmen were entitled to them even otherwise since they were granted to the subordinate staff under the settlement of December 2, 1983. The service conditions of the subordinate staff and the workmen involved in the reference have always been uniform. The parity between them was disturbed for no reason in 1979 and 1983, and all that the Tribunal has done, by awarding the said allowances is to resote it. The more important aspect of these allowance is that they were granted in lie of the increase in the basic wages to save the financial burden on the Company resulting from the computation of other benefits on the basis of the basic wage, had an equivalent addition been made to the basic wages. The Company could not dispute this position. We are, therefore, unable to appreciate the resistance of the Company to these allowances.46. The next grievance of the Company is against the revision of the wage scales. The contention is that in view of the existing total wage packet, when in fact there was a need for a ceiling on dearness allowance, the revision of the wage structure was unjustified. It was also submitted that the tribunal had not granted the entire demand of the company in respect of the dearness allowance. The Tribunal had conceded the demand only partially. It was further submitted that in any case the tribunal had granted the revision in wages because it had placed the ceiling on the rate of dearness allowance payable to workmen drawing basic salary above Rs. 500/- a month. If the ceiling introduced by the Tribunal is to be done away with at the instance of the workmen, there is no justification for retaining the revised wages. That would place the Company in a double jeopardy in that while it will lose whatever advantage it has gained due to the introduction of the ceiling on dearness allowance, the revised wage structure would entail further burden on it, under the existing system of dearness allowance.47. We have already pointed out earlier the nature of the revision in pay scales granted by the Tribunal. The wage scales were first revised in 1974 by the Chitale Award. They were slightly revised in 1977 by the Bhojwani Award by increasing the maximum of the scale of each of the category. As the Tribunal has itself observed since 1977 the cost of living index had increase more than double from 1400 to 2900 in December, 1985 which is the date of the award. According to the Tribunal, the workmen were, therefore, justified in claiming the revision. The Tribunal has also then added as follows :"Apart from that, I have fixed the ceiling on dearness allowance. As such also it is necessary to revise the basic wages payable to the workmen. The basic wages payable to workmen in TOMCO are more at least at the maximum and, it is, therefore, necessary to increase the maximum basic wage scale in each category of workmen."The Tribunal has given a third reason for increasing the basic wages in the same paragraph 53 of the award, when it has observed that besides the aforesaid two reasons, at least in some categories of hourly rated workmen, the Company had increased their basic wages either at the minimum or at the maximum level. The Tribunal has then gone on to observes as follows:"I therefore, find that it would be just to increase the minimum wages of C-1, C-2 and T-1, T-2 by one increment. As the ceiling on dearness allowance is imposed at the basic salary of Rs. 500/-, any increase in basic wages above Rs. 500/- would not be saddled with a further increase in the dearness allowance. Considering all these facts. I revise the wage scales as follows."We have already held above that there is no case made out for changing the existing system of dearness allowance and if, therefore, the existing system of dearness allowance is to continue then it is not disputed that the revised wage scales would further add proportionately to the wage packets of all the workmen.48. We have commented upon the approach of the Tribunal and the learned Judge by observing that to the extent that they have mixed-up the considerations for increasing the wage scale with those for fixing the dearness allowance, they have committed on error apparent on the face of the record. It cannot also be gainsaid that one of the main considerations, which has weighed with the Tribunal, while introducing the revised pay-scale is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500/- per month. In fact, as pointed out earlier what the Tribunal has done is to give by way of some increase in the maximum of the pay scale, particularly to those in category C-3, C-4 and T-3 and T-4, what it has taken away from them by reduction in dearness allowance. Thus both the revision of salary and introduction of the new dearness allowance system are interlinked. Since we are setting aside the award with regard to the dearness allowance and directing the continuation of the existing dearness allowance system, it is only fair that we remand the matter to the Tribunal to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it. We are aware that this would involve prolongation of the litigation between the parties. But in the circumstance it is unavoidable. We, therefore, set aside the award with regard to the revision of wage scales and remand the demand of the workman for the revision of wage scales to the tribunal for fresh consideration in the light of what we have stated hereinabove.
### Response:
1
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396 |
M/S NEW INDIA ASSURANCE CO. LTD Vs. M/S LUXRA ENTERPRISES PVT LTD
|
to be arbitrary, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint the second surveyor or surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of surveyor/surveyors. There is no prohibition in the Insurance Act for appointment of second surveyor by the insurance company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first surveyor and the need to appoint second surveyor. xxx xxx xxx 35. In our considered view, the Insurance Act only mandates that while settling a claim, assistance of a surveyor should be taken but it does not go further and say that the insurer would be bound by whatever the surveyor has assessed or quantified; if for any reason, the insurer is of the view that certain material facts ought to have been taken into consideration while framing a report by the surveyor and if it is not done, it can certainly depute another surveyor for the purpose of conducting a fresh survey to estimate the loss suffered by the insured. xxx xxx xxx 37. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, with due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the surveyors? 19. In view of above, the question to be examined is whether the Insurance Company has reasons or there were inherent defects in the survey report of Surveyor- M/s Sunil J. Vora & Associates or that such report is arbitrary, excessive and exaggerated, before another Surveyor could be appointed. 20. The Surveyor- M/s Sunil J. Vora & Associates was appointed by Head Office of the Insurance Company. The Head Office of the Insurance Company has communicated to the Regional/ Branch Office as to why another Surveyor has been appointed. In view of said fact, the appointment of another surveyor could not be justified when a conscious decision has been communicated by the Head Office of not approving the appointment of second surveyor.21. Still further, the reasoning given by the local office is that the Surveyor- M/s Sunil J. Vora & Associates has not clarified certain points when clarification was sought for. The said reason stands answered even in the report of Surveyor- M/s ABM Engineers & Consultants. Such surveyor has considered the report of the Canara Bank in respect of stocks statement. Such stocks statement was brushed aside for the reason that if said stocks statement was correct then as to why letter of credit could not be materialised. The Complainant has explained that it was on 15.06.2000, it has been communicated to the consignee to have inspection of the stocks before exporting the consignment. The consignee has not inspected the stocks which led to the extension of letter of credit up to 08.08.2000. It was argued that letter of credit is to facilitate receipt of money from the exporter and once the stock of the Complainant has been verified by the Canara Bank, which had the first charge over the property, therefore, such verification of stock could not be doubted by the Insurance Company only for the reason that letter of credit could not be materialised. The verification of the stocks by the Canara Bank which had primary charge on the stocks could not be doubted in the manner, the surveyor- M/s ABM Engineers & Consultants has reported.22. Still further, it is explained in the affidavit that the letter of credit was by M/s Sirdanwal Overseas which was endorsed to Gurcharan Singh Company Pvt. Ltd. PTE Singapore. Therefore, the letter of credit was a valid document which could not be said not to be genuine only on the basis of reason that such letter of credit was not in favour of the Complainant when the order was placed on the Complainant by the above said Singapore based firm.23. Mr. Ajay Verma is an accused in FIR in which there is no allegation in respect of export by the Complainant. The allegation against Ajay Verma is of duping the exporters whereas, there is no such or similar allegation against the Complainant. The Complainant has also averred that there was endorsement by the Apparel Export Promotion Council, therefore factually such assertion of the Insurance Company is incorrect.24. Thus, we find that there was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company.25. In fact, in the present case it is evident that the claim of Rs. 54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates. The second surveyor- M/s ABM Engineers & Consultants accepted the claim in the sum of Rs. 24,76,585/-. The third surveyor - R.G. Verma recommended total repudiation of claim. It is the third Surveyor?s report which sub-served the interest of the Insurance Company which was made basis of repudiation of the claim of the Complainant on the same day, when the report was furnished. We find that in view of the judgment in Sri Venkateswara (supra), it is not open to appoint another Surveyor till such time, it gets a report in its favour. In fact, the appointment of the Surveyors was to repudiate the claim of the Complainant on one pretext or the other.
|
1[ds]20. The Surveyor- M/s Sunil J. Vora & Associates was appointed by Head Office of the Insurance Company. The Head Office of the Insurance Company has communicated to the Regional/ Branch Office as to why another Surveyor has been appointed. In view of said fact, the appointment of another surveyor could not be justified when a conscious decision has been communicated by the Head Office of not approving the appointment of second surveyor.21. Still further, the reasoning given by the local office is that the Surveyor- M/s Sunil J. Vora & Associates has not clarified certain points when clarification was sought for. The said reason stands answered even in the report of Surveyor- M/s ABM Engineers & Consultants. Such surveyor has considered the report of the Canara Bank in respect of stocks statement. Such stocks statement was brushed aside for the reason that if said stocks statement was correct then as to why letter of credit could not be materialised. The Complainant has explained that it was on 15.06.2000, it has been communicated to the consignee to have inspection of the stocks before exporting the consignment. The consignee has not inspected the stocks which led to the extension of letter of credit up to 08.08.2000. It was argued that letter of credit is to facilitate receipt of money from the exporter and once the stock of the Complainant has been verified by the Canara Bank, which had the first charge over the property, therefore, such verification of stock could not be doubted by the Insurance Company only for the reason that letter of credit could not be materialised. The verification of the stocks by the Canara Bank which had primary charge on the stocks could not be doubted in the manner, the surveyor- M/s ABM Engineers & Consultants has reported.22. Still further, it is explained in the affidavit that the letter of credit was by M/s Sirdanwal Overseas which was endorsed to Gurcharan Singh Company Pvt. Ltd. PTE Singapore. Therefore, the letter of credit was a valid document which could not be said not to be genuine only on the basis of reason that such letter of credit was not in favour of the Complainant when the order was placed on the Complainant by the above said Singapore based firm.23. Mr. Ajay Verma is an accused in FIR in which there is no allegation in respect of export by the Complainant. The allegation against Ajay Verma is of duping the exporters whereas, there is no such or similar allegation against the Complainant. The Complainant has also averred that there was endorsement by the Apparel Export Promotion Council, therefore factually such assertion of the Insurance Company is incorrect.24. Thus, we find that there was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company.25. In fact, in the present case it is evident that the claim of Rs. 54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates. The second surveyor- M/s ABM Engineers & Consultants accepted the claim in the sum of Rs. 24,76,585/-. The third surveyor - R.G. Verma recommended total repudiation of claim. It is the third Surveyor?s report which sub-served the interest of the Insurance Company which was made basis of repudiation of the claim of the Complainant on the same day, when the report was furnished. We find that in view of the judgment in Sri Venkateswara (supra), it is not open to appoint another Surveyor till such time, it gets a report in its favour. In fact, the appointment of the Surveyors was to repudiate the claim of the Complainant on one pretext or the other.However, we find that the Commission has not granted interest on the amount found due and payable to the Complainant.
| 1 | 4,785 |
### Instruction:
Examine the details of the case proceeding and forecast if the appeal/petition stands a chance of being upheld (1) or dismissed (0).
### Input:
to be arbitrary, excessive, exaggerated, etc., it must specify cogent reasons, without which it is not free to appoint the second surveyor or surveyors till it gets a report which would satisfy its interest. Alternatively, it can be stated that there must be sufficient ground to disagree with the findings of surveyor/surveyors. There is no prohibition in the Insurance Act for appointment of second surveyor by the insurance company, but while doing so, the insurance company has to give satisfactory reasons for not accepting the report of the first surveyor and the need to appoint second surveyor. xxx xxx xxx 35. In our considered view, the Insurance Act only mandates that while settling a claim, assistance of a surveyor should be taken but it does not go further and say that the insurer would be bound by whatever the surveyor has assessed or quantified; if for any reason, the insurer is of the view that certain material facts ought to have been taken into consideration while framing a report by the surveyor and if it is not done, it can certainly depute another surveyor for the purpose of conducting a fresh survey to estimate the loss suffered by the insured. xxx xxx xxx 37. The option to accept or not to accept the report is with the insurer. However, if the rejection of the report is arbitrary and based on no acceptable reasons, the courts or other forums can definitely step in and correct the error committed by the insurer while repudiating the claim of the insured. We hasten to add, if the reports are prepared in good faith, with due application of mind and in the absence of any error or ill motive, the insurance company is not expected to reject the report of the surveyors? 19. In view of above, the question to be examined is whether the Insurance Company has reasons or there were inherent defects in the survey report of Surveyor- M/s Sunil J. Vora & Associates or that such report is arbitrary, excessive and exaggerated, before another Surveyor could be appointed. 20. The Surveyor- M/s Sunil J. Vora & Associates was appointed by Head Office of the Insurance Company. The Head Office of the Insurance Company has communicated to the Regional/ Branch Office as to why another Surveyor has been appointed. In view of said fact, the appointment of another surveyor could not be justified when a conscious decision has been communicated by the Head Office of not approving the appointment of second surveyor.21. Still further, the reasoning given by the local office is that the Surveyor- M/s Sunil J. Vora & Associates has not clarified certain points when clarification was sought for. The said reason stands answered even in the report of Surveyor- M/s ABM Engineers & Consultants. Such surveyor has considered the report of the Canara Bank in respect of stocks statement. Such stocks statement was brushed aside for the reason that if said stocks statement was correct then as to why letter of credit could not be materialised. The Complainant has explained that it was on 15.06.2000, it has been communicated to the consignee to have inspection of the stocks before exporting the consignment. The consignee has not inspected the stocks which led to the extension of letter of credit up to 08.08.2000. It was argued that letter of credit is to facilitate receipt of money from the exporter and once the stock of the Complainant has been verified by the Canara Bank, which had the first charge over the property, therefore, such verification of stock could not be doubted by the Insurance Company only for the reason that letter of credit could not be materialised. The verification of the stocks by the Canara Bank which had primary charge on the stocks could not be doubted in the manner, the surveyor- M/s ABM Engineers & Consultants has reported.22. Still further, it is explained in the affidavit that the letter of credit was by M/s Sirdanwal Overseas which was endorsed to Gurcharan Singh Company Pvt. Ltd. PTE Singapore. Therefore, the letter of credit was a valid document which could not be said not to be genuine only on the basis of reason that such letter of credit was not in favour of the Complainant when the order was placed on the Complainant by the above said Singapore based firm.23. Mr. Ajay Verma is an accused in FIR in which there is no allegation in respect of export by the Complainant. The allegation against Ajay Verma is of duping the exporters whereas, there is no such or similar allegation against the Complainant. The Complainant has also averred that there was endorsement by the Apparel Export Promotion Council, therefore factually such assertion of the Insurance Company is incorrect.24. Thus, we find that there was no valid reason for the Insurance Company not to accept the report of the surveyor- M/s Sunil J. Vora & Associates nor there is any proof that such report is arbitrary & excessive. There are no cogent reasons to appoint Surveyors time and again till such time one Surveyor gives a report which could satisfy the interest of the Insurance Company.25. In fact, in the present case it is evident that the claim of Rs. 54,93,865/- was accepted by the surveyor- M/s Sunil J. Vora & Associates. The second surveyor- M/s ABM Engineers & Consultants accepted the claim in the sum of Rs. 24,76,585/-. The third surveyor - R.G. Verma recommended total repudiation of claim. It is the third Surveyor?s report which sub-served the interest of the Insurance Company which was made basis of repudiation of the claim of the Complainant on the same day, when the report was furnished. We find that in view of the judgment in Sri Venkateswara (supra), it is not open to appoint another Surveyor till such time, it gets a report in its favour. In fact, the appointment of the Surveyors was to repudiate the claim of the Complainant on one pretext or the other.
### Response:
1
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397 |
Indian Hume Pipe Company Limited Vs. Their Workmen
|
made for redemption thereof on due date. This however does not mean that in the calculations of the distributable surplus the provision for such redemption should be given the status of a prior charge, though of course that would be a relevant consideration while distributing the available surplus between the various interests entitled thereto.We are therefore of opinion that the Tribunal was wrong in allowing Rs. 2,50,000 as a prior charge in the bonus calculations. 25. This disposes of all the contentions which have been urged on behalf of both the parties and calculating the figure on that basis we arrive at the following : ?TABLE? 26. This would bring the available surplus for distribution to a sum of Rs. 12 lacs and this would be distributable amongst the shareholders, the company and the workmen concerned. 27. It is not feasible to lay down any rigid formula as to what the proportion of such distribution amongst these various interests should be. The shareholders as well as the company would both be naturally interested inter alia in providing the debenture redemption reserves as also meeting the needs of the industry for further expansion. The workmen would no doubt be interested in trying to bridge the gap between their actual wage and the living wage to the extent feasible. This surplus of Rs. 12 lacs would have to be distributed amongst them having regard to the facts and circumstances of the case, of course bearing in mind the various considerations indicated above 28. Before we arrive at the figure of the actual bonus which it will be appropriate in the circumstances of this case to allow to the workmen, we may advert to one argument which was pressed before us on their behalf and that was that the bonus calculations should not be made on the basis of the All India figures which were adopted by the Tribunal but on the basis of the actual amounts which the appellant had paid and would have to pay to the workmen concerned. It was pointed out that the respondents here were only the workmen in the Wadala Factory of the appellant. The appellant had, however, paid to the various workmen elsewhere as anal by way of bonus sums varying between 4 per cent and 29 per cent of the basic wages for the year in question. The sum of Rs. 1,23,138 only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an All-India basis would thus work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled on the basis of the All-India figures adopted by the Tribunal and the amounts actually paid to them as a result of agreements, conciliation or adjudication. It was therefore contended that the calculations should be made after taking into account the savings thus effected by the appellant and only a sum Rs. 1,23,138 which was the actual sum paid to those workmen should be taken into account and no more. We are afraid, we cannot accept this contention. If this contention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. If this contention of the respondents was pushed to its logical extent it would also mean that in the event of the non-fulfilment of the conditions impose by the Tribunal in the award of bonus herein bringing in savings in the hands of the appellant, the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus, which would really be the result of the claimants entitled to the same not receiving it under certain circumstances - an event which would be purely an extraneous done and unconnected with the contribution of the respondents towards the gross profits earned by the appellant. The Tribunal was, therefore, right in calculating the bonus on an All-India basis. 29. By our order dated 12-4-1957, the appellant was ordered to pay to the respondents within a fortnight from the date thereof bonus for the year 1954-55 equivalent to two months basic wages; that amount has already been paid and works out at Rs. 3.39 lacs on an All-India basis. 30. The only question which therefore survives is what further bonus, if any, would the respondents be entitled to from the distributable surplus of Rs. 12 lacs. The sum of Rs. 3.50 lacs required for building up the debenture redemption reserve is an all engrossing need of the appellant. and that is a factor which must of necessity be taken into consideration while arriving at the ultimate figure, particularly because such redemption of the debentures would enure not only for the benefit of the Company and its shareholders but also of the workmen employed therein. Having regard to all the circumstances of the case, we feel that an award of four months basic wages as the aggregate bonus for the year 1954-55 (which by the way was the bonus awarded for the previous year1953-54 also) would give a fair share to the labour in the distributable surplus, leaving to the shareholders and the company a balance of Rs. 5.22 lacs to be utilised by them not only towards building up of the debenture redemption reserve but also for building up other reserves, which would be utilised for various other purposes indicated above. The appellant would no doubt get also the refund of the income-tax on the bonus payments made by it. This rebate would also go towards the fulfilment of the very same objectives, which would ultimately enure both for the benefit of the capital as well as labour.
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1[ds]26. This would bring the available surplus for distribution to a sum of Rs. 12 lacs and this would be distributable amongst the shareholders, the company and the workmen concerned27. It is not feasible to lay down any rigid formula as to what the proportion of such distribution amongst these various interests should be. The shareholders as well as the company would both be naturally interested inter alia in providing the debenture redemption reserves as also meeting the needs of the industry for further expansion. The workmen would no doubt be interested in trying to bridge the gap between their actual wage and the living wage to the extent feasible. This surplus of Rs. 12 lacs would have to be distributed amongst them having regard to the facts and circumstances of the case, of course bearing in mind the various considerations indicated above28. Before we arrive at the figure of the actual bonus which it will be appropriate in the circumstances of this case to allow to the workmen, we may advert to one argument which was pressed before us on their behalf and that was that the bonus calculations should not be made on the basis of the All India figures which were adopted by the Tribunal but on the basis of the actual amounts which the appellant had paid and would have to pay to the workmen concerned. It was pointed out that the respondents here were only the workmen in the Wadala Factory of the appellant. The appellant had, however, paid to the various workmen elsewhere as anal by way of bonus sums varying between 4 per cent and 29 per cent of the basic wages for the year in question. The sum of Rs. 1,23,138 only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an All-India basis would thus work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled on the basis of the All-India figures adopted by the Tribunal and the amounts actually paid to them as a result of agreements, conciliation or adjudication. It was therefore contended that the calculations should be made after taking into account the savings thus effected by the appellant and only a sum Rs. 1,23,138 which was the actual sum paid to those workmen should be taken into account and no more. We are afraid, we cannot accept this contention. If this contention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. If this contention of the respondents was pushed to its logical extent it would also mean that in the event of the non-fulfilment of the conditions impose by the Tribunal in the award of bonus herein bringing in savings in the hands of the appellant, the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus, which would really be the result of the claimants entitled to the same not receiving it under certain circumstances - an event which would be purely an extraneous done and unconnected with the contribution of the respondents towards the gross profits earned by the appellant. The Tribunal was, therefore, right in calculating the bonus on an All-India basis29. By our order dated 12-4-1957, the appellant was ordered to pay to the respondents within a fortnight from the date thereof bonus for the year 1954-55 equivalent to two months basic wages; that amount has already been paid and works out at Rs. 3.39 lacs on an All-India basis30. The only question which therefore survives is what further bonus, if any, would the respondents be entitled to from the distributable surplus of Rs. 12 lacs. The sum of Rs. 3.50 lacs required for building up the debenture redemption reserve is an all engrossing need of the appellant. and that is a factor which must of necessity be taken into consideration while arriving at the ultimate figure, particularly because such redemption of the debentures would enure not only for the benefit of the Company and its shareholders but also of the workmen employed therein. Having regard to all the circumstances of the case, we feel that an award of four months basic wages as the aggregate bonus for the year 1954-55 (which by the way was the bonus awarded for the previous year1953-54 also) would give a fair share to the labour in the distributable surplus, leaving to the shareholders and the company a balance of Rs. 5.22 lacs to be utilised by them not only towards building up of the debenture redemption reserve but also for building up other reserves, which would be utilised for various other purposes indicated above. The appellant would no doubt get also the refund of the income-tax on the bonus payments made by it. This rebate would also go towards the fulfilment of the very same objectives, which would ultimately enure both for the benefit of the capital as well as labour
| 1 | 5,215 |
### Instruction:
Scrutinize the evidence and arguments in the case proceeding to predict the court's decision: will the appeal be granted (1) or denied (0)?
### Input:
made for redemption thereof on due date. This however does not mean that in the calculations of the distributable surplus the provision for such redemption should be given the status of a prior charge, though of course that would be a relevant consideration while distributing the available surplus between the various interests entitled thereto.We are therefore of opinion that the Tribunal was wrong in allowing Rs. 2,50,000 as a prior charge in the bonus calculations. 25. This disposes of all the contentions which have been urged on behalf of both the parties and calculating the figure on that basis we arrive at the following : ?TABLE? 26. This would bring the available surplus for distribution to a sum of Rs. 12 lacs and this would be distributable amongst the shareholders, the company and the workmen concerned. 27. It is not feasible to lay down any rigid formula as to what the proportion of such distribution amongst these various interests should be. The shareholders as well as the company would both be naturally interested inter alia in providing the debenture redemption reserves as also meeting the needs of the industry for further expansion. The workmen would no doubt be interested in trying to bridge the gap between their actual wage and the living wage to the extent feasible. This surplus of Rs. 12 lacs would have to be distributed amongst them having regard to the facts and circumstances of the case, of course bearing in mind the various considerations indicated above 28. Before we arrive at the figure of the actual bonus which it will be appropriate in the circumstances of this case to allow to the workmen, we may advert to one argument which was pressed before us on their behalf and that was that the bonus calculations should not be made on the basis of the All India figures which were adopted by the Tribunal but on the basis of the actual amounts which the appellant had paid and would have to pay to the workmen concerned. It was pointed out that the respondents here were only the workmen in the Wadala Factory of the appellant. The appellant had, however, paid to the various workmen elsewhere as anal by way of bonus sums varying between 4 per cent and 29 per cent of the basic wages for the year in question. The sum of Rs. 1,23,138 only had been paid in full and final settlement to the workmen in some of the factories and the bonus calculations on an All-India basis would thus work to the advantage of the appellant in so far as they would result in saving to the appellant of the difference between the amounts to which those workmen would be entitled on the basis of the All-India figures adopted by the Tribunal and the amounts actually paid to them as a result of agreements, conciliation or adjudication. It was therefore contended that the calculations should be made after taking into account the savings thus effected by the appellant and only a sum Rs. 1,23,138 which was the actual sum paid to those workmen should be taken into account and no more. We are afraid, we cannot accept this contention. If this contention was accepted the respondents before us would have an advantage over those workmen with whom settlements have been made and would get larger amounts by way of bonus merely by reason of the fact that the appellant had managed to settle the claims of those workmen at lesser figures. If this contention of the respondents was pushed to its logical extent it would also mean that in the event of the non-fulfilment of the conditions impose by the Tribunal in the award of bonus herein bringing in savings in the hands of the appellant, the respondents would be entitled to take advantage of those savings also and should be awarded larger amounts by way of bonus, which would really be the result of the claimants entitled to the same not receiving it under certain circumstances - an event which would be purely an extraneous done and unconnected with the contribution of the respondents towards the gross profits earned by the appellant. The Tribunal was, therefore, right in calculating the bonus on an All-India basis. 29. By our order dated 12-4-1957, the appellant was ordered to pay to the respondents within a fortnight from the date thereof bonus for the year 1954-55 equivalent to two months basic wages; that amount has already been paid and works out at Rs. 3.39 lacs on an All-India basis. 30. The only question which therefore survives is what further bonus, if any, would the respondents be entitled to from the distributable surplus of Rs. 12 lacs. The sum of Rs. 3.50 lacs required for building up the debenture redemption reserve is an all engrossing need of the appellant. and that is a factor which must of necessity be taken into consideration while arriving at the ultimate figure, particularly because such redemption of the debentures would enure not only for the benefit of the Company and its shareholders but also of the workmen employed therein. Having regard to all the circumstances of the case, we feel that an award of four months basic wages as the aggregate bonus for the year 1954-55 (which by the way was the bonus awarded for the previous year1953-54 also) would give a fair share to the labour in the distributable surplus, leaving to the shareholders and the company a balance of Rs. 5.22 lacs to be utilised by them not only towards building up of the debenture redemption reserve but also for building up other reserves, which would be utilised for various other purposes indicated above. The appellant would no doubt get also the refund of the income-tax on the bonus payments made by it. This rebate would also go towards the fulfilment of the very same objectives, which would ultimately enure both for the benefit of the capital as well as labour.
### Response:
1
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398 |
TSR Financial Services Pvt. Ltd Vs. Central Bank of India and Ors
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Court to arrive at the impugned conclusion. The High Court, therefore, doubted the bona fides of the sale transaction including the amount at which the sale was effected.3. We have heard the learned Counsels for the parties and have considered the matter.4. The first sale notice is dated 11th December, 2004 pursuant to which the Appellant - TSR Financial Services Pvt. Ltd. (the auction purchaser) offered an amount of ` 60.21 lakhs on 20th December, 2004. The said offer having been accepted by the Financial Institution on 23rd December, 2004 the Appellant - TSR Financial Services Pvt. Ltd. paid ` 15 lakh i.e. 25% of the offered amount on 15th January, 2005. Thereupon on 10th February, 2005 the Financial Institution issued notice to the Respondent - borrower giving it an opportunity to pay the amount of ` 60.21 lakhs within ten (10) days which amount was offered by the auction purchaser. The Respondent - borrower did not act in terms of the aforesaid notice/letter/communication dated 10th February, 2005. Possession of the property in question was handed over to the auction purchaser on 22nd March, 2005. What happened thereafter is a series of letters/communications by the Respondent - borrower with regard to the payments due under the OTS and indicating its agreement/readiness to pay the OTS amount. No payment, however, was forthcoming. In these circumstances, the auction purchaser paid the balance amount i.e. ` 30 lakhs on 11th April, 2005. However, it appears that on 5th September, 2005 the Board of Directors of the Financial Institution refused to approve the sale made in favour of the auction purchaser on the ground of inadequacy of the value fixed which, according to the Board of Directors of the Financial Institution should not have been ` 60.21 lakhs but should have been at about ` 65.34 lakhs. The aforesaid decision of the Board of Directors led to cancellation of the bid of the auction purchaser of ` 60.21 lakhs. A fresh advertisement/sale notice came to be issued on 24th January, 2006, which, incidentally, was followed by another communication dated 4th February, 2006 by the Financial Institution to the Respondent - borrower giving it another opportunity to pay the amount of ` 74 lakhs which was the amount offered by the auction purchaser in the second round of sale. Once again the Respondent - borrower did not respond to the said letter/communication dated 4th February, 2006. It is in these circumstances that on 17th February, 2006 the bid offered by the Appellant - auction purchaser of ` 74 lakhs came to be finalized.5. There is no manner of doubt that under the OTS Scheme the borrower had an option of paying the dues as per the said Scheme on or before 31st March, 2005 to which date the OTS Scheme was subsequently extended. It may also be correct that before the expiry of the said date the first sale was made in favour of the auction purchaser. The part deposit made by the auction purchaser and the handing over of possession of the property in question to the auction purchaser before 31st March, 2005 may appear to be somewhat irregular. However, such irregularity will have to be viewed in the context of the totality of the facts of the case and the admitted position that not only had the borrower failed to match the first offer of the auction purchaser (i.e. ` 60.21 lakhs) but also till the last date of the OTS Scheme i.e. 31st March, 2005 no payment was forthcoming from the Respondent-borrower. The Respondent - borrower was given another opportunity by the Financial Institution by communication dated 4th February, 2006, referred to earlier, to match the second offer made by the auction purchaser. However, the borrower failed to respond positively to the said offer also. It is in these circumstances that the finding of the High Court that the Financial Institution ought to have waited till the last date of the OTS Scheme will have to be viewed.6. The materials on record including the facts recited above would go to show that from 10th February, 2005 upto 31st March, 2005 i.e. for a period of nearly 40 days the borrower had an ample opportunity to pay the amount of ` 60.21 lakhs which was offered by the auction purchaser in the first round of sale (subsequently set aside). It did not comply with the said option. In the second round of sale, despite the notice dated 4th February, 2006 the borrower did not tender any payment to match what was offered and tendered by the auction purchaser. Besides, the auction purchaser, though had been in possession of the property from 2005 and in spite of payment of a huge amount of ` 74 lakhs as far back as on 4th February, 2006, has not been able to enjoy the fruits of the property because of the interim orders of the Court which, inter alia, included restriction on development of the property by the auction purchaser.7. As against the aforesaid facts, the borrower appears to have deposited a sum of ` 17 lakhs, as per its own calculation, sometime in the year 2013 though under the OTS Scheme it had to tender payment of ` 1.70 crore i.e. principal amount of ` 85 lakhs and the amount equivalent to 100% of the principal amount.8. Notwithstanding the order of the High Court being untenable in the facts noted above we had explored the possibility of settling the matter on equitable terms and accordingly we gave an option to the Respondent - borrower that the Court would consider restoring the property to it in the event it pays the amount under the OTS Scheme i.e. ` 1.70 crore and also pays suitable interest at the rate of 12% per annum on the amount of ` 74 lakhs paid by the auction purchaser. The learned Counsel for the borrower, on instructions, has submitted that the borrower would not be able to make the payment as above.
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1[ds]6. The materials on record including the facts recited above would go to show that from 10th February, 2005 upto 31st March, 2005 i.e. for a period of nearly 40 days the borrower had an ample opportunity to pay the amount of ` 60.21 lakhs which was offered by the auction purchaser in the first round of sale (subsequently set aside). It did not comply with the said option. In the second round of sale, despite the notice dated 4th February, 2006 the borrower did not tender any payment to match what was offered and tendered by the auction purchaser. Besides, the auction purchaser, though had been in possession of the property from 2005 and in spite of payment of a huge amount of ` 74 lakhs as far back as on 4th February, 2006, has not been able to enjoy the fruits of the property because of the interim orders of the Court which, inter alia, included restriction on development of the property by the auction purchaser7. As against the aforesaid facts, the borrower appears to have deposited a sum of ` 17 lakhs, as per its own calculation, sometime in the year 2013 though under the OTS Scheme it had to tender payment of ` 1.70 crore i.e. principal amount of ` 85 lakhs and the amount equivalent to 100% of the principal amount8. Notwithstanding the order of the High Court being untenable in the facts noted above we had explored the possibility of settling the matter on equitable terms and accordingly we gave an option to the Respondent - borrower that the Court would consider restoring the property to it in the event it pays the amount under the OTS Scheme i.e. ` 1.70 crore and also pays suitable interest at the rate of 12% per annum on the amount of ` 74 lakhs paid by the auction purchaser. The learned Counsel for the borrower, on instructions, has submitted that the borrower would not be able to make the payment as above.
| 1 | 1,450 |
### Instruction:
Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal?
### Input:
Court to arrive at the impugned conclusion. The High Court, therefore, doubted the bona fides of the sale transaction including the amount at which the sale was effected.3. We have heard the learned Counsels for the parties and have considered the matter.4. The first sale notice is dated 11th December, 2004 pursuant to which the Appellant - TSR Financial Services Pvt. Ltd. (the auction purchaser) offered an amount of ` 60.21 lakhs on 20th December, 2004. The said offer having been accepted by the Financial Institution on 23rd December, 2004 the Appellant - TSR Financial Services Pvt. Ltd. paid ` 15 lakh i.e. 25% of the offered amount on 15th January, 2005. Thereupon on 10th February, 2005 the Financial Institution issued notice to the Respondent - borrower giving it an opportunity to pay the amount of ` 60.21 lakhs within ten (10) days which amount was offered by the auction purchaser. The Respondent - borrower did not act in terms of the aforesaid notice/letter/communication dated 10th February, 2005. Possession of the property in question was handed over to the auction purchaser on 22nd March, 2005. What happened thereafter is a series of letters/communications by the Respondent - borrower with regard to the payments due under the OTS and indicating its agreement/readiness to pay the OTS amount. No payment, however, was forthcoming. In these circumstances, the auction purchaser paid the balance amount i.e. ` 30 lakhs on 11th April, 2005. However, it appears that on 5th September, 2005 the Board of Directors of the Financial Institution refused to approve the sale made in favour of the auction purchaser on the ground of inadequacy of the value fixed which, according to the Board of Directors of the Financial Institution should not have been ` 60.21 lakhs but should have been at about ` 65.34 lakhs. The aforesaid decision of the Board of Directors led to cancellation of the bid of the auction purchaser of ` 60.21 lakhs. A fresh advertisement/sale notice came to be issued on 24th January, 2006, which, incidentally, was followed by another communication dated 4th February, 2006 by the Financial Institution to the Respondent - borrower giving it another opportunity to pay the amount of ` 74 lakhs which was the amount offered by the auction purchaser in the second round of sale. Once again the Respondent - borrower did not respond to the said letter/communication dated 4th February, 2006. It is in these circumstances that on 17th February, 2006 the bid offered by the Appellant - auction purchaser of ` 74 lakhs came to be finalized.5. There is no manner of doubt that under the OTS Scheme the borrower had an option of paying the dues as per the said Scheme on or before 31st March, 2005 to which date the OTS Scheme was subsequently extended. It may also be correct that before the expiry of the said date the first sale was made in favour of the auction purchaser. The part deposit made by the auction purchaser and the handing over of possession of the property in question to the auction purchaser before 31st March, 2005 may appear to be somewhat irregular. However, such irregularity will have to be viewed in the context of the totality of the facts of the case and the admitted position that not only had the borrower failed to match the first offer of the auction purchaser (i.e. ` 60.21 lakhs) but also till the last date of the OTS Scheme i.e. 31st March, 2005 no payment was forthcoming from the Respondent-borrower. The Respondent - borrower was given another opportunity by the Financial Institution by communication dated 4th February, 2006, referred to earlier, to match the second offer made by the auction purchaser. However, the borrower failed to respond positively to the said offer also. It is in these circumstances that the finding of the High Court that the Financial Institution ought to have waited till the last date of the OTS Scheme will have to be viewed.6. The materials on record including the facts recited above would go to show that from 10th February, 2005 upto 31st March, 2005 i.e. for a period of nearly 40 days the borrower had an ample opportunity to pay the amount of ` 60.21 lakhs which was offered by the auction purchaser in the first round of sale (subsequently set aside). It did not comply with the said option. In the second round of sale, despite the notice dated 4th February, 2006 the borrower did not tender any payment to match what was offered and tendered by the auction purchaser. Besides, the auction purchaser, though had been in possession of the property from 2005 and in spite of payment of a huge amount of ` 74 lakhs as far back as on 4th February, 2006, has not been able to enjoy the fruits of the property because of the interim orders of the Court which, inter alia, included restriction on development of the property by the auction purchaser.7. As against the aforesaid facts, the borrower appears to have deposited a sum of ` 17 lakhs, as per its own calculation, sometime in the year 2013 though under the OTS Scheme it had to tender payment of ` 1.70 crore i.e. principal amount of ` 85 lakhs and the amount equivalent to 100% of the principal amount.8. Notwithstanding the order of the High Court being untenable in the facts noted above we had explored the possibility of settling the matter on equitable terms and accordingly we gave an option to the Respondent - borrower that the Court would consider restoring the property to it in the event it pays the amount under the OTS Scheme i.e. ` 1.70 crore and also pays suitable interest at the rate of 12% per annum on the amount of ` 74 lakhs paid by the auction purchaser. The learned Counsel for the borrower, on instructions, has submitted that the borrower would not be able to make the payment as above.
### Response:
1
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399 |
Murari Lal Gupta & Another Vs. State of U.P. & Others
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an order dated 07.05.2012 which too came under challenge before the High Court. The High Court has upon consideration declined to interfere with the on-going proceedings hence the present appeal. 6. When the matter came up before us on 25.04.2014, learned counsel for the parties were not averse to exploring the possibility of an amicable settlement with the help of the Mediation Centre in the Supreme Court. We had accordingly directed the parties to the Mediation Centre in the Supreme Court to explore the possibility of a settlement. The Mediation Centre submitted a report according to which efforts to bring about a settlement had failed That is how the matter came up before us on 01.09.2014 and 16.09.2014 when the parties once again started talking of a possible agreed solution in the nature of a full and final settlement that would satisfy the claim made by the wife towards the return of her streedhan and other articles and put an end to the criminal proceedings and resultant acrimony between the parties. Our attention was in that connection drawn to a ex-parte judgment and decree passed in Civil Petition No. 299 of 2011 titled Neha Gupta v. Mayank Kumar Gupta disposed of the Family Court at Jhansi on 14.08.2012. From a reading of the said order it is clear that the Family Court has held respondent No. 2 wife to the payment of a sum of Rs. 18,18,000/- from the husband Mr. Mayank Gupta. It is not in dispute that the judgment and order passed by the Family Court has attained finality as no appeal against the same has been filed. 6A. When the matter came up for hearing today we were told that the parties have indeed made yet another attempt and agreed to settle the entire dispute not only arising out of the value of the dowry articles but also on account of the claim, arrears of maintenance which have been assessed at Rs. 3,00,000/-. Learned counsel for the parties have in this connection filed a settlement deed before us, from a perusal whereof it appears that the parties have agreed to settle the entire dispute upon payment of a sum of Rs. 22,00,000/- out of which Rs. 19,00,000/- will be paid in full and final settlement of the decreetal amount while the remaining Rs. 3,00,000/- will represent the arrears of maintenance. One of the appellants Mr. Murari Lal Gupta who is present in the court along with his son Manish Gupta @ Saurabh Gupta submitted that out of a sum of Rs 22,00,000/- the appellants have already deposited Rs. 5,00,000/- in this court. The balance amount of Rs. 17,00,000/- according to learned counsel for the appellant No. 1 shall be paid by the appellants and their son Mayank Gupta in four equal instalments quarterly. It is submitted by learned counsel for the appellants that with this payment the entire claim made by respondent No. 2 would stand satisfied giving a quietus to the controversy and bringing lasting peace to both the parties. 7. On behalf of respondent No. 2-wife who is also present in person it was submitted by learned counsel appearing for her and her father who too is present in person that the payment of the balance of Rs. 17,00,000/- could be directed to be expedited. 8. We have explored the possibility of an early payment of the balance amount but are of the view that looking to the financial condition of the appellants, it may not be feasible to do so. We would therefore accept the settlement between the parties as finalised and grant the facility of payment of the balance amount of Rs. 17,00,000/- in quarterly instalments of Rs. 4,25,000/- each. 9. The question then is whether the settlement arrived at between the appellants who represent their interest and the interest of their son Mayank Gupta, on the one hand, and respondent No. 2-wife, on the other, would justify quashing of the criminal proceedings. There is no dispute that offence punishable under Section 498A of IPC and that under the Dowry Prohibition Act are not compoundable. The remaining offences under Sections 323, 504 and 505 are, however, compoundable. Courts do not recognise settlements between the accused and the complainant party for quashing proceedings in cases which are not compoundable under Section 320, Cr.P.C. There is however an exception to that rule. That exception comprises case where the parties are settling a matrimonial dispute. To give quietus to the controversy between them on all counts, this Court has permitted quashing of criminal proceedings also, no matter the offences may not be compoundable. The present is, in our opinion, a fit case in which that power could be exercised especially when all outstanding issues between the parties are getting resolved. The fact that the parties have not only decided to actually part company on the basis of the decrees of divorce obtained by them clearly shows that there are no chances of any rehabilitation of relationship between them. So also the fact that the Family Court has already adjudicated upon claim which the respondent-wife has made against her former husband and her parents in law and determined a definite sum towards compensation payable to the wife on that account is also suggestive of settlement of the civil part of the dispute. There is a claim towards arrears of maintenance which too has been assessed at Rs. 3,00,000/-. All told the claim for money has been assessed and the amount agreed fixed at Rs. 22,00,000/- out of which a sum of Rs. 5,00,000/- has already been deposited in this Court. The settlement filed before this Court and undertaking assures the payment of the balance amount also.10. In the circumstances we are of the view that upon payment of the balance amount of Rs. 17,00,000/- in the manner agreed to between the parties, the proceedings in the criminal case arising out of FIR No. 2689 of 2007 and domestic violence case filed by the wife could be quashed.
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1[ds]There is no dispute that offence punishable under Section 498A of IPC and that under the Dowry Prohibition Act are not compoundable. The remaining offences under Sections 323, 504 and 505 are, however, compoundable. Courts do not recognise settlements between the accused and the complainant party for quashing proceedings in cases which are not compoundable under Section 320, Cr.P.C. There is however an exception to that rule. That exception comprises case where the parties are settling a matrimonial dispute. To give quietus to the controversy between them on all counts, this Court has permitted quashing of criminal proceedings also, no matter the offences may not be compoundable. The present is, in our opinion, a fit case in which that power could be exercised especially when all outstanding issues between the parties are getting resolved. The fact that the parties have not only decided to actually part company on the basis of the decrees of divorce obtained by them clearly shows that there are no chances of any rehabilitation of relationship between them. So also the fact that the Family Court has already adjudicated upon claim which thehas made against her former husband and her parents in law and determined a definite sum towards compensation payable to the wife on that account is also suggestive of settlement of the civil part of the dispute. There is a claim towards arrears of maintenance which too has been assessed at Rs.All told the claim for money has been assessed and the amount agreed fixed at Rs. 22,00,000/out of which a sum of Rs. 5,00,000/has already been deposited in this Court. The settlement filed before this Court and undertaking assures the payment of the balance amount also.
| 1 | 1,604 |
### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
an order dated 07.05.2012 which too came under challenge before the High Court. The High Court has upon consideration declined to interfere with the on-going proceedings hence the present appeal. 6. When the matter came up before us on 25.04.2014, learned counsel for the parties were not averse to exploring the possibility of an amicable settlement with the help of the Mediation Centre in the Supreme Court. We had accordingly directed the parties to the Mediation Centre in the Supreme Court to explore the possibility of a settlement. The Mediation Centre submitted a report according to which efforts to bring about a settlement had failed That is how the matter came up before us on 01.09.2014 and 16.09.2014 when the parties once again started talking of a possible agreed solution in the nature of a full and final settlement that would satisfy the claim made by the wife towards the return of her streedhan and other articles and put an end to the criminal proceedings and resultant acrimony between the parties. Our attention was in that connection drawn to a ex-parte judgment and decree passed in Civil Petition No. 299 of 2011 titled Neha Gupta v. Mayank Kumar Gupta disposed of the Family Court at Jhansi on 14.08.2012. From a reading of the said order it is clear that the Family Court has held respondent No. 2 wife to the payment of a sum of Rs. 18,18,000/- from the husband Mr. Mayank Gupta. It is not in dispute that the judgment and order passed by the Family Court has attained finality as no appeal against the same has been filed. 6A. When the matter came up for hearing today we were told that the parties have indeed made yet another attempt and agreed to settle the entire dispute not only arising out of the value of the dowry articles but also on account of the claim, arrears of maintenance which have been assessed at Rs. 3,00,000/-. Learned counsel for the parties have in this connection filed a settlement deed before us, from a perusal whereof it appears that the parties have agreed to settle the entire dispute upon payment of a sum of Rs. 22,00,000/- out of which Rs. 19,00,000/- will be paid in full and final settlement of the decreetal amount while the remaining Rs. 3,00,000/- will represent the arrears of maintenance. One of the appellants Mr. Murari Lal Gupta who is present in the court along with his son Manish Gupta @ Saurabh Gupta submitted that out of a sum of Rs 22,00,000/- the appellants have already deposited Rs. 5,00,000/- in this court. The balance amount of Rs. 17,00,000/- according to learned counsel for the appellant No. 1 shall be paid by the appellants and their son Mayank Gupta in four equal instalments quarterly. It is submitted by learned counsel for the appellants that with this payment the entire claim made by respondent No. 2 would stand satisfied giving a quietus to the controversy and bringing lasting peace to both the parties. 7. On behalf of respondent No. 2-wife who is also present in person it was submitted by learned counsel appearing for her and her father who too is present in person that the payment of the balance of Rs. 17,00,000/- could be directed to be expedited. 8. We have explored the possibility of an early payment of the balance amount but are of the view that looking to the financial condition of the appellants, it may not be feasible to do so. We would therefore accept the settlement between the parties as finalised and grant the facility of payment of the balance amount of Rs. 17,00,000/- in quarterly instalments of Rs. 4,25,000/- each. 9. The question then is whether the settlement arrived at between the appellants who represent their interest and the interest of their son Mayank Gupta, on the one hand, and respondent No. 2-wife, on the other, would justify quashing of the criminal proceedings. There is no dispute that offence punishable under Section 498A of IPC and that under the Dowry Prohibition Act are not compoundable. The remaining offences under Sections 323, 504 and 505 are, however, compoundable. Courts do not recognise settlements between the accused and the complainant party for quashing proceedings in cases which are not compoundable under Section 320, Cr.P.C. There is however an exception to that rule. That exception comprises case where the parties are settling a matrimonial dispute. To give quietus to the controversy between them on all counts, this Court has permitted quashing of criminal proceedings also, no matter the offences may not be compoundable. The present is, in our opinion, a fit case in which that power could be exercised especially when all outstanding issues between the parties are getting resolved. The fact that the parties have not only decided to actually part company on the basis of the decrees of divorce obtained by them clearly shows that there are no chances of any rehabilitation of relationship between them. So also the fact that the Family Court has already adjudicated upon claim which the respondent-wife has made against her former husband and her parents in law and determined a definite sum towards compensation payable to the wife on that account is also suggestive of settlement of the civil part of the dispute. There is a claim towards arrears of maintenance which too has been assessed at Rs. 3,00,000/-. All told the claim for money has been assessed and the amount agreed fixed at Rs. 22,00,000/- out of which a sum of Rs. 5,00,000/- has already been deposited in this Court. The settlement filed before this Court and undertaking assures the payment of the balance amount also.10. In the circumstances we are of the view that upon payment of the balance amount of Rs. 17,00,000/- in the manner agreed to between the parties, the proceedings in the criminal case arising out of FIR No. 2689 of 2007 and domestic violence case filed by the wife could be quashed.
### Response:
1
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