Unnamed: 0
int64 0
1.22k
| Case Name
stringlengths 19
239
| Input
stringlengths 1.35k
6.73k
| Output
stringlengths 105
57.5k
| Label
int64 0
1
| Count
int64 258
107k
| text
stringlengths 1.54k
6.88k
|
|---|---|---|---|---|---|---|
1,000 | Bhagwati Prasad Sah And Others Vs. Bhagwati Prasad Sah And Another | on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house)."12. It is said that the words in the brackets conceding the right of the owner of a site to pre-empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre-emption in respect thereof, the sale of the house can be pre-empted. The opening word of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre-emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali((1880)I.L.R. 2 All. 99.). There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre-emption under the Mohamedan law attached to such house. The judgment is not a considered one. The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed.The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre-emption in respect of a land over which the vendor has no full ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey(A.I.R. 1934 Pat. 596 .). There, the question was whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre-emption. The pre-emptor was birtdar though he was described as a tenant in the Record of-Rights for a particular purpose. The court held that he was a full owner. This decision does not really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram v. Gopinath(A.I.R. 1962 Pat. 226 (F.B.)). There, as here, a right of pre-emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that, in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house."We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer to them.13. To summarize: A right of pre-emption is annexed to full ownership of property of co-sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co-sharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the co- sharers whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co-sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables.14. | 1[ds]The judgment of this Court finally settled the question as between co-sharers. Following the decision we hold that the law of pre-emption vis-a-vis co-sharers does not infringe the fundamental right conferred under Art. 19 (1) (f) of thecannot allow the appellants to raise the saidHigh Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal. If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents. Wecannot allow the appellants to raise the saida careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that, in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house."We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer tosummarize: A right of pre-emption is annexed to full ownership of property of co-sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co-sharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the co- sharers whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co-sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables. | 1 | 4,995 | ### 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:
on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house)."12. It is said that the words in the brackets conceding the right of the owner of a site to pre-empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre-emption in respect thereof, the sale of the house can be pre-empted. The opening word of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre-emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali((1880)I.L.R. 2 All. 99.). There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre-emption under the Mohamedan law attached to such house. The judgment is not a considered one. The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed.The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre-emption in respect of a land over which the vendor has no full ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey(A.I.R. 1934 Pat. 596 .). There, the question was whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre-emption. The pre-emptor was birtdar though he was described as a tenant in the Record of-Rights for a particular purpose. The court held that he was a full owner. This decision does not really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram v. Gopinath(A.I.R. 1962 Pat. 226 (F.B.)). There, as here, a right of pre-emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that, in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house."We agree with the conclusion. As this judgment has considered the earlier decisions on the subject, we need not again refer to them.13. To summarize: A right of pre-emption is annexed to full ownership of property of co-sharers. It is not attached to property held on subordinate tenure, such as leases etc. It is an incident of the co-sharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or nothing. It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the co- sharers whole bargain. The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co-sharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the super- structure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables.14.
### Response:
1
|
1,001 | V.K. GIRIJA Vs. RESHMA PARAYIL | Note (3) to Rule 5 of the General Rules. 15. In S. Prakash, this Court considered whether the provisions of the Special Rules, the Kerala Agricultural Income Tax and Sales Tax Service Rules, will have to yield to Note (3) to Rule 5 of the General Rules. This Court held: (SCC pp. 633-34, para 14)?14. From the aforesaid discussion, it is clear that if the intention of the rule-making authority was to establish a rule of universal application to all the services in the State of Kerala for which the Special Rules are made, then the Special Rules will give way to the General Rules enacted for that purpose. This has to be found out from the language used in the Rules which may be express or by implication. If the language is clear and unqualified, the subsequent General Rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such a26 case, the Special Rules will give way. … The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all the Special Rules whenever a ratio or percentage is prescribed in the Rules. It also emphatically states that it has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time.? (emphasis supplied)16. In Prasad Kurien, while considering the Special Rules, the Kerala Excise and Prohibition Subordinate Service Rules, 1974, vis-à-vis Note (3) to Rule 5 of the General Rules, this Court followed the dictum in S. Prakash. 17. These decisions reiterate the position that if the intention of the rule-making authority is to make a later general rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later general rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule. 18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules. 19. This Court held, on reading the General Rules26 in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies. 20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule.?16.This Court clearly held that principle laid down in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra) shall not apply where the Special Rules are made subsequent to the General Rules. The ratio laid down in the above case is fully applicable in the facts of the present case. Thus, the Statutory Scheme as delineated by Chapter XXXII of Kerala Education Rules shall alone be applicable while making recruitment to the teaching posts and Rule 5 Note (3) of Kerala State and Subordinate Services Rules, 1958 is not attracted. 17.Learned counsel for the appellant has placed reliance26 on judgments of this Court in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra). Both the above judgments had been considered and distinguished by this Court in the case of Maya Mathew (supra). The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which is under consideration was inserted in the year 2011 in the Rules, i.e. much subsequent to Kerala State and Subordinate Services Rules, 1992. The Division Bench of the Kerala High Court, thus, has taken correct view of the matter and has rightly reversed the judgment of the learned Single Judge restoring back the order of the State Government directing the management to appoint respondent by transfer as Higher Secondary School Teacher (Economics). 18.Learned counsel for the appellant lastly has submitted that appellant has been working and satisfactorily discharging her duties for last more than 5 years and respondent may get another chance for being appointed by transfer when any other vacancy arises on the post of Higher Secondary School Teacher (Economics). We do26 not find any substance in the above submission when as per Rule 4(2), the respondent was entitled for appointment by transfer, which claim has been accepted by the State Government, the claim of respondent cannot be negated on the premise as contended by the appellant. Learned counsel for the respondent, however, during submissions has fairly submitted that she has no objection, if the appellant is adjusted on the post, which is at present held by the respondent. | 1[ds]A perusal of the26 Rule 4(2) contemplates that post of Higher Secondary School Teacher is to be filled up first?by transfer from Junior Lecturer in the subject concerned under the management / Higher Secondary School Teacher. Thus, every vacancy of Higher Secondary School Teacher has to be filled up first by the transfer of Higher Secondary School Teacher (Junior) in the subject concerned. There is a purpose and object for providing a particular Scheme for filling up the post of Higher Secondary School Teacher. Higher Secondary School Teacher (Junior) is also lecturer in concerned subject and the Statute required that whenever post in Higher Secondary School Teacher arises, the same shall be first offered to the Junior Lecturer in the subject. Above statutory Scheme serves the interests of the School, students and the teachers already serving in the institution. A Junior Lecturer working in the same subject is first choice to fill up the post, which obviates the management to take any other steps for recruitment. The second method of recruitment under Rule 4(2) begins with the word?in the absence of qualified hands under clause (1). Thus, recruitment under Clause (2) shall be resorted only26 when no qualified hands under clause (1), i.e. Junior Lecturer in the concerned subject is not available. Further, the second phrase of Rule 4(2) begins with the word?the vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct. The clear intendment is that vacancy arising in Higher Secondary School Teacher has to be apportioned in ratio of 1:3. There is no concept of looking to the cadre of the post of Higher Secondary School Teacher while apportioning the vacancy under Rule 4(2), the cadre strength is not to be looked into in view of the method of recruitment provided under Rule 4(2), i.e. of vacancies of Higher Secondary School Teacher is filled up first by transfer of Junior Lecturer. A plain reading of the above Statutory Provision clearly indicates that for apportioning the vacancy, the cadre strength of the Higher Secondary School Teacher is not to be looked into to find out as to which vacancy will go to transfer or direct recruitment. Now coming to the facts of the present case, in the yeartwo new posts were created in Higher Secondary School Teacher, i.e. Commerce and Economics, both were the new vacancies and no Junior26 Lecturers, i.e. Higher Secondary School Teacher (Junior) qualified in the subject being available, Rule 4(2) has to be resorted to. The ratio mentioned is 1:3, which means that first vacancy is to be filled up by transfer. Resorting to cadre strength, thus, was not contemplated by plain reading of Rule 4(2). We, thus, do not find any substance in the submission of the counsel for the appellant. Above interpretation of Rule 4(2) is reinforced by looking to Rule 4(3), which deals with recruitment of Higher Secondary School Teacher (Junior). Higher Secondary School Teacher(Junior) is also to be filled up by transfer from qualified High School Assistant in the subjects concerned. In absence of qualified hands, by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants in the subjects concerned under the Educational Agency. For filling up the posts in the subjects concerned, the direct recruitment is also provided as one mode of recruitment. Note 1, which is very relevant, provides?25% of the total posts shall be filled up by the method specified in item (I) above onbasis and 75% of such post shall be filled up by direct26. Here, Note 1, uses two expressions ?total posts? and ?such posts?. Thus, computation of 25% and 75% is to be based on that total posts of Higher Secondary School Teacher (Junior). The language used in Note 1 when read in contradiction to Rule 4(2) (ii), the intention is clear that whereas for appointment in Higher Secondary School Teacher, the vacancy shall be apportioned, whereas for filling up the post of Higher Secondary School Teacher (Junior), ?total posts? are to be apportioned on the basis of cadre strength., we come to the Kerala State and Subordinate Services Rules, 1958 – Rule 5. Rule 5 begins with the words?where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by. Rule 5 of 1958 Rules also provides for method of recruitment and Note (3) to Rule 5 provides that whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or26 percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. The Special Rules are 1992 Rules. The Kerala Education Act, 1958 and Kerala Education Rules both are General Rules but in view of the fact that Chapter XXXII has been inserted in the Rules by notification dated 09.11.2001, which makes it clear that appointment of teachers andstaff in aided Higher Secondary School Teacher is to be governed by Kerala Education Rules. Further, the recruitment under Rule 4(2) of Higher Secondary School Teacher is a recruitment specially statutory designed in a different manner providing for all vacancy in Higher Secondary School Teacher subjects, to be first filled up by Junior Lecturer in the subjects concerned under the management. Thus, recruitment under Rule 4(2) cannot be said to be ?normal method of recruitment? to any service as contemplated by Rule 5 of KSS Rules. Thus, KSS Rules cannot be held to be applicable for making recruitment under Rule 4(2) of Chapter XXXII of the Kerala Education Rules. Further, a set of Rules of Chapter XXXII having been brought subsequent to Special Rules, intendment is clear that it was intended that26 general rule being Chapter XXXII shall be followed for appointment of teachers in aided institutions. This Court in the case of Maya Mathew (supra) had occasion to consider Kerala State and Subordinate Services Rules, 1958 in reference to a general rule namely Kerala State Homeopathy Services Rules, 1989. Note (3) of Rule 5 of Kerala State and Subordinate Services Rules, 1958 came up for consideration in the above case. Whereas Rule 3 of the Homeopathy Rules also provided for method of appointment and ratio to be maintained in making appointment. Kerala State and Subordinate Services Rules, 1958 were referred as General Rules in the aforesaid judgment. The Homeopathy Rules wee referred to as Special Rules, which was repugnant to General Rules.This Court clearly held that principle laid down in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra) shall not apply where the Special Rules are made subsequent to the General Rules. The ratio laid down in the above case is fully applicable in the facts of the present case. Thus, the Statutory Scheme as delineated by Chapter XXXII of Kerala Education Rules shall alone be applicable while making recruitment to the teaching posts and Rule 5 Note (3) of Kerala State and Subordinate Services Rules, 1958 is not attracted.Learned counsel for the appellant has placed reliance26 on judgments of this Court in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra). Both the above judgments had been considered and distinguished by this Court in the case of Maya Mathew (supra). The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which is under consideration was inserted in the year 2011 in the Rules, i.e. much subsequent to Kerala State and Subordinate Services Rules, 1992. The Division Bench of the Kerala High Court, thus, has taken correct view of the matter and has rightly reversed the judgment of the learned Single Judge restoring back the order of the State Government directing the management to appoint respondent by transfer as Higher Secondary School Teacher (Economics).Learned counsel for the appellantlastly has submitted that appellant has been working and satisfactorily discharging her duties for last more than 5 years and respondent may get another chance for being appointed by transfer when any other vacancy arises on the post of Higher Secondary School Teacher (Economics).We do26 not find any substance in the above submission when as per Rule 4(2), the respondent was entitled for appointment by transfer, which claim has been accepted by the State Government, the claim of respondent cannot be negated on the premise as contended by the appellant. Learnedcounsel for the respondent, however, during submissions has fairly submitted that she has no objection, if the appellant is adjusted on the post, which is at present held by the respondent. | 1 | 5,117 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
Note (3) to Rule 5 of the General Rules. 15. In S. Prakash, this Court considered whether the provisions of the Special Rules, the Kerala Agricultural Income Tax and Sales Tax Service Rules, will have to yield to Note (3) to Rule 5 of the General Rules. This Court held: (SCC pp. 633-34, para 14)?14. From the aforesaid discussion, it is clear that if the intention of the rule-making authority was to establish a rule of universal application to all the services in the State of Kerala for which the Special Rules are made, then the Special Rules will give way to the General Rules enacted for that purpose. This has to be found out from the language used in the Rules which may be express or by implication. If the language is clear and unqualified, the subsequent General Rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such a26 case, the Special Rules will give way. … The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all the Special Rules whenever a ratio or percentage is prescribed in the Rules. It also emphatically states that it has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time.? (emphasis supplied)16. In Prasad Kurien, while considering the Special Rules, the Kerala Excise and Prohibition Subordinate Service Rules, 1974, vis-à-vis Note (3) to Rule 5 of the General Rules, this Court followed the dictum in S. Prakash. 17. These decisions reiterate the position that if the intention of the rule-making authority is to make a later general rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later general rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule. 18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules. 19. This Court held, on reading the General Rules26 in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies. 20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule.?16.This Court clearly held that principle laid down in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra) shall not apply where the Special Rules are made subsequent to the General Rules. The ratio laid down in the above case is fully applicable in the facts of the present case. Thus, the Statutory Scheme as delineated by Chapter XXXII of Kerala Education Rules shall alone be applicable while making recruitment to the teaching posts and Rule 5 Note (3) of Kerala State and Subordinate Services Rules, 1958 is not attracted. 17.Learned counsel for the appellant has placed reliance26 on judgments of this Court in S. Prakash and Another Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and Others Vs. K.J. Augustin and Others, (supra). Both the above judgments had been considered and distinguished by this Court in the case of Maya Mathew (supra). The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which is under consideration was inserted in the year 2011 in the Rules, i.e. much subsequent to Kerala State and Subordinate Services Rules, 1992. The Division Bench of the Kerala High Court, thus, has taken correct view of the matter and has rightly reversed the judgment of the learned Single Judge restoring back the order of the State Government directing the management to appoint respondent by transfer as Higher Secondary School Teacher (Economics). 18.Learned counsel for the appellant lastly has submitted that appellant has been working and satisfactorily discharging her duties for last more than 5 years and respondent may get another chance for being appointed by transfer when any other vacancy arises on the post of Higher Secondary School Teacher (Economics). We do26 not find any substance in the above submission when as per Rule 4(2), the respondent was entitled for appointment by transfer, which claim has been accepted by the State Government, the claim of respondent cannot be negated on the premise as contended by the appellant. Learned counsel for the respondent, however, during submissions has fairly submitted that she has no objection, if the appellant is adjusted on the post, which is at present held by the respondent.
### Response:
1
|
1,002 | Madan Mohan Mondal Vs. The State Of West Bengal | State for this delay is contained in para 8 of the counter-affidavit and it reads:".........the said representation of the detenu-petitioner could not be considered by the State earlier, inter alia, on the following grounds: (a) that the go-slow movement launched by the State Government employees sometime back caused some dislocation in office work, consequential increase in the pending work and delay in disposal. (b) that due to increase of the volume of work relating to detentions under the said Act there was considerable pressure of work and in consequence whereof disposal of urgent matters were also delayed. (c) that due to aforesaid grounds, movement of files was delayed and the records were not readily available and in this case there was a delay of about 33 days in considering the representation of the petitioner. I further state that the said delay was unintentional and was caused for such reasons beyond the control of the State Government. I submit that the said delay may be condoned. 4. No doubt there was war with Pakistan from December 3, 1971 to December 17, 1971 when India unilaterally declared cease fire and in the State of West Bengal naturally things could not be quite normal during the war days and perhaps also during some time thereafter. These are the facts of which this Court can certainly take judicial notice. But for reasons best known to the respondent no reliance has been placed on this circumstance while explaining the delay and our decision must not be considered to imply any expression of opinion on the effect of the 1971 Indo-Pak war. The question whether or not the Indo-Pak war or its after-effects on the normal functioning of the relevant Government departments reasonably contributed towards delay in the consideration of the detenus representation must be left open to be decided when appropriately raised in a case. 5. We should like to repeat what seems to us to be well settled that too leisurely a manner of dealing with the statutory provisions relating to safeguards against arbitrary or illegal orders of preventive detention requiring urgent attention, as is the case before us, is wholly inconsistent with the fundamental importance attached by our Constitution to the question of personal freedom of the individual. If preventive detention without trial is to be justified then the Government must comply with due promptitude with all the essential requirements of our Constitution as also of the Act relating to such detention. The representation made by the detenu to the State has, therefore, to be considered as early as possible, or in other words as expeditiously as practicable without avoidable delay. This has been repeatedly stated by this Court to be implicit in Article 22 (5) of the Constitution. Article 22, it may be recalled, prescribes the minimum procedure that must be included in any law permitting preventive detention and when the provisions of Article 22 or of a law relating to a preventive detention providing for safeguards against arbitrary or illegal orders of detention are not complied with then even if the detention may be valid ab initio it ceases to be valid as soon as violation of the provisions of Article 22 or of the mandatory provisions of the law permitting preventive detention occurs. No doubt no rigid limit of time can be fixed within which the Government must consider the representation and the question always requires determination on the facts and circumstances of each case. Any prima facie unreasonable delay must be satisfactorily explained by the detaining authority if the order of detention is required to be upheld by this Court. The explanation for the delay in the present case is so extremely vague that we find it almost impossible to hold that due to the reasons contained in the explanation embodied in the counter-affidavit there was any real, genuine obstacle in the way of the Government in considering the representation within reasonable time and before the expiry of what seems to be an inordinate delay of 33 days. 6. In the counter-affidavit it is averred that the petitioner appears also to have applied to Calcutta High Court for a writ of habeas corpus (Crl. Misc. No. 958 of 1972) which is still pending there. The petitioner has in his application in this Court stated that he had "not appealed to the Honble High Court at Calcutta". The learned counsel for both sides in this Court were unable to give any further details or information in this connection. The State has not produced before us a copy of the writ application nor could the counsel for the State tell us about the date on which the writ petition in the Calcutta High Court was filed by the detenu. In these circumstances was do not think it would advance the cause of justice to decline to dispose of the present petition under Article 32 of the Constitution or the postpone the hearing and await the decision of the Calcutta High Court. 7. We are not unmindful of the fact that in the counter-affidavit it is stated that the detenu-petitioner is a notorious thief of copper wires and cables and after referring to the incidents mentioned in the grounds of detention it is asserted that the detenu petitioners activities seriously disrupted telegraphic communication system of the railways and caused dislocation of railway service, as suggested in the counter-affidavit. But this cannot absolve the authorities concerned of their constitutional obligation to give appropriate effect to the legal safeguards provided by the Constitution and the Act. Indeed it is precisely in such a situation that the real strength and vigour of the true democratic system of government like ours which guarantees individual liberty is properly tested. Legal safeguards against possible arbitrary exercise of power or abuse or misuse of the provisions of the preventive detention laws demand compliance in all situations covered thereby including situations like the one suggested in the counter-affidavit. To ignore them would be to ignore the mandate of the Constitution. | 1[ds]5. We should like to repeat what seems to us to be well settled that too leisurely a manner of dealing with the statutory provisions relating to safeguards against arbitrary or illegal orders of preventive detention requiring urgent attention, as is the case before us, is wholly inconsistent with the fundamental importance attached by our Constitution to the question of personal freedom of the individual. If preventive detention without trial is to be justified then the Government must comply with due promptitude with all the essential requirements of our Constitution as also of the Act relating to such detention. The representation made by the detenu to the State has, therefore, to be considered as early as possible, or in other words as expeditiously as practicable without avoidable delay. This has been repeatedly stated by this Court to be implicit in Article 22 (5) of the Constitution. Article 22, it may be recalled, prescribes the minimum procedure that must be included in any law permitting preventive detention and when the provisions of Article 22 or of a law relating to a preventive detention providing for safeguards against arbitrary or illegal orders of detention are not complied with then even if the detention may be valid ab initio it ceases to be valid as soon as violation of the provisions of Article 22 or of the mandatory provisions of the law permitting preventive detention occurs. No doubt no rigid limit of time can be fixed within which the Government must consider the representation and the question always requires determination on the facts and circumstances of each case. Any prima facie unreasonable delay must be satisfactorily explained by the detaining authority if the order of detention is required to be upheld by this Court. The explanation for the delay in the present case is so extremely vague that we find it almost impossible to hold that due to the reasons contained in the explanation embodied in the counter-affidavit there was any real, genuine obstacle in the way of the Government in considering the representation within reasonable time and before the expiry of what seems to be an inordinate delay of 33 days6. In the counter-affidavit it is averred that the petitioner appears also to have applied to Calcutta High Court for a writ of habeas corpus (Crl. Misc. No. 958 of 1972) which is still pending there. The petitioner has in his application in this Court stated that he had "not appealed to the Honble High Court at Calcutta". The learned counsel for both sides in this Court were unable to give any further details or information in this connection. The State has not produced before us a copy of the writ application nor could the counsel for the State tell us about the date on which the writ petition in the Calcutta High Court was filed by the detenu. In these circumstances was do not think it would advance the cause of justice to decline to dispose of the present petition under Article 32 of the Constitution or the postpone the hearing and await the decision of the Calcutta High Court7. We are not unmindful of the fact that in the counter-affidavit it is stated that the detenu-petitioner is a notorious thief of copper wires and cables and after referring to the incidents mentioned in the grounds of detention it is asserted that the detenu petitioners activities seriously disrupted telegraphic communication system of the railways and caused dislocation of railway service, as suggested in the counter-affidavit. But this cannot absolve the authorities concerned of their constitutional obligation to give appropriate effect to the legal safeguards provided by the Constitution and the Act. Indeed it is precisely in such a situation that the real strength and vigour of the true democratic system of government like ours which guarantees individual liberty is properly tested. Legal safeguards against possible arbitrary exercise of power or abuse or misuse of the provisions of the preventive detention laws demand compliance in all situations covered thereby including situations like the one suggested in the counter-affidavit. To ignore them would be to ignore the mandate of the Constitution. | 1 | 1,305 | ### 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:
State for this delay is contained in para 8 of the counter-affidavit and it reads:".........the said representation of the detenu-petitioner could not be considered by the State earlier, inter alia, on the following grounds: (a) that the go-slow movement launched by the State Government employees sometime back caused some dislocation in office work, consequential increase in the pending work and delay in disposal. (b) that due to increase of the volume of work relating to detentions under the said Act there was considerable pressure of work and in consequence whereof disposal of urgent matters were also delayed. (c) that due to aforesaid grounds, movement of files was delayed and the records were not readily available and in this case there was a delay of about 33 days in considering the representation of the petitioner. I further state that the said delay was unintentional and was caused for such reasons beyond the control of the State Government. I submit that the said delay may be condoned. 4. No doubt there was war with Pakistan from December 3, 1971 to December 17, 1971 when India unilaterally declared cease fire and in the State of West Bengal naturally things could not be quite normal during the war days and perhaps also during some time thereafter. These are the facts of which this Court can certainly take judicial notice. But for reasons best known to the respondent no reliance has been placed on this circumstance while explaining the delay and our decision must not be considered to imply any expression of opinion on the effect of the 1971 Indo-Pak war. The question whether or not the Indo-Pak war or its after-effects on the normal functioning of the relevant Government departments reasonably contributed towards delay in the consideration of the detenus representation must be left open to be decided when appropriately raised in a case. 5. We should like to repeat what seems to us to be well settled that too leisurely a manner of dealing with the statutory provisions relating to safeguards against arbitrary or illegal orders of preventive detention requiring urgent attention, as is the case before us, is wholly inconsistent with the fundamental importance attached by our Constitution to the question of personal freedom of the individual. If preventive detention without trial is to be justified then the Government must comply with due promptitude with all the essential requirements of our Constitution as also of the Act relating to such detention. The representation made by the detenu to the State has, therefore, to be considered as early as possible, or in other words as expeditiously as practicable without avoidable delay. This has been repeatedly stated by this Court to be implicit in Article 22 (5) of the Constitution. Article 22, it may be recalled, prescribes the minimum procedure that must be included in any law permitting preventive detention and when the provisions of Article 22 or of a law relating to a preventive detention providing for safeguards against arbitrary or illegal orders of detention are not complied with then even if the detention may be valid ab initio it ceases to be valid as soon as violation of the provisions of Article 22 or of the mandatory provisions of the law permitting preventive detention occurs. No doubt no rigid limit of time can be fixed within which the Government must consider the representation and the question always requires determination on the facts and circumstances of each case. Any prima facie unreasonable delay must be satisfactorily explained by the detaining authority if the order of detention is required to be upheld by this Court. The explanation for the delay in the present case is so extremely vague that we find it almost impossible to hold that due to the reasons contained in the explanation embodied in the counter-affidavit there was any real, genuine obstacle in the way of the Government in considering the representation within reasonable time and before the expiry of what seems to be an inordinate delay of 33 days. 6. In the counter-affidavit it is averred that the petitioner appears also to have applied to Calcutta High Court for a writ of habeas corpus (Crl. Misc. No. 958 of 1972) which is still pending there. The petitioner has in his application in this Court stated that he had "not appealed to the Honble High Court at Calcutta". The learned counsel for both sides in this Court were unable to give any further details or information in this connection. The State has not produced before us a copy of the writ application nor could the counsel for the State tell us about the date on which the writ petition in the Calcutta High Court was filed by the detenu. In these circumstances was do not think it would advance the cause of justice to decline to dispose of the present petition under Article 32 of the Constitution or the postpone the hearing and await the decision of the Calcutta High Court. 7. We are not unmindful of the fact that in the counter-affidavit it is stated that the detenu-petitioner is a notorious thief of copper wires and cables and after referring to the incidents mentioned in the grounds of detention it is asserted that the detenu petitioners activities seriously disrupted telegraphic communication system of the railways and caused dislocation of railway service, as suggested in the counter-affidavit. But this cannot absolve the authorities concerned of their constitutional obligation to give appropriate effect to the legal safeguards provided by the Constitution and the Act. Indeed it is precisely in such a situation that the real strength and vigour of the true democratic system of government like ours which guarantees individual liberty is properly tested. Legal safeguards against possible arbitrary exercise of power or abuse or misuse of the provisions of the preventive detention laws demand compliance in all situations covered thereby including situations like the one suggested in the counter-affidavit. To ignore them would be to ignore the mandate of the Constitution.
### Response:
1
|
1,003 | Sri Dinesh Kumar. J. @ Dinesh J Vs. National Insurance Co. Ltd & Others | Dr. D.Y. Chandrachud, J. 1. Leave granted.2. The present appeal arises from a judgment of the High Court of Karnataka dated 13 April 2016. 3. On 18 June 2012, the appellant who was riding a motorcycle bearing registration No.KA-04/EL-4782 met with an accident with a mini lorry belonging to the Second and Third respondents. The lorry was insured with the First respondent. As a result of the accident, the appellant suffered grievous injuries. The medical certificate issued by the Bangalore Baptist Hospital (Exhibits P-13 and P-14) indicate spinal injuries.4. The appellant was twenty six years of age on the date of the accident and was working as a patroller in a private company. His income was Rs.11,000/- per month. The appellant filed a claim for compensation before the Motor Accident Claims Tribunal, seeking compensation in the amount of Rupees 40 lakhs. The appellant examined a doctor (PW 5) who deposed that the extent of permanent physical disability of the spine was thirty four per cent. The tribunal did not accept that the disability was thirty four per cent, noting that the doctor in his cross examination admitted that he had not personally treated the appellant and that the medical evidence did not provide a cogent determination of the extent of disability. The Tribunal assessed the disability at ten per cent. The income of the appellant was taken at Rs 11,000 per month and a multiplier of seventeen was applied. The loss of income due to disability was computed at Rs 2,25,000. Medical expenses were computed at Rs 3,85,000. The Tribunal computed the total compensation (including conventional heads) at Rs 9 lakhs. However, the tribunal held that the appellant was guilty of contributory negligence to the extent of forty per cent and hence granted sixty per cent of Rs 9 lakhs amounting to Rs 5.40 lakhs. In appeal, the High Court has enhanced the award of medical expenses by a further sum of Rs 1,77,775 on the basis of the bills produced by the appellant. On the aspect of contributory negligence, the High Court affirmed the finding of the tribunal. The award of compensation of Rs 9 lakhs has been enhanced to Rs 10,77,775 and, after making a deduction of forty per cent towards contributory negligence, the appellant has been held entitled to an amount of Rs 6,46,665. All the respondents have been held to be jointly and severally liable. 5. The respondents have been served in these proceedings. None has appeared.6. On behalf of the appellant, it has been submitted that both the tribunal and the High Court were manifestly in error in holding the appellant to be guilty of contributory negligence to the extent of forty per cent. It has been submitted that the tribunal as well as the High Court proceeded on the erroneous premise that since the appellant had failed to produce the driving licence, an adverse inference on the aspect of contributory negligence would have to be drawn. Moreover, it was submitted that the entire discussion on contributory negligence is conjectural and is not worthy of acceptance. In this regard, reliance was placed on the judgment of this Court in Sudhir Kumar Rana v Surinder Singh (2008) 12 SCC 436 ). 7. Both the tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of his cross-examination that the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant.8. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. This aspect has been considered in a judgment of this Court in Sudhir Kumar (supra) where it was held as follows : “9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.” 9. In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. | 1[ds]7. Both the tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of histhat the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant.8. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was noWe are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance.In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis. | 1 | 1,088 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
Dr. D.Y. Chandrachud, J. 1. Leave granted.2. The present appeal arises from a judgment of the High Court of Karnataka dated 13 April 2016. 3. On 18 June 2012, the appellant who was riding a motorcycle bearing registration No.KA-04/EL-4782 met with an accident with a mini lorry belonging to the Second and Third respondents. The lorry was insured with the First respondent. As a result of the accident, the appellant suffered grievous injuries. The medical certificate issued by the Bangalore Baptist Hospital (Exhibits P-13 and P-14) indicate spinal injuries.4. The appellant was twenty six years of age on the date of the accident and was working as a patroller in a private company. His income was Rs.11,000/- per month. The appellant filed a claim for compensation before the Motor Accident Claims Tribunal, seeking compensation in the amount of Rupees 40 lakhs. The appellant examined a doctor (PW 5) who deposed that the extent of permanent physical disability of the spine was thirty four per cent. The tribunal did not accept that the disability was thirty four per cent, noting that the doctor in his cross examination admitted that he had not personally treated the appellant and that the medical evidence did not provide a cogent determination of the extent of disability. The Tribunal assessed the disability at ten per cent. The income of the appellant was taken at Rs 11,000 per month and a multiplier of seventeen was applied. The loss of income due to disability was computed at Rs 2,25,000. Medical expenses were computed at Rs 3,85,000. The Tribunal computed the total compensation (including conventional heads) at Rs 9 lakhs. However, the tribunal held that the appellant was guilty of contributory negligence to the extent of forty per cent and hence granted sixty per cent of Rs 9 lakhs amounting to Rs 5.40 lakhs. In appeal, the High Court has enhanced the award of medical expenses by a further sum of Rs 1,77,775 on the basis of the bills produced by the appellant. On the aspect of contributory negligence, the High Court affirmed the finding of the tribunal. The award of compensation of Rs 9 lakhs has been enhanced to Rs 10,77,775 and, after making a deduction of forty per cent towards contributory negligence, the appellant has been held entitled to an amount of Rs 6,46,665. All the respondents have been held to be jointly and severally liable. 5. The respondents have been served in these proceedings. None has appeared.6. On behalf of the appellant, it has been submitted that both the tribunal and the High Court were manifestly in error in holding the appellant to be guilty of contributory negligence to the extent of forty per cent. It has been submitted that the tribunal as well as the High Court proceeded on the erroneous premise that since the appellant had failed to produce the driving licence, an adverse inference on the aspect of contributory negligence would have to be drawn. Moreover, it was submitted that the entire discussion on contributory negligence is conjectural and is not worthy of acceptance. In this regard, reliance was placed on the judgment of this Court in Sudhir Kumar Rana v Surinder Singh (2008) 12 SCC 436 ). 7. Both the tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of his cross-examination that the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant.8. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. We are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. This aspect has been considered in a judgment of this Court in Sudhir Kumar (supra) where it was held as follows : “9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.” 9. In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis.
### Response:
1
|
1,004 | Assam Match Company Limited Vs. Bijoy Lal Sen & Others | service, it is needless to state that the appellant is bound to follow the procedure laid down in Section 9-A. Item 5 of the fourth Schedule deals with "leave with wages and holiday". Therefore, prima facie, if a holiday has been fixed the management may not have power to totally cancel the same or deprive the workmen of such a holiday without conformity to provisions of Section 9-A. In the notice published at the beginning of the year 1966 regarding the holidays for the said year, the appellant has no doubt stated that Friday, the 11th November, will be a holiday for Kali Puja. But there is a statement in this notice to the effect that "this list is subject to modification, if thought necessary" Under paragraph 6, of the companys certified Standing Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the Payment of Wages Act respectively."There is no controversy that the list of holidays published at the beginning of the year 1966 as well as the circular dated November 5, 1966 are in conformity with this provision. Similarly the notice dated November 10, 1966, by the management regarding the 12th November being a holiday for Diwali acceding to the request of the workmen, must also be considered to satisfy the provisions of this clause in the Standing Order.9. In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966.10. In the Workmen of Ms. Sur Iron and Steel Co. Pvt. Ltd. v. M/s. Sur Iron and Steel Co. Pvt. Ltd. (1971) 1 Lab LJ 570 (SC), the workmen contended that the change in weekly off-day, from Sunday to Saturday, without complying with the provisions of Section 9-A, was illegal. This Court rejected that contention on two grounds that (1) there was no specific entry in the Fourth Schedule covering a condition of service relating to a weekly off-day and (2) even assuming that the grant of a weekly off-day falls under item 4 of the Fourth Schedule, the State Government had issued a notification on April 10, 1962 under Section 9-B laying down that the notice under Section 9-A was required to be served in respect of the matters covered by items 4, 6 and l l of the said Schedule for a period of three months. Therefore, it will be seen that this decision did not express any opinion on the question whether the alteration of the weekly off-day from Sunday to Saturday, amounts to a change in the conditions of service coming within Section 9-A. In fact the indications in the judgment are that such an alteration will not attract section 9-A.11. The decision in M/s. Tata Iron and Steel Co. Ltd. v. The Workmen, (1972) 2 Lab LJ 259=(AIR 1972 SC 1917 ) does not advance the case of the respondents. From the facts of that case it is seen that Sunday had been a holiday in the factory concerned for a long number. of years. The company, for the reasons stated in the judgment, cancelled this holiday and in turn gave a holiday in the mid-week without following the procedure under S. 9-A It was held in the particular circumstances of that case that the alteration amounts to a change in the conditions of service. It must be noted that the workmen have been having for a long number of years Sunday as a holiday and that may have become a condition of their service. A holiday on a Sunday can only be on that day and no other day of the week can be Sunday. On this basis the decision has been rendered holding that cancelling the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service.12. The position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in (1972) 2 Lab LJ 259 = (AIR 1972 SC 1917 ) that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under Section 33 (2) (a).The evidence on the side of the respondents shows that the workmen actually celebrated Diwali on the 12th November, which was declared to be a holiday. | 1[ds]9. In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966.The position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in (1972) 2 Lab LJ 259 = (AIR 1972 SC 1917 ) that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under Section 33 (2) (a).The evidence on the side of the respondents shows that the workmen actually celebrated Diwali on the 12th November, which was declared to be a holiday. | 1 | 2,632 | ### 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:
service, it is needless to state that the appellant is bound to follow the procedure laid down in Section 9-A. Item 5 of the fourth Schedule deals with "leave with wages and holiday". Therefore, prima facie, if a holiday has been fixed the management may not have power to totally cancel the same or deprive the workmen of such a holiday without conformity to provisions of Section 9-A. In the notice published at the beginning of the year 1966 regarding the holidays for the said year, the appellant has no doubt stated that Friday, the 11th November, will be a holiday for Kali Puja. But there is a statement in this notice to the effect that "this list is subject to modification, if thought necessary" Under paragraph 6, of the companys certified Standing Orders, it is provided that "Notice specifying (a) the days observed by the Factory as holidays and (b) pay days, shall be posted as required by the Factory Act and the Payment of Wages Act respectively."There is no controversy that the list of holidays published at the beginning of the year 1966 as well as the circular dated November 5, 1966 are in conformity with this provision. Similarly the notice dated November 10, 1966, by the management regarding the 12th November being a holiday for Diwali acceding to the request of the workmen, must also be considered to satisfy the provisions of this clause in the Standing Order.9. In our opinion, the alteration of the date regarding the holiday for Diwali from 11th to the next day, cannot be considered to be an alteration in the conditions of service. The workmen may be entitled to have a holiday for Diwali. But on what particular day Diwali falls or it is being, observed and a holiday is to be declared, is a matter to be decided by the management in consultation with the workmen. If a large body of the workmen require a change in the date of the holiday on the ground that the festival is not being observed on the day originally fixed and the management changes the date, it cannot be stated that there is an alteration in the conditions of service. The workmen are not being deprived of a holiday at all for Diwali. In fact they have got it on the 12th November, 1966.10. In the Workmen of Ms. Sur Iron and Steel Co. Pvt. Ltd. v. M/s. Sur Iron and Steel Co. Pvt. Ltd. (1971) 1 Lab LJ 570 (SC), the workmen contended that the change in weekly off-day, from Sunday to Saturday, without complying with the provisions of Section 9-A, was illegal. This Court rejected that contention on two grounds that (1) there was no specific entry in the Fourth Schedule covering a condition of service relating to a weekly off-day and (2) even assuming that the grant of a weekly off-day falls under item 4 of the Fourth Schedule, the State Government had issued a notification on April 10, 1962 under Section 9-B laying down that the notice under Section 9-A was required to be served in respect of the matters covered by items 4, 6 and l l of the said Schedule for a period of three months. Therefore, it will be seen that this decision did not express any opinion on the question whether the alteration of the weekly off-day from Sunday to Saturday, amounts to a change in the conditions of service coming within Section 9-A. In fact the indications in the judgment are that such an alteration will not attract section 9-A.11. The decision in M/s. Tata Iron and Steel Co. Ltd. v. The Workmen, (1972) 2 Lab LJ 259=(AIR 1972 SC 1917 ) does not advance the case of the respondents. From the facts of that case it is seen that Sunday had been a holiday in the factory concerned for a long number. of years. The company, for the reasons stated in the judgment, cancelled this holiday and in turn gave a holiday in the mid-week without following the procedure under S. 9-A It was held in the particular circumstances of that case that the alteration amounts to a change in the conditions of service. It must be noted that the workmen have been having for a long number of years Sunday as a holiday and that may have become a condition of their service. A holiday on a Sunday can only be on that day and no other day of the week can be Sunday. On this basis the decision has been rendered holding that cancelling the holiday enjoyed on Sunday amounts, in the circumstances, to a change in the conditions of service.12. The position in the case before us is entirely different. The fact is that the workmen have not been deprived of a holiday for Diwali. Even assuming that the workmen have got a right to get a holiday for Diwali and that it has become a condition of service, in this case the workmen did have a holiday for Diwali. The holiday for the said festival is to be given on the date when the majority of the workmen claim that they are celebrating Diwali. It has been emphasised in (1972) 2 Lab LJ 259 = (AIR 1972 SC 1917 ) that the real object and purpose of Section 9-A is to afford an opportunity to the workmen to consider the effect of a proposed change and, if necessary, to represent their view on the proposal. Even assuming that the alteration of the date of the holiday for Diwali will amount to a condition of service (sic), there is no question, in this case, of a contravention of Section 9-A, when the majority of the workmen themselves requested the employer to make the alteration. The employer was within its rights under Section 33 (2) (a).The evidence on the side of the respondents shows that the workmen actually celebrated Diwali on the 12th November, which was declared to be a holiday.
### Response:
1
|
1,005 | Ashoka Marketing Ltd. And Anr. Etc. Etc Vs. Punjab National Bank And Ors. Etc. Etc | the Public Premises Act would be exempted from the provisions of the Rent Con- trol Act. The actions of the companies and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard. 64. For the reasons aforesaid, we are unable to accept the contention of the learned counsel for the petitioners that the provisions contained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. 65. In Civil Appeal No. 3723 of 1966, Shri Yogeshwer Prasad sought to raise contentions relating to the particular facts of that case, namely, that the termination of the lease of the appellant is vitiated by mala fides and that the said appellant could not be held to be a person in unauthorised occupation of the premises and further that the proceedings have not been taken in accordance with the provisions of the Public Premises Act. We find that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same could not be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other contentions we are of the view that the appellant cannot be permitted to agitate matters which could be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned counsel for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their conduct, are not entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned counsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceed- ings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned counsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings could only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceed- ings for eviction under the Public Premises Act are not maintainable and the proceedings can only be taken under the Rent Control Act. The learned counsel for the appellants have submitted that special leave to appeal was granted by this Court after notice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is not permissible for the respondents to agitate this question now. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were not competent. The said orders also show that the Additional Rent Controller dismissed the proceed- ings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as not maintainable on the ground that the Rent Control Act was not applicable to the premises and the premises are governed by the provisions of the Public Premises Act. This finding was recorded by the Addi- tional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the prem- ises were not governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dis- missed the appellants are now raising the plea that the proceedings under the Public Premises Act are not maintain- able and that the only remedy available is under the Rent Control Act. This conduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do not propose to dismiss the appeals on this preliminary ground. | 0[ds]15. Shri. Yogeshwar Prasad has pointed out that, in view of Section 3(4) of the Banks Nationalisation Act, the nationalised bank is a body corporate and not a corporation and that there is a distinction between a body corporate and a corporation inasmuch as a body corporate includes bodies, such as companies, cooperative societies, etc. which are not corporations. Reliance has been placed in this regard on the decision of Delhi High Court in Oriental Bank of Commerce v. Delhi Development Authority ( 1985 (55) CC 81 (Del HC). We find no substance in thisReference has already been made to the provisions of the Banks Nationalisation Act which shows that the nationalised bank has been constituted as a district juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors constituted by the Central Government and the Central Government has the power to remove the person from the membership of the Board of Directors [Section 7(2) and 7(3)] and in the discharge of its functions the bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank give (Section 8). This indicates that the nationalised bank has all the attributes of the new pattern of publicShri. Yogeshwar Prasad has urged that in order to constitute a corporation there must exist persons, i.e. members, composing it, and that this element is missing in the nationalised banks inasmuch as the Banks Nationalisation Act does not provide for any membership to these banks. This contention is without any merit because, as noticed earlier, in the new pattern of public corporations which have developed, there are no shares and no shareholders, either in public or private, and its shareholder, in the symbolic sense, is the nation represented through government and Parliament.While construing the expression corporation in Section 2(e) (2)(ii) of the Public Premises Act it cannot be ignored that the object of the legislation in enlarging the definition of public premises in Section 2(e) is to make available the machinery of the Act for evicting unauthorised occupants not only from the premises belonging to the Central Government but also from premises belonging to companies, corporations and statutory bodies in which the Central Government has a substantial interest. Under Section 2(e) (2)(i) premises belonging to a company incorporated under the Companies Act, 1956, in which not less than fifty-one per cent of the paid-up capital held by the Central Government, are to be treated as public premises. It could not be the intention of Parliament that premises belonging to public corporations whose entire paid-up capital vests in the Central Government and who are the instrumentalities of State would be excluded from the ambit of the definition of public premises. In our opinion, therefore, the expression corporation in Section 2(e) (2)(ii) of the Public Premises Act would include public corporations of the new pattern constituted under the Central Acts wherein the entire paid-up capital vests in the Central Government23. Shri Yogeshwar Prasad has placed reliance on the decision of the Court in S. S. Dhanoa case ( 1981 (3) SCC 431 : 1981 SCC(Cr) 733 : 1981 (3) SCR 864 ) wherein this Court has considered the question whether the Cooperative Store Ltd., a cooperative society registered under the Bombay Cooperative Societies Act, 1925 is a corporation established by or under a Central, Provincial or State Act, for the purposes of clause Twelfth of Section 21 of the Indian Penal Code. This Court has observed that a corporation established by or under an Act of legislature could only mean a body corporate which owes its existence and not merely its corporate status to the Act and a distinction has been drawn between a corporation established by or under an Act and a body incorporated under an Act. It has been held that the Cooperative Store Ltd., which is a society registered under the Bombay Cooperative Societies Act, 1925, is not a statutory body because it is not created by a statute and that it is a body created by an Act of a group of individuals in accordance with the provisions of a statute. This decision does not lend any assistance to the contention of Shri Yogeshwarhave already pointed out that in order to constitute a corporation it is not necessary that there should be shareholders or members and that in the new pattern of public corporation that has developed there are no shareholders or members25. Keeping in view the provisions of the Banks Nationalisation Act we are of the opinion that the nationalised bank is a corporation established by a Central Act and it is owned and controlled by the Central Government. The premises belonging to a nationalised bank are public premises under Section 2(e) (2)(ii) of the Public Premises Act. We are, therefore, unable to accept the contention of Shri Yogeshwar Prasad that premises belonging to a nationalised bank do not fall within the ambit of the definition of public premises contained in Section 2(e) of the Public Premises Act26. Shri Yogeshwar Prasad has also urged that public premises as defined in Section 2(e) of the Public Premises Act, must be confined to premises let out for residential purposes only and should not cover premises let out for commercial purposes and that if premises let out for commercial purposes are included, Section 2(e) would be rendered unconstitutional as being violative of the provisions of Articles 14, 19(1)(g) and 21 read with Articles 39 and 41 of the Constitution. The submission of Shri Yogeshwar Prasad is that a construction which would sustain the constitutionality of the provisions of Section 2(e) should be preferred over a construction which would render them unconstitutional. We find no force in thisWe are also unable to hold that the inclusion of premises used for commercial purposes within the ambit of the definition of public premises, would render the Public Premises Act as violative of the right to equality guaranteed under Article 14 of the Constitution or right to freedom to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution or the right to liberty guaranteed under Article 21 of the Constitution. It is difficult to appreciate how a person in unauthorised occupation of public premises used for commercial purposes, can invoke the Directive Principles under Articles 39 and 41 of the Constitution. As indicated in the statement of Objects and Reasons the Public Premises Act has been enacted to provide for a speedy machinery for the eviction of unauthorised occupants of public premises. It serves a public purpose, viz. making available, for use, public premises after eviction of persons in unauthorised occupation. The need to provide speedy machinery for eviction of persons in unauthorised occupation cannot be confined to premises used of residential purposes. There is no reason to assume that such a need will not be there in respect of premises used for commercial purposes. No distinction can, therefore, be made between premises used for residential purposes and premises used for commercial purposes in the matter of eviction of unauthorised occupants of public premises and the considerations which necessitate providing a speedy machinery for eviction of persons in unauthorised occupation of public premises apply equally to both the types of public premises. We are, therefore, unable to accept the contention of Shri Yogeshwar Prasad that the definition of public premises contained in Section 2(e) of the Public Premises Act should be so construed as to exclude premises used for commercial purposes from itsdefinition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law31. Brigadier K. K. Verma v. Union of India 1954 AIR(Bom) 358 : 56 BomLR 308 was decided under the provisions of the Government Premises (Eviction) Act, 1950, which did not contain the definition of the expression unauthorised occupation. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may not have the right to continue in possession, after the termination of the tenancy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indication of a clear intention that by the expression unauthorised occupation it meant not only person who had no title at all but also persons who are titled at the inception and whose title came to an end, it would not be proper to give an interpretation to the expression unauthorised occupation which would run counter to the principles of law which have been accepted in this country. After this decision the legislature intervened and introduced the definition of the expression unauthorised occupation in the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, which definition has been reproduced in Section 2(e) of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression unauthorised occupation includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K. K. Vermahave carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A. P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there was no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of thatis true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease.Rule 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, requires the Estate Officer to record the summary of evidence tendered before him. Moreover Section 9 confers a right of appeal against an order of the Estate Officer and the said appeal has to be heard either by the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years standing as the District Judge may designate in that behalf. It shows that the final order that is passed is by a judicial officer in the rank of a Districta comparison of the provisions of the Public Premises Act and the Rent Control Act it will be foundBy virtue of Section 1(2) of the Public Premises Act, the said Act is applicable throughout the territory of India, whereas, view of Section 1(2) of the Rent Control Act, the said Act is confined in its application to areas included within the limits of the New Delhi Municipal Com- mittee and the Delhi Cantonment Board and to such urban areas within the limits of the Municipal Corporation of Delhi as are specified in the First Schedule and any other urban area included within the limits of the Municipal Corporation of Delhi to which provisions of the said Act are extended by the Central Government by notification in the OfficialUnder Clauses (c) of Section 2 of the Public Premises Act, the expression premises has a wider connotation and it includes open land as well as building or part of a building. Under the Rent Control Act the expression prem- ises as defined in clause (i) of Section 2 has a narrower connotation to mean any building or a part of building and it does not cover open land.In view of the definition of the expression public premises contained in clause (e) of Section 2 of the Public Premises Act, the said Act, in addition to the premises belonging to or taken on lease or requisitioned by, or on behalf of, the Central Government, is applicable to premises belonging to or taken on lease by or on behalf of the compa- nies and statutory bodies mentioned in clauses (2) and (3) of Section 2(e). The Rent Control Act, on the other hand, is applicable to all premises except premises belonging to the Government or to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned, by the Government (Section 3). In view of the amendment introduced in Section 3 by the Delhi RentAct is not applicable to premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees and premises constructed on or after the commencement of the said Amendment Act, for a period of ten years from the date of completion of such construction.The provisions of the Public Premises Act are applica- ble to Public Premises in occupation of a person having no authority for such occupation, including a person who was allowed to occupy the public premises under a grant or any other mode of transfer and who has continued in occupation after the authority under which he was allowed to occupy that premises has expired or has been terminated. The provi- sions of the Delhi Rent Control Act are applicable only to persons who have obtained possession of the premises as tenants and whose tenancy is continuing as well as persons who after the expiration or termination of the tenancy have continued in occupation of the premises.As a result of this comparison it can be said that certain premises, viz. building or parts of buildings lying within the limits of the New Delhi Municipal Committee and the Delhi Cantonment Board and in urban areas within the limits of the Municipal Corporation of Delhi, which belong to or are taken on lease by any of the companies or statuto- ry bodies mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act and which are in occupation of a person who obtained possession of the said premises as a tenant and whose tenancy has expired or has been terminated but who is continuing in occupation of the same, would ex- facie fall within the purview of both the enactments. The question which, therefore, arises is whether the occupant of such premises can seek the protection available under the provisions of Rent Control Act and he can be evicted from the premises only in accordance with the said provisions and proceedings for eviction of such a person cannot be initiat- ed under the provisions of the Public Premises Act.The Public Premises Act deals with Government property as well as property belonging to other legal entities men- tioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act. In so far as it relates to eviction of unauthorised occupants from premises belonging to or taken on lease or requisitioned by or on behalf of the Central Government the Public Premises Act would fall within entry 32 of List I being law with respect to a property of the Union. The property belonging to the various legal entities mentioned in clauses (2) and (3) of Section 2(e) of the Public Premises Act cannot be regarded as property of the Union and the Public Premises Act cannot be held to have been enacted under entry 32 of List I in respect of the said properties. In Accountant and Secretarial Services Pvt. Ltd. and Another v. Union of India and Others, (supra) this Court has held that the Public Premises Act, in relation to properties other than the properties belonging to the Central Government has been enacted under the concurrentCourt has, however, affirmed the decision of the Division Bench of Madhya Pradesh High Court in L.S. Nair v. Hindustan Steel Ltd., AIR 1980 MP 106 wherein it has been held that insofar as the Public Premises Act deals with a lessee or licence of premises belonging to a Government company, the subject matter of the Act would be covered by entries 6, 7 and 46 of List III. After quoting the observa- tions of the Madhya Pradesh High Court in this regard, this Court hascounsel for the petitioner has not been able to show that there is any infirmity in the reasoning of the High Court.This shows that the decision of this Court is rounded on the view mentioned above. Since the Act was held to be covered by entries 6, 7 and 46 of List III, it was not necessary to invoke the residuary power of legislation under entry 97 of List I. The observations made by this Court that the source of authority in the matter of speedy eviction of unautho- rised occupants from properties belonging to a Government company wherein the Central Government has more than fifty one per cent of the paid-up share capital can, in any case, be traced to entry 97 read with entry 95 of List I are obiter in nature only. There is, therefore, no inconsistency between the decisions of this Court in Accoun-tant and Secretarial Services Pvt. Ltd. (supra) and Smt. Saiyada Mossarrat case (supra) inasmuch as in both the decisions it is held that the Public Premises Act insofar as it deals with a lessee or licencee of premises other than premises belonging to the Central Government has been enact- ed in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. We are in agree- ment with this view.This means that both the statutes, viz. the PubLic Premises Act and the Rent Control Act, have been enacted by the same legislature, Parliament, in exercise of the legis- lative powers in respect of the matters enumerated in the Concurrent List. We are, therefore, unable to accept the contention of the learned Additional Solicitor General that the Public Premises Act, having been enacted by Parliament in exercise of legislative powers in respect of matters enumerated in the Union List would ipso-facto override the provisions of the Rent Control Act enacted in exercise of the legislative powers in respect of matters enumerated in the Concurrent List. In our opinion the question as to whether the provisions of the Public Premises Act override the provisions of the Rent Control Act will have to be considered in the light of the principles of statutory interpretion applicable to laws made by the same legisla- ture.The Public Premises Act is a later enactment, having been enacted on 23rd August, 1971, whereas the Rent Control Act was enacted on 31st December, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premiseseach side claims the enactment relied upon by it is a special statute and the other enact- ment is general and also invokes the non obstante clause contained in the enactment relied upon.The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Trnasfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the evic- tion of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union Territory of Delhi. The Public premises Act makes provision for a speedy machinery to secure eviction of unau- thorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent Court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil procedure, the Public Prem- ises Act confers the power to pass an order or eviction of an unauthorised occupant in a public premises on a designat- ed officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Con- trol Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act. We arrive at the same conclusion by applying the princi- ple which is followed for resolving a conflict between the provisions of two special enactments made by the same legis- lature.This shows that the Public Premises Act has been enacted to deal with the mischief of rampant unauthorised occupation of public premises by providing a speedy machinery for the eviction of persons in unauthorised occupation. In order to secure this object the said Act prescribes the time period for the various steps which are enquired to be taken for securing eviction of the persons in unauthorised occupation.. The object underlying the enactment is to safeguard public interest by making available for public use premises belonging to Central Government, Companies in which the Central Government has substantial interest, Corpora- tions owned or controlled by the Central Government and certain autonomous bodies and to prevent misuse of such premises.It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature, i.e. property belonging to the Central Government, or Compa- nies in which the Central Government has substantial inter- est or Corporations owned or controlled by the Central Government and certain corporations, institutions, autono- mous bodies and local authorities. The effect of giving overriding effect to the provisions of the Pubic Premises Act over the Rent Control Act, would be that buildings belonging to Companies Corporations and Autonomous bodies referred to in Section 2(e) of the Public Permises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Govern- ment. The reason underlying the exclusion of property be- longing to the Government from the ambit of the Rent Control Act, is that Government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provi- sions contained in the Rent Control Act.As regards the non obstante clauses contained in Sec- tions 14 and 22 and the provisions contained in Sections 50 and 54 of the Rent Control Act, it may be stated that Par- liament was aware of these provisions when it enacted the Public Premises Act contained a specific provision in Sec- tion 15 barring jurisdiction of all courts (which would include the Rent Controller under the Rent Control Act). This indicates that Parliament intended that the provisions of the Public Premises Act would prevail over the provisions of the Rent Control Act inspite of the above mentioned provisions contained in the Rent Control Act. It has been urged by the learned counsel for the peti- tioner that there is no conflict between the provisions of the Rent Control Act and the Public Premises Act and that both the provisions can be given effect to without one overriding the other. In this regard, it has been pointed out that since no provisions has been made in the Public Premises Act for the termination of the lease, the provi- sions of the Rent Control Act can be held applicable upto the stage of termination of the lease, and thereafter, proceedings can be initiated for eviction under the provi- sions of the Public Premises Act. In support of this submis- sion, reliance has been placed on Dhanpal Chettiars case (supra), wherein it has been held that in view of the spe- cial provisions contained in the State Rent Control Acts, it is no longer necessary to issue a notice under Section 106 of the Transfer of Property Act to terminate the tenancy because inspite of the said notice the tenant is entitled to continue in occupation by virtue of the provisions of the said Acts. In the said case, it has been further laid down that the relationship between the landlord and tenant con- tinues till the passing of the order of eviction in accord- ance with the provisions of the Rent act, and therefore, for the eviction of the tenant in accordance with the law, an order of the competent Court under the Rent Control Act is necessary. This would mean that in order to evict a person who is continuing in occupation after the expiration or termination of his contractual tenancy in accordance with law, two proceedings will have to be initiated. First, there will be proceedings under Rent Control Act before the Rent Controller followed by appeal before the Rent Control Tribu- nal and revision before the High Court. After these proceed- ings have ended they would be followed by proceedings under the Public Premises Act, before the Estate Officer and the Appellate Authority. In other words, persons in occupation of public premises would receive greater protection than tenants in premises owned by private persons. It could not be the intention of Parliament to confer this dual benefit on persons in occupation of public22 of the Rent ControlThe said special provision shows that, it enables recov- ery of possession or premises of which the landlord is a company or other body corporate or any local authority or any public institution in certain circumstances viz., if the premises are required for the use of the employees or such landlord. In the case of public institutions possession can also be obtained under this provision if the premises are required for the furtherance of its activities. In other words, recovery of possession is permissible under this provision only in certain circumstances and for certain purposes. Inspite of this provision Parliament has consid- ered it necessary tO extend the Public Premises Act to premises belonging to companies, corporations and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) by widening the definition of the expression "public premises" in Section 2(e) of the Public Premises Act. The scope and ambit of the aforesaid power conferred under the Public Premises Act cannot be restricted by reference to the provi- sion contained in Section22 of the Rent ControlAct. It has been urged by the learned counsel for the peti- tioners that many of the corporations referred to in Section 2(e)(2)(ii) of the Public Premises Act, like the nationa- lised banks and the Life Insurance Corporation, are trading corporations and under the provisions of the enactments whereby they are constituted these corporations are required to carry on their business with a view to earn profit, and that there is nothing to preclude these corporations to buy property in possession of tenants at a low price and after buying such property evict the tenants after terminating the tenancy and thereafter sell the said property at a much higher value because the value of property in possession of tenants is much less as compared to vacant property. We are unable to cut down the scope of the provisions of the Public Premises Act on the basis of such an apprehension because as pointed out by this Court in M/s Dwarkadas Marfatia and Sons v. Board of Trustees of the Port ofIt has also been urged that in Section22 of the Rent ControlAct, special provision has been made for recovery of possession of premises belonging to a company or other body corporate or any local authority or any public institution and that premises belonging to companies, corporations and autonomous bodies mentioned in clauses (2) and (3) of Sec- tion 2(e) of the Public Premises would be covered by the said provision and that in view of this special provision it is not necessary to have a further provision in the Public Premises Act for the recovery of possession belonging to those bodies, and therefore, the provisions of the Public Premises Act should be confined in their application to premises other than premises covered by the Rent Controlconsequence of giving overriding effect to the provisions of the Public Premises Act is that premises belonging to companies and statutory bodies referred to in Clauses (2) and (3) of Section 2(e) of the Public Premises Act would be exempted from the provisions of the Rent Con- trol Act. The actions of the companies and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard.For the reasons aforesaid, we are unable to accept the contention of the learned counsel for the petitioners that the provisions contained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Controlfind that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same could not be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other contentions we are of the view that the appellant cannot be permitted to agitate matters which could be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned counsel for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their conduct, are not entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned counsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceed- ings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned counsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings could only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceed- ings for eviction under the Public Premises Act are not maintainable and the proceedings can only be taken under the Rent Control Act. The learned counsel for the appellants have submitted that special leave to appeal was granted by this Court after notice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is not permissible for the respondents to agitate this question now. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were not competent. The said orders also show that the Additional Rent Controller dismissed the proceed- ings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as not maintainable on the ground that the Rent Control Act was not applicable to the premises and the premises are governed by the provisions of the Public Premises Act. This finding was recorded by the Addi- tional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the prem- ises were not governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dis- missed the appellants are now raising the plea that the proceedings under the Public Premises Act are not maintain- able and that the only remedy available is under the Rent Control Act. This conduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do not propose to dismiss the appeals on this preliminary ground. | 0 | 18,506 | ### 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:
the Public Premises Act would be exempted from the provisions of the Rent Con- trol Act. The actions of the companies and statutory bodies mentioned in Clauses (2) and (3) of Section 2(e) of the Public Premises Act while dealing with their properties under the Pubic Premises Act will, therefore, have to be judged by the same standard. 64. For the reasons aforesaid, we are unable to accept the contention of the learned counsel for the petitioners that the provisions contained in the Public Premises Act cannot be applied to premises which fall within the ambit of the Rent Control Act. In our opinion, the provisions of the Public Premises Act, to the extent they cover premises falling within the ambit of the Rent Control Act, override the provisions of the Rent Control Act and a person in unauthorised occupation of public premises under Section 2(e) of the Act cannot invoke the protection of the Rent Control Act. 65. In Civil Appeal No. 3723 of 1966, Shri Yogeshwer Prasad sought to raise contentions relating to the particular facts of that case, namely, that the termination of the lease of the appellant is vitiated by mala fides and that the said appellant could not be held to be a person in unauthorised occupation of the premises and further that the proceedings have not been taken in accordance with the provisions of the Public Premises Act. We find that in this case the appellant filed a writ petition in the High Court directly against the order passed by the Estate Officer without filing an appeal against the said order before the Appellate Authority. The High Court has held that the question of mala fides is a disputed question of fact and the same could not be gone into in proceedings under Article 226 of the Constitution. We are in agreement of the said view of the High Court. As regards the other contentions we are of the view that the appellant cannot be permitted to agitate matters which could be agitated by him in appeal before the Appellate Authority. In Civil Appeals Nos. 2368 and 2369 of 1986 the learned counsel for the respondents have raised a preliminary objection with regard to the maintainability of these appeals on the ground that the appellants, on account of their conduct, are not entitled to invoke the jurisdiction of this Court under Article 136 of the Constitution. The submission of the learned counsel is that before initiating proceedings under the provisions of the Public Premises Act the respondent Bank, viz. the Punjab National Bank, had initiated proceed- ings under the Rent Control Act for the eviction of the appellants had in those proceedings the appellants had filed an objection with regard to the maintainability of the eviction proceedings under the Rent Control Act before the Additional Rent Controller and thereupon the Respondent Bank initiated proceedings for eviction of the appellants under the Public Premises Act and thereafter the proceedings initiated by the respondent Bank under the Rent Control Act were dismissed by the Additional Rent Controller by orders dated the 6th August, 1989. The learned counsel of the respondents have urged that the appellants, having raised the objection against the maintainability of the proceedings for eviction under the Rent Control Act on the ground that proceedings could only be maintained under the provisions of the Public Premises Act and having got them dismissed, cannot turn round and raise an objection that the proceed- ings for eviction under the Public Premises Act are not maintainable and the proceedings can only be taken under the Rent Control Act. The learned counsel for the appellants have submitted that special leave to appeal was granted by this Court after notice to the respondents and at that stage the respondents had raised this objection but this Court granted special leave and it is not permissible for the respondents to agitate this question now. The orders dated the 6th August, 1989 which were passed by the Additional Rent Controller in the proceedings for eviction initiated by the respondent Bank under Rent Control Act against the appellants in these appeals have been placed on record by the respondents and from the said orders it appears that in the proceedings initiated under the Rent Control Act the appellants had raised a plea that the premises in question had been declared public premises under the Public Premises Act and in view of that the proceedings under the Rent Control Act were not competent. The said orders also show that the Additional Rent Controller dismissed the proceed- ings for eviction under the Rent Control Act on the view that the Public Premises Act is applicable to premises in question and his jurisdiction was excluded. This would show that the proceedings which were initiated by the Respondent Bank for the eviction of the appellants under the Rent Control Act were dismissed as not maintainable on the ground that the Rent Control Act was not applicable to the premises and the premises are governed by the provisions of the Public Premises Act. This finding was recorded by the Addi- tional Rent Controller in view of the objection raised by the appellants with regard to the maintainability of those proceedings. In other words, the appellants succeeded in those proceedings on the basis of their plea that the prem- ises were not governed by the Rent Control Act and were governed by the provisions of the Public Premises Act. Having got the proceedings under the Rent Control Act dis- missed the appellants are now raising the plea that the proceedings under the Public Premises Act are not maintain- able and that the only remedy available is under the Rent Control Act. This conduct of the appellants would have disentitled them from invoking the jurisdiction of this Court under Article 136 of the Constitution. Since we are of the view that the appellants cannot succeed on the merits, we do not propose to dismiss the appeals on this preliminary ground.
### Response:
0
|
1,006 | Gobardhan Das Vs. Lachhmi Ram & Others | authority and their award cannot be allowed to stand. It cannot be doubted that the dispute between the parties related to the question whether on taking accounts between the parties the respondents 1 and 2 were liable to pay any amount to the appellant. It must be borne in mind that the appellant was claiming against the respondents 1 and 2 a sum of Rs. 35,000 on the basis of bahi khata accounts. The arbitrators were appointed to adjudicate this dispute and to decide whether the respondents 1 and 2 were liable to the appellant for any amount and if so what?The agreement recites that the dispute is of long standing and the parties being anxious to avoid loss by recourse to litigation consider it desirable to have the dispute decided by the arbitrators. The original agreement which is in Hindi uses the words "Jo kuchh tai tasfiya faisala karenge Fricain ko qabul o manzur hoga. It goes on to say"that the arbitrators should sit together, take down the statements of the parties, hear and consider the arguments brought forward by the parties, inspect the documents of all descriptions and take other evidence and evidence of witnesses and whatever award they shall give, is and shall be, acceptable to the parties and whatever award the arbitrators may give unanimously or by majority of votes shall be treated as true and correct and valid in every court and shall be binding upon all of us executants parties".Reuben J., who wrote the judgment with which Sinha J. agreed, construed the words "Tai tasfiya and faisaals" as meaning that the intention of parties was to give the arbitrators power to make concessions where such concessions appeared to them to be fair.7. Mr. Isaacs, the learned counsel for the appellant, has not questioned the motives or bona fides of the arbitrators and has confined his arguments to the question that the arbitrators were appointed to settle and decide the dispute about the liability of respondents 1 and 2 to the appellant in a proper and judicial manner but instead of doing so they granted partial exemption from liability to respondent 1 and total exemption to respondent 2 on extraneous considerations with the result that they exceeded the scope of their authority and their award was liable to be set aside. As already stated the appellant was to contribute the entire capital in the business while respondents 1 and 2 were to contribute only their labour and skill. The former was to get eight annas share in the profits while the latter were given four annas each. The award shows that both the respondents were found liable upon the bahi khata account but the exact amount was not determined and though Rs. 3,500 out of a larger sum found due were awarded against respondent 1, the liability of respondent 2 was remitted in toto. It is obvious that the arbitrators in not finding a specific sum to be due from respondents 1 and 2 to the appellant failed to decide the dispute as contemplate by the agreement to refer to arbitration. On the other hand they went out of their way to declare that whatever amount in addition to Rs. 3,500 was found due from respondent 1 upon the bahi khata account was remitted having regard to his labour and poverty and the whole unspecified amount found due against respondent 2 upon the same bahi khata account was remitted in full in view of "his labour and poverty".It is contended on behalf of the respondents that the word remitted should be read in the sense of rejected, and that the amount so rejected should be taken to represent the amount which was due to fair remuneration for labour to the two respondents. This contention has no force. The respondents were to get profits in lieu of the labour and skill contributed by them and there can, therefore, be no question of any separate remuneration to be granted to them for labour and skill. The contention is also inconsistent with the suggestion that the claim was rejected on the ground of poverty. Either the claim was due or it was not; if it was, then the arbitrators had no power to reject it on the ground that the respondents were too poor to pay it. If it was not due, then the ground of poverty had no bearing upon it. It seems to us that the arbitrators negatived the appellants claim against the respondents on the extraneous ground that they had contributed labour and were men in poor circumstances as against the appellant who was alleged to be a rich man. The award thus arrived at was anything but a settlement of the dispute which had arisen between the parties and which had necessitate the reference to arbitration.We are in agreement with the High Court that the agreement for reference to arbitration should be liberally construed by the court so as to lean in favour of upholding the award given by arbitrators, but that is no ground for sustaining the award where the arbitrators have clearly misdirected themselves and have exceeded the scope of their authority. The words in the agreement "Jo kuchh tai tasfiya faissala karenge Ham ko Kabool-o-manzoor hoga" on a proper interpretation were obviously intended to mean that the arbitrators were to put an end to the dispute by deciding the question of liability once for all and the parties were to abide by their decision but that cannot lead to the inference that the arbitrators were to travel outside the powers conferred upon them by the reference and were to decide the dispute on considerations wholly extraneous to it. So long as the arbitrators Act within the scope of their authority there can be no doubt that their decision must be accepted as valid and binding. In the present case however we are of opinion that the arbitrators acted in excess of their authority and the award must therefore be set aside. | 1[ds]5. A preliminary objection has been taken on behalf of the respondents that the order was one of affirmance and no leave should have been granted unless the High Court certified that the appeal involves some substantial question oflaw. It may be pointed out that so far as the dismissal of the appeal against the order refusing to set aside the ex parte order is concerned, the matter is closed and no application was filed by the appellant to reopen the matter by way of any application for leave to appeal to thisis no dispute about the valuation and though the order does not in terms mention that the case involves a substantial question of law, we are of opinion that the certificate was granted on that ground. There is no defect in the certificate and the preliminary objection iss contended on behalf of the respondents that the word remitted should be read in the sense of rejected, and that the amount so rejected should be taken to represent the amount which was due to fair remuneration for labour to the two respondents.This contention has no force. The respondents were to get profits in lieu of the labour and skill contributed by them and there can, therefore, be no question of any separate remuneration to be granted to them for labour and skill. The contention is also inconsistent with the suggestion that the claim was rejected on the ground of poverty. Either the claim was due or it was not; if it was, then the arbitrators had no power to reject it on the ground that the respondents were too poor to pay it. If it was not due, then the ground of poverty had no bearing upon it. It seems to us that the arbitrators negatived the appellants claim against the respondents on the extraneous ground that they had contributed labour and were men in poor circumstances as against the appellant who was alleged to be a rich man. The award thus arrived at was anything but a settlement of the dispute which had arisen between the parties and which had necessitate the reference to arbitration.We are in agreement with the High Court that the agreement for reference to arbitration should be liberally construed by the court so as to lean in favour of upholding the award given by arbitrators, but that is no ground for sustaining the award where the arbitrators have clearly misdirected themselves and have exceeded the scope of their authority. The words in the agreement "Jo kuchh tai tasfiya faissala karenge Ham kohoga" on a proper interpretation were obviously intended to mean that the arbitrators were to put an end to the dispute by deciding the question of liability once for all and the parties were to abide by their decision but that cannot lead to the inference that the arbitrators were to travel outside the powers conferred upon them by the reference and were to decide the dispute on considerations wholly extraneous to it. So long as the arbitrators Act within the scope of their authority there can be no doubt that their decision must be accepted as valid and binding. In the present case however we are of opinion that the arbitrators acted in excess of their authority and the award must therefore be set aside. | 1 | 2,140 | ### 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:
authority and their award cannot be allowed to stand. It cannot be doubted that the dispute between the parties related to the question whether on taking accounts between the parties the respondents 1 and 2 were liable to pay any amount to the appellant. It must be borne in mind that the appellant was claiming against the respondents 1 and 2 a sum of Rs. 35,000 on the basis of bahi khata accounts. The arbitrators were appointed to adjudicate this dispute and to decide whether the respondents 1 and 2 were liable to the appellant for any amount and if so what?The agreement recites that the dispute is of long standing and the parties being anxious to avoid loss by recourse to litigation consider it desirable to have the dispute decided by the arbitrators. The original agreement which is in Hindi uses the words "Jo kuchh tai tasfiya faisala karenge Fricain ko qabul o manzur hoga. It goes on to say"that the arbitrators should sit together, take down the statements of the parties, hear and consider the arguments brought forward by the parties, inspect the documents of all descriptions and take other evidence and evidence of witnesses and whatever award they shall give, is and shall be, acceptable to the parties and whatever award the arbitrators may give unanimously or by majority of votes shall be treated as true and correct and valid in every court and shall be binding upon all of us executants parties".Reuben J., who wrote the judgment with which Sinha J. agreed, construed the words "Tai tasfiya and faisaals" as meaning that the intention of parties was to give the arbitrators power to make concessions where such concessions appeared to them to be fair.7. Mr. Isaacs, the learned counsel for the appellant, has not questioned the motives or bona fides of the arbitrators and has confined his arguments to the question that the arbitrators were appointed to settle and decide the dispute about the liability of respondents 1 and 2 to the appellant in a proper and judicial manner but instead of doing so they granted partial exemption from liability to respondent 1 and total exemption to respondent 2 on extraneous considerations with the result that they exceeded the scope of their authority and their award was liable to be set aside. As already stated the appellant was to contribute the entire capital in the business while respondents 1 and 2 were to contribute only their labour and skill. The former was to get eight annas share in the profits while the latter were given four annas each. The award shows that both the respondents were found liable upon the bahi khata account but the exact amount was not determined and though Rs. 3,500 out of a larger sum found due were awarded against respondent 1, the liability of respondent 2 was remitted in toto. It is obvious that the arbitrators in not finding a specific sum to be due from respondents 1 and 2 to the appellant failed to decide the dispute as contemplate by the agreement to refer to arbitration. On the other hand they went out of their way to declare that whatever amount in addition to Rs. 3,500 was found due from respondent 1 upon the bahi khata account was remitted having regard to his labour and poverty and the whole unspecified amount found due against respondent 2 upon the same bahi khata account was remitted in full in view of "his labour and poverty".It is contended on behalf of the respondents that the word remitted should be read in the sense of rejected, and that the amount so rejected should be taken to represent the amount which was due to fair remuneration for labour to the two respondents. This contention has no force. The respondents were to get profits in lieu of the labour and skill contributed by them and there can, therefore, be no question of any separate remuneration to be granted to them for labour and skill. The contention is also inconsistent with the suggestion that the claim was rejected on the ground of poverty. Either the claim was due or it was not; if it was, then the arbitrators had no power to reject it on the ground that the respondents were too poor to pay it. If it was not due, then the ground of poverty had no bearing upon it. It seems to us that the arbitrators negatived the appellants claim against the respondents on the extraneous ground that they had contributed labour and were men in poor circumstances as against the appellant who was alleged to be a rich man. The award thus arrived at was anything but a settlement of the dispute which had arisen between the parties and which had necessitate the reference to arbitration.We are in agreement with the High Court that the agreement for reference to arbitration should be liberally construed by the court so as to lean in favour of upholding the award given by arbitrators, but that is no ground for sustaining the award where the arbitrators have clearly misdirected themselves and have exceeded the scope of their authority. The words in the agreement "Jo kuchh tai tasfiya faissala karenge Ham ko Kabool-o-manzoor hoga" on a proper interpretation were obviously intended to mean that the arbitrators were to put an end to the dispute by deciding the question of liability once for all and the parties were to abide by their decision but that cannot lead to the inference that the arbitrators were to travel outside the powers conferred upon them by the reference and were to decide the dispute on considerations wholly extraneous to it. So long as the arbitrators Act within the scope of their authority there can be no doubt that their decision must be accepted as valid and binding. In the present case however we are of opinion that the arbitrators acted in excess of their authority and the award must therefore be set aside.
### Response:
1
|
1,007 | Murli Industries Limited Company Registered Under The Companies Act Having & Another Vs. M/S. Western Coalfields Limited & Others | arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.16. In the present petitions it is not in dispute that even though respondent No.1 had made an enquiry into the complaints received against the petitionercompany alleging diversion of coal for earning black money and had also demanded various documents and information from time to time during the course of the enquiry from the petitionercompany, a formal show cause notice, calling upon the petitionercompany to show cause as to why the CSAs be not terminated and bank guarantee invoked, was never issued. It is also not in dispute that the petitionercompany was not heard by respondent No.1 before issuing the impugned orders.17. The impugned orders terminating the CSAs as well as invoking the bank guarantees have civil consequences not only adverse to the interest of the petitionercompany but also of its employees, who depend for their livelihood on the salary that they get from the petitionercompany. The power and cement plants of the petitionercompany require continuous supply of coal on long term basis for their smooth running and in the event of any interruption or stoppage of supply of coal and that too abruptly without giving any opportunity to the company to explain its stand in the matter and may be even to make necessary alternate arrangements for procuring coal, if, in case, there is any termination of CSAs by the respondents, the operation of these plants would come to a grinding halt thereby affecting adversely the interests of the company and its employees, not to speak of the consumers of the company, who may have booked orders for supply of cement, paper and allied products manufactured by the company. Therefore, respondent No.1 and 2 were under a duty as seen from the case law discussed earlier, to follow the mandate of Article 14 of the Constitution. Before issuing impugned communications, these respondents ought to have issued a show cause notice and afforded a reasonable opportunity of being heard to the petitioner No.1Company. Having not done so, on this count alone, the impugned orders are liable to be struck down as violative of the mandate of Article 14 of the Constitution.18. Learned Counsel for the respondents has argued that various demands made by respondents No. 1 and 2 from time to time calling for several documents from the petitionercompany in order to satisfy these respondents as to the correctness or otherwise of the allegations made against the petitionercompany themselves constituted adequate notice and sufficient opportunity for the petitionercompany to answer the allegations. We are not inclined to accept this argument for the reason that it is a fact that no formal notice calling upon the petitionercompany to show cause as to why the CSAs be not terminated was issued at any point of time. Similarly, no hearing on this aspect of the matter was ever afforded to the petitionercompany. The argument, therefore, deserves to be rejected outrightly.19. Learned Counsel for the petitioner has also assailed the impugned orders on the ground of the respondents practicing discrimination against the petitionercompany. It is submitted that respondents No. 1 and 2 have given show cause notice and opportunity of hearing on the same issue to various other consumers. One such instance is in the case of Digganath Steel Industries and Engineering Works, which was given show cause notice dated 11/5/2013 on the same allegation as has been made in these cases against the petitionercompany and action against the said company was taken under Clause4.4 of the CSAs entered into with that consumer on 30/4/2008. It is also pointed out that the Bharat Coking Coal Limited, which is another subsidiary of respondent No.3, has also given a show cause notice dated 16/7/2009 when an enquiry into the similar allegations was initiated.20. In the instant matter, action has been taken against the petitionercompany under Clause4.2 of the CSAs entered with the petitionercompany and this Clause has been not denied to be not in pari materia to Clause4.4 of the CSAs executed in favour of Digganath Steel Industries and Engineering Works. If respondents No. 1 and 2, in similar fact situation, could issue show cause notice and also give hearing to other consumers and if subsidiary of respondent No.3, BCCL, could also adopt the same procedure, which is fair and reasonable and consistent with the principles of rule of law, it is unfathomable to understand as to why respondent No. 1, also could not adopt the same procedure. By not following the same procedure, respondents No. 1 and 2 can be said to have been selective and discriminatory in their approach while dealing with their different consumers and this approach, we must say, is unfair. The concepts of equaility, fairness and nonarbitrariness run through the entire fabric of Part3 and Part4 of the Constitution. Article 21 of the Constitution guarantees the right to live, which includes right of livelihood. If the company like the petitioner No.1 is made to stop its operation due to sudden stoppage of supply of essential raw materials, the right to livelihood of the employees of the company would also be denied or deprived, which cannot be done except in accordance with the procedure established by law, which procedure must be fair, reasonable and nonarbitrary, in consonance with the mandates of Articles 14 and 21 of the Constitution. The deprivation of such a right must not be the product of an oppressive or discriminatory or capricious action. It must be based upon some known principles and sound reasons. That being not the case here, the impugned orders are liable to be quashed and set aside and these petitions deserve to be allowed accordingly. | 1[ds]16. In the present petitions it is not in dispute that even though respondent No.1 had made an enquiry into the complaints received against the petitionercompany alleging diversion of coal for earning black money and had also demanded various documents and information from time to time during the course of the enquiry from the petitionercompany, a formal show cause notice, calling upon the petitionercompany to show cause as to why the CSAs be not terminated and bank guarantee invoked, was never issued. It is also not in dispute that the petitionercompany was not heard by respondent No.1 before issuing the impugned orders.17. The impugned orders terminating the CSAs as well as invoking the bank guarantees have civil consequences not only adverse to the interest of the petitionercompany but also of its employees, who depend for their livelihood on the salary that they get from the petitionercompany. The power and cement plants of the petitionercompany require continuous supply of coal on long term basis for their smooth running and in the event of any interruption or stoppage of supply of coal and that too abruptly without giving any opportunity to the company to explain its stand in the matter and may be even to make necessary alternate arrangements for procuring coal, if, in case, there is any termination of CSAs by the respondents, the operation of these plants would come to a grinding halt thereby affecting adversely the interests of the company and its employees, not to speak of the consumers of the company, who may have booked orders for supply of cement, paper and allied products manufactured by the company. Therefore, respondent No.1 and 2 were under a duty as seen from the case law discussed earlier, to follow the mandate of Article 14 of the Constitution. Before issuing impugned communications, these respondents ought to have issued a show cause notice and afforded a reasonable opportunity of being heard to the petitioner No.1Company. Having not done so, on this count alone, the impugned orders are liable to be struck down as violative of the mandate of Article 14 of theare not inclined to accept this argument for the reason that it is a fact that no formal notice calling upon the petitionercompany to show cause as to why the CSAs be not terminated was issued at any point of time. Similarly, no hearing on this aspect of the matter was ever afforded to the petitionercompany. The argument, therefore, deserves to be rejected outrightly.In the instant matter, action has been taken against the petitionercompany under Clause4.2 of the CSAs entered with the petitionercompany and this Clause has been not denied to be not in pari materia to Clause4.4 of the CSAs executed in favour of Digganath Steel Industries and Engineering Works. If respondents No. 1 and 2, in similar fact situation, could issue show cause notice and also give hearing to other consumers and if subsidiary of respondent No.3, BCCL, could also adopt the same procedure, which is fair and reasonable and consistent with the principles of rule of law, it is unfathomable to understand as to why respondent No. 1, also could not adopt the same procedure. By not following the same procedure, respondents No. 1 and 2 can be said to have been selective and discriminatory in their approach while dealing with their different consumers and this approach, we must say, is unfair. The concepts of equaility, fairness and nonarbitrariness run through the entire fabric of Part3 and Part4 of the Constitution. Article 21 of the Constitution guarantees the right to live, which includes right of livelihood. If the company like the petitioner No.1 is made to stop its operation due to sudden stoppage of supply of essential raw materials, the right to livelihood of the employees of the company would also be denied or deprived, which cannot be done except in accordance with the procedure established by law, which procedure must be fair, reasonable and nonarbitrary, in consonance with the mandates of Articles 14 and 21 of the Constitution. The deprivation of such a right must not be the product of an oppressive or discriminatory or capricious action. It must be based upon some known principles and sound reasons. That being not the case here, the impugned orders are liable to be quashed and set aside and these petitions deserve to be allowed accordingly. | 1 | 3,129 | ### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.16. In the present petitions it is not in dispute that even though respondent No.1 had made an enquiry into the complaints received against the petitionercompany alleging diversion of coal for earning black money and had also demanded various documents and information from time to time during the course of the enquiry from the petitionercompany, a formal show cause notice, calling upon the petitionercompany to show cause as to why the CSAs be not terminated and bank guarantee invoked, was never issued. It is also not in dispute that the petitionercompany was not heard by respondent No.1 before issuing the impugned orders.17. The impugned orders terminating the CSAs as well as invoking the bank guarantees have civil consequences not only adverse to the interest of the petitionercompany but also of its employees, who depend for their livelihood on the salary that they get from the petitionercompany. The power and cement plants of the petitionercompany require continuous supply of coal on long term basis for their smooth running and in the event of any interruption or stoppage of supply of coal and that too abruptly without giving any opportunity to the company to explain its stand in the matter and may be even to make necessary alternate arrangements for procuring coal, if, in case, there is any termination of CSAs by the respondents, the operation of these plants would come to a grinding halt thereby affecting adversely the interests of the company and its employees, not to speak of the consumers of the company, who may have booked orders for supply of cement, paper and allied products manufactured by the company. Therefore, respondent No.1 and 2 were under a duty as seen from the case law discussed earlier, to follow the mandate of Article 14 of the Constitution. Before issuing impugned communications, these respondents ought to have issued a show cause notice and afforded a reasonable opportunity of being heard to the petitioner No.1Company. Having not done so, on this count alone, the impugned orders are liable to be struck down as violative of the mandate of Article 14 of the Constitution.18. Learned Counsel for the respondents has argued that various demands made by respondents No. 1 and 2 from time to time calling for several documents from the petitionercompany in order to satisfy these respondents as to the correctness or otherwise of the allegations made against the petitionercompany themselves constituted adequate notice and sufficient opportunity for the petitionercompany to answer the allegations. We are not inclined to accept this argument for the reason that it is a fact that no formal notice calling upon the petitionercompany to show cause as to why the CSAs be not terminated was issued at any point of time. Similarly, no hearing on this aspect of the matter was ever afforded to the petitionercompany. The argument, therefore, deserves to be rejected outrightly.19. Learned Counsel for the petitioner has also assailed the impugned orders on the ground of the respondents practicing discrimination against the petitionercompany. It is submitted that respondents No. 1 and 2 have given show cause notice and opportunity of hearing on the same issue to various other consumers. One such instance is in the case of Digganath Steel Industries and Engineering Works, which was given show cause notice dated 11/5/2013 on the same allegation as has been made in these cases against the petitionercompany and action against the said company was taken under Clause4.4 of the CSAs entered into with that consumer on 30/4/2008. It is also pointed out that the Bharat Coking Coal Limited, which is another subsidiary of respondent No.3, has also given a show cause notice dated 16/7/2009 when an enquiry into the similar allegations was initiated.20. In the instant matter, action has been taken against the petitionercompany under Clause4.2 of the CSAs entered with the petitionercompany and this Clause has been not denied to be not in pari materia to Clause4.4 of the CSAs executed in favour of Digganath Steel Industries and Engineering Works. If respondents No. 1 and 2, in similar fact situation, could issue show cause notice and also give hearing to other consumers and if subsidiary of respondent No.3, BCCL, could also adopt the same procedure, which is fair and reasonable and consistent with the principles of rule of law, it is unfathomable to understand as to why respondent No. 1, also could not adopt the same procedure. By not following the same procedure, respondents No. 1 and 2 can be said to have been selective and discriminatory in their approach while dealing with their different consumers and this approach, we must say, is unfair. The concepts of equaility, fairness and nonarbitrariness run through the entire fabric of Part3 and Part4 of the Constitution. Article 21 of the Constitution guarantees the right to live, which includes right of livelihood. If the company like the petitioner No.1 is made to stop its operation due to sudden stoppage of supply of essential raw materials, the right to livelihood of the employees of the company would also be denied or deprived, which cannot be done except in accordance with the procedure established by law, which procedure must be fair, reasonable and nonarbitrary, in consonance with the mandates of Articles 14 and 21 of the Constitution. The deprivation of such a right must not be the product of an oppressive or discriminatory or capricious action. It must be based upon some known principles and sound reasons. That being not the case here, the impugned orders are liable to be quashed and set aside and these petitions deserve to be allowed accordingly.
### Response:
1
|
1,008 | State of Karnataka & Others Vs. M/s. Sri Chamundeswari Sugar Ltd | of sugarcane and the Government would be entitled to enforce the liability."38.4. It was also observed in the same paragraph that the State Government acted in its statutory capacity to fix the higher price of the sugarcane. 13. It is to be noted that in the State of U.P. the SAP forms part of the agreement. In the instant case it is not there. Paras 39 and 40 of U.P. Cooperatives case (supra) deal with question of statutory price. In Ponni Sugars case (supra) the decision in U.P. Cooperatives case (supra) was followed. The controversy appears to have been blown out of proportion. There is no dispute that respondent paid the SAP which is subject to certain adjustments. That being so, the respondent cannot take the plea that because it was agreed by the grower and the purchaser that certain amount would be paid, that does not in any way render the amount paid as SAP irrelevant. In fact, an agreement cannot determine the question of liability to pay the purchase tax. Section 6 of the Act reads as follows: "6. Levy of purchase tax under certain circumstances.- Subject to the provisions of sub-section (5) of Section 5, every dealer who in the course of his business purchases any taxable goods in circumstances in which no tax under Section 5 is leviable on the sale price of such goods, and(i) either consumes such goods in the manufacture of other goods for sale or otherwise (or consumes otherwise) or disposes of such goods in any manner other than by way of sale in the State, or(ii) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce,shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under Section 5." 14. It is the stand of the respondent that purchase price is not defined and, therefore, the agreed price would be taken to be the purchase price. This plea is clearly unsustainable. As noted above, the basic question is what is the consideration paid for effecting the purchase. 15. The definition of "Sale" (in Section 2(t) of the Act) is relevant. It refers to transfer of the property in goods by one person to another in the course of trade or business "for cash or for deferred payment or other valuable consideration". "Purchase price" is well-known expression in commercial transactions. Every purchase involves a corresponding sale. The purchase money or purchase price for property is the price to be paid for it. Speaking technically, acquires by "words of purchase" and is a "purchaser" when he obtains title in any other mode than by descent or devolution of law. It was noted in Commissioner of Income Tax, Andhra Pradesh v. T.N. Aravinda Reddy (1979 (4) SCC 721 ) as follows: "The meaning of the word purchase in Section 54, Clause (i) of the Income Tax Act, 1961does not differ from its plain meaning which sense buying for a price equivalent of price by payment in kind or adjustment towards an old debt or for other monetary consideration. Each release in the circumstances of the given case is a transfer of the releasers share for valuation to the release. In plain English, the transferee purchases the share of each of his brothers. Thus Section 54, Clause (i) is attracted." 16. Normal meaning of the word purchase is acquisition for money or for any consideration. That is the primary meaning. In Concise Oxford Dictionary, apart from the two meanings "buy, acquire", another meaning given to the word "purchase" is "procure". The word "procure" consists of much wider import than the word "purchase". In the same dictionary, the word "procure" has been mentioned the meaning as "obtained by care or effort acquire". Purchase is thus a word of restricted meaning than the word "procure". While considering a taxing statute which deals with income from business the word "purchase" will therefore, have to be seen in the commercial sense. In the commercial sense, a transaction of purchase is a part of a transaction of sale. A transaction of sale can never be complete unless there is a transfer of property from the seller as well and the buyer who is the purchaser, must, therefore, acquire the property before he can claim to have purchased the property.17. In the Sale of goods Act and also in the Central Sales Tax Act or in any of the sales tax laws made in the several States, the definition includes the sale of goods, and not to the purchase of goods. That must be so because the sale of a commodity must include within its ambit the concept of sale as well as purchase. It is not possible to conceive of a sale of goods without a buyer.18. It is fairly accepted that SAP has been paid. The claim of the respondent is that determination is tentative and certain adjustments can be made later. But till that is done the SAP has to be taken as the consideration. In our view appellants were justified in demanding purchase tax on the amount paid as SAP and the High Courts view is clearly unsustainable and is set aside. The view expressed in Ponni Sugars case (supra) is in consonance with the view expressed by the Constitution Bench in U.P. Cooperatives case (supra). The observations relating to the agreed price which is above the lowest permissible rate cannot read to mean that any ceiling is fixed by the agreed price. In fact in Ponni Sugars case (supra) and U.P. Cooperatives case (supra) this Court held that the price fixed under the Control Order was the minimum price and it was the lowest permissible rate. The highest amongst the three prices relatable to the purchase is the price on the basis of which the purchase tax is to be levied. | 1[ds]It is the stand of the respondent that purchase price is not defined and, therefore, the agreed price would be taken to be the purchase price.This plea is clearlythe commercial sense, a transaction of purchase is a part of a transaction of sale. A transaction of sale can never be complete unless there is a transfer of property from the seller as well and the buyer who is the purchaser, must, therefore, acquire the property before he can claim to have purchased the property.17. In the Sale of goods Act and also in the Central Sales Tax Act or in any of the sales tax laws made in the several States, the definition includes the sale of goods, and not to the purchase of goods. That must be so because the sale of a commodity must include within its ambit the concept of sale as well as purchase. It is not possible to conceive of a sale of goods without a buyer.18. It is fairly accepted that SAP has been paid. The claim of the respondent is that determination is tentative and certain adjustments can be made later. But till that is done the SAP has to be taken as the consideration. In our view appellants were justified in demanding purchase tax on the amount paid as SAP and the High Courts view is clearly unsustainable and is set aside. The view expressed in Ponni Sugars case (supra) is in consonance with the view expressed by the Constitution Bench in U.P. Cooperatives case (supra). The observations relating to the agreed price which is above the lowest permissible rate cannot read to mean that any ceiling is fixed by the agreed price. In fact in Ponni Sugars case (supra) and U.P. Cooperatives case (supra) this Court held that the price fixed under the Control Order was the minimum price and it was the lowest permissible rate. The highest amongst the three prices relatable to the purchase is the price on the basis of which the purchase tax is to be levied. | 1 | 8,073 | ### 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:
of sugarcane and the Government would be entitled to enforce the liability."38.4. It was also observed in the same paragraph that the State Government acted in its statutory capacity to fix the higher price of the sugarcane. 13. It is to be noted that in the State of U.P. the SAP forms part of the agreement. In the instant case it is not there. Paras 39 and 40 of U.P. Cooperatives case (supra) deal with question of statutory price. In Ponni Sugars case (supra) the decision in U.P. Cooperatives case (supra) was followed. The controversy appears to have been blown out of proportion. There is no dispute that respondent paid the SAP which is subject to certain adjustments. That being so, the respondent cannot take the plea that because it was agreed by the grower and the purchaser that certain amount would be paid, that does not in any way render the amount paid as SAP irrelevant. In fact, an agreement cannot determine the question of liability to pay the purchase tax. Section 6 of the Act reads as follows: "6. Levy of purchase tax under certain circumstances.- Subject to the provisions of sub-section (5) of Section 5, every dealer who in the course of his business purchases any taxable goods in circumstances in which no tax under Section 5 is leviable on the sale price of such goods, and(i) either consumes such goods in the manufacture of other goods for sale or otherwise (or consumes otherwise) or disposes of such goods in any manner other than by way of sale in the State, or(ii) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce,shall be liable to pay tax on the purchase price of such goods at the same rate at which it would have been leviable on the sale price of such goods under Section 5." 14. It is the stand of the respondent that purchase price is not defined and, therefore, the agreed price would be taken to be the purchase price. This plea is clearly unsustainable. As noted above, the basic question is what is the consideration paid for effecting the purchase. 15. The definition of "Sale" (in Section 2(t) of the Act) is relevant. It refers to transfer of the property in goods by one person to another in the course of trade or business "for cash or for deferred payment or other valuable consideration". "Purchase price" is well-known expression in commercial transactions. Every purchase involves a corresponding sale. The purchase money or purchase price for property is the price to be paid for it. Speaking technically, acquires by "words of purchase" and is a "purchaser" when he obtains title in any other mode than by descent or devolution of law. It was noted in Commissioner of Income Tax, Andhra Pradesh v. T.N. Aravinda Reddy (1979 (4) SCC 721 ) as follows: "The meaning of the word purchase in Section 54, Clause (i) of the Income Tax Act, 1961does not differ from its plain meaning which sense buying for a price equivalent of price by payment in kind or adjustment towards an old debt or for other monetary consideration. Each release in the circumstances of the given case is a transfer of the releasers share for valuation to the release. In plain English, the transferee purchases the share of each of his brothers. Thus Section 54, Clause (i) is attracted." 16. Normal meaning of the word purchase is acquisition for money or for any consideration. That is the primary meaning. In Concise Oxford Dictionary, apart from the two meanings "buy, acquire", another meaning given to the word "purchase" is "procure". The word "procure" consists of much wider import than the word "purchase". In the same dictionary, the word "procure" has been mentioned the meaning as "obtained by care or effort acquire". Purchase is thus a word of restricted meaning than the word "procure". While considering a taxing statute which deals with income from business the word "purchase" will therefore, have to be seen in the commercial sense. In the commercial sense, a transaction of purchase is a part of a transaction of sale. A transaction of sale can never be complete unless there is a transfer of property from the seller as well and the buyer who is the purchaser, must, therefore, acquire the property before he can claim to have purchased the property.17. In the Sale of goods Act and also in the Central Sales Tax Act or in any of the sales tax laws made in the several States, the definition includes the sale of goods, and not to the purchase of goods. That must be so because the sale of a commodity must include within its ambit the concept of sale as well as purchase. It is not possible to conceive of a sale of goods without a buyer.18. It is fairly accepted that SAP has been paid. The claim of the respondent is that determination is tentative and certain adjustments can be made later. But till that is done the SAP has to be taken as the consideration. In our view appellants were justified in demanding purchase tax on the amount paid as SAP and the High Courts view is clearly unsustainable and is set aside. The view expressed in Ponni Sugars case (supra) is in consonance with the view expressed by the Constitution Bench in U.P. Cooperatives case (supra). The observations relating to the agreed price which is above the lowest permissible rate cannot read to mean that any ceiling is fixed by the agreed price. In fact in Ponni Sugars case (supra) and U.P. Cooperatives case (supra) this Court held that the price fixed under the Control Order was the minimum price and it was the lowest permissible rate. The highest amongst the three prices relatable to the purchase is the price on the basis of which the purchase tax is to be levied.
### Response:
1
|
1,009 | Booz Allen and Hamilton Inc Vs. SBI Home Finance Ltd. & Others | and direct that if the mortgagor pays into court, the amount so found due, on or before such date as the court may fix (within six months from the date on which the court confirms the account taken or from the date on which the court declares the amount due), the petitioner shall deliver the documents and if necessary re-transfer the property to the defendant; and further direct that if the mortgagor defaults in payment of such dues, then the mortgagee will be entitled to final decree for sale of the property or part thereof and pay into court the sale proceeds, and to adjudge the subsequent costs, charges, expenses and interest and direct that the balance be paid to mortgagor/defendant or other persons entitled to receive the same. An arbitral tribunal will not be able to do so. (iv) Where in a suit for sale (or in a suit for foreclosure in which sale is ordered), subsequent mortgagees or persons deriving title from, or subrogated to the rights of any such mortgagees are joined as parties, the court while making the preliminary decree for sale under Rule 4(1), could provide for adjudication of the respective rights and liabilities of the parties to the suit in a manner and form set forth in Form Nos. 9, 10, and 11 of appendix `D to the Code with such variations as the circumstances of the case may require. In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the court may, at the instance of any party to the suit or any other party interested in the mortgage security or the right of redemption, pass a like decree in lieu of a decree for foreclosure, on such terms as it thinks fit. But an arbitral tribunal will not be able to do. (v) The court has the power under Rule 4(2), on good cause being shown and upon terms to be fixed by it, from time to time, at any time before a final decree is passed, extend the time fixed for payment of the amount found or declared due or the amount adjudged due in respect of subsequent costs, changes, expenses and interest, upon such terms as it deems fit. The Arbitral Tribunal will have no such power. 28. A decree for sale of a mortgaged property as in the case of a decree for order of winding up, requires the court to protect the interests of persons other than the parties to the suit/petition and empowers the court to entertain and adjudicate upon rights and liabilities of third parties (other than those who are parties to the arbitration agreement). Therefore, a suit for sale, foreclosure or redemption of a mortgaged property, should only be tried by a public forum, and not by an arbitral tribunal. Consequently, it follows that the court where the mortgage suit is pending, should not refer the parties to arbitration. 29. The appellant contended that the suit ultimately raises the following core issues, which can be decided by a private forum: (i) Whether there is a valid mortgage or charge in favour of SBI? (ii) What is the amount due to SBI? and (iii) Whether SBI could seek eviction of appellant from the flat, even if it is entitled to enforce the mortgage/charge? It was submitted that merely because mortgage suits involve passing of preliminary decrees and final decrees, they do not get excluded from arbitrable disputes. It is pointed out that the arbitral tribunals can also make interim awards deciding certain aspects of the disputes finally which can be equated to preliminary decrees granted by courts, and the final award made by the arbitrator, after detailed accounting etc. could be compared to the final decree by courts. It is therefore contended that there is no impediment for the parties to mortgage suits being referred to arbitration under section 8 of the Act. If the three issues referred by the appellant are the only disputes, it may be possible to refer them to arbitration. But a mortgage suit is not only about determination of the existence of the mortgage or determination of the amount due. It is about enforcement of the mortgage with reference to an immovable property and adjudicating upon the rights and obligations of several classes of persons (referred to in para 27 (ii) above), who have the right to participate in the proceedings relating to the enforcement of the mortgage, vis-à-vis the mortgagor and mortgagee. Even if some of the issues or questions in a mortgage suit (as pointed out by the appellant) are arbitrable or could be decided by a private forum, the issues in a mortgage suit cannot be divided. The following observations of this court in a somewhat different context, in Sukanya Holdings (P) Ltd. v. Jayesh H.Pandya - 2003 (5) SCC 531 are relevant: "The next question which requires consideration is--even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the Act? In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before a judicial authority is not allowed." Conclusion 30. Having regard to our finding on question (iv) it has to be held that the suit being one for enforcement of a mortgage by sale, it should be tried by the court and not by an arbitral tribunal. | 0[ds]14. In this case, there is no dispute that all the parties to the suit are parties to an agreement which contains the provision for settlement of disputes by arbitration. Clause (16) which provides for arbitration provides for settlement of the following disputes by arbitration : (a) disputes with respect to creation of charge over the shares and flats; (b) disputes with respect to enforcement of the charge over the shares and flats and realization of sale proceeds therefrom; (c) application of the sale proceeds towards discharge of liability of Capstone and RV Appliances to the appellant; and (e) disputes relating to exercise of right of the appellant to continue to occupy the flats until the entire dues as stated in clauses 9 and 10 of the deposit agreement are realised by the appellant.15. The suit has been filed by SBI to enforce the mortgage to recover the amounts due to it. In that context, SBI has also sought delivery of vacant possession. The enforcement of the charge/mortgage over the flat, realisation of sale proceeds therefrom and the right of the appellant to stay in possession till the entire deposit is repaid, are all matters which are specifically mentioned in clause 16 as matters to be settled by arbitration. Therefore, the subject matter of the suit falls within the scope of the arbitration agreement.The appellant filed a detailed affidavit opposing the application for interim injunction on 15.12.1999. Thereafter the appellant filed the application under section 8 of the Act on 12.10.2001. On the date of filing of the application under section 8, the appellant had not filed the written statement. Section 8 of the Act provides that a judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. The High Court has held that filing a detailed counter affidavit by a defendant setting out its case, in reply to an application for temporary injunction, should be considered to be the submission of the first statement on the substance of the dispute; and that the application under section 8 of the Act having been filed subsequent to filing of such first statement on the substance of the dispute, the appellants prayer for referring the parties to arbitration cannot be accepted. The question therefore is whether filing a counter to an application for temporary injunction can be considered as submitting the first statement on the substance of the dispute.17. Not only filing of the written statement in a suit, but filing of any statement, application, affidavit filed by a defendant prior to the filing of the written statement will be construed as `submission of a statement on the substance of the dispute, if by filing such statement/application/affidavit, the defendant shows his intention to submit himself to the jurisdiction of the court and waive his right to seek reference to arbitration. But filing of a reply by a defendant, to an application for temporary injunction/attachment before judgment/appointment of Receiver, cannot be considered as submission of a statement on the substance of the dispute, as that is done to avoid an interim order being made against him. In Rashtriya Ispat Nigam Ltd vs. Verma Transport Company - 2006 (7) SCC 275 , this Court held that the expression first statement on the substance of the dispute contained in Section 8(1) of the Act is different from the expression written statement, and refers to a submission of the party making the application under section 8 of the Act, to the jurisdiction of the judicial authority; and what should be decided by the court is whether the party seeking reference to arbitration has waived his right to invoke the arbitration clause. This Court then proceeded to consider whether contesting an application for temporary injunction by filing a counter, would amount to subjecting oneself to the jurisdiction of the court.In this case, the counter affidavit dated 15.12.1999, filed by the appellant in reply to the notice of motion (seeking appointment of a receiver and grant of a temporary injunction) clearly stated that the reply affidavit was being filed for the limited purpose of opposing the interim relief. Even in the absence of such a disclaimer, filing a detailed objection to an application for interim relief cannot be considered to be submission of a statement on the substance of the dispute resulting in submitting oneself to the jurisdiction of the court.Though section 8 does not prescribe any time limit for filing an application under that section, and only states that the application under section 8 of the Act should be filed before submission of the first statement on the substance of the dispute, the scheme of the Act and the provisions of the section clearly indicate that the application thereunder should be made at the earliest. Obviously, a party who willingly participates in the proceedings in the suit and subjects himself to the jurisdiction of the court cannot subsequently turn round and say that the parties should be referred to arbitration in view of the existence of an arbitration agreement. Whether a party has waived his right to seek arbitration and subjected himself to the jurisdiction of the court, depends upon the conduct of such party in the suit. When plaintiffs file applications for interim relief like appointment of a receiver or grant of a temporary injunction, the defendants have to contest the application. Such contest may even lead to appeals and revisions where there may be even stay of further proceedings in the suit. If supplemental proceedings like applications for temporary injunction on appointment of Receiver, have been pending for a considerable time and a defendant has been contesting such supplemental proceedings, it cannot be said that the defendant has lost the right to seek reference to arbitration. At the relevant time, the unamended Rule 1 of Order VIII of the Code was governing the filing of written statements and the said rule did not prescribe any time limit for filing written statement. In such a situation, mere passage of time between the date of entering appearance and date of filing the application under section 8 of the Act, can not lead to an inference that a defendant subjected himself to the jurisdiction of the court for adjudication of the main dispute. The facts in this case show that the plaintiff in the suit had filed an application for temporary injunction and appointment of Receiver and that was pending for some time. Thereafter, talks were in progress for arriving at a settlement out of court. When such talks failed, the appellant filed an application under section 8 of the Act before filing the written statement or filing any other statement which could be considered to be a submission of a statement on the substance of the dispute. The High Court was not therefore justified in rejecting the application on the ground of delay.The nature and scope of issues arising for consideration in an application under section 11 of the Act for appointment of arbitrators, are far narrower than those arising in an application under section 8 of the Act, seeking reference of the parties to a suit to arbitration. While considering an application under section 11 of the Act, the Chief Justice or his designate would not embark upon an examination of the issue of `arbitrability or appropriateness of adjudication by a private forum, once he finds that there was an arbitration agreement between or among the parties, and would leave the issue of arbitrability for the decision of the arbitral Tribunal. If the arbitrator wrongly holds that the dispute is arbitrable, the aggrieved party will have to challenge the award by filing an application under section 34 of the Act, relying upon sub-section 2(b)(i) of that section. But where the issue of `arbitrability arises in the context of an application under section 8 of the Act in a pending suit, all aspects of arbitrability have to be decided by the court seized of the suit, and cannot be left to the decision of the Arbitrator. Even if there is an arbitration agreement between the parties, and even if the dispute is covered by the arbitration agreement, the court where the civil suit is pending, will refuse an application under Section 8 of the Act, to refer the parties to arbitration, if the subject matter of the suit is capable of adjudication only by a public forum or the relief claimed can only be granted by a special court or Tribunal.A decree for sale of a mortgaged property as in the case of a decree for order of winding up, requires the court to protect the interests of persons other than the parties to the suit/petition and empowers the court to entertain and adjudicate upon rights and liabilities of third parties (other than those who are parties to the arbitration agreement). Therefore, a suit for sale, foreclosure or redemption of a mortgaged property, should only be tried by a public forum, and not by an arbitral tribunal. Consequently, it follows that the court where the mortgage suit is pending, should not refer the parties to arbitration.Having regard to our finding on question (iv) it has to be held that the suit being one for enforcement of a mortgage by sale, it should be tried by the court and not by an arbitral tribunal. Therefore we uphold the dismissal of the application under section 8 of the Act, though for different reasons. | 0 | 8,697 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
and direct that if the mortgagor pays into court, the amount so found due, on or before such date as the court may fix (within six months from the date on which the court confirms the account taken or from the date on which the court declares the amount due), the petitioner shall deliver the documents and if necessary re-transfer the property to the defendant; and further direct that if the mortgagor defaults in payment of such dues, then the mortgagee will be entitled to final decree for sale of the property or part thereof and pay into court the sale proceeds, and to adjudge the subsequent costs, charges, expenses and interest and direct that the balance be paid to mortgagor/defendant or other persons entitled to receive the same. An arbitral tribunal will not be able to do so. (iv) Where in a suit for sale (or in a suit for foreclosure in which sale is ordered), subsequent mortgagees or persons deriving title from, or subrogated to the rights of any such mortgagees are joined as parties, the court while making the preliminary decree for sale under Rule 4(1), could provide for adjudication of the respective rights and liabilities of the parties to the suit in a manner and form set forth in Form Nos. 9, 10, and 11 of appendix `D to the Code with such variations as the circumstances of the case may require. In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the court may, at the instance of any party to the suit or any other party interested in the mortgage security or the right of redemption, pass a like decree in lieu of a decree for foreclosure, on such terms as it thinks fit. But an arbitral tribunal will not be able to do. (v) The court has the power under Rule 4(2), on good cause being shown and upon terms to be fixed by it, from time to time, at any time before a final decree is passed, extend the time fixed for payment of the amount found or declared due or the amount adjudged due in respect of subsequent costs, changes, expenses and interest, upon such terms as it deems fit. The Arbitral Tribunal will have no such power. 28. A decree for sale of a mortgaged property as in the case of a decree for order of winding up, requires the court to protect the interests of persons other than the parties to the suit/petition and empowers the court to entertain and adjudicate upon rights and liabilities of third parties (other than those who are parties to the arbitration agreement). Therefore, a suit for sale, foreclosure or redemption of a mortgaged property, should only be tried by a public forum, and not by an arbitral tribunal. Consequently, it follows that the court where the mortgage suit is pending, should not refer the parties to arbitration. 29. The appellant contended that the suit ultimately raises the following core issues, which can be decided by a private forum: (i) Whether there is a valid mortgage or charge in favour of SBI? (ii) What is the amount due to SBI? and (iii) Whether SBI could seek eviction of appellant from the flat, even if it is entitled to enforce the mortgage/charge? It was submitted that merely because mortgage suits involve passing of preliminary decrees and final decrees, they do not get excluded from arbitrable disputes. It is pointed out that the arbitral tribunals can also make interim awards deciding certain aspects of the disputes finally which can be equated to preliminary decrees granted by courts, and the final award made by the arbitrator, after detailed accounting etc. could be compared to the final decree by courts. It is therefore contended that there is no impediment for the parties to mortgage suits being referred to arbitration under section 8 of the Act. If the three issues referred by the appellant are the only disputes, it may be possible to refer them to arbitration. But a mortgage suit is not only about determination of the existence of the mortgage or determination of the amount due. It is about enforcement of the mortgage with reference to an immovable property and adjudicating upon the rights and obligations of several classes of persons (referred to in para 27 (ii) above), who have the right to participate in the proceedings relating to the enforcement of the mortgage, vis-à-vis the mortgagor and mortgagee. Even if some of the issues or questions in a mortgage suit (as pointed out by the appellant) are arbitrable or could be decided by a private forum, the issues in a mortgage suit cannot be divided. The following observations of this court in a somewhat different context, in Sukanya Holdings (P) Ltd. v. Jayesh H.Pandya - 2003 (5) SCC 531 are relevant: "The next question which requires consideration is--even if there is no provision for partly referring the dispute to arbitration, whether such a course is possible under Section 8 of the Act? In our view, it would be difficult to give an interpretation to Section 8 under which bifurcation of the cause of action that is to say the subject matter of the suit or in some cases bifurcation of the suit between parties who are parties to the arbitration agreement and others is possible. This would be laying down a totally new procedure not contemplated under the Act. If bifurcation of the subject matter of a suit was contemplated, the legislature would have used appropriate language to permit such a course. Since there is no such indication in the language, it follows that bifurcation of the subject matter of an action brought before a judicial authority is not allowed." Conclusion 30. Having regard to our finding on question (iv) it has to be held that the suit being one for enforcement of a mortgage by sale, it should be tried by the court and not by an arbitral tribunal.
### Response:
0
|
1,010 | Surender Singh Vs. State of Haryana & Others | by the State were concerned, the case of the State in the appeals was that the Reference Court erred in determining the market rate of the land at the rate of Rs.43,17,841/- per acre. According to the State, it was on higher side as compared to what was fixed by the LAO, i.e., Rs.12,50,000/- per acre which, in the facts and circumstances of the case, was just, proper and adequate with no scope of any further enhancement therein.14. By impugned judgment, the High Court partly allowed the appeals filed by the landowners and as a consequence thereof dismissed the appeals filed by the State. The High Court while partly allowing the landowners appeals further enhanced the rate of acquired land from Rs.43,17,841/- per acre to Rs.62,11,700/- per acre.15. In other words, in the opinion of the High Court, the fair market rate of acquired land should be at Rs.62,11,700/- per acre and, therefore, the compensation be paid to each landowner for their acquired lands, at the rate of Rs.62,11,700/- per acre.16. Against this judgment of the High Court, the landowners as well as the State both felt aggrieved and filed these appeals by way of special leave in this Court.17. So far as the appeals filed by the landowners are concerned, their common case in their appeals is that the High Court was right in enhancing the rate of acquired land but was not right in confining it to Rs.62,11,700/- per acre. According to them, the rate of acquired land should have been much more than what was determined by the High Court, i.e., Rs.62,11,700/- per acre.18. So far as the appeals filed by the State are concerned, the case of the State was that the High Court erred in further enhancing the rate of acquired land to Rs.62,11,700/- per acre. According to the State, there was no case made out for any further enhancement in the rate of the acquired land and on the other hand, the appeals filed by the State deserved to be allowed by the High Court by reducing the rate of acquired land fixed by the Reference Court and restoring the rate fixed by the LAO that being the fair market rate of the land rightly fixed by the LAO, i.e., Rs.12,50,000/- per acre.19. It is essentially with this factual background, the entire controversy on the question of re-determination of the rate of acquired land payable to the landowners is made the subject-matter of these appeals at the instance of the landowners and the State.20. Therefore, the question that arises for consideration in this bunch of appeals, is whether the High Court was right in partly allowing the landowners appeals and thereby was justified in further enhancing the rate of compensation from Rs.43,17,841/- per acre to Rs.62,11,700/- per acre. In other words, the question is whether the High Court was justified in dismissing the States appeals and thereby was justified in not reducing the rate of acquired land fixed by the Reference Court and restoring the rate (Rs.12,50,000/- per acre) fixed by LAO.21. To put it in yet another words, what is the fair market value of the acquired land in question -(1) Rs.12,50,000/- per acre as fixed by the LAO; or(2) Rs.43,17,841/- per acre as fixed by the Reference Court; or(3) Rs.62,11,700/- per acre as fixed by the High Court or lastly any other rate between Rs.12,50,000/- per acre and Rs.62,11,700/- per acre or more than Rs.62,11,700/- per acre prevailing on the date of acquisition i.e. 11.01.2005 and 17.11.2005.22. Heard learned counsel for the parties.23. As mentioned above, the submission of learned counsel for the different landowners in support of their respective appeals was more or less common. According to them, there is overwhelming evidence adduced by the landowners to prove the potentiality of the land on the date of acquisition (11.01.2005 and 17.11.2005) which, in fact, found acceptance to the High Court while enhancing the rate of acquired land.24. It was urged that having regard to the situation, proximity and the surroundings of the acquired area which was already developed much prior to the date of the acquisition coupled with the fact that at least one sale deed out of the four exemplar sale deeds filed by the landowners (Exs-P1, P-10, P-12, P-13 and P-14) to prove the real market value of the acquired land as contemplated under Section 23 of the Act should have been made basis by the High Court for fixing the rate of acquired land and had it been done then the rate of acquired land would have been more than Rs.62,11,700/- per acre.25. All the learned counsel for the landowners then took us through the evidence with a view to show the potentiality in the acquired land, its situation, location, proximity with the well developed areas and its surrounding places and on that basis urged that a case for further enhancement in the rate of the acquired land, i.e., more than Rs.62,11,700/- per acre is made out and, therefore, this Court should allow the appeals filed by the landowners and suitably enhance the rate of acquired land for determining the compensation payable to each landowner.26. In reply, learned counsel for the State of Haryana contended that the High Court erred in allowing the landowners appeals and further erred in dismissing the States appeals.27. According to learned counsel, the landowners appeals were liable to be dismissed whereas the States appeals deserved to be allowed by the High Court by setting aside the award of the Reference Court.28. His submission was that the High Court cursorily disposed of the appeals without deciding any issue though involved in the appeals thereby causing prejudice to the rights of the State in particular.29. Learned counsel then took us through the findings of the High Court and the issues raised by the State for proper determination of the rates of the acquired land and on that basis pointed out the prejudice caused due to casual approach of the High Court in deciding the appeals. | 1[ds]31. The need to remand these cases to the Reference Court has occasioned essentially for two reasons. First, it is clear from the perusal of the impugned judgment that the High Court essentially based its decision or, we may say, proceeded to decide the appeals by making the decision of this Court in Haryana State Industrial Development Corporation vs Pran Sukh & Others [2010 (11) SCC 175 ] to be the basis to examine the question as to whether the rate of acquired land fixed by the LAO and Reference Court is fair or not.In our considered opinion, the approach of the High Court in the facts of these cases does not appear to be right inasmuch as the High Court failed to take into consideration several material issues which arose in these cases and had bearing on determination of the fair market rate of the land in question under Section 23 of the Act.35. First, the acquired land, in these cases, was a huge chunk of land measuring around 520 acres, 2 kanals and 13.5.marlas. Second, the entire acquired land was not situated in village Kasan but it was spread over in 15 villages as detailed above. Third, there is no evidence to show much less any finding of the High Court as to what was the actual distance among the villages against one another, the location, situation/area of each village, whether any development had taken place and, if so, its type, nature and when it took place in any of these villages, the potentiality and the quality of the acquired land situated in each village, its nature and the basis, the market rate of the land situated in each village prior to the date of acquisition or in its near proximity, whether small piece of land or preferably big chunk of land, the actual distance of each village qua any other nearby big developed city, town or a place, whether any activity is being carried on in the nearby areas, their details. Fourth, whether the acquired land in the case of Pran Sukh (supra) in village Kasan and the acquired land in question are similar in nature or different and, if so, how and on what basis, their total distance etc.36. These were, in our view, the issues which had material bearing while determining the rate of the acquired land in question.37. The High Court, in the absence of any evidence on any of these issues, could not have determined one flat market rate of the acquired land in question by applying one isolated rate of one land situated in one village Kasan and adding 8% annual increase from 1994 in such rate and made it applicable to the entire lands situated in 15 different villages.38. In our opinion, it is only when the evidence had been adduced by the parties to the lis on the aforementioned issues, the Court would have been in a position to apply its mind objectively as to which method should be applied for determination of the rate, i.e., whether belting system or flat rate system or different rates for different lands depending upon the quality of land situated in different villages etc.39. The fair market value of the acquired land cannot be decided in isolation on the basis of only one factor. There are several other factors, which govern the determination of the rate. These factors need to be proved with sufficient evidence. It must appear that the Courts have made sincere endeavor to determine the fair market rate of the acquired land and while determining has taken into account all relevant aspects of the case. It is the duty of the landowners and the State to adduce proper and sufficient evidence to enable the Courts to arrive at a reasonable and fair market rate of the acquired land prevalent on the date of acquisition.40. Taking into consideration the aforesaid infirmities, which we have noticed, we have no hesitation in holding that the trial in these cases has not been satisfactory. We cannot countenance the cursory manner in which both the Courts below proceeded to determine the market rate of the acquired land. It has certainly caused prejudice to both the parties.41. We do not blame any party for prosecuting their case in wholly unsatisfactory manner but the fact remains that both the parties failed to adduce sufficient evidence on several material issues, as a result, both the Courts below did not record any finding on any of the material issues arising in the case.42. In the light of the foregoing discussion, we find it difficult at this stage to determine the fair market rate of the acquired land for want of sufficient evidence. If we do, it will cause prejudice to the parties. We, therefore, refrain from doing so. | 1 | 1,928 | ### 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?
### Input:
by the State were concerned, the case of the State in the appeals was that the Reference Court erred in determining the market rate of the land at the rate of Rs.43,17,841/- per acre. According to the State, it was on higher side as compared to what was fixed by the LAO, i.e., Rs.12,50,000/- per acre which, in the facts and circumstances of the case, was just, proper and adequate with no scope of any further enhancement therein.14. By impugned judgment, the High Court partly allowed the appeals filed by the landowners and as a consequence thereof dismissed the appeals filed by the State. The High Court while partly allowing the landowners appeals further enhanced the rate of acquired land from Rs.43,17,841/- per acre to Rs.62,11,700/- per acre.15. In other words, in the opinion of the High Court, the fair market rate of acquired land should be at Rs.62,11,700/- per acre and, therefore, the compensation be paid to each landowner for their acquired lands, at the rate of Rs.62,11,700/- per acre.16. Against this judgment of the High Court, the landowners as well as the State both felt aggrieved and filed these appeals by way of special leave in this Court.17. So far as the appeals filed by the landowners are concerned, their common case in their appeals is that the High Court was right in enhancing the rate of acquired land but was not right in confining it to Rs.62,11,700/- per acre. According to them, the rate of acquired land should have been much more than what was determined by the High Court, i.e., Rs.62,11,700/- per acre.18. So far as the appeals filed by the State are concerned, the case of the State was that the High Court erred in further enhancing the rate of acquired land to Rs.62,11,700/- per acre. According to the State, there was no case made out for any further enhancement in the rate of the acquired land and on the other hand, the appeals filed by the State deserved to be allowed by the High Court by reducing the rate of acquired land fixed by the Reference Court and restoring the rate fixed by the LAO that being the fair market rate of the land rightly fixed by the LAO, i.e., Rs.12,50,000/- per acre.19. It is essentially with this factual background, the entire controversy on the question of re-determination of the rate of acquired land payable to the landowners is made the subject-matter of these appeals at the instance of the landowners and the State.20. Therefore, the question that arises for consideration in this bunch of appeals, is whether the High Court was right in partly allowing the landowners appeals and thereby was justified in further enhancing the rate of compensation from Rs.43,17,841/- per acre to Rs.62,11,700/- per acre. In other words, the question is whether the High Court was justified in dismissing the States appeals and thereby was justified in not reducing the rate of acquired land fixed by the Reference Court and restoring the rate (Rs.12,50,000/- per acre) fixed by LAO.21. To put it in yet another words, what is the fair market value of the acquired land in question -(1) Rs.12,50,000/- per acre as fixed by the LAO; or(2) Rs.43,17,841/- per acre as fixed by the Reference Court; or(3) Rs.62,11,700/- per acre as fixed by the High Court or lastly any other rate between Rs.12,50,000/- per acre and Rs.62,11,700/- per acre or more than Rs.62,11,700/- per acre prevailing on the date of acquisition i.e. 11.01.2005 and 17.11.2005.22. Heard learned counsel for the parties.23. As mentioned above, the submission of learned counsel for the different landowners in support of their respective appeals was more or less common. According to them, there is overwhelming evidence adduced by the landowners to prove the potentiality of the land on the date of acquisition (11.01.2005 and 17.11.2005) which, in fact, found acceptance to the High Court while enhancing the rate of acquired land.24. It was urged that having regard to the situation, proximity and the surroundings of the acquired area which was already developed much prior to the date of the acquisition coupled with the fact that at least one sale deed out of the four exemplar sale deeds filed by the landowners (Exs-P1, P-10, P-12, P-13 and P-14) to prove the real market value of the acquired land as contemplated under Section 23 of the Act should have been made basis by the High Court for fixing the rate of acquired land and had it been done then the rate of acquired land would have been more than Rs.62,11,700/- per acre.25. All the learned counsel for the landowners then took us through the evidence with a view to show the potentiality in the acquired land, its situation, location, proximity with the well developed areas and its surrounding places and on that basis urged that a case for further enhancement in the rate of the acquired land, i.e., more than Rs.62,11,700/- per acre is made out and, therefore, this Court should allow the appeals filed by the landowners and suitably enhance the rate of acquired land for determining the compensation payable to each landowner.26. In reply, learned counsel for the State of Haryana contended that the High Court erred in allowing the landowners appeals and further erred in dismissing the States appeals.27. According to learned counsel, the landowners appeals were liable to be dismissed whereas the States appeals deserved to be allowed by the High Court by setting aside the award of the Reference Court.28. His submission was that the High Court cursorily disposed of the appeals without deciding any issue though involved in the appeals thereby causing prejudice to the rights of the State in particular.29. Learned counsel then took us through the findings of the High Court and the issues raised by the State for proper determination of the rates of the acquired land and on that basis pointed out the prejudice caused due to casual approach of the High Court in deciding the appeals.
### Response:
1
|
1,011 | G. A. Galiakotwala & Co. (P) Ltd., Madras Vs. The State Of Madras | from the judgment dated 7 November, 1972 of the High Court of Madras.2. The principal question in this appeal is whether the sales of cotton by the appellant to the mills at Tirunelveli and Karur were inter-State sales under section 3(a) of the Central Sales Tax Act called the Central Act or are second sales under State Sales under section 3(b) of the Central Act.3. The appellant has its place of business at Coimbatore. The Mills are situated within the State of Madras. The Mills entered into an agreement with the appellant for purchase of cotton. The appellant in turn pl aced orders with its sellers at Bombay for purchase of cotton. The appellant directed its Bombay sellers to despatch the goods to the mills as consignees. The Bombay seller sent the consignment to the mills but the railway receipts were sent by the Bombay seller to the appellant. The appellant then endorsed the same in favour of the mills after collection of the substantial portion of the sale price.4. The appellant contended that the consignments were sent directly by the Bombay seller to the mills, and, therefore, these were direct inter-State sales by the Bombay seller to the mills and that the property in the goods passed to the mills when the goods were loaded at Bombay. The Sales Tax Authorities found that the Mills were the last purchaser and therefore these were inter-State sales between the Appellant and the Mills.5. A most significant feature is that the railway receipts were sent by the Bombay seller to the appellant, and the appellant thereafter endorsed the same to the mills. It is, therefore, apparent that there could not be an unconditional, appropriation of the goods at Bombay towards the contract entered into between the appellant and the mills. The property in the goods pass ed only when the mills took delivery of the railway receipts from the appellant. The Bombay seller dealt with the railway receipts in such a way that it is proved that the intention of the appellant to part with the goods in any event is not until substantial payment is made by the mills. The Bombay seller had no privity of contract with the Mills. The Bombay seller sold the goods to the appellant. The sale by the Bombay seller to the appellant was an inter-State sale. The sale by the appellant to the mills cannot be said to have caused the interstate movement of goods. The mere fact that the goods were consigned by the Bombay seller to the mills in accordance with the direction of the appellant will not make the transactions inter-State sales. The sale by the Bombay seller to the appellant occasioned the movement of goods. The High Court was correct in holding that the sale by the Bombay seller to the appellant is an inter-State sale and the sale by the appellant to the mill s is not an inter- State sale. Therefore, the State Sales Tax Authorities had jurisdiction to assess the transaction for sale by the appellant to the mills under section 3(b) of the Central Act.The appellant raised a second contention that the appellant is entitled to the benefit of Government Order No. 3602 which exempts from sales tax declared goods sold in the course of inter-State trade or commerce where tax has been levied or collected in respect of sales or purchase of such declared goods under section 4 of the Madras General Sales Tax Act, 1959 called the Madras Act. The Government Order No. 3602 was issued in exercise of powers conferred by section 8(5) of the Central Act. The appellant contended that the mills paid the tax on their purchases of cotton and the same transaction could not be brought to charge in the hands of the appellant as inter-State sale. If the transaction attracts levy of tax under the Central Act it is not taxable under the Madras Act. If the mills had paid tax under the impression that their purchases are taxable under the Madras Act that will not enable the appellant to claim the benefit of the exemption. The exemption applies only to cases where the claimant has paid tax himself under section 4 of the Madras Act in respect of local sales preceding the inter-State transactions. The appellant in the present case did not pay tax under section 4 of the Madras Act. The High Court, therefore, correctly held that the appellant was not entitled to claim exemption under the Government Order.6. The third contention of the appellant was that the appellant was entitled to exemption in respect of turnover under section 6(2) of the Central Act. Section 6(2) of the Central Act lays down that where a sale in the course of inter-State trade or commerce of goods of the description referred to in section 8(3) of the Central Act has occasioned the movement of goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale to a registered dealer during such movement effected by a transfer of documents of title to such goods shall not be subject t o tax under the Act. A dealer claiming exemption for subsequent sale during the movement of goods from one State to another is required by section 6(2) of the Central Act to furnish to the prescribed authority in the prescribed manner a certificate duly filled and signed by the registered dealer by whom the goods were purchased containing the particulars. In the present case, the appellant would be entitled to exemption in production of appropriate form by the Bombay seller and by showing that the buyer is a registered dealer. The appellant produced the form from Bombay seller but did not prove that his buyer was a registered dealer in cotton. Therefore, the Tribunal rightly held that the appellant was no t entitled to exemption under section 6(2) of the Act. | 0[ds]The High Court was correct in holding that the sale by the Bombay seller to the appellant is an inter-State sale and the sale by the appellant to the mill s is not an inter- State sale. Therefore, the State Sales Tax Authorities had jurisdiction to assess the transaction for sale by the appellant to the mills under section 3(b) of the CentralHigh Court, therefore, correctly held that the appellant was not entitled to claim exemption under the Governmentthird contention of the appellant was that the appellant was entitled to exemption in respect of turnover under section 6(2) of the Central Act. Section 6(2) of the Central Act lays down that where a sale in the course of inter-State trade or commerce of goods of the description referred to in section 8(3) of the Central Act has occasioned the movement of goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale to a registered dealer during such movement effected by a transfer of documents of title to such goods shall not be subject t o tax under the Act. A dealer claiming exemption for subsequent sale during the movement of goods from one State to another is required by section 6(2) of the Central Act to furnish to the prescribed authority in the prescribed manner a certificate duly filled and signed by the registered dealer by whom the goods were purchased containing thethe present case, the appellant would be entitled to exemption in production of appropriate form by the Bombay seller and by showing that the buyer is a registered dealer. The appellant produced the form from Bombay seller but did not prove that his buyer was a registered dealer in cotton. Therefore, the Tribunal rightly held that the appellant was no t entitled to exemption under section 6(2) of the Act | 0 | 1,092 | ### 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:
from the judgment dated 7 November, 1972 of the High Court of Madras.2. The principal question in this appeal is whether the sales of cotton by the appellant to the mills at Tirunelveli and Karur were inter-State sales under section 3(a) of the Central Sales Tax Act called the Central Act or are second sales under State Sales under section 3(b) of the Central Act.3. The appellant has its place of business at Coimbatore. The Mills are situated within the State of Madras. The Mills entered into an agreement with the appellant for purchase of cotton. The appellant in turn pl aced orders with its sellers at Bombay for purchase of cotton. The appellant directed its Bombay sellers to despatch the goods to the mills as consignees. The Bombay seller sent the consignment to the mills but the railway receipts were sent by the Bombay seller to the appellant. The appellant then endorsed the same in favour of the mills after collection of the substantial portion of the sale price.4. The appellant contended that the consignments were sent directly by the Bombay seller to the mills, and, therefore, these were direct inter-State sales by the Bombay seller to the mills and that the property in the goods passed to the mills when the goods were loaded at Bombay. The Sales Tax Authorities found that the Mills were the last purchaser and therefore these were inter-State sales between the Appellant and the Mills.5. A most significant feature is that the railway receipts were sent by the Bombay seller to the appellant, and the appellant thereafter endorsed the same to the mills. It is, therefore, apparent that there could not be an unconditional, appropriation of the goods at Bombay towards the contract entered into between the appellant and the mills. The property in the goods pass ed only when the mills took delivery of the railway receipts from the appellant. The Bombay seller dealt with the railway receipts in such a way that it is proved that the intention of the appellant to part with the goods in any event is not until substantial payment is made by the mills. The Bombay seller had no privity of contract with the Mills. The Bombay seller sold the goods to the appellant. The sale by the Bombay seller to the appellant was an inter-State sale. The sale by the appellant to the mills cannot be said to have caused the interstate movement of goods. The mere fact that the goods were consigned by the Bombay seller to the mills in accordance with the direction of the appellant will not make the transactions inter-State sales. The sale by the Bombay seller to the appellant occasioned the movement of goods. The High Court was correct in holding that the sale by the Bombay seller to the appellant is an inter-State sale and the sale by the appellant to the mill s is not an inter- State sale. Therefore, the State Sales Tax Authorities had jurisdiction to assess the transaction for sale by the appellant to the mills under section 3(b) of the Central Act.The appellant raised a second contention that the appellant is entitled to the benefit of Government Order No. 3602 which exempts from sales tax declared goods sold in the course of inter-State trade or commerce where tax has been levied or collected in respect of sales or purchase of such declared goods under section 4 of the Madras General Sales Tax Act, 1959 called the Madras Act. The Government Order No. 3602 was issued in exercise of powers conferred by section 8(5) of the Central Act. The appellant contended that the mills paid the tax on their purchases of cotton and the same transaction could not be brought to charge in the hands of the appellant as inter-State sale. If the transaction attracts levy of tax under the Central Act it is not taxable under the Madras Act. If the mills had paid tax under the impression that their purchases are taxable under the Madras Act that will not enable the appellant to claim the benefit of the exemption. The exemption applies only to cases where the claimant has paid tax himself under section 4 of the Madras Act in respect of local sales preceding the inter-State transactions. The appellant in the present case did not pay tax under section 4 of the Madras Act. The High Court, therefore, correctly held that the appellant was not entitled to claim exemption under the Government Order.6. The third contention of the appellant was that the appellant was entitled to exemption in respect of turnover under section 6(2) of the Central Act. Section 6(2) of the Central Act lays down that where a sale in the course of inter-State trade or commerce of goods of the description referred to in section 8(3) of the Central Act has occasioned the movement of goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale to a registered dealer during such movement effected by a transfer of documents of title to such goods shall not be subject t o tax under the Act. A dealer claiming exemption for subsequent sale during the movement of goods from one State to another is required by section 6(2) of the Central Act to furnish to the prescribed authority in the prescribed manner a certificate duly filled and signed by the registered dealer by whom the goods were purchased containing the particulars. In the present case, the appellant would be entitled to exemption in production of appropriate form by the Bombay seller and by showing that the buyer is a registered dealer. The appellant produced the form from Bombay seller but did not prove that his buyer was a registered dealer in cotton. Therefore, the Tribunal rightly held that the appellant was no t entitled to exemption under section 6(2) of the Act.
### Response:
0
|
1,012 | Narain Lal & Ors Vs. Sunder Lal (Dead) & Ors | me." Shortly thereafter Mangi Lal died. On March 6, 1956, Narain Lal, Mool Chand and Kesari Chand instituted a suit against the respondents under S. 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs. On March 9, 1958, Kesari Chand died. The trial Court raised and tried the following preliminary issue:"Whether the suit is not maintainable or the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the suit?" The trial Court held that the suit was maintainable. The High Court in its revisional jurisdiction set aside the order of the trial Court and held that the suit was not maintainable. The present appeal has been filed from the order of the High Court by special leave. 2. A suit claiming any of the reliefs specified in sub-s. (1) of S. 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may he instituted by the Advocate General or "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General", and save as provided by the Religious Endowments Act, 1863 and certain other laws, no suit claiming such reliefs in respect of any such trust can be instituted except in conformity with sub-s. (1) of S. 92. In the present case, four persons obtained the necessary sanction of the Advocate-General, one of them died before the suit was filed, and remaining three instituted the suit. The question is whether the suit is brought in conformity with S. 92 (1). 3. The decided cases show that a suit under S. 92 must be brought by all the persons to whom the sanction of the Advocate-General has been given, and a suit instituted by some of them only is not maintainable. In Bhagavannarayana v. Perumallacharyulu, 29 Mad LJ 231: (AIR 1916 Mad 762 (1)) where the sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable. In Pitchayya v. Venkatakrishnamacharlu, ILR 53 Mad 223 : (AIR 1930 Mad 129 ), where the sanction was given to three persons, the Court held that the suit instituted by two of them was invalidity brought and the defect could not be cured by impleading the other person as a defendant. In Sibte Rasul v. Sibte Nabi, ILR (1943) All 112: (AIR 1943 All 74 ), where four persons obtained the sanction and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of delivery of the judgment. We may add that in Venkatesha Malia v. Rammapallia Ramaya, ILR 38 Mad 1192: (AIR 1915 Mad 127 ), where the sanction to sue under S.18 of the Religious Endowments Act, 1863 was given by the district Judge to two persons, it was held that only one of them could not institute the suit. 4. We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent. As Sir George Rankin said in Mt. Ali Begam v. Badra-ul-Islam Ali Khan, 65 Ind App 198: (AIR 1938 PC 184 ), "where the consent in writing of the Advocate-General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only. The suit as instituted must conform to the consent." Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao v. Ramdas Daduram, 48 Ind App12: (AIR 1921 PC 123), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see 65 Ind App 198: (AIR 1938 PC 184 ) (supra): 5. In Sheo Ram v. Chand, AIR 1940 Lah 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in 65 Ind App 198: (AIR 1938 PC 184 ) (supra) it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted. From the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector. | 0[ds]In the present case, four persons obtained the necessary sanction of the Advocate-General, one of them died before the suit was filed, and remaining three instituted the suit3. The decided cases show that a suit under S. 92 must be brought by all the persons to whom the sanction of the Advocate-General has been given, and a suit instituted by some of them only is not maintainable4. We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competentFrom the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector5. In Sheo Ram v. Chand, AIR 1940 Lah 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in 65 Ind App 198: (AIR 1938 PC 184 ) (supra) it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted.From the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from thel or | 0 | 1,268 | ### 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?
### Input:
me." Shortly thereafter Mangi Lal died. On March 6, 1956, Narain Lal, Mool Chand and Kesari Chand instituted a suit against the respondents under S. 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs. On March 9, 1958, Kesari Chand died. The trial Court raised and tried the following preliminary issue:"Whether the suit is not maintainable or the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the suit?" The trial Court held that the suit was maintainable. The High Court in its revisional jurisdiction set aside the order of the trial Court and held that the suit was not maintainable. The present appeal has been filed from the order of the High Court by special leave. 2. A suit claiming any of the reliefs specified in sub-s. (1) of S. 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may he instituted by the Advocate General or "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General", and save as provided by the Religious Endowments Act, 1863 and certain other laws, no suit claiming such reliefs in respect of any such trust can be instituted except in conformity with sub-s. (1) of S. 92. In the present case, four persons obtained the necessary sanction of the Advocate-General, one of them died before the suit was filed, and remaining three instituted the suit. The question is whether the suit is brought in conformity with S. 92 (1). 3. The decided cases show that a suit under S. 92 must be brought by all the persons to whom the sanction of the Advocate-General has been given, and a suit instituted by some of them only is not maintainable. In Bhagavannarayana v. Perumallacharyulu, 29 Mad LJ 231: (AIR 1916 Mad 762 (1)) where the sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable. In Pitchayya v. Venkatakrishnamacharlu, ILR 53 Mad 223 : (AIR 1930 Mad 129 ), where the sanction was given to three persons, the Court held that the suit instituted by two of them was invalidity brought and the defect could not be cured by impleading the other person as a defendant. In Sibte Rasul v. Sibte Nabi, ILR (1943) All 112: (AIR 1943 All 74 ), where four persons obtained the sanction and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of delivery of the judgment. We may add that in Venkatesha Malia v. Rammapallia Ramaya, ILR 38 Mad 1192: (AIR 1915 Mad 127 ), where the sanction to sue under S.18 of the Religious Endowments Act, 1863 was given by the district Judge to two persons, it was held that only one of them could not institute the suit. 4. We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent. As Sir George Rankin said in Mt. Ali Begam v. Badra-ul-Islam Ali Khan, 65 Ind App 198: (AIR 1938 PC 184 ), "where the consent in writing of the Advocate-General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only. The suit as instituted must conform to the consent." Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao v. Ramdas Daduram, 48 Ind App12: (AIR 1921 PC 123), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see 65 Ind App 198: (AIR 1938 PC 184 ) (supra): 5. In Sheo Ram v. Chand, AIR 1940 Lah 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in 65 Ind App 198: (AIR 1938 PC 184 ) (supra) it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted. From the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector.
### Response:
0
|
1,013 | Commissioner of Income Tax, Bihar and Orissa Vs. Ashoka Marketing Company | HEGDE J. 1. These appeals are connected with Civil Appeals Nos. 1813, 1848 and 1849 of 1967 which we disposed of on July 23, 1971. All these appeals were dealt with by a common judgment by the High Court, in references under section 66(1) of the Indian Income-tax Act, 1922. The question arising for decision in these appeals is whether some of the losses incurred by the assessee are trading losses or not. The Tribunal has answered that question in favour of the assessee and the finding of the Tribunal has been accepted by the High Court The assessee is a limited company acting as selling agents of various companies and also carrying on business in shares in jute as also in speculation. The assessment years with which we are concerned in these appeals are 1952-1953 and 1953-54. For the year 1952-1953, the assessee returned a total income of Rs. 1, 78, 508 and for the year 1953-54, it returned an income of Rs. 1, 08, 573. In respect of the first year, the assessee claimed a loss of Rs. 19, 42, 243 and in respect of the second year a loss of Rs. 10, 40, 409 in respect of sale of certain shares. (These figures are taken from the printed statement of case, but their correctness is disputed. It is not necessary to go into the correctness of these figures). The loss in respect of the first year pertains to dealings in shares of New Central jute Mills and Lothian jute Mills and the loss claimed in respect of the second year pertains to purchase and sale of shares of the Punjab National Bank Ltd. and of the New Central Jute Mills Ltd. and Lothian Jute Mills Ltd. and certain other shares. It is admitted that the assessee-company is dealing in shares. It is also not disputed that the assessee did incur the losses mentioned earlier. But, according to the revenue, those losses cannot be considered as trading losses as the shares were purchased at a very high rate, so that Mr. S. P. Jain may control some of the companies. In other words, the contention of the revenue was that the dealings with which we are concerned in these cases are really not business dealings. This contention was rejected by the Tribunal. After examining the facts of the case, the Tribunal came to the conclusion that the shares in question were purchased in the course of business and that they could not have been purchased so as to enable Mr. Jain to control the management of certain companies. The assessee purchased these shares from Mr. Jain. Therefore, the question of purchasing these shares, so that Mr. S. P. Jain may control certain concerns, is a misconception. The conclusion reached by the Tribunal was accepted by the High Court. The High Court has elaborately considered the evidence on record and has come to the conclusion that the dealings with which we are concerned in these cases are business dealings and the losses were incurred in the course of business. These are essentially findings of fact. As mentioned earlier in our judgment in Commissioner of Income-tax v. Dalmia Jain & Co. Ltd. (Civil Appeals Nos. 1813, 1848 and 1849 of 1967) the finding of the Tribunal that the loss incurred is a trading loss is primarily a finding of fact, though in reaching that finding the Tribunal had to apply the test laid down by this court in several decisions. The Tribunal has carefully considered the evidence on record and after applying the tests laid down has come to the conclusion, as mentioned earlier, that the losses in question are trading losses and its conclusions have been accepted by the High Court. It is not the case of the revenue that in arriving at its findings the Tribunal had either ignored the relevant considerations or taken into consideration irrelevant matters | 0[ds]As mentioned earlier in our judgment in Commissioner ofx v. Dalmia Jain & Co. Ltd. (Civil Appeals Nos. 1813, 1848 and 1849 of 1967) the finding of the Tribunal that the loss incurred is a trading loss is primarily a finding of fact, though in reaching that finding the Tribunal had to apply the test laid down by this court in several decisions. The Tribunal has carefully considered the evidence on record and after applying the tests laid down has come to the conclusion, as mentioned earlier, that the losses in question are trading losses and its conclusions have been accepted by the High Court. It is not the case of the revenue that in arriving at its findings the Tribunal had either ignored the relevant considerations or taken into consideration irrelevant matters | 0 | 717 | ### 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:
HEGDE J. 1. These appeals are connected with Civil Appeals Nos. 1813, 1848 and 1849 of 1967 which we disposed of on July 23, 1971. All these appeals were dealt with by a common judgment by the High Court, in references under section 66(1) of the Indian Income-tax Act, 1922. The question arising for decision in these appeals is whether some of the losses incurred by the assessee are trading losses or not. The Tribunal has answered that question in favour of the assessee and the finding of the Tribunal has been accepted by the High Court The assessee is a limited company acting as selling agents of various companies and also carrying on business in shares in jute as also in speculation. The assessment years with which we are concerned in these appeals are 1952-1953 and 1953-54. For the year 1952-1953, the assessee returned a total income of Rs. 1, 78, 508 and for the year 1953-54, it returned an income of Rs. 1, 08, 573. In respect of the first year, the assessee claimed a loss of Rs. 19, 42, 243 and in respect of the second year a loss of Rs. 10, 40, 409 in respect of sale of certain shares. (These figures are taken from the printed statement of case, but their correctness is disputed. It is not necessary to go into the correctness of these figures). The loss in respect of the first year pertains to dealings in shares of New Central jute Mills and Lothian jute Mills and the loss claimed in respect of the second year pertains to purchase and sale of shares of the Punjab National Bank Ltd. and of the New Central Jute Mills Ltd. and Lothian Jute Mills Ltd. and certain other shares. It is admitted that the assessee-company is dealing in shares. It is also not disputed that the assessee did incur the losses mentioned earlier. But, according to the revenue, those losses cannot be considered as trading losses as the shares were purchased at a very high rate, so that Mr. S. P. Jain may control some of the companies. In other words, the contention of the revenue was that the dealings with which we are concerned in these cases are really not business dealings. This contention was rejected by the Tribunal. After examining the facts of the case, the Tribunal came to the conclusion that the shares in question were purchased in the course of business and that they could not have been purchased so as to enable Mr. Jain to control the management of certain companies. The assessee purchased these shares from Mr. Jain. Therefore, the question of purchasing these shares, so that Mr. S. P. Jain may control certain concerns, is a misconception. The conclusion reached by the Tribunal was accepted by the High Court. The High Court has elaborately considered the evidence on record and has come to the conclusion that the dealings with which we are concerned in these cases are business dealings and the losses were incurred in the course of business. These are essentially findings of fact. As mentioned earlier in our judgment in Commissioner of Income-tax v. Dalmia Jain & Co. Ltd. (Civil Appeals Nos. 1813, 1848 and 1849 of 1967) the finding of the Tribunal that the loss incurred is a trading loss is primarily a finding of fact, though in reaching that finding the Tribunal had to apply the test laid down by this court in several decisions. The Tribunal has carefully considered the evidence on record and after applying the tests laid down has come to the conclusion, as mentioned earlier, that the losses in question are trading losses and its conclusions have been accepted by the High Court. It is not the case of the revenue that in arriving at its findings the Tribunal had either ignored the relevant considerations or taken into consideration irrelevant matters
### Response:
0
|
1,014 | DUNCANS INDUSTRIES LTD Vs. A.J. AGROCHEM | Systems Act, 2007, the Limited Liability Partnership Act, 2008, and the Companies Act, 2013. 5. The Code seeks to achieve the above objectives.?? 26. The Preamble of the Code states as follows: ?An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.?7.3 After noticing and considering the Statement of Objects and Reasons for the IBC and the Preamble to the Code, thereafter this Court has observed and held in paragraphs 27 and 28 as under:"27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme —workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1 ] at para 83, fn 3). 28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.7.4 Section 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable. | 0[ds]7.1 In the present case, it is true that by notification dated 28.01.2016 issued under Section 16E of the Tea Act, the Central Government authorised the Tea Board to take over the management or the control of the seven tea estates mentioned in the said notification. However, the appellant challenged the said notification before the High Court of Calcutta and the learned Single Judge of the High Court dismissed the said petition. However, in an appeal, the Division Bench of the High Court of Calcutta vide the interim order dated 20.09.2016 has permitted the appellant-corporate debtor to continue with the management of the said tea estates. Therefore, in effect, the appellant herein has been continued to be in management and control of the tea estates, despite the notification under Section 16E dated 28.01.2016. At this stage, it is required to be noted that notification under Section 16E of the Tea Act was issued by the Central Government and the Central Government authorised the Tea Board to take steps to take over the management and control of the seven tea estates, having satisfied that the said seven tea gardens were being managed by the appellant in a manner highly detrimental to the tea industry and public interest. Despite the same, very surprisingly, by an interim arrangement, the Division Bench of the High Court of Calcutta has handed over the management and control of the seven tea gardens to the appellant, because of whose mis-management, it has deteriorated the condition of the tea gardens run by the appellant. Be that as it may, the fact remains that, pursuant to the interim arrangement/order passed by the Division Bench of the High Court dated 29.09.2016, the appellant-corporate debtor is continued to be in management and control of the seven tea gardens and they are running the tea gardens. Therefore, in the facts and circumstances of the case, and more particularly when, despite the notification under Section 16E of the Tea Act, the appellant-corporate debtor is continued to be in management and control of the tea gardens/units and are running the tea gardens as if the notification dated under Section 16E has not been issued, Section 16G of the Tea Act, more particularly Section 16G(1)(c), shall not be applicable at all. On a fair reading of Section 16G of the Tea Act, we are of the opinion that Section 16G of the Tea Act shall be applicable only in a case where the actual management of a tea undertaking or tea unit owned by a company has been taken over by any person or body of persons authorised by the Central Government under the Tea Act. Therefore, taking over the actual management and control by the Central Government or by any person or body of persons authorised by the Central Government is sine qua non before Section 16G of the Tea Act is made applicable. Therefore, in the facts and circumstances of the case, Section 16G(1)(c) shall not be applicable at all, as the appellant-corporate debtor is continued to be in management and control of the teaNow, so far as the main issue, namely, whether before initiation of the proceedings under Section 9 of the IBC, a prior consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is required or not and/or in absence of any such consent of the Central Government, the proceedings under Section 9 of the IBC shall be maintainable or not, is concerned, at the outset, it is required to be noted that the IBC is a complete Code inSection 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable. | 0 | 6,192 | ### 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:
Systems Act, 2007, the Limited Liability Partnership Act, 2008, and the Companies Act, 2013. 5. The Code seeks to achieve the above objectives.?? 26. The Preamble of the Code states as follows: ?An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time-bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto.?7.3 After noticing and considering the Statement of Objects and Reasons for the IBC and the Preamble to the Code, thereafter this Court has observed and held in paragraphs 27 and 28 as under:"27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme —workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1 ] at para 83, fn 3). 28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.7.4 Section 16G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 of the IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons Pvt. Ltd. (supra), referred to hereinabove, the primary focus of the legislation while enacting the IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire ?corporate insolvency resolution process? as such cannot be equated with ?winding up proceedings?. Therefore, considering Section 238 of the IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of the IBC shall have an over-riding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of the IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 of the IBC, the consent of the Central Government as provided under Section 16G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of the IBC, namely, to complete the ?corporate insolvency resolution process? in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of the IBC would have an over-riding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 of the IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 of the IBC initiated by the operational creditor shall be maintainable.
### Response:
0
|
1,015 | GARWARE WALL ROPERS LTD Vs. COASTAL MARINE CONSTRUCTIONS ENGINEERING LTD | always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule-making authority also. On the construction suggested by the learned Attorney- General it is obvious that by merely making an application under clause (5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of clause 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under clause 5(a) instead of making an application under clause 23, clause 23 will be a dead letter. A construction like this which defeats the intention of the rule-making authority in clause 23 must, if possible, be avoided.? (at page 193) In Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 , the rule of harmonious construction was used to reconcile Section 31(4) of the Mines Act, 1952 and Section 24 of the General Clauses Act. This Court held: ?If the words of Section 31(4) are construed to mean that the regulations became part of the Act to the extent that when the Act is repealed, the regulations also stand repealed, a conflict at once arises between Section 31(4) and the provisions of Section 24 of the General Clauses Act. In other words, the Mines Act, 1923, while saying in Section 31(4) that the repeal of the Act will result in the repeal of the regulations, will be saying, in the provisions of Section 24 of the General Clauses Act as read into it, that on the repeal of the Act, when the Act is repealed and re-enacted, the regulations will not stand repealed but will continue in force till superseded by regulations made under the re-enacted Act. To solve this conflict the courts must apply the rule of harmonious construction. According to Mr Pathak we have perfect harmony if it is held that the provisions of Section 24 of the General Clauses Act will have effect only if the regulations are such as survive the repeal of the parent Act and at the same time, construe Section 31(4) to mean that the regulations became for all purposes part and parcel of the Act. To harmonise is not however to destroy. The so- called harmony on the learned counsels argument is achieved by making the provisions of Section 24 of the General Clauses Act nugatory and in effects destroying them in relation to the Mines Act, 1923. We have to seek therefore some other means of harmonising the two provisions. The reasonable way of harmonising that obviously suggests itself is to construe Section 31(4) to mean that the regulations on publication shall have for some purposes, say, for example, the purpose of deciding the validity of the regulations, the same effect as if they were part of the Act, but for the purpose of the continuity of existence, they will not be considered part of the Act, so that even though the Act is repealed, the regulations will continue to exist, in accordance with the provisions of Section 24 of the General Clauses Act. This construction will give reasonable effect to Section 31(4) of the Mines Act, 1923 and at the same time not frustrate the very salutary object of Section 24 of the General Clauses Act. ……? (at pp. 19-20) In Anwar Hasan Khan v. Mohd. Shafi, (2001) 8 SCC 540 , this Court succinctly laid down what is meant by the doctrine of harmonious construction, thus: "8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a ?dead letter? is not harmonious construction. ……? One reasonable way of harmonising the provisions contained in Sections 33 and 34 of the Maharashtra Stamp Act, which is a general statute insofar as it relates to safeguarding revenue, and Section 11(13) of the 1996 Act, which applies specifically to speedy resolution of disputes by appointment of an arbitrator expeditiously, is by declaring that while proceeding with the Section 11 application, the High Court must impound the instrument which has not borne stamp duty and hand it over to the authority under the Maharashtra Stamp Act, who will then decide issues qua payment of stamp duty and penalty (if any) as expeditiously as possible, and preferably within a period of 45 days from the date on which the authority receives the instrument. As soon as stamp duty and penalty (if any) are paid on the instrument, any of the parties can bring the instrument to the notice of the High Court, which will then proceed to expeditiously hear and dispose of the Section 11 application. This will also ensure that once a Section 11 application is allowed and an arbitrator is appointed, the arbitrator can then proceed to decide the dispute within the time frame provided by Section 29A of the 1996 Act.28. Arguments taken of prejudice, namely, that on the facts of this case, the appellant had to pay the stamp duty and cannot take advantage of his own wrong, are of no avail when it comes to the application of mandatory provisions of law. | 0[ds]13. A reading of the Law Commission Report, together with the Statement of Objects and Reasons, shows that the Law Commission felt that the judgments in SBP & Co. (supra) and Boghara Polyfab (supra) required a relook, as a result of which, so far as Section 11 is concerned, the Supreme Court or, as the case may be, the High Court, while considering any application under Section 11(4) to 11(6) is to confine itself to the examination of the existence of an arbitration agreement and leave all other preliminary issues to be decided by the arbitrator. The question is as to whether the decision in SMS Tea Estates (supra) has also been done away with by the expression ?notwithstanding any judgment, decree or order of any Court? contained in Section 11(6A).It will be noticed from the aforesaid judgment that where an arbitration clause is contained in an agreement or conveyance, different consequences ensue depending on whether the agreement or conveyance is unregistered or unstamped. It is settled by SBP & Co. (supra) that Section 16 of the 1996 Act has full play only after the arbitral tribunal is constituted, without intervention of the Court under Section 11.view of the law laid down by seven-Judge Bench, it is difficult to accede to the argument made by the learned counsel on behalf of the respondent that Section 16 makes it clear that an arbitration agreement has an independent existence of its own, and must be applied while deciding an application under Section 11 of the 1996 Act.16. It will be seen that neither in the Statement of Objects and Reasons nor in the Law Commission Report is there any mention of SMS Tea Estates (supra). This is for the very good reason that the Supreme Court or the High Court, while deciding a Section 11 application, does not, in any manner, decide any preliminary question that arises between the parties. The Supreme Court or the High Court is only giving effect to the provisions of a mandatory enactment which, no doubt, is to protect revenue. SMS Tea Estates (supra) has taken account of the mandatory provisions contained in the Indian Stamp Act and held them applicable to judicial authorities, which would include the Supreme Court and the High Court acting under Section 11. A close look at Section 11(6A) would show that when the Supreme Court or the High Court considers an application under Section 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoined by the provisions of the Indian Stamp Act to first impound the agreement or conveyance and see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Indian Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance so as to give it an independent existence, as has been contended for by the respondent. The independent existence that could be given for certain limited purposes, on a harmonious reading of the Registration Act, 1908 and the 1996 Act has been referred to by Raveendran, J. in SMS Tea Estates (supra) when it comes to an unregistered agreement or conveyance. However, the Indian Stamp Act, containing no such provision as is contained in Section 49 of the Registration Act, 1908, has been held by the said judgment to apply to the agreement or conveyance as a whole, which would include the arbitration clause contained therein. It is clear, therefore, that the introduction of Section 11(6A) does not, in any manner, deal with or get over the basis of the judgment in SMS Tea Estates (supra), which continues to apply even after the amendment of Section 11(6A).17. Looked at from a slightly different angle, an arbitration agreement which is contained in an agreement or conveyance is dealt with in Section 7(2) of the 1996 Act. We are concerned with the first part of Section 7(2) on the facts of the present case, and therefore, the arbitration clause that is contained in the sub-contract in question is the subject matter of the present appeal. It is significant that an arbitration agreement may be in the form of an arbitration clause ?in a contract?.When an arbitration clause is contained ?in a contract?, it is significant that the agreement only becomes a contract if it is enforceable by law. We have seen how, under the Indian Stamp Act, an agreement does not become a contract, namely, that it is not enforceable in law, unless it is duly stamped. Therefore, even a plain reading of Section 11(6A), when read with Section 7(2) of the 1996 Act and Section 2(h) of the Contract Act, would make it clear that an arbitration clause in an agreement would not exist when it is not enforceable by law. This is also an indicator that SMS Tea Estates (supra) has, in no manner, been touched by the amendment of Sectionfocus in Enercon (supra) was as to whether an arbitration clause will apply even if there is no concluded contract entered into between the parties. Since the ?Heads of Agreement? provided that disputes which arose out of the Memorandum of Understanding and negotiations relating to the Intellectual Property Licence Agreement (IPLA) were arbitrable, this Court held that the arbitration agreement in the facts of that case was separate from the main contract, making it a case which falls under the second part (and not under the first part) to Section 7(2), namely, that an arbitration agreement may be in the form of a separate agreement. This judgment, therefore, does not take the respondent very much further. It may only be noted that the judgment in Ashapura Mine-Chem Ltd. v. Gujarat Mineral Development Corporation, (2015) 8 SCC 193 merely followed Enercon (supra) and would be inapplicable for the same reasons outlined by usjudgment also makes it clear that the mischief that was sought to be remedied by the introduction of Section 11(6A) was contained in the judgments of SBP & Co. (supra) and Boghara Polyfab (supra). This judgment does not, in any manner, answer the precise issue that is before us.This judgment is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did ?exist?, so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub-contract would not ?exist? as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6A) deals with ?existence?, as opposed to Section 8, Section 16, and Section 45, which deal with ?validity? of an arbitration agreement is answered by this Court?s understanding of the expression ?existence? in United India Insurance Co. (supra), as followed by us.Learned counsel for the respondent relied strongly upon Section 11(13) of the 1996 Act to show that the 60-day period would be breached if a document were to be impounded at the stage of a Section 11(6) application. Stamp duty, when paid with penalty (if any), would require adjudication by the stamp authorities, which would take far more than the 60-day period that is laid down by Section 11(13). Undoubtedly, Section 11(13), which was also introduced by Amendment Act 3 of 2016, was enacted keeping one of the important objectives of the 1996 Act in mind, namely, speedy disposal of disputes by the arbitral tribunal, and appointment of an arbitrator having to be made as expeditiously as possible, therefore. Thus, a harmonious construction needs to be given to the provisions of the Maharashtra Stamp Act and Section 11(13) of the 1996 Act by which, if it is possible, both provisions ought to be subserved. We have already seen that under the Maharashtra Stamp Act, the object of impounding an instrument that is unstamped is to ensure that stamp duty and penalty (if any) must be paid on such instrument before it is acted upon by any authority. Likewise, under Section 11(13) of the 1996 Act, an application made under Section 11 for appointment of an arbitrator should be disposed of as expeditiously as possible, and, in any event, an endeavour shall be made to dispose of such application at least within a period of 60 days from the date of service of notice on the opposite party.27. The doctrine of harmonious construction of statutes is strongly imbedded in our interpretative canon.reasonable way of harmonising the provisions contained in Sections 33 and 34 of the Maharashtra Stamp Act, which is a general statute insofar as it relates to safeguarding revenue, and Section 11(13) of the 1996 Act, which applies specifically to speedy resolution of disputes by appointment of an arbitrator expeditiously, is by declaring that while proceeding with the Section 11 application, the High Court must impound the instrument which has not borne stamp duty and hand it over to the authority under the Maharashtra Stamp Act, who will then decide issues qua payment of stamp duty and penalty (if any) as expeditiously as possible, and preferably within a period of 45 days from the date on which the authority receives the instrument. As soon as stamp duty and penalty (if any) are paid on the instrument, any of the parties can bring the instrument to the notice of the High Court, which will then proceed to expeditiously hear and dispose of the Section 11 application. This will also ensure that once a Section 11 application is allowed and an arbitrator is appointed, the arbitrator can then proceed to decide the dispute within the time frame provided by Section 29A of the 1996 Act.28. Arguments taken of prejudice, namely, that on the facts of this case, the appellant had to pay the stamp duty and cannot take advantage of his own wrong, are of no avail when it comes to the application of mandatory provisions of law. | 0 | 14,216 | ### 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:
always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule-making authority also. On the construction suggested by the learned Attorney- General it is obvious that by merely making an application under clause (5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of clause 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under clause 5(a) instead of making an application under clause 23, clause 23 will be a dead letter. A construction like this which defeats the intention of the rule-making authority in clause 23 must, if possible, be avoided.? (at page 193) In Chief Inspector of Mines v. Lala Karam Chand Thapar, (1962) 1 SCR 9 , the rule of harmonious construction was used to reconcile Section 31(4) of the Mines Act, 1952 and Section 24 of the General Clauses Act. This Court held: ?If the words of Section 31(4) are construed to mean that the regulations became part of the Act to the extent that when the Act is repealed, the regulations also stand repealed, a conflict at once arises between Section 31(4) and the provisions of Section 24 of the General Clauses Act. In other words, the Mines Act, 1923, while saying in Section 31(4) that the repeal of the Act will result in the repeal of the regulations, will be saying, in the provisions of Section 24 of the General Clauses Act as read into it, that on the repeal of the Act, when the Act is repealed and re-enacted, the regulations will not stand repealed but will continue in force till superseded by regulations made under the re-enacted Act. To solve this conflict the courts must apply the rule of harmonious construction. According to Mr Pathak we have perfect harmony if it is held that the provisions of Section 24 of the General Clauses Act will have effect only if the regulations are such as survive the repeal of the parent Act and at the same time, construe Section 31(4) to mean that the regulations became for all purposes part and parcel of the Act. To harmonise is not however to destroy. The so- called harmony on the learned counsels argument is achieved by making the provisions of Section 24 of the General Clauses Act nugatory and in effects destroying them in relation to the Mines Act, 1923. We have to seek therefore some other means of harmonising the two provisions. The reasonable way of harmonising that obviously suggests itself is to construe Section 31(4) to mean that the regulations on publication shall have for some purposes, say, for example, the purpose of deciding the validity of the regulations, the same effect as if they were part of the Act, but for the purpose of the continuity of existence, they will not be considered part of the Act, so that even though the Act is repealed, the regulations will continue to exist, in accordance with the provisions of Section 24 of the General Clauses Act. This construction will give reasonable effect to Section 31(4) of the Mines Act, 1923 and at the same time not frustrate the very salutary object of Section 24 of the General Clauses Act. ……? (at pp. 19-20) In Anwar Hasan Khan v. Mohd. Shafi, (2001) 8 SCC 540 , this Court succinctly laid down what is meant by the doctrine of harmonious construction, thus: "8. It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious construction. The statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved. The well-known principle of harmonious construction is that effect should be given to all the provisions and a construction that reduces one of the provisions to a ?dead letter? is not harmonious construction. ……? One reasonable way of harmonising the provisions contained in Sections 33 and 34 of the Maharashtra Stamp Act, which is a general statute insofar as it relates to safeguarding revenue, and Section 11(13) of the 1996 Act, which applies specifically to speedy resolution of disputes by appointment of an arbitrator expeditiously, is by declaring that while proceeding with the Section 11 application, the High Court must impound the instrument which has not borne stamp duty and hand it over to the authority under the Maharashtra Stamp Act, who will then decide issues qua payment of stamp duty and penalty (if any) as expeditiously as possible, and preferably within a period of 45 days from the date on which the authority receives the instrument. As soon as stamp duty and penalty (if any) are paid on the instrument, any of the parties can bring the instrument to the notice of the High Court, which will then proceed to expeditiously hear and dispose of the Section 11 application. This will also ensure that once a Section 11 application is allowed and an arbitrator is appointed, the arbitrator can then proceed to decide the dispute within the time frame provided by Section 29A of the 1996 Act.28. Arguments taken of prejudice, namely, that on the facts of this case, the appellant had to pay the stamp duty and cannot take advantage of his own wrong, are of no avail when it comes to the application of mandatory provisions of law.
### Response:
0
|
1,016 | THE SUPERINTENDENT OF POST OFFICES Vs. HANUMAN GIRI | in this Division (which is a reference to Banda Division as the said Notification is issued from Banda Division). Hence qualified candidates will have to go to other Divisions on availability of vacancy. It further states that no candidate will be posted in Banda Division in any circumstance. In our view the said instructions as contained in the Notification dated 24.05.1991 is to be kept in perspective while examining the other aspects of the matter since from the rival contentions it assumes significance and would be relevant to take note so as to conclude whether the respondent herein should be promoted based on his rank in the merit list at Serial No.12 relating to Banda Division or as to whether the vacancy position is to be taken note in the background of the common merit list relating to the Delivery Agents of all Divisions against the 17 vacancies in Kanpur Head Post Offices. Though the learned counsel for the respondent seeks to contend that the position of the respondent being at Serial No.12 has been admitted in all earlier proceedings and the appellants cannot be allowed to resile from the said position, it would be necessary to examine as to whether the merit of the respondent at Serial No.12 relates to the common merit list of all divisions or as to whether he was at Serial No.12 of the merit list limited to Banda Division. Such consideration, in our view, is necessary as it is the only issue which is germane for the purpose of decision making herein. 10. In that background, as already taken note by us the genesis of the case being a consideration made in O.A.No.546/1992 it would be necessary to take note of the nature of consideration made therein. In the said proceedings, the applicants therein namely, Shri Jagmohan Yadav and others while assailing the action of appellants herein had contended that the candidates of Banda Division could be posted against the unfilled vacancies of Kanpur Head Post Offices and Kanpur City Postal Division. It is no doubt true that the appellants herein in order to oppose the said contention had stated in the said proceedings that the 17 left over vacancies of Kanpur Head Post Offices which is Group-A Post Office are to be filled from Local Postal Division as per the extant rules and cannot be filled by the staff of other Divisions. The conclusion reached by the CAT after taking note of the rules is that there was no averment by the respondent that those 17 vacancies of Kanpur Head Post Offices have been filled from the other Local Divisions or any other Division. By an implication it was noted that no more selected staff was available for filling up the balance 17 vacancies from Delivery Agents of Kanpur Local Postal Division. In that circumstance, it was held that on declaration of the result the staff of Banda Division can also be eligible to be considered for 17 vacancies of Kanpur Head Post Offices as per Rules. It was, therefore, held therein that the stand taken by the appellants herein to the effect that vacancies of Kanpur Head Post Offices cannot be filled by the staff of other Divisions than those located at Kanpur is not tenable. In that circumstance, it was directed that the results of other candidates from all Divisions is to be declared and the 17 posts are to be filled up. It was precisely held as hereunder:?In the present case as we have held earlier, 17 vacancies of Kanpur Head Post Offices were left unfilled and the same should have been filled by successful staff of Banda Division or any other Division as applicable.?11. Therefore, the basis on which the consideration was made subsequent thereto including promotion of Shri Jagmohan Yadav, though belatedly, was based on the marks obtained in the merit list. On that aspect it is to be taken note that though the merit list of Fatehpur Division, Fatehgarh Division and Banda Division are separately maintained, a common merit list of Delivery Agents in respect of Kanpur Region which includes Fatehpur Division, Fatehgarh Division and Banda Division relating to the examinations conducted in the year 1991 was also maintained. As noticed, the very Notification dated 24.05.1991 indicates that though the examinations are held the qualified candidates will have to go to other Divisions on availability of vacancy as there was no vacancy of Postman in Banda Division. If that be the position in respect of the unfilled 17 vacancies of Kanpur Head Post Offices, the persons in order of merit from all Divisions including Banda Division wherein the respondent was working would be entitled to be considered based on common merit list. 12. In that situation though in the merit list of Banda Division Shri Jagmohan Yadav was at Serial No.1 and thE respondent herein was at Serial No.12, in the common merit list Shri Jagmohan Yadav was at Serial No.2 while the respondent herein was at Serial No.43. The total marks obtained by the candidates would indicate that the person at Serial No.17 in the said common merit list had obtained 131 marks and after the said candidate there are several other candidates who had obtained marks up to 128, after which the respondent having obtained 127.5 is at Serial No.43. In such situation ignoring the others, the respondent herein in any event cannot be promoted. Hence the consideration made by the CAT in favour of the respondent herein would not be justified. Though ultimately in the Review Petition before the High Court the fact that the respondent had not secured more marks than Shri Jagmohan Yadav was taken note and was clarified that even otherwise the direction issued was appropriate, we find that despite all the factors as noticed above it appears that what weighed in the mind of the CAT in O.A.No.888/2009 was a wrong assumption of the respondent being more meritorious than the candidate who was granted benefit due to the earlier orders. | 1[ds]8. We have extensively heard Shri Vikramjit Banerjee learned Additional Solicitor General appearing for the appellants, Shri S.D. Singh learned counsel for the respondent and perused the appeal papers including the additional documents brought on record along with an application. We have also taken note of the objections raised by the learned counsel for the respondent contending that the documents sought to be relied upon in the instant proceedings is against the admitted factual position. However, in a matter of the present nature where the records are maintained by the employer, unless the authenticity of the said document is in doubt, there would be no impediment for this Court to take note of the documents which are brought on record in an appropriateour view the said instructions as contained in the Notification dated 24.05.1991 is to be kept in perspective while examining the other aspects of the matter since from the rival contentions it assumes significance and would be relevant to take note so as to conclude whether the respondent herein should be promoted based on his rank in the merit list at Serial No.12 relating to Banda Division or as to whether the vacancy position is to be taken note in the background of the common merit list relating to the Delivery Agents of all Divisions against the 17 vacancies in Kanpur Head Postconsideration, in our view, is necessary as it is the only issue which is germane for the purpose of decision making herein.Therefore, the basis on which the consideration was made subsequent thereto including promotion of Shri Jagmohan Yadav, though belatedly, was based on the marks obtained in the merit list. On that aspect it is to be taken note that though the merit list of Fatehpur Division, Fatehgarh Division and Banda Division are separately maintained, a common merit list of Delivery Agents in respect of Kanpur Region which includes Fatehpur Division, Fatehgarh Division and Banda Division relating to the examinations conducted in the year 1991 was also maintained. As noticed, the very Notification dated 24.05.1991 indicates that though the examinations are held the qualified candidates will have to go to other Divisions on availability of vacancy as there was no vacancy of Postman in Banda Division. If that be the position in respect of the unfilled 17 vacancies of Kanpur Head Post Offices, the persons in order of merit from all Divisions including Banda Division wherein the respondent was working would be entitled to be considered based on common merit list.In that situation though in the merit list of Banda Division Shri Jagmohan Yadav was at Serial No.1 and thE respondent herein was at Serial No.12, in the common merit list Shri Jagmohan Yadav was at Serial No.2 while the respondent herein was at Serial No.43. The total marks obtained by the candidates would indicate that the person at Serial No.17 in the said common merit list had obtained 131 marks and after the said candidate there are several other candidates who had obtained marks up to 128, after which the respondent having obtained 127.5 is at Serial No.43. In such situation ignoring the others, the respondent herein in any event cannot be promoted. Hence the consideration made by the CAT in favour of the respondent herein would not be justified. Though ultimately in the Review Petition before the High Court the fact that the respondent had not secured more marks than Shri Jagmohan Yadav was taken note and was clarified that even otherwise the direction issued was appropriate, we find that despite all the factors as noticed above it appears that what weighed in the mind of the CAT in O.A.No.888/2009 was a wrong assumption of the respondent being more meritorious than the candidate who was granted benefit due to the earlier orders. | 1 | 2,550 | ### 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:
in this Division (which is a reference to Banda Division as the said Notification is issued from Banda Division). Hence qualified candidates will have to go to other Divisions on availability of vacancy. It further states that no candidate will be posted in Banda Division in any circumstance. In our view the said instructions as contained in the Notification dated 24.05.1991 is to be kept in perspective while examining the other aspects of the matter since from the rival contentions it assumes significance and would be relevant to take note so as to conclude whether the respondent herein should be promoted based on his rank in the merit list at Serial No.12 relating to Banda Division or as to whether the vacancy position is to be taken note in the background of the common merit list relating to the Delivery Agents of all Divisions against the 17 vacancies in Kanpur Head Post Offices. Though the learned counsel for the respondent seeks to contend that the position of the respondent being at Serial No.12 has been admitted in all earlier proceedings and the appellants cannot be allowed to resile from the said position, it would be necessary to examine as to whether the merit of the respondent at Serial No.12 relates to the common merit list of all divisions or as to whether he was at Serial No.12 of the merit list limited to Banda Division. Such consideration, in our view, is necessary as it is the only issue which is germane for the purpose of decision making herein. 10. In that background, as already taken note by us the genesis of the case being a consideration made in O.A.No.546/1992 it would be necessary to take note of the nature of consideration made therein. In the said proceedings, the applicants therein namely, Shri Jagmohan Yadav and others while assailing the action of appellants herein had contended that the candidates of Banda Division could be posted against the unfilled vacancies of Kanpur Head Post Offices and Kanpur City Postal Division. It is no doubt true that the appellants herein in order to oppose the said contention had stated in the said proceedings that the 17 left over vacancies of Kanpur Head Post Offices which is Group-A Post Office are to be filled from Local Postal Division as per the extant rules and cannot be filled by the staff of other Divisions. The conclusion reached by the CAT after taking note of the rules is that there was no averment by the respondent that those 17 vacancies of Kanpur Head Post Offices have been filled from the other Local Divisions or any other Division. By an implication it was noted that no more selected staff was available for filling up the balance 17 vacancies from Delivery Agents of Kanpur Local Postal Division. In that circumstance, it was held that on declaration of the result the staff of Banda Division can also be eligible to be considered for 17 vacancies of Kanpur Head Post Offices as per Rules. It was, therefore, held therein that the stand taken by the appellants herein to the effect that vacancies of Kanpur Head Post Offices cannot be filled by the staff of other Divisions than those located at Kanpur is not tenable. In that circumstance, it was directed that the results of other candidates from all Divisions is to be declared and the 17 posts are to be filled up. It was precisely held as hereunder:?In the present case as we have held earlier, 17 vacancies of Kanpur Head Post Offices were left unfilled and the same should have been filled by successful staff of Banda Division or any other Division as applicable.?11. Therefore, the basis on which the consideration was made subsequent thereto including promotion of Shri Jagmohan Yadav, though belatedly, was based on the marks obtained in the merit list. On that aspect it is to be taken note that though the merit list of Fatehpur Division, Fatehgarh Division and Banda Division are separately maintained, a common merit list of Delivery Agents in respect of Kanpur Region which includes Fatehpur Division, Fatehgarh Division and Banda Division relating to the examinations conducted in the year 1991 was also maintained. As noticed, the very Notification dated 24.05.1991 indicates that though the examinations are held the qualified candidates will have to go to other Divisions on availability of vacancy as there was no vacancy of Postman in Banda Division. If that be the position in respect of the unfilled 17 vacancies of Kanpur Head Post Offices, the persons in order of merit from all Divisions including Banda Division wherein the respondent was working would be entitled to be considered based on common merit list. 12. In that situation though in the merit list of Banda Division Shri Jagmohan Yadav was at Serial No.1 and thE respondent herein was at Serial No.12, in the common merit list Shri Jagmohan Yadav was at Serial No.2 while the respondent herein was at Serial No.43. The total marks obtained by the candidates would indicate that the person at Serial No.17 in the said common merit list had obtained 131 marks and after the said candidate there are several other candidates who had obtained marks up to 128, after which the respondent having obtained 127.5 is at Serial No.43. In such situation ignoring the others, the respondent herein in any event cannot be promoted. Hence the consideration made by the CAT in favour of the respondent herein would not be justified. Though ultimately in the Review Petition before the High Court the fact that the respondent had not secured more marks than Shri Jagmohan Yadav was taken note and was clarified that even otherwise the direction issued was appropriate, we find that despite all the factors as noticed above it appears that what weighed in the mind of the CAT in O.A.No.888/2009 was a wrong assumption of the respondent being more meritorious than the candidate who was granted benefit due to the earlier orders.
### Response:
1
|
1,017 | Gummanna Shetty & Ors Vs. Nagaveniamma | The object of the deed was to prevent disputes and wastage of properties and to preserve the dignity of the family. In terms, the creed did not declare that there was a complete disruption of the family. In case of a partition, a Kutumba governed by the Alivasanthana law is usually split up according to natural kavarus but under this deed, the Kutumba was split up into two artificial branches. The members of the two branches were restrained from incurring debts binding on the family properties and from alienating the properties or any portion thereof and granting any leases except in the ordinary court of management. These restrictions were obviously placed for the purpose of reserving the family properties intact for the benefit of both branches. The High Court said that as the deed effected an outright partition, the conditions restraining alienations were void under Section 10 of the Transfer of Property Act. But the point in issue is whether the deed effected an Outright partition. The restrictions on alienation rather indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were not hit by Section 10 of the Transfer of Property Act. Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the other branch. This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorship to the other branch. Had there been an out-right partition, the sole surviving kavaru would be entitled to dispose of her separate, property by a will under the provisions of the Malabar Wills Act 1898. The absence of such a right indicates that the creed did not effect a complete disruption of the joint family. On a consideration of the deed as a whole iii all its parts, we are constrained to hold that the deed on fits true construction did not effect an outright partition of the joint family. We may add that in compromise dated August 10, 1909 in O.S. No. 10 of 1909 to which the members of the second branch were parties, Darnamma solemnly admitted and declared that the deed was not a partition deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the properties may be increased and not wasted.6. Counsel for the respondent contended that the deed should be deemed to have effected a partition of the joint family properties under Section .36 (6) of the Madras Aliyasanthana Act, 1949 This contention was repelled by the trial court and was not pressed in the High Court. Section .36 (6) reads:"A registered family settlement by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties, notwithstanding any terms to the contrary in such settlement or award." 7. As was pointed out by Ramaswami J. in Kaveri v. Ganga Ratna, 1956-1 Mad LJ 98 (106) the following four conditions are the necessary pre-requisites for the application of Section 36(6):(1) there is a registered family settlement or award: (2) all the major members of the kutumba are parties to it : (3) the whole of the kutumba properties have been or were intended or purport to have been distributed under it; and (4) the distribution is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. The onus is upon the respondent to prove that the deed dated September 4, 1900, satisfies all these four conditions. The plea that the deed satisfies the conditions of S. 36 (6), was not taken in the written statement, nor was any issue raised on the point. The materials on the record do not show that the creed satisfies all the conditions of S. 36 (6). The trial court found that though Darnamma, a member of the kutumba was a major on September 4, 1900 she did not execute the deed. The deed described her as a minor under the guardianship of Padmaraja. From the materia is on the record it is not possible to say definitely that the whole of the kutumba properties was distributed under the deed. Moreover, S. 36 (6) Can apply only if the distribution was "among all the kavarus of the kutumba. S. 3 (b) defines kavaru Used in relation to a female. it means the group of persons consisting of that female, her children and all her descendants in the female line, and used in relation to a male. it means the kavaru of the mother of that male. Having, regard to the scheme of S. 36, we think that S. 36 (6) applies to a family settlement under which the kutumba is split up according to kavaru as defined in S. 3 (b) and the kutumba properties are distributed among such kavarus. Section, 36 (6) cannot apply to the creed dated September 4, l900, under which the kutumba was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of Nemakka the other consisting of Namakka, the rest of her descendants, and Sivadevi, and the properties were divided between these two artificial groups. 8. It follows that the deed dated September 4, 1900, on its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36 (6) of the Madras Aliyasanthana Act, 1949. | 1[ds]In 1900, when this deed was executed, one or more members of a joint family governed by the Aliyasanthana law of inheritance had no right to claim a partition of the joint family properties, but by a family arrangement entered into with the consent of all its members, the properties could be divided and separately enjoyed.1n such families, an arrangement for separate possession and enjoyment without actual disruption of the family was common. An arrangement for separate enjoyment did not effect a disruption of the family, unless it completely extinguished the community of interest in the family properties. The character of the deed dated September 4, 1900, must be judged in this backgroundThe restrictions on alienation rather indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were not hit by Section 10 of the Transfer of Property Act. Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the other branch. This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorship to the other branch. Had there been an out-right partition, the sole surviving kavaru would be entitled to dispose of her separate, property by a will under the provisions of the Malabar Wills Act 1898. The absence of such a right indicates that the creed did not effect a complete disruption of the joint family. On a consideration of the deed as a whole iii all its parts, we are constrained to hold that the deed on fits true construction did not effect an outright partition of the joint family. We may add that in compromise dated August 10, 1909 in O.S. No. 10 of 1909 to which the members of the second branch were parties, Darnamma solemnly admitted and declared that the deed was not a partition deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the properties may be increased and not wasted.The onus is upon the respondent to prove that the deed dated September 4, 1900, satisfies all these four conditions. The plea that the deed satisfies the conditions of S. 36 (6), was not taken in the written statement, nor was any issue raised on the point. The materials on the record do not show that the creed satisfies all the conditions of S. 36 (6). The trial court found that though Darnamma, a member of the kutumba was a major on September 4, 1900 she did not execute the deed. The deed described her as a minor under the guardianship of Padmaraja. From the materia is on the record it is not possible to say definitely that the whole of the kutumba properties was distributed under the deed. Moreover, S. 36 (6) Can apply only if the distribution was "among all the kavarus of the kutumba. S. 3 (b) defines kavaru Used in relation to a female. it means the group of persons consisting of that female, her children and all her descendants in the female line, and used in relation to a male. it means the kavaru of the mother of that male. Having, regard to the scheme of S. 36, we think that S. 36 (6) applies to a family settlement under which the kutumba is split up according to kavaru as defined in S. 3 (b) and the kutumba properties are distributed among such kavarus. Section, 36 (6) cannot apply to the creed dated September 4, l900, under which the kutumba was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of Nemakka the other consisting of Namakka, the rest of her descendants, and Sivadevi, and the properties were divided between these two artificial groups8. It follows that the deed dated September 4, 1900, on its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36 (6) of the Madras Aliyasanthana Act, 1949. | 1 | 2,401 | ### 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:
The object of the deed was to prevent disputes and wastage of properties and to preserve the dignity of the family. In terms, the creed did not declare that there was a complete disruption of the family. In case of a partition, a Kutumba governed by the Alivasanthana law is usually split up according to natural kavarus but under this deed, the Kutumba was split up into two artificial branches. The members of the two branches were restrained from incurring debts binding on the family properties and from alienating the properties or any portion thereof and granting any leases except in the ordinary court of management. These restrictions were obviously placed for the purpose of reserving the family properties intact for the benefit of both branches. The High Court said that as the deed effected an outright partition, the conditions restraining alienations were void under Section 10 of the Transfer of Property Act. But the point in issue is whether the deed effected an Outright partition. The restrictions on alienation rather indicate that the parties did not intend to effect an out-right partition, and they wanted a division for convenience of enjoyment on the footing that neither branch had the right to alienate. If the family arrangement took effect as a division for convenience of enjoyment only, and not as an out-right partition, the restrictions on alienations were not hit by Section 10 of the Transfer of Property Act. Moreover, the deed provided that if any branch would become nissanthathi, its properties would pass to the members of the other branch. This clause indicates that on one branch becoming extinct, the properties allotted to it would pass by survivorship to the other branch. Had there been an out-right partition, the sole surviving kavaru would be entitled to dispose of her separate, property by a will under the provisions of the Malabar Wills Act 1898. The absence of such a right indicates that the creed did not effect a complete disruption of the joint family. On a consideration of the deed as a whole iii all its parts, we are constrained to hold that the deed on fits true construction did not effect an outright partition of the joint family. We may add that in compromise dated August 10, 1909 in O.S. No. 10 of 1909 to which the members of the second branch were parties, Darnamma solemnly admitted and declared that the deed was not a partition deed, but was a family arrangement for the convenient enjoyment of the properties by the members of the family so that the properties may be increased and not wasted.6. Counsel for the respondent contended that the deed should be deemed to have effected a partition of the joint family properties under Section .36 (6) of the Madras Aliyasanthana Act, 1949 This contention was repelled by the trial court and was not pressed in the High Court. Section .36 (6) reads:"A registered family settlement by whatever name called) or an award, to which all the major members of a kutumba are parties and under which the whole of the kutumba properties have been or were intended to be distributed, or purport to have been distributed, among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity, shall be deemed to be a partition of the kutumba properties, notwithstanding any terms to the contrary in such settlement or award." 7. As was pointed out by Ramaswami J. in Kaveri v. Ganga Ratna, 1956-1 Mad LJ 98 (106) the following four conditions are the necessary pre-requisites for the application of Section 36(6):(1) there is a registered family settlement or award: (2) all the major members of the kutumba are parties to it : (3) the whole of the kutumba properties have been or were intended or purport to have been distributed under it; and (4) the distribution is among all the kavarus of the kutumba for their separate and absolute enjoyment in perpetuity. The onus is upon the respondent to prove that the deed dated September 4, 1900, satisfies all these four conditions. The plea that the deed satisfies the conditions of S. 36 (6), was not taken in the written statement, nor was any issue raised on the point. The materials on the record do not show that the creed satisfies all the conditions of S. 36 (6). The trial court found that though Darnamma, a member of the kutumba was a major on September 4, 1900 she did not execute the deed. The deed described her as a minor under the guardianship of Padmaraja. From the materia is on the record it is not possible to say definitely that the whole of the kutumba properties was distributed under the deed. Moreover, S. 36 (6) Can apply only if the distribution was "among all the kavarus of the kutumba. S. 3 (b) defines kavaru Used in relation to a female. it means the group of persons consisting of that female, her children and all her descendants in the female line, and used in relation to a male. it means the kavaru of the mother of that male. Having, regard to the scheme of S. 36, we think that S. 36 (6) applies to a family settlement under which the kutumba is split up according to kavaru as defined in S. 3 (b) and the kutumba properties are distributed among such kavarus. Section, 36 (6) cannot apply to the creed dated September 4, l900, under which the kutumba was split up into two artificial groups, one consisting of the descendants of Sarasamma and Brahmi and some descendants of Nemakka the other consisting of Namakka, the rest of her descendants, and Sivadevi, and the properties were divided between these two artificial groups. 8. It follows that the deed dated September 4, 1900, on its true construction, did not effect an out-right partition nor can it be deemed to be a deed of partition under S. 36 (6) of the Madras Aliyasanthana Act, 1949.
### Response:
1
|
1,018 | Jiwani Devi Paraki Vs. First Land Acquisition Collector, Calcutta and Others | the Act has been amended so far as West Bengal is concerned by the West Bengal Act 32 of 1955 with effect from 20.10.1955 and the amended sect ion 49 (1) so far as Calcutta is concerned runs thus:"Section 49 (1): The provisions of this Act shall not be put in force for the purpose of acquiring the part only of any house, manufactory or other building, if the acquisition of the part will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable.Provided that, if any question shall arise as to whether the part proposed to be acquired will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable, the Collector shall refer the determination of such question to the court and shall not take possession of such part until after the question has been determined.In deciding on such a reference the Court shall have regard only to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the remaining portion of the house, manufactory or building."14. The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents.In view of the decision in the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors. v. Ramachandra and Ors. (supra) and bearing in mind the distinction between requisition and acquisition as also the provisions of West Bengal amended section 49 (1) (quoted above), the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better.15. Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.It is true that the purpose indisputably in the instant case is a public purpose. It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature. Bu t that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially, nor would the continuance of the requisition become mala fide or colourable by mere lapse of time. In order to draw such an inference some more material ought to have been placed before the court. In the circumstances after having heard counsel on either side fully we feel that the following would be an appropriate order to be made in the instant case:1. The impugned requisition order is upheld but the continuance of the requisition of the premises in question is permitted subject to the conditions mentioned hereinafter.2. The Government is directed to take steps to acquire premises in question by complying with the conditions mentioned and by following the procedure prescribed in section 49 (1) of the Land Acquisition Act, 1894 as substituted for the State of West Bengal by the Wes t Bengal Act 32 of 1955 and if possible issue an appropriate order acquiring the same if Government wants the continued use of the premises. Such steps should be completed within a period of three years from today.3. If, however, there are insurmountable difficulties in acquiring the premises under section 49 (1), the Government will be at liberty to apply to this court for appropriate directions.4. We also hope that the Government would take steps to acquire any alternative property or premises under Land Acquisition Act, 1894 in view of the fact that the purpose of the Government is more or less permanent and such steps should also be taken not beyond a period of three years as aforesaid.5. If the aforesaid conditions or directions are not complied with, the petitioner will also be at liberty to apply to this court for appropriate directions in accordance with law.6 | 0[ds]The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents.In view of the decision in the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors. v. Ramachandra and Ors. (supra) and bearing in mind the distinction between requisition and acquisition as also the provisions of West Bengal amended section 49 (1) (quoted above), the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the partiesone is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.It is true that the purpose indisputably in the instant case is a public purpose. It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature. Bu t that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially, nor would the continuance of the requisition become mala fide or colourable by mere lapse of time. In order to draw such an inference some more material ought to have been placed before the court. | 0 | 4,104 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
the Act has been amended so far as West Bengal is concerned by the West Bengal Act 32 of 1955 with effect from 20.10.1955 and the amended sect ion 49 (1) so far as Calcutta is concerned runs thus:"Section 49 (1): The provisions of this Act shall not be put in force for the purpose of acquiring the part only of any house, manufactory or other building, if the acquisition of the part will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable.Provided that, if any question shall arise as to whether the part proposed to be acquired will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable, the Collector shall refer the determination of such question to the court and shall not take possession of such part until after the question has been determined.In deciding on such a reference the Court shall have regard only to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the remaining portion of the house, manufactory or building."14. The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents.In view of the decision in the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors. v. Ramachandra and Ors. (supra) and bearing in mind the distinction between requisition and acquisition as also the provisions of West Bengal amended section 49 (1) (quoted above), the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith. In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better.15. Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.It is true that the purpose indisputably in the instant case is a public purpose. It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature. Bu t that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially, nor would the continuance of the requisition become mala fide or colourable by mere lapse of time. In order to draw such an inference some more material ought to have been placed before the court. In the circumstances after having heard counsel on either side fully we feel that the following would be an appropriate order to be made in the instant case:1. The impugned requisition order is upheld but the continuance of the requisition of the premises in question is permitted subject to the conditions mentioned hereinafter.2. The Government is directed to take steps to acquire premises in question by complying with the conditions mentioned and by following the procedure prescribed in section 49 (1) of the Land Acquisition Act, 1894 as substituted for the State of West Bengal by the Wes t Bengal Act 32 of 1955 and if possible issue an appropriate order acquiring the same if Government wants the continued use of the premises. Such steps should be completed within a period of three years from today.3. If, however, there are insurmountable difficulties in acquiring the premises under section 49 (1), the Government will be at liberty to apply to this court for appropriate directions.4. We also hope that the Government would take steps to acquire any alternative property or premises under Land Acquisition Act, 1894 in view of the fact that the purpose of the Government is more or less permanent and such steps should also be taken not beyond a period of three years as aforesaid.5. If the aforesaid conditions or directions are not complied with, the petitioner will also be at liberty to apply to this court for appropriate directions in accordance with law.6
### Response:
0
|
1,019 | RAJASTHAN STATE ROAD TRANSPORT CORP. MANAGING DIRECTOR & ANR Vs. RAMESH KUMAR SHARMA | remedy of either moving the machinery under the Act or to approach the civil court. It is plain that he can?t have both. He has to choose the one or the other. But we shall presently show that the civil court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event civil court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone.? 7. Learned counsel does not dispute that the view taken in the aforesaid judgment has not been overruled but seeks to submit that the legal position has been elucidated in the case of the appellant in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors.-(1995) 5 SCC 75 as under:?35. We may now summarise the principles flowing from the above discussion:(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act,1946 - which can be called sister enactments to Industrial Disputes Act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not meriting an adjudication.(5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.(6) The certified Standing Orders framed under and in accordance with the Industrial employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.? 8. We must keep in mind that the Industrial Dispute Act is an alternative dispute resolution mechanism for the benefit of the workmen to provide ?speedy, inexpensive, informal and unencumbered by the plethora of procedural laws. The object is thus, to protect the workmen.9. It has also been observed that dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. It is only when the dispute involves recognition, observance or inforcement of or obligations created by the Industrial Disputes Act, the only remedy would be exclusively under the provisions of the Industrial Disputes Act Act. The facts of this case involved the termination of service of workmen and thus the remedy was inter alia under the Industrial Disputes Act.10. The present case involves recovery of certain fine amount which cannot be said to be covered by Section 2-A of the Industrial Disputes Act. The workmen in their wisdom (or possibly, lack of it) approached the civil Court and have been left high and dry for the last fifteen years without any adjudication on merits of their claims. We may also note that the impugned orders are also, in a sense interlocutory in character. | 0[ds]5. We may note that only notice was issued in the matter and no interim order was granted. Logically speaking, the suit would have been tried and decided in the meantime, if not the appeal also considering the time period which has lapsed. We are, however, informed that the suit has not even been proceeded with on the basis that matter is pending before this Court. The facts pain us that the recourse to justice can be delayed for such an ad infinitum period of time8. We must keep in mind that the Industrial Dispute Act is an alternative dispute resolution mechanism for the benefit of the workmen to provide ?speedy, inexpensive, informal and unencumbered by the plethora of procedural laws. The object is thus, to protect the workmen9. It has also been observed that dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. It is only when the dispute involves recognition, observance or inforcement of or obligations created by the Industrial Disputes Act, the only remedy would be exclusively under the provisions of the Industrial Disputes Act Act. The facts of this case involved the termination of service of workmen and thus the remedy was inter alia under the Industrial Disputes Act10. The present case involves recovery of certain fine amount which cannot be said to be covered by Section 2-A of the Industrial Disputes Act. The workmen in their wisdom (or possibly, lack of it) approached the civil Court and have been left high and dry for the last fifteen years without any adjudication on merits of their claims. We may also note that the impugned orders are also, in a sense interlocutory in character. | 0 | 1,666 | ### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
remedy of either moving the machinery under the Act or to approach the civil court. It is plain that he can?t have both. He has to choose the one or the other. But we shall presently show that the civil court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event civil court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the Act alone.? 7. Learned counsel does not dispute that the view taken in the aforesaid judgment has not been overruled but seeks to submit that the legal position has been elucidated in the case of the appellant in Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors.-(1995) 5 SCC 75 as under:?35. We may now summarise the principles flowing from the above discussion:(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947.(2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act.(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act,1946 - which can be called sister enactments to Industrial Disputes Act- and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex-facie. The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex-facie frivolous, not meriting an adjudication.(5) Consistent with the policy of law aforesaid, we commend to the Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the government - in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.(6) The certified Standing Orders framed under and in accordance with the Industrial employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to Civil Court is open according to the principles indicated herein.(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and un-encumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the Courts and Tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.? 8. We must keep in mind that the Industrial Dispute Act is an alternative dispute resolution mechanism for the benefit of the workmen to provide ?speedy, inexpensive, informal and unencumbered by the plethora of procedural laws. The object is thus, to protect the workmen.9. It has also been observed that dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an "industrial dispute" within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. It is only when the dispute involves recognition, observance or inforcement of or obligations created by the Industrial Disputes Act, the only remedy would be exclusively under the provisions of the Industrial Disputes Act Act. The facts of this case involved the termination of service of workmen and thus the remedy was inter alia under the Industrial Disputes Act.10. The present case involves recovery of certain fine amount which cannot be said to be covered by Section 2-A of the Industrial Disputes Act. The workmen in their wisdom (or possibly, lack of it) approached the civil Court and have been left high and dry for the last fifteen years without any adjudication on merits of their claims. We may also note that the impugned orders are also, in a sense interlocutory in character.
### Response:
0
|
1,020 | Md. Islam & Ors Vs. The Bihar State Electricity Board & Ors | regulate the service conditions of its employees was neither ipso facto nor mutatis mutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondent No.1- Electricity Board. Even if adapted, it would depend on the manner and to the extent adapted. 10. With this position being clear, a perusal of the notification dated 25.06.2003 issued by the State of Bihar will indicate, the benefit of the same is being sought by the appellants is in relation to its applicability w.e.f 09.08.1999 as provided therein. However, the notification on the face of it indicates the category of employees to whom it would apply as also the category to which it does not apply. The relevant portion reads as hereunder:- It shall be extended to all the regular employees of Group B, C and D of the State Government of Bihar. This may also be made applicable, by a special order of the state Government, to holders of isolated posts of Group A. This shall not be applicable to the teachers of nationalised schools and employees of the Public Undertakings or the autonomous institutions, assisted, partially or fully, by the State Government. (emphasis supplied) 11. A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the employees of the respondent No.1-Electricity Board, the notification dated 25.06.2003 itself clarifies that it shall not be applicable to the employees of public sector undertakings or autonomous institutions. The undisputed position is that the respondent No.1 is a statutory Board which is therefore an autonomous public undertaking. If that be the position, the mere issue of the notification dated 25.06.2003 by the State of Bihar would not create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It is in that light, the notifications dated 05.04.2005 and 07.10.2005 become relevant in the matter of granting benefit of the ACP Scheme to the employees of the respondent No.1-Electricity Board since there can be no claim until it is adapted. In that regard, a perusal of the notification dated 05.04.2005 (Annexure P3) indicates that the Committee constituted by the Board had submitted its recommendations which were considered by the Board and had thereupon taken a decision to replace the then existing system of Selection Grade and Time-bound Promotion with Assured Career Progression Scheme. The pay-scale for the purpose of ACP Scheme was to be notified later. Though, the notification dated 05.04.2005 adapting the ACP Scheme was notified, immediately thereafter a notification dated 07.10.2005 (Annexure P4) was issued which reads as hereunder: BIHAR STATE ELECTRICITY BOARD, PATNA (DEPARTMENT OF GENERAL ADMINISTRATION) NOTIFICATION Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005 In pursuance of Boards Resolution no. 8165 dated 22.9.2005 the Board in exercise of power conferred upon the Board under Section 79(C) of the electricity supply Act, 1948 has decided to adapt Bihar State Employees Condition of Service (Assured Career Progression Scheme) Rules 2003 only for the staff appointed after issuance of Boards notification No. 25 dated 5.4.2005. Boards notification no. 25 dated 5.4.2005 stands modified to the above extent. By order of the Bihar State Electricity Board Sd/- (Bishwanath Prasad) Secretary. (emphasis supplied) 12. A perusal of the notification dated 07.10.2005 indicates that the decision of the Board to adapt the ACP Scheme of 2003 was only for the staff appointed after the issuance of the Boards notification No.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by the State government for its employees but had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated 05.04.2005. 13. If that be the position, the appellants, in any event, cannot contend that the Scheme should be applicable from the very same date on which it had been made applicable to the State Government employees when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme. When the Board had decided to adapt, in such event it has also the discretion to alter the date of its applicability as against the date notified by the State Government. Any judicial review on the date chosen for applicability would arise only if such choice of date is demonstrated to be malafide or with ulterior motive. In the instant case, the date chosen is the date on which the scheme was adapted and the advantage or disadvantage thereof would befall on all employees across the board depending on which side of the fence they are as on such date. 14. In the instant appeal as already noted, even as on the date the notification dated 05.04.2005 was issued to adapt the scheme, all except the appellant No.1 had retired from service. Though, appellant No.1 was in service upto 31.07.2008 neither the appellant No.1 nor the other appellants or the other writ petitioners had raised any grievance till the year 2011 as the position was clear that the Board in its discretion had adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amended Rules 2006 had thereafter been brought to amend certain provisions of the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If all these aspects of the matter are kept in view, the grievance put forth by the appellants or the other writ petitioners before the High Court was rightly not accepted. 15. In that light, a perusal of the judgment dated 09.01.2008 passed by the learned Single Judge and the judgment dated 18.12.2008 by the Division Bench would indicate that the High Court adverted to all aspects of the matter and has thereafter arrived at the conclusion in accordance with law which does not call for interference. | 0[ds]7. At the outset, it is necessary to take note that the learned Single Judge, as also the Division Bench of the High Court has referred to the fact that respondent No.1-Electricity Board had not adapted the ACP Scheme of 2003 until the notification dated 05.04.2005 was issued. By such time most of the appellants had retired, they had benefitted from the earlier scheme and as such could not avail dual benefits is also the view expressed by the High Court.8. Having noted the contention on the said aspect, we are of the opinion that the said issue would become relevant only if at the first instance the Court is satisfied that the ACP Scheme of 2003 is accepted to be applicable to employees of respondent No.1- Electricity Board w.e.f 09.08.1999 as was made applicable to the government servants, the benefit of which is being sought by the appellants herein. Hence, it is necessary to examine this aspect of the matter relating to the date on which the scheme will be applicable to employees of respondent No.1-Electricity Board.9. In that regard, the fact which cannot be disputed is that even though at an earlier point in time the Electricity Board had adapted the Bihar Service Code of the State Government due to which all Service Conditions, Rules and notifications applicable to the employees of the State Government had become applicable to the employees of the respondent No.1-Electricity Board, the respondent No.1- Electricity Board had thereafter in exercise of the power conferred under Section 79 (C) of the Electricity (Supply) Act, 1948 had framed its own service regulations. The indisputable position is that, the appellants, therefore, were guided by the service regulations of respondent No.1-Electricity Board. Therefore, the notification relating to service conditions if any issued by the State of Bihar to regulate the service conditions of its employees was neither ipso facto nor mutatis mutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondent No.1- Electricity Board. Even if adapted, it would depend on the manner and to the extent adapted.10. With this position being clear, a perusal of the notification dated 25.06.2003 issued by the State of Bihar will indicate, the benefit of the same is being sought by the appellants is in relation to its applicability w.e.f 09.08.1999 as provided therein. However, the notification on the face of it indicates the category of employees to whom it would apply as also the category to which it does not apply.11. A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the employees of the respondent No.1-Electricity Board, the notification dated 25.06.2003 itself clarifies that it shall not be applicable to the employees of public sector undertakings or autonomous institutions. The undisputed position is that the respondent No.1 is a statutory Board which is therefore an autonomous public undertaking. If that be the position, the mere issue of the notification dated 25.06.2003 by the State of Bihar would not create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It is in that light, the notifications dated 05.04.2005 and 07.10.2005 become relevant in the matter of granting benefit of the ACP Scheme to the employees of the respondent No.1-Electricity Board since there can be no claim until it is adapted. In that regard, a perusal of the notification dated 05.04.2005 (Annexure P3) indicates that the Committee constituted by the Board had submitted its recommendations which were considered by the Board and had thereupon taken a decision to replace the then existing system of Selection Grade and Time-bound Promotion with Assured Career Progression Scheme. The pay-scale for the purpose of ACP Scheme was to be notified later.12. A perusal of the notification dated 07.10.2005 indicates that the decision of the Board to adapt the ACP Scheme of 2003 was only for the staff appointed after the issuance of the Boards notification No.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by the State government for its employees but had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated 05.04.2005.13. If that be the position, the appellants, in any event, cannot contend that the Scheme should be applicable from the very same date on which it had been made applicable to the State Government employees when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme. When the Board had decided to adapt, in such event it has also the discretion to alter the date of its applicability as against the date notified by the State Government. Any judicial review on the date chosen for applicability would arise only if such choice of date is demonstrated to be malafide or with ulterior motive. In the instant case, the date chosen is the date on which the scheme was adapted and the advantage or disadvantage thereof would befall on all employees across the board depending on which side of the fence they are as on such date.14. In the instant appeal as already noted, even as on the date the notification dated 05.04.2005 was issued to adapt the scheme, all except the appellant No.1 had retired from service. Though, appellant No.1 was in service upto 31.07.2008 neither the appellant No.1 nor the other appellants or the other writ petitioners had raised any grievance till the year 2011 as the position was clear that the Board in its discretion had adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amended Rules 2006 had thereafter been brought to amend certain provisions of the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If all these aspects of the matter are kept in view, the grievance put forth by the appellants or the other writ petitioners before the High Court was rightly not accepted.15. In that light, a perusal of the judgment dated 09.01.2008 passed by the learned Single Judge and the judgment dated 18.12.2008 by the Division Bench would indicate that the High Court adverted to all aspects of the matter and has thereafter arrived at the conclusion in accordance with law which does not call for interference. | 0 | 2,423 | ### 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:
regulate the service conditions of its employees was neither ipso facto nor mutatis mutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondent No.1- Electricity Board. Even if adapted, it would depend on the manner and to the extent adapted. 10. With this position being clear, a perusal of the notification dated 25.06.2003 issued by the State of Bihar will indicate, the benefit of the same is being sought by the appellants is in relation to its applicability w.e.f 09.08.1999 as provided therein. However, the notification on the face of it indicates the category of employees to whom it would apply as also the category to which it does not apply. The relevant portion reads as hereunder:- It shall be extended to all the regular employees of Group B, C and D of the State Government of Bihar. This may also be made applicable, by a special order of the state Government, to holders of isolated posts of Group A. This shall not be applicable to the teachers of nationalised schools and employees of the Public Undertakings or the autonomous institutions, assisted, partially or fully, by the State Government. (emphasis supplied) 11. A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the employees of the respondent No.1-Electricity Board, the notification dated 25.06.2003 itself clarifies that it shall not be applicable to the employees of public sector undertakings or autonomous institutions. The undisputed position is that the respondent No.1 is a statutory Board which is therefore an autonomous public undertaking. If that be the position, the mere issue of the notification dated 25.06.2003 by the State of Bihar would not create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It is in that light, the notifications dated 05.04.2005 and 07.10.2005 become relevant in the matter of granting benefit of the ACP Scheme to the employees of the respondent No.1-Electricity Board since there can be no claim until it is adapted. In that regard, a perusal of the notification dated 05.04.2005 (Annexure P3) indicates that the Committee constituted by the Board had submitted its recommendations which were considered by the Board and had thereupon taken a decision to replace the then existing system of Selection Grade and Time-bound Promotion with Assured Career Progression Scheme. The pay-scale for the purpose of ACP Scheme was to be notified later. Though, the notification dated 05.04.2005 adapting the ACP Scheme was notified, immediately thereafter a notification dated 07.10.2005 (Annexure P4) was issued which reads as hereunder: BIHAR STATE ELECTRICITY BOARD, PATNA (DEPARTMENT OF GENERAL ADMINISTRATION) NOTIFICATION Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005 In pursuance of Boards Resolution no. 8165 dated 22.9.2005 the Board in exercise of power conferred upon the Board under Section 79(C) of the electricity supply Act, 1948 has decided to adapt Bihar State Employees Condition of Service (Assured Career Progression Scheme) Rules 2003 only for the staff appointed after issuance of Boards notification No. 25 dated 5.4.2005. Boards notification no. 25 dated 5.4.2005 stands modified to the above extent. By order of the Bihar State Electricity Board Sd/- (Bishwanath Prasad) Secretary. (emphasis supplied) 12. A perusal of the notification dated 07.10.2005 indicates that the decision of the Board to adapt the ACP Scheme of 2003 was only for the staff appointed after the issuance of the Boards notification No.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by the State government for its employees but had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated 05.04.2005. 13. If that be the position, the appellants, in any event, cannot contend that the Scheme should be applicable from the very same date on which it had been made applicable to the State Government employees when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme. When the Board had decided to adapt, in such event it has also the discretion to alter the date of its applicability as against the date notified by the State Government. Any judicial review on the date chosen for applicability would arise only if such choice of date is demonstrated to be malafide or with ulterior motive. In the instant case, the date chosen is the date on which the scheme was adapted and the advantage or disadvantage thereof would befall on all employees across the board depending on which side of the fence they are as on such date. 14. In the instant appeal as already noted, even as on the date the notification dated 05.04.2005 was issued to adapt the scheme, all except the appellant No.1 had retired from service. Though, appellant No.1 was in service upto 31.07.2008 neither the appellant No.1 nor the other appellants or the other writ petitioners had raised any grievance till the year 2011 as the position was clear that the Board in its discretion had adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amended Rules 2006 had thereafter been brought to amend certain provisions of the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If all these aspects of the matter are kept in view, the grievance put forth by the appellants or the other writ petitioners before the High Court was rightly not accepted. 15. In that light, a perusal of the judgment dated 09.01.2008 passed by the learned Single Judge and the judgment dated 18.12.2008 by the Division Bench would indicate that the High Court adverted to all aspects of the matter and has thereafter arrived at the conclusion in accordance with law which does not call for interference.
### Response:
0
|
1,021 | Crompton Greaves Limited Vs. Deputy Commissioner of Income-Tax | no claim under the head "bad debts" has been made. The claim is that the loan was in the form of intercorporate deposit which is a case of capital asset and it has been transferred. The Tribunal found that there is no evidence to show that it is a case of an intercorporate deposit because before the Assessing Officer it was claimed that the loss was on account of writing off of the advances given to M/s. Bharat Starch Industries Ltd. and M/s. JCT Ltd. Then it was claimed that the advances were written off. There is no material to show that the case of intercorporate deposit has been made out. The loans, therefore, cannot be termed or construed as capital assets.12. The judgments relied upon have been, therefore, distinguished and we do not find that in the facts and circumstances of the present case, the Tribunal was required to render any other finding or conclusion. The observations from paragraph 13 onwards are based on assumption. The assumption is made by the Tribunal and in that regard, reference to various judgments has been made including the order passed on the petition for amalgamation by the Gujarat High Court. We are of the opinion that the Tribunal was strictly not required to go into any other matters. Therefore, the findings based on assumption need not detain us.13. We are of the opinion that the findings of fact rendered in the peculiar factual backdrop do no give rise to any substantial question of law. The questions as projected before us cannot be said to be rising from the orders impugned before us. In the facts and circumstances, we do not feel that the appeal is required to be entertained.14. In all fairness, we must refer to the judgments cited before us. The argument is that the definition of "capital asset" in section 2(14) of the Income-tax Act, 1961, is wide enough to include even advance of money. In other words, the property of any kind held by the assessee, whether or not connected with his business or profession is a capital asset. It is, therefore, capable of being transferred and the basis on which the authorities proceeded in this case is, thus, untenable in law. The judgment cited of the honourable Supreme Court in the case of Ahmed G.H. Ariff (supra), was in the context of the provisions in the Wealth-tax Act, 1957. The question that was raised before the honourable Supreme Court was that the right of the assessee to receive a specified share of the net income from the estate in respect of which wakfalalaulad has been created, is an asset assessable to wealth-tax. It is in that context that the definition of the term "asset" as defined in section 2(e) of the Wealth-tax Act, 1957, and section 6(dd) of the Transfer of Property Act has been referred to. All conclusions which have been rendered by the honourable Supreme Court, must be, therefore, read in the peculiar factual situation and circumstances. In dealing with the argument that the right claimed of the nature cannot be termed as property that the honourable Supreme Court held that the property is a term of the widest import and subject to any limitation which in the context is required. It signifies every possible interest which a person can clearly hold and enjoy. We are of the opinion that on the basis of the definition noted by us that the honourable Supreme Court held as above. This judgment, therefore, cannot be of any assistance to the assessee before us.15. The judgment of the honourable Gujarat High Court in the case of CIT v. Minor Bababhai [1981] 128 ITR 1 (Guj) , has been rightly distinguished by the authorities. The question before the honourable Gujarat High Court was a distinct one. There, a sum of Rs. 25,000 was advanced to the company by the assessee on a promissory note. The company suffered financial difficulties and went into liquidation. The scheme of compromise and arrangement was approved by the court and as per the scheme, the assessee realized only Rs. 13,323 from the company. The balance was claimed as capital loss during the relevant assessment year. This claim was negatived by the Income-tax Officer but allowed in appeal. The argument of the Revenue before the Tribunal was that there must be an element of consideration for extinction of the rights in the capital assets before any gains or losses from such extinguishment could be brought for computation under the head "Capital gains". Thus, there was no controversy that what was before the authorities was a claim in relation to capital asset. The Tribunal held that there was extinguishment of the assessees right in the capital asset which had brought him the loss. It is in that context the Division Bench found that there was consideration backing up the transfer of the capital asset as reflected by the extinguishment of the assessees rights in the earlier existing capital asset. Therefore, all the requirements of section 45 read with section 2(47) of the Income-tax Act, 1961, were complied with. This judgment also cannot assist the assessee in this case because what was argued before the authorities was that the loss incurred is capital loss in relation to transfer of capital asset. However, now what has been argued is that the advances were not as such but intercorporate deposits (ICDs). Therefore, the alternative argument which was raised was in relation to the loss of advance due to amalgamation of the company to which it was advanced with one of the sister concern of the assessee before us. That was an alternative argument and in relation to which the judgment of the Gujarat High Court was cited. Once this issue did not arise for determination and consideration of the authorities and particularly because of the stand taken now before us that we are of the opinion that the judgment of the Gujarat High Court is of no assistance to the assessee. | 0[ds]Suffice it to state that the authorities found that the assessee has written off the advances of the above sum and claimed the same as a capital loss to be carried forward for set off for subsequent years. The details have been noted and equally the relevant legal provisions. The Assessing Officer has referred to the definitions of the terms "capital asset" and "transfer" appearing in section 2(14) and section 2(47) of theAct, 1961. He held that in order to be eligible for carry forward of capital loss, the capital asset should be of the nature defined in section 2(14) and should be transferred in the manner defined in section 2(47). Equally, it should be subjected to tax as per section 45(1) of theAct, 1961. The advances given to M/s. JCT Ltd. and M/s. Bharat Starch Industries Ltd. and written off are not the capital assets nor is there any transfer. Therefore, they were not allowed to be carried forward to the subsequent years. It is the capital loss and, therefore, should be ignored. The claim was, thus, disallowed.9. Before the Commissioner of(Appeals), the argument was almost identical and in paragraph 9.6 of the order of the Commissioner of(Appeals), it is held that the loss incurred by theis not a capital loss in relation to the transfer of asset. The company to whom the advance was given was amalgamated. On amalgamation, it has given equity shares of Rs. 60 lakhs only as against an advance of Rs. 17.25 crores and Rs. 17.87 crores, respectively. The appellant, therefore, lost the advance due to amalgamation of the company with one of its sister concern. The loss has been rightly determined as a capital loss and that is how the Commissioner of(Appeals) agreed with the Assessing Officer. However, he partly allowed the appeal of thein so far as the claim or ground for interest portion is concerned.10. The matter was carried in appeal to theAppellate Tribunal. The Tribunal, in paragraph 7 of the impugned order, has held that the assessee has written off the advances given to M/s. Bharat Starch Industries Ltd. and M/s. JCT Ltd. It also referred to the note which was filed. It also referred to the findings of the Assessing Officer and the Commissioner of(Appeals).11. In dealing with the submission that there was intercorporate deposit (ICD) of Rs. 10 lakhs given to M/s. JCT Ltd. in the yearand further amount of interest of Rs. 7.25 crores was due on account of interest, so also, the contentions of the Revenue to the contrary, the Tribunal concluded that in the light of materials on record it is clear that the loans were not given in the ordinary course of business. In fact no claim under the head "bad debts" has been made. The claim is that the loan was in the form of intercorporate deposit which is a case of capital asset and it has been transferred. The Tribunal found that there is no evidence to show that it is a case of an intercorporate deposit because before the Assessing Officer it was claimed that the loss was on account of writing off of the advances given to M/s. Bharat Starch Industries Ltd. and M/s. JCT Ltd. Then it was claimed that the advances were written off. There is no material to show that the case of intercorporate deposit has been made out. The loans, therefore, cannot be termed or construed as capital assets.12. The judgments relied upon have been, therefore, distinguished and we do not find that in the facts and circumstances of the present case, the Tribunal was required to render any other finding or conclusion. The observations from paragraph 13 onwards are based on assumption. The assumption is made by the Tribunal and in that regard, reference to various judgments has been made including the order passed on the petition for amalgamation by the Gujarat High Court. We are of the opinion that the Tribunal was strictly not required to go into any other matters. Therefore, the findings based on assumption need not detain us.13. We are of the opinion that the findings of fact rendered in the peculiar factual backdrop do no give rise to any substantial question of law. The questions as projected before us cannot be said to be rising from the orders impugned before us. In the facts and circumstances, we do not feel that the appeal is required to be entertained.14. In all fairness, we must refer to the judgments cited before us. The argument is that the definition of "capital asset" in section 2(14) of theAct, 1961, is wide enough to include even advance of money. In other words, the property of any kind held by the assessee, whether or not connected with his business or profession is a capital asset. It is, therefore, capable of being transferred and the basis on which the authorities proceeded in this case is, thus, untenable in law. The judgment cited of the honourable Supreme Court in the case of Ahmed G.H. Ariff (supra), was in the context of the provisions in theAct, 1957. The question that was raised before the honourable Supreme Court was that the right of the assessee to receive a specified share of the net income from the estate in respect of which wakfalalaulad has been created, is an asset assessable toIt is in that context that the definition of the term "asset" as defined in section 2(e) of theAct, 1957, and section 6(dd) of the Transfer of Property Act has been referred to. All conclusions which have been rendered by the honourable Supreme Court, must be, therefore, read in the peculiar factual situation and circumstances. In dealing with the argument that the right claimed of the nature cannot be termed as property that the honourable Supreme Court held that the property is a term of the widest import and subject to any limitation which in the context is required. It signifies every possible interest which a person can clearly hold and enjoy. We are of the opinion that on the basis of the definition noted by us that the honourable Supreme Court held as above. This judgment, therefore, cannot be of any assistance to the assessee before us.15. The judgment of the honourable Gujarat High Court in the case of CIT v. Minor Bababhai [1981] 128 ITR 1 (Guj) , has been rightly distinguished by thejudgment also cannot assist the assessee in this case because what was argued before the authorities was that the loss incurred is capital loss in relation to transfer of capital asset. However, now what has been argued is that the advances were not as such but intercorporate deposits (ICDs). Therefore, the alternative argument which was raised was in relation to the loss of advance due to amalgamation of the company to which it was advanced with one of the sister concern of the assessee before us. That was an alternative argument and in relation to which the judgment of the Gujarat High Court was cited. Once this issue did not arise for determination and consideration of the authorities and particularly because of the stand taken now before us that we are of the opinion that the judgment of the Gujarat High Court is of no assistance to the assessee. | 0 | 2,740 | ### 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:
no claim under the head "bad debts" has been made. The claim is that the loan was in the form of intercorporate deposit which is a case of capital asset and it has been transferred. The Tribunal found that there is no evidence to show that it is a case of an intercorporate deposit because before the Assessing Officer it was claimed that the loss was on account of writing off of the advances given to M/s. Bharat Starch Industries Ltd. and M/s. JCT Ltd. Then it was claimed that the advances were written off. There is no material to show that the case of intercorporate deposit has been made out. The loans, therefore, cannot be termed or construed as capital assets.12. The judgments relied upon have been, therefore, distinguished and we do not find that in the facts and circumstances of the present case, the Tribunal was required to render any other finding or conclusion. The observations from paragraph 13 onwards are based on assumption. The assumption is made by the Tribunal and in that regard, reference to various judgments has been made including the order passed on the petition for amalgamation by the Gujarat High Court. We are of the opinion that the Tribunal was strictly not required to go into any other matters. Therefore, the findings based on assumption need not detain us.13. We are of the opinion that the findings of fact rendered in the peculiar factual backdrop do no give rise to any substantial question of law. The questions as projected before us cannot be said to be rising from the orders impugned before us. In the facts and circumstances, we do not feel that the appeal is required to be entertained.14. In all fairness, we must refer to the judgments cited before us. The argument is that the definition of "capital asset" in section 2(14) of the Income-tax Act, 1961, is wide enough to include even advance of money. In other words, the property of any kind held by the assessee, whether or not connected with his business or profession is a capital asset. It is, therefore, capable of being transferred and the basis on which the authorities proceeded in this case is, thus, untenable in law. The judgment cited of the honourable Supreme Court in the case of Ahmed G.H. Ariff (supra), was in the context of the provisions in the Wealth-tax Act, 1957. The question that was raised before the honourable Supreme Court was that the right of the assessee to receive a specified share of the net income from the estate in respect of which wakfalalaulad has been created, is an asset assessable to wealth-tax. It is in that context that the definition of the term "asset" as defined in section 2(e) of the Wealth-tax Act, 1957, and section 6(dd) of the Transfer of Property Act has been referred to. All conclusions which have been rendered by the honourable Supreme Court, must be, therefore, read in the peculiar factual situation and circumstances. In dealing with the argument that the right claimed of the nature cannot be termed as property that the honourable Supreme Court held that the property is a term of the widest import and subject to any limitation which in the context is required. It signifies every possible interest which a person can clearly hold and enjoy. We are of the opinion that on the basis of the definition noted by us that the honourable Supreme Court held as above. This judgment, therefore, cannot be of any assistance to the assessee before us.15. The judgment of the honourable Gujarat High Court in the case of CIT v. Minor Bababhai [1981] 128 ITR 1 (Guj) , has been rightly distinguished by the authorities. The question before the honourable Gujarat High Court was a distinct one. There, a sum of Rs. 25,000 was advanced to the company by the assessee on a promissory note. The company suffered financial difficulties and went into liquidation. The scheme of compromise and arrangement was approved by the court and as per the scheme, the assessee realized only Rs. 13,323 from the company. The balance was claimed as capital loss during the relevant assessment year. This claim was negatived by the Income-tax Officer but allowed in appeal. The argument of the Revenue before the Tribunal was that there must be an element of consideration for extinction of the rights in the capital assets before any gains or losses from such extinguishment could be brought for computation under the head "Capital gains". Thus, there was no controversy that what was before the authorities was a claim in relation to capital asset. The Tribunal held that there was extinguishment of the assessees right in the capital asset which had brought him the loss. It is in that context the Division Bench found that there was consideration backing up the transfer of the capital asset as reflected by the extinguishment of the assessees rights in the earlier existing capital asset. Therefore, all the requirements of section 45 read with section 2(47) of the Income-tax Act, 1961, were complied with. This judgment also cannot assist the assessee in this case because what was argued before the authorities was that the loss incurred is capital loss in relation to transfer of capital asset. However, now what has been argued is that the advances were not as such but intercorporate deposits (ICDs). Therefore, the alternative argument which was raised was in relation to the loss of advance due to amalgamation of the company to which it was advanced with one of the sister concern of the assessee before us. That was an alternative argument and in relation to which the judgment of the Gujarat High Court was cited. Once this issue did not arise for determination and consideration of the authorities and particularly because of the stand taken now before us that we are of the opinion that the judgment of the Gujarat High Court is of no assistance to the assessee.
### Response:
0
|
1,022 | Nandram Vs. M/S Garware Polyster Ltd | Kurian Joseph, J. 1. Leave granted. 2. The appellant was employed by the respondent initially as Boiler Attendant in the year 1983 in the Company in Aurangabad. Thereafter he was promoted as Junior Supervisor in the year 1987 and worked in the Aurangabad plant only. In the year 1995, he was again promoted as Senior Supervisor and continued in Aurangabad. However, by proceedings dated 21.10.2000, the appellant was transferred to Silvasa in Gujarat. By another order dated 20.12.2001 he was transferred from Silvasa to Pondicherry. While so, by proceeding dated 12.04.2005, appellant was terminated from service w.e.f. 15.04.2005 on account of closure of the establishment at Pondicherry. It is not in dispute that the registered office of the Company is in Aurangabad and the decision to close the establishment at Pondicherry was taken by the Company at Aurangabad.3. Aggrieved by the termination, appellant moved the Labour Court at Aurangabad in complaint ULP No.56 of 2005. Despite the objection taken by the respondent that the Labour Court lacked jurisdiction, the Court held in favour of the complainant.4. Aggrieved, the respondent-Company took up the matter before the Industrial Court at Aurangabad in revision. The Industrial Court at Aurangabad vide order dated 04.07.2009 set aside the order passed by the Labour Court and dismissed the complaint of the appellant holding that the Labour Court at Aurangabad did not have territorial jurisdiction to entertain the complaint of the appellant, since the termination took place at Pondicherry. The appellant moved the High Court of Judicature of Bombay at Aurangabad in Writ Petition No. 4968 of 2009. The High Court by judgment dated 07.06.2011 affirmed the view taken by the Industrial Court and held that the situs of employment of the appellant being Pondicherry, the Labour Court at Aurangabad did not have territorial jurisdiction to go into the complaint filed by the appellant. Thus aggrieved, the appellant is before this Court.5. Though, the learned counsel on both sides had addressed in detail on several issues, we do not think it necessary to go into all those aspects mainly because in our view they are only academic. In the background of the factual matrix, the undisputed position is that the appellant was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. Therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the appellant having been taken at Aurangabad necessarily part of the cause of action has arisen at Aurangabad. We have no quarrel that Labour Court, Pondicherry is within its jurisdiction to consider the case of the appellant, since he has been terminated while he was working at Pondicherry. But that does not mean that Labour Court in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction. In the facts of this case both the Labour Courts have the jurisdiction to deal with the matter. Hence, the Labour Court at Aurangabad is well within its jurisdiction to consider the complaint filed by the appellant. Therefore, we set aside the order passed by the High Court and the Industrial Court at Aurangabad and restore the order passed by the Labour Court, Aurangabad though for different reasons.6. The Labour Court shall consider the complaint on merits and pass final orders within six months from today. The parties are directed to appear before the Labour Court on 08.03.2016.7. It is made clear that all other contentions regarding the jurisdiction on other aspects in terms of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 are left open since such questions do not arise in the factual matrix of the present case. | 1[ds]In the background of the factual matrix, the undisputed position is that the appellant was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. Therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the appellant having been taken at Aurangabad necessarily part of the cause of action has arisen at Aurangabad. We have no quarrel that Labour Court, Pondicherry is within its jurisdiction to consider the case of the appellant, since he has been terminated while he was working at Pondicherry. But that does not mean that Labour Court in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction. In the facts of this case both the Labour Courts have the jurisdiction to deal with the matter. Hence, the Labour Court at Aurangabad is well within its jurisdiction to consider the complaint filed by the appellant. Therefore, we set aside the order passed by the High Court and the Industrial Court at Aurangabad and restore the order passed by the Labour Court, Aurangabad though for different reasons.6. The Labour Court shall consider the complaint on merits and pass final orders within six months from today. The parties are directed to appear before the Labour Court on 08.03.2016.7. It is made clear that all other contentions regarding the jurisdiction on other aspects in terms of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 are left open since such questions do not arise in the factual matrix of the present case. | 1 | 722 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
Kurian Joseph, J. 1. Leave granted. 2. The appellant was employed by the respondent initially as Boiler Attendant in the year 1983 in the Company in Aurangabad. Thereafter he was promoted as Junior Supervisor in the year 1987 and worked in the Aurangabad plant only. In the year 1995, he was again promoted as Senior Supervisor and continued in Aurangabad. However, by proceedings dated 21.10.2000, the appellant was transferred to Silvasa in Gujarat. By another order dated 20.12.2001 he was transferred from Silvasa to Pondicherry. While so, by proceeding dated 12.04.2005, appellant was terminated from service w.e.f. 15.04.2005 on account of closure of the establishment at Pondicherry. It is not in dispute that the registered office of the Company is in Aurangabad and the decision to close the establishment at Pondicherry was taken by the Company at Aurangabad.3. Aggrieved by the termination, appellant moved the Labour Court at Aurangabad in complaint ULP No.56 of 2005. Despite the objection taken by the respondent that the Labour Court lacked jurisdiction, the Court held in favour of the complainant.4. Aggrieved, the respondent-Company took up the matter before the Industrial Court at Aurangabad in revision. The Industrial Court at Aurangabad vide order dated 04.07.2009 set aside the order passed by the Labour Court and dismissed the complaint of the appellant holding that the Labour Court at Aurangabad did not have territorial jurisdiction to entertain the complaint of the appellant, since the termination took place at Pondicherry. The appellant moved the High Court of Judicature of Bombay at Aurangabad in Writ Petition No. 4968 of 2009. The High Court by judgment dated 07.06.2011 affirmed the view taken by the Industrial Court and held that the situs of employment of the appellant being Pondicherry, the Labour Court at Aurangabad did not have territorial jurisdiction to go into the complaint filed by the appellant. Thus aggrieved, the appellant is before this Court.5. Though, the learned counsel on both sides had addressed in detail on several issues, we do not think it necessary to go into all those aspects mainly because in our view they are only academic. In the background of the factual matrix, the undisputed position is that the appellant was employed by the Company in Aurangabad, he was only transferred to Pondicherry, the decision to close down the unit at Pondicherry was taken by the Company at Aurangabad and consequent upon that decision only the appellant was terminated. Therefore, it cannot be said that there is no cause of action at all in Aurangabad. The decision to terminate the appellant having been taken at Aurangabad necessarily part of the cause of action has arisen at Aurangabad. We have no quarrel that Labour Court, Pondicherry is within its jurisdiction to consider the case of the appellant, since he has been terminated while he was working at Pondicherry. But that does not mean that Labour Court in Aurangabad within whose jurisdiction the Management is situated and where the Management has taken the decision to close down the unit at Pondicherry and pursuant to which the appellant was terminated from service also does not have the jurisdiction. In the facts of this case both the Labour Courts have the jurisdiction to deal with the matter. Hence, the Labour Court at Aurangabad is well within its jurisdiction to consider the complaint filed by the appellant. Therefore, we set aside the order passed by the High Court and the Industrial Court at Aurangabad and restore the order passed by the Labour Court, Aurangabad though for different reasons.6. The Labour Court shall consider the complaint on merits and pass final orders within six months from today. The parties are directed to appear before the Labour Court on 08.03.2016.7. It is made clear that all other contentions regarding the jurisdiction on other aspects in terms of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 are left open since such questions do not arise in the factual matrix of the present case.
### Response:
1
|
1,023 | The State Rep.By Cbi, Hyderabad Vs. G.Prem Raj | the respondent-accused was caught and the money was recovered after the demonstration of the Sodium Carbonate solution. The cross-examination of this witness, though lengthy, is perfunctory and serves no purpose. His basic story has remained unshaken. Some insignificant contradictions as to who gave the signal were brought in the evidence of this witness, but those would not affect the otherwise credible evidence of this witness. Therefore, this was a case where the evidence of Preetpal Singh Sodhi (PW-1) was totally corroborated by the evidence of M.N. Sampath Kumar (PW-2) and R.M. Khan (PW-7). All this has been totally lost sight of by the High Court. 12. Much was said about the scooter or the scooter bag not being seized. We do not see as to how that would have helped, once it was proved that the respondent-accused had accepted the money. Merely because it was kept in the scooter by the respondent-accused, in our opinion, was an insignificant circumstance. The fact of the matter is that the money was recovered from the scooter bag. It would have certainly been better had the scooter and scooter bag been seized, however, in our opinion, the non-seizure of the bag and scooter will not affect the prosecution case. 13. Much was made of the evidence of L.N. Das (PW-5). The High Court has gone to the extent of saying that it was at the instance of L.N. Das (PW-5) that the respondent-accused was falsely implicated. We have scanned the evidence of L.N. Das (PW-5) very carefully, but we find nothing in the evidence of this witness to suggest the inference drawn by the High Court. The witness merely gave the background, in which the respondent-accused was asked to get the signatures and he also undoubtedly has said that one B. Ashok Kumar was kept for this work, however, since the respondent-accused was made in charge of the work, the respondent-accused was asked to collect the signatures, so as to get the contract completed. We do not find anything in the evidence or the cross-examination of this witness to suggest that it was at the instance of this witness that the respondent-accused was falsely implicated. The inference drawn by the High Court has absolutely no basis and only suggests that the High Court has read something in his evidence, which was not there at all. Evidence of A.K. Taneja (PW-8) is merely formal and nothing has been addressed to us as regards his evidence. He had given the sanction for prosecution. In fact, no arguments were addressed on the question of sanction. 14. The evidence of the respondent-accused is also perused by us, as much was made by the High Court of that evidence. The High Court, without even discussing the evidence in details, has gone to the extent of saying that the evidence of G. Premraj (respondent-accused & DW-1) has the effect of establishing the defence of the respondent-accused by preponderance of probabilities. The respondent-accused admits here in his evidence that on 27.5.1998, Preetpal Singh Sodhi (PW-1) telephoned him at about 1O clock, asking him to come to Taj Mahal Hotel for signing the agreement. One wonders as to why the respondent-accused chose to accept this suggestion on the part of the Preetpal Singh Sodhi (PW-1) even if it is held to be true. Preetpal Singh Sodhi (PW-1), however, disowns telephoning the respondent-accused. The respondent-accused has raised a theory that when he returned to his scooter for proceeding after the signatures were obtained, Preetpal Singh Sodhi (PW-1) approached him and forcibly thrust the amount in his hands. Now, we fail to follow as to what could prompt Preetpal Singh Sodhi (PW-1) to thrust the money into the hands of the respondent-accused. In our opinion, his evidence was nothing, but a poor attempt to explain the change of colour of the Sodium Carbonate solution after his fingers were dipped in it. Such theory of thrusting the notes cannot be believed at all. 15. The Sessions Judge in this case, after discussing the evidence, has given cogent findings. In Para 17 of his judgment, he asked a right question as to whether the amount was accepted by the respondent-accused or was thrust in the hands of the respondent-accused. He has also addressed himself about the other contentions. He has, after the discussion, chosen to believe the evidence of Preetpal Singh Sodhi (PW-1), M.N. Sampath Kumar (PW-2) and R.M. Khan (PW-7) and has come to the conclusion that the amount was accepted. He has rightly stated that there was a meeting of minds between the respondent-accused and complainant to meet at Taj Mahal Hotel. The Sessions Judge has rightly held that there was no question of anybody having any enmity with the respondent-accused, much less on the part of the complainant and, therefore, there was no reason for these persons to falsely implicate the respondent-accused. As regards the discrepancy in the First Information Report (FIR), the Sessions Judge has rightly attributed this to the failure of memory, as the witness has deposed after 3 years. The Sessions Judge has also noted that the respondent-accused had, at no point of time, complained to anybody that the amount was thrust in his hand. We find that the judgment of the Trial Court was quite reasonable and even without raising the presumption under Section 20 of the Act, the Trial Court had inferred that the respondent-accused had committed offence under Sections 7, 13(2) read with Section 13(1)(d) of the Act. 16. We do not find, in comparison, any reasons, much less, good reasons, having been given by the High Court for its disagreeing with the judgment of the Trial Court. 17. We are quite alive to the fact that unless the judgment of acquittal tends to be perverse or unless the inferences drawn in the acquitting judgment were not at all reasonable, possibly the acquittal should not be upset. However, in this case, as we have already pointed out, there was no scope for recording of finding of acquittal. | 1[ds]16. We do not find, in comparison, any reasons, much less, good reasons, having been given by the High Court for its disagreeing with the judgment of the Trial Court17. We are quite alive to the fact that unless the judgment of acquittal tends to be perverse or unless the inferences drawn in the acquitting judgment were not at all reasonable, possibly the acquittal should not be upset. However, in this case, as we have already pointed out, there was no scope for recording of finding of acquittal | 1 | 5,620 | ### 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:
the respondent-accused was caught and the money was recovered after the demonstration of the Sodium Carbonate solution. The cross-examination of this witness, though lengthy, is perfunctory and serves no purpose. His basic story has remained unshaken. Some insignificant contradictions as to who gave the signal were brought in the evidence of this witness, but those would not affect the otherwise credible evidence of this witness. Therefore, this was a case where the evidence of Preetpal Singh Sodhi (PW-1) was totally corroborated by the evidence of M.N. Sampath Kumar (PW-2) and R.M. Khan (PW-7). All this has been totally lost sight of by the High Court. 12. Much was said about the scooter or the scooter bag not being seized. We do not see as to how that would have helped, once it was proved that the respondent-accused had accepted the money. Merely because it was kept in the scooter by the respondent-accused, in our opinion, was an insignificant circumstance. The fact of the matter is that the money was recovered from the scooter bag. It would have certainly been better had the scooter and scooter bag been seized, however, in our opinion, the non-seizure of the bag and scooter will not affect the prosecution case. 13. Much was made of the evidence of L.N. Das (PW-5). The High Court has gone to the extent of saying that it was at the instance of L.N. Das (PW-5) that the respondent-accused was falsely implicated. We have scanned the evidence of L.N. Das (PW-5) very carefully, but we find nothing in the evidence of this witness to suggest the inference drawn by the High Court. The witness merely gave the background, in which the respondent-accused was asked to get the signatures and he also undoubtedly has said that one B. Ashok Kumar was kept for this work, however, since the respondent-accused was made in charge of the work, the respondent-accused was asked to collect the signatures, so as to get the contract completed. We do not find anything in the evidence or the cross-examination of this witness to suggest that it was at the instance of this witness that the respondent-accused was falsely implicated. The inference drawn by the High Court has absolutely no basis and only suggests that the High Court has read something in his evidence, which was not there at all. Evidence of A.K. Taneja (PW-8) is merely formal and nothing has been addressed to us as regards his evidence. He had given the sanction for prosecution. In fact, no arguments were addressed on the question of sanction. 14. The evidence of the respondent-accused is also perused by us, as much was made by the High Court of that evidence. The High Court, without even discussing the evidence in details, has gone to the extent of saying that the evidence of G. Premraj (respondent-accused & DW-1) has the effect of establishing the defence of the respondent-accused by preponderance of probabilities. The respondent-accused admits here in his evidence that on 27.5.1998, Preetpal Singh Sodhi (PW-1) telephoned him at about 1O clock, asking him to come to Taj Mahal Hotel for signing the agreement. One wonders as to why the respondent-accused chose to accept this suggestion on the part of the Preetpal Singh Sodhi (PW-1) even if it is held to be true. Preetpal Singh Sodhi (PW-1), however, disowns telephoning the respondent-accused. The respondent-accused has raised a theory that when he returned to his scooter for proceeding after the signatures were obtained, Preetpal Singh Sodhi (PW-1) approached him and forcibly thrust the amount in his hands. Now, we fail to follow as to what could prompt Preetpal Singh Sodhi (PW-1) to thrust the money into the hands of the respondent-accused. In our opinion, his evidence was nothing, but a poor attempt to explain the change of colour of the Sodium Carbonate solution after his fingers were dipped in it. Such theory of thrusting the notes cannot be believed at all. 15. The Sessions Judge in this case, after discussing the evidence, has given cogent findings. In Para 17 of his judgment, he asked a right question as to whether the amount was accepted by the respondent-accused or was thrust in the hands of the respondent-accused. He has also addressed himself about the other contentions. He has, after the discussion, chosen to believe the evidence of Preetpal Singh Sodhi (PW-1), M.N. Sampath Kumar (PW-2) and R.M. Khan (PW-7) and has come to the conclusion that the amount was accepted. He has rightly stated that there was a meeting of minds between the respondent-accused and complainant to meet at Taj Mahal Hotel. The Sessions Judge has rightly held that there was no question of anybody having any enmity with the respondent-accused, much less on the part of the complainant and, therefore, there was no reason for these persons to falsely implicate the respondent-accused. As regards the discrepancy in the First Information Report (FIR), the Sessions Judge has rightly attributed this to the failure of memory, as the witness has deposed after 3 years. The Sessions Judge has also noted that the respondent-accused had, at no point of time, complained to anybody that the amount was thrust in his hand. We find that the judgment of the Trial Court was quite reasonable and even without raising the presumption under Section 20 of the Act, the Trial Court had inferred that the respondent-accused had committed offence under Sections 7, 13(2) read with Section 13(1)(d) of the Act. 16. We do not find, in comparison, any reasons, much less, good reasons, having been given by the High Court for its disagreeing with the judgment of the Trial Court. 17. We are quite alive to the fact that unless the judgment of acquittal tends to be perverse or unless the inferences drawn in the acquitting judgment were not at all reasonable, possibly the acquittal should not be upset. However, in this case, as we have already pointed out, there was no scope for recording of finding of acquittal.
### Response:
1
|
1,024 | Vicco Laboratories Vs. Art Commercia Advertising Pvt.Ltd. | upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this Court under Article 136 of the Constitution. It is clear from the findings recorded by the trial court and the appellate court ;1. that the respondents have not undertaken the production of the said serial at the instance of the petitioners. G.K. Pendharkar, the Managing Director of petitioner No. 1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11.7.1984.2. That the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to Doordarshan as is clear from the letter dated 12.7.1984 sent by the respondents to Doordarshan. The trial court thus rightly noted that there was no agency between the parties.3. That the titles of each episode indicated that respondent No. 2 is the producer of the said serial and the petitioners are only the sponsors. As late as on 22.4.1985, the petitioners communicated their displeasure on this display in the episodes as to the titles. However, the titles continued to show Mr. S.S. Oberoi as the producer of the serial and the petitioners did not withhold payments.4. That the courts below have refuted the claim of the petitioners that the bill dated 19.3.1984 established the fact that the production work had been started by the respondents at the behest of the petitioners. It has been proved that the said bill was ante-dated and raised by the respondents in July, 1984 ostensibly for the purpose of benefiting the petitioners for their obtaining tax concessions.5. That the Doordarshan, which have been impleaded as a party, in their written statement stated that they recognize the respondents as producers of the said serial and recognize the petitioners as sponsors only.6. That the evidence of Mr. S.S. Gill, who gave evidence on behalf of the Information and Broadcasting Ministry that he was not acquainted with Mr. Pendharkar and that Doordarshan had no direct connection with the petitioners but only with the respondents as producers on the Director stood un-impeached. In this further evidence, Mr. Gill stated that some time in the month of May/June, 1984 he had met Kundan Shah and requested to make a comedy serial for Doordarshan which clearly indicated that it is only the respondents who were dealing with Doordarshan.7. That the video rights were assigned to Esquire Distributing and Servicing Pvt. Ltd. by the respondents pursuant to letters dated 14.12.1984 and 15.11.1985 and had received royalty for the video rights and the original U-matic cassettes were returned to them by Esquire Distributing and Servicing Pvt. Ltd. as their property.8. That there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences and it was after the petitioners received the letter dated 19.10.1985 from Esquire Distributing and Servicing Pvt. Ltd. that the respondents were asked by the petitioners to issue another letter in this regard.12. Thus the pleadings and the evidence on record clearly indicated that the respondents were not the agents of the petitioners for the purpose of producing the said serial. The aggregate amount of Rs. 76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by Doordarshan. The respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. If the expenses were less, the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. It is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. However, the learned counsel for the petitioners made elaborate reference to the Income Tax Act, 1961 and the provisions whether such availment of benefit could be taken or not pursuant to the amendment effected to the provisions relating to computation of business income at different stages may not be very germane to the present case. It is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. Therefore, the view taken by the courts below in this regard appears to be correct.13. So far as the contentions raised on the basis of Section 17 of the Copyright Act is concerned, it is clear that the petitioners were not able to establish that the respondent Nos. 1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. When these factors had not been established and the suit is itself not dependent on the interpretation of Section 17 of the Copyright Act, pleadings and issues raised did not attract the same. On appreciation of evidence, the courts below have come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact, the claim of copyright or ownership in respect of the serial under Section 17(b) and (c) would not arise at all. Thus we find absolutely no merit in this petition. We decline to interfere with the order made by the High Court affirming the decree of the trial court. The petition, therefore, stands dismissed. no costs. | 0[ds]11. We have carefully considered the contentions urged on behalf of the petitioners. We are not satisfied that the petitioners have made out a case for consideration by this Court. The matter rests purely upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this Court under Article 136 of the Constitution. It is clear from the findings recorded by the trial court and the appellate court ;1. that the respondents have not undertaken the production of the said serial at the instance of the petitioners. G.K. Pendharkar, the Managing Director of petitioner No. 1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11.7.1984.2. That the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to Doordarshan as is clear from the letter dated 12.7.1984 sent by the respondents to Doordarshan. The trial court thus rightly noted that there was no agency between the parties.3. That the titles of each episode indicated that respondent No. 2 is the producer of the said serial and the petitioners are only the sponsors. As late as on 22.4.1985, the petitioners communicated their displeasure on this display in the episodes as to the titles. However, the titles continued to show Mr. S.S. Oberoi as the producer of the serial and the petitioners did not withhold payments.4. That the courts below have refuted the claim of the petitioners that the bill dated 19.3.1984 established the fact that the production work had been started by the respondents at the behest of the petitioners. It has been proved that the said bill was ante-dated and raised by the respondents in July, 1984 ostensibly for the purpose of benefiting the petitioners for their obtaining tax concessions.5. That the Doordarshan, which have been impleaded as a party, in their written statement stated that they recognize the respondents as producers of the said serial and recognize the petitioners as sponsors only.6. That the evidence of Mr. S.S. Gill, who gave evidence on behalf of the Information and Broadcasting Ministry that he was not acquainted with Mr. Pendharkar and that Doordarshan had no direct connection with the petitioners but only with the respondents as producers on the Director stood un-impeached. In this further evidence, Mr. Gill stated that some time in the month of May/June, 1984 he had met Kundan Shah and requested to make a comedy serial for Doordarshan which clearly indicated that it is only the respondents who were dealing with Doordarshan.7. That the video rights were assigned to Esquire Distributing and Servicing Pvt. Ltd. by the respondents pursuant to letters dated 14.12.1984 and 15.11.1985 and had received royalty for the video rights and the original U-matic cassettes were returned to them by Esquire Distributing and Servicing Pvt. Ltd. as their property.8. That there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences and it was after the petitioners received the letter dated 19.10.1985 from Esquire Distributing and Servicing Pvt. Ltd. that the respondents were asked by the petitioners to issue another letter in this regard.12. Thus the pleadings and the evidence on record clearly indicated that the respondents were not the agents of the petitioners for the purpose of producing the said serial. The aggregate amount of Rs. 76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by Doordarshan. The respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. If the expenses were less, the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. It is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above.However, the learned counsel for the petitioners made elaborate reference to the Income Tax Act, 1961 and the provisions whether such availment of benefit could be taken or not pursuant to the amendment effected to the provisions relating to computation of business income at different stages may not be very germane to the present case.It is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. Therefore, the view taken by the courts below in this regard appears to be correct.13. So far as the contentions raised on the basis of Section 17 of the Copyright Act is concerned, it is clear that the petitioners were not able to establish that the respondent Nos. 1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. When these factors had not been established and the suit is itself not dependent on the interpretation of Section 17 of the Copyright Act, pleadings and issues raised did not attract the same. On appreciation of evidence, the courts below have come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact, the claim of copyright or ownership in respect of the serial under Section 17(b) and (c) would not arise at all. | 0 | 6,223 | ### 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:
upon the appreciation of evidence on record and does not give rise to any question of such importance as to be decided by this Court under Article 136 of the Constitution. It is clear from the findings recorded by the trial court and the appellate court ;1. that the respondents have not undertaken the production of the said serial at the instance of the petitioners. G.K. Pendharkar, the Managing Director of petitioner No. 1 was asked to come to view the format of the programme and the petitioners were not even acquainted with the format of the serial while the respondents had taken concrete steps in this regard prior to the letter dated 11.7.1984.2. That the petitioners had agreed to sponsor only 26 episodes whereas the respondents had agreed to produce 52 episodes and had given a firm commitment to that effect to Doordarshan as is clear from the letter dated 12.7.1984 sent by the respondents to Doordarshan. The trial court thus rightly noted that there was no agency between the parties.3. That the titles of each episode indicated that respondent No. 2 is the producer of the said serial and the petitioners are only the sponsors. As late as on 22.4.1985, the petitioners communicated their displeasure on this display in the episodes as to the titles. However, the titles continued to show Mr. S.S. Oberoi as the producer of the serial and the petitioners did not withhold payments.4. That the courts below have refuted the claim of the petitioners that the bill dated 19.3.1984 established the fact that the production work had been started by the respondents at the behest of the petitioners. It has been proved that the said bill was ante-dated and raised by the respondents in July, 1984 ostensibly for the purpose of benefiting the petitioners for their obtaining tax concessions.5. That the Doordarshan, which have been impleaded as a party, in their written statement stated that they recognize the respondents as producers of the said serial and recognize the petitioners as sponsors only.6. That the evidence of Mr. S.S. Gill, who gave evidence on behalf of the Information and Broadcasting Ministry that he was not acquainted with Mr. Pendharkar and that Doordarshan had no direct connection with the petitioners but only with the respondents as producers on the Director stood un-impeached. In this further evidence, Mr. Gill stated that some time in the month of May/June, 1984 he had met Kundan Shah and requested to make a comedy serial for Doordarshan which clearly indicated that it is only the respondents who were dealing with Doordarshan.7. That the video rights were assigned to Esquire Distributing and Servicing Pvt. Ltd. by the respondents pursuant to letters dated 14.12.1984 and 15.11.1985 and had received royalty for the video rights and the original U-matic cassettes were returned to them by Esquire Distributing and Servicing Pvt. Ltd. as their property.8. That there was no transfer of rights in favour of the petitioners by the respondents in the aforesaid letters and no consideration whatsoever was paid to the respondents for issuing the said letters which have no legal consequences and it was after the petitioners received the letter dated 19.10.1985 from Esquire Distributing and Servicing Pvt. Ltd. that the respondents were asked by the petitioners to issue another letter in this regard.12. Thus the pleadings and the evidence on record clearly indicated that the respondents were not the agents of the petitioners for the purpose of producing the said serial. The aggregate amount of Rs. 76.50 lakhs which was paid to the respondents for 60 episodes is not the amount for cost of production but the fixed price for sponsoring the said serial in order to link up their advertisement with the serial and avail substantial benefit of concessional rate under the scheme envisaged by Doordarshan. The respondents were not liable to render accounts to the petitioners who paid them a fixed sum for sponsoring the programme. If the expenses were less, the petitioners did not ask for a refund and the profit or loss was entirely of the respondents. It is clear that the bills that have been raised were only to accommodate the petitioners from the circumstances narrated above. However, the learned counsel for the petitioners made elaborate reference to the Income Tax Act, 1961 and the provisions whether such availment of benefit could be taken or not pursuant to the amendment effected to the provisions relating to computation of business income at different stages may not be very germane to the present case. It is probable that the respondents had obliged the petitioners by issuing these bills because the bills cannot be read in isolation but with reference to surrounding circumstances. Therefore, the view taken by the courts below in this regard appears to be correct.13. So far as the contentions raised on the basis of Section 17 of the Copyright Act is concerned, it is clear that the petitioners were not able to establish that the respondent Nos. 1 to 4 produced the said serial (1) as the agents of the petitioners; (2) in the course of their employment with the petitioners; (3) for valuable consideration paid by the petitioners to them; and (iv) at the instance of the petitioners. When these factors had not been established and the suit is itself not dependent on the interpretation of Section 17 of the Copyright Act, pleadings and issues raised did not attract the same. On appreciation of evidence, the courts below have come to the conclusion that the respondents did not make the said serial for valuable consideration at the instance of the petitioners and in view of the findings of fact, the claim of copyright or ownership in respect of the serial under Section 17(b) and (c) would not arise at all. Thus we find absolutely no merit in this petition. We decline to interfere with the order made by the High Court affirming the decree of the trial court. The petition, therefore, stands dismissed. no costs.
### Response:
0
|
1,025 | Sohan Lal Gupta(Dead) Thr.Lrs Vs. Smt. Asha Devi Gupta | objections for setting aside the award; having regard to the various developments which took place since the passing of the award. The prayer made in the said application reads as under: "That the objections raised on behalf of Shri Ghanshyam Das Gupta, the respondent No. 7 herein may be allowed to be withdrawn in respect of Awards dated 29th June, 1976 and 30th June, 1976 passed by Sole Arbitrator Shri P.J. Bhide and the said Awards be made the rule of the Court;" 40. Thus, the fact remains that unequivocally Ghanshyamdas Gupta had withdrawn his objections. He now seeks to resile therefrom by filing an application i.e. I.A. No. 19 of 2003 wherein he has prayed for discharge of his advocate. 41. Keeping in view the statements made by Ghanshyamdas Gupta in the said interim application, we are of the opinion that at this stage, he cannot be permitted to change his advocate, particularly in view of the fact that he stuck to his earlier stand for several years. 42. In view of the aforementioned, no orders are passed on I.A. Nos. 1 and 19. 43. Furthermore, in this case Ghanshyamdas Gupta expressly relinquished his right by filing an application stating that he would withdraw his objection. Such relinquishment in a given case can also be inferred from the conduct of the party. The defence which was otherwise available to Ghanshyamdas Gupta would not be available to others who took part in the proceedings. They cannot take benefit of the plea taken by Ghanshyamdas Gupta. Each party complaining violation of natural justice will have to prove the misconduct of the arbitrator tribunal in denial of justice to them. The appellant must show that he was otherwise unable to present his case which would mean that the matters were outside his control and not because of his own failure to take advantage of an opportunity duly accorded to him. [See Minmetals Germany Gmbh vs. Ferco Steel Ltd. [(1999) 1 All ER (Comm) 315]. This Courts decision in Renusagar Power Co. Ltd. vs. General Electric Co. [AIR 1994 SC 860 ] is also a pointer to the said proposition of law.44. Keeping in view the facts and circumstances of this case, we are of the opinion that Ghanshyamdas Gupta cannot be said to have been refused a fair opportunity of participation in the arbitration proceedings.45. So far as the other ground is concerned, which found favour of the High Court, namely, that the arbitrator had asked the parties to issue a letter to him that his award shall not be questioned would render the award a nullity inasmuch the same was not acted upon and in fact no letter was issued. The arbitrator must have done so keeping in view the peculiar nature of the disputes and to see that all the disputes come to an end.OTHER INTERLOCUTORY APPLICATIONS: 46. Several interlocutory applications have been filed, some of which are required to be dealt with. I.A. No. 15 in C.A. No. 2809 of 1979: 47. I.A. No. 15 has been filed at the instance of one of the parties herein for staying the auction of the properties belonging to M/s. Omrao Industrial Corporation Private Limited, Kanpur and Oil Corporation of India Private Limited, Kanpur. The auction of the properties was stayed by this Court by an order dated 20.1.2003. 48. The said auction was being held at the instance of Bank of Baroda in terms of a recovery certificate issued by the Debt Recovery Tribunal. The said proceeding was initiated by the Bank for enforcement of an equitable mortgage as also of guarantee. The dispute by and between a third party and a company has nothing to do with the question as to whether an award made by the arbitrator should be set aside or not. Whatever be the little connection, the same cannot be permitted to be agitated in this appeal. The parties must take recourse to such remedies which are available to them in law. The interim order dated 20.01.2003 is vacated. I.A. No. 17 in C.A. No. 2809 of 1979: 49. An application has also been filed for appointment of a receiver by the legal heirs of Respondent Nos. 12 to 15. Having regard to the fact that as a limited question arises for our consideration in these appeals, it may not be proper for us to pass any order on the said application. If any necessity arises, parties can file appropriate application for initiating appropriate proceedings before the appropriate forum. I.A. No. 3 in C.A. No. 2809 of 1979: Contempt Petition No. 484 of 1998: 50. Applications have been filed for initiating proceedings for contempt of this Court for alleged violation of this Courts orders dated 21.9.1979, 16.8.1982 and 20.10.1982. According to the applicant, Appellant No. 2 and 9 and respondent Nos. 1 to 4, 7, 19, 22 and 28 have violated the said orders by surrendering the tenancy rights purported to be in violation of order dated 16.8.1982. It is further alleged that several other appellants and respondents have similarly violated the interim orders passed by this Court. No order appears to have been passed on the contempt petition. A direction was merely issued that this matter ay be considered at the time of final hearing. 51. Keeping in view the fact that the appeal remained pending for a long time, it is not advisable that this Court now adjudicate upon the factual disputes. We, thus, do not intend to pass any order on the said applications. 52. We may, however, observe that an appropriate proceeding may be initiated by the parties concerned before the executing court, if any occasion arises therefor. I.A. No....... in C.A. No. 2809 of 1979 for substitution of L.Rs. of Deceased Respondent No. 5: 53. The I.A. is allowed. I.A. No...........in C.A. Nos. 2809-10 of 1979 for withdrawal of V/A on behalf of Appellant Nos. 9 and 10: 54. No orders are necessary to be passed. 55. For the reasons aforementioned, the | 1[ds]41. Keeping in view the statements made by Ghanshyamdas Gupta in the said interim application, we are of the opinion that at this stage, he cannot be permitted to change his advocate, particularly in view of the fact that he stuck to his earlier stand for several years.Furthermore, in this case Ghanshyamdas Gupta expressly relinquished his right by filing an application stating that he would withdraw his objection. Such relinquishment in a given case can also be inferred from the conduct of the party. The defence which was otherwise available to Ghanshyamdas Gupta would not be available to others who took part in the proceedings. They cannot take benefit of the plea taken by Ghanshyamdas Gupta. Each party complaining violation of natural justice will have to prove the misconduct of the arbitrator tribunal in denial of justice to them. The appellant must show that he was otherwise unable to present his case which would mean that the matters were outside his control and not because of his own failure to take advantage of an opportunity duly accorded to him. [See MinmetalsGermany Gmbh vs. Ferco Steel Ltd. [(1999) 1 All ER (Comm)315]. This Courts decision in Renusagar Power Co. Ltd. vs. General Electric Co. [AIR 1994 SC 860 ] is also a pointer to the said proposition of law.44. Keeping in view the facts and circumstances of this case, we are of the opinion that Ghanshyamdas Gupta cannot be said to have been refused a fair opportunity of participation in the arbitration proceedings.45. So far as the other ground is concerned, which found favour of the High Court, namely, that the arbitrator had asked the parties to issue a letter to him that his award shall not be questioned would render the award a nullity inasmuch the same was not acted upon and in fact no letter was issued. The arbitrator must have done so keeping in view the peculiar nature of the disputes and to see that all the disputes come to an end. | 1 | 7,331 | ### 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:
objections for setting aside the award; having regard to the various developments which took place since the passing of the award. The prayer made in the said application reads as under: "That the objections raised on behalf of Shri Ghanshyam Das Gupta, the respondent No. 7 herein may be allowed to be withdrawn in respect of Awards dated 29th June, 1976 and 30th June, 1976 passed by Sole Arbitrator Shri P.J. Bhide and the said Awards be made the rule of the Court;" 40. Thus, the fact remains that unequivocally Ghanshyamdas Gupta had withdrawn his objections. He now seeks to resile therefrom by filing an application i.e. I.A. No. 19 of 2003 wherein he has prayed for discharge of his advocate. 41. Keeping in view the statements made by Ghanshyamdas Gupta in the said interim application, we are of the opinion that at this stage, he cannot be permitted to change his advocate, particularly in view of the fact that he stuck to his earlier stand for several years. 42. In view of the aforementioned, no orders are passed on I.A. Nos. 1 and 19. 43. Furthermore, in this case Ghanshyamdas Gupta expressly relinquished his right by filing an application stating that he would withdraw his objection. Such relinquishment in a given case can also be inferred from the conduct of the party. The defence which was otherwise available to Ghanshyamdas Gupta would not be available to others who took part in the proceedings. They cannot take benefit of the plea taken by Ghanshyamdas Gupta. Each party complaining violation of natural justice will have to prove the misconduct of the arbitrator tribunal in denial of justice to them. The appellant must show that he was otherwise unable to present his case which would mean that the matters were outside his control and not because of his own failure to take advantage of an opportunity duly accorded to him. [See Minmetals Germany Gmbh vs. Ferco Steel Ltd. [(1999) 1 All ER (Comm) 315]. This Courts decision in Renusagar Power Co. Ltd. vs. General Electric Co. [AIR 1994 SC 860 ] is also a pointer to the said proposition of law.44. Keeping in view the facts and circumstances of this case, we are of the opinion that Ghanshyamdas Gupta cannot be said to have been refused a fair opportunity of participation in the arbitration proceedings.45. So far as the other ground is concerned, which found favour of the High Court, namely, that the arbitrator had asked the parties to issue a letter to him that his award shall not be questioned would render the award a nullity inasmuch the same was not acted upon and in fact no letter was issued. The arbitrator must have done so keeping in view the peculiar nature of the disputes and to see that all the disputes come to an end.OTHER INTERLOCUTORY APPLICATIONS: 46. Several interlocutory applications have been filed, some of which are required to be dealt with. I.A. No. 15 in C.A. No. 2809 of 1979: 47. I.A. No. 15 has been filed at the instance of one of the parties herein for staying the auction of the properties belonging to M/s. Omrao Industrial Corporation Private Limited, Kanpur and Oil Corporation of India Private Limited, Kanpur. The auction of the properties was stayed by this Court by an order dated 20.1.2003. 48. The said auction was being held at the instance of Bank of Baroda in terms of a recovery certificate issued by the Debt Recovery Tribunal. The said proceeding was initiated by the Bank for enforcement of an equitable mortgage as also of guarantee. The dispute by and between a third party and a company has nothing to do with the question as to whether an award made by the arbitrator should be set aside or not. Whatever be the little connection, the same cannot be permitted to be agitated in this appeal. The parties must take recourse to such remedies which are available to them in law. The interim order dated 20.01.2003 is vacated. I.A. No. 17 in C.A. No. 2809 of 1979: 49. An application has also been filed for appointment of a receiver by the legal heirs of Respondent Nos. 12 to 15. Having regard to the fact that as a limited question arises for our consideration in these appeals, it may not be proper for us to pass any order on the said application. If any necessity arises, parties can file appropriate application for initiating appropriate proceedings before the appropriate forum. I.A. No. 3 in C.A. No. 2809 of 1979: Contempt Petition No. 484 of 1998: 50. Applications have been filed for initiating proceedings for contempt of this Court for alleged violation of this Courts orders dated 21.9.1979, 16.8.1982 and 20.10.1982. According to the applicant, Appellant No. 2 and 9 and respondent Nos. 1 to 4, 7, 19, 22 and 28 have violated the said orders by surrendering the tenancy rights purported to be in violation of order dated 16.8.1982. It is further alleged that several other appellants and respondents have similarly violated the interim orders passed by this Court. No order appears to have been passed on the contempt petition. A direction was merely issued that this matter ay be considered at the time of final hearing. 51. Keeping in view the fact that the appeal remained pending for a long time, it is not advisable that this Court now adjudicate upon the factual disputes. We, thus, do not intend to pass any order on the said applications. 52. We may, however, observe that an appropriate proceeding may be initiated by the parties concerned before the executing court, if any occasion arises therefor. I.A. No....... in C.A. No. 2809 of 1979 for substitution of L.Rs. of Deceased Respondent No. 5: 53. The I.A. is allowed. I.A. No...........in C.A. Nos. 2809-10 of 1979 for withdrawal of V/A on behalf of Appellant Nos. 9 and 10: 54. No orders are necessary to be passed. 55. For the reasons aforementioned, the
### Response:
1
|
1,026 | KRISHAN CHANDER Vs. THE STATE OF HARYANA | taking possession was not at the spot and in that regard has relied on the decision in the case of Banda Development Authority, Banda vs. Moti Lal Agarwal and Ors. 2011 (5) SCC 394. In that background though the fact of taking possession would become relevant in a circumstance to de-notify the land in terms of Section 48 of the L.A. Act, the other aspects of the matter would also arise herein, in view of the nature of consideration made by the High Court in the earlier round and in that background the correctness of the impugned order passed by the competent authority dated 10.11.2014 was to be noted in the present round of litigation. In so far as the contention urged by the learned counsel for the respondents that the appellants had entered into a collaboration agreement with M/s Sharad Farm and Holdings (P) Ltd. on 23.04.2007 after issuance of Notification under Section 4 of the L.A. Act and has received a sum of Rs.28,20,000/- from them, the same would have arisen for consideration and denial of relief at the threshold only if the said M/s Sharad Farm and Holding (P) Ltd based on such collaboration agreement had approached the Court seeking for deletion of the land. In the instant proceedings the appellants being the owners of the notified land are seeking deletion and the validity of such agreement would be an inter-se issue.11. Though the respondents have further contended that the Policy for deletion provide for consideration only if objections under Section 5-A is filed and it is contended that no such objection was filed by the appellants, the representation dated 20.02.2014 (Annexure P.1) filed by the appellants indicates that the appellants have stated therein that the applicants have filed objections under Section 5-A of the L.A. Act to the proposed acquisition. Though at this stage we are not in a position to determine the correctness of the contrary rival contentions that is also one of the aspects which required consideration by the High Court to come to a conclusion as to whether the benefit of the policy is available. Further the Notification for acquisition was issued far back as on 15.12.2006. The consideration pursuant to the earlier order dated 27.03.2014 passed in CWP No. 5836/2014 was made by the competent authority on 10.11.2014. Even as on that day, admittedly the lands belonging to the appellants is kept vacant though the competent authority states that in the layout plan of Sector 36 the lands of the appellants is kept for institutional plot, green belt and parking area. The appellants on the other hand by relying on the layout plan of sector 36 produced before this Court seek to contend that the lands surrounding the lands of the appellants has been released.12. In the backdrop of such contentions and keeping in view that the writ petition filed before the High Court was in a certiorari proceeding, it was necessary for the High Court to secure the records and consider as to whether the possession had been validly taken and handed over to HUDA as claimed. Further whether in the layout plan as referred in the order dated 11.10.2014 impugned in the writ petition, the very item of land belonging to the appellants was reserved for the institutional plot, green belt and parking areas as claimed and as to whether the surrounding area had been developed by HUDA by forming the residential plots was also to be considered, though not in the nature of an appeal, but to satisfy itself on perusal of relevant records. The further contention on behalf of the appellants is that in respect of the very same layout this Court in the case of Patasi Devi Vs. State of Haryana & Ors. (2012) 9 SCC 503 has directed that the land involved therein be released. It is no doubt seen that in the said case the appellant who was the owner of the land which was acquired had constructed a house and in that light there being no document to indicate that the possession was taken over by putting a lock, it was held that the possession was not taken. Though that be the position it is also indicated that the case of the appellant therein was required to be considered in the same manner as was done in the case of M/s Sharad Farm and Holdings (P) Ltd. Apart from the said decision which relates to the very same layout, the learned counsel for the appellants has also relied on the decision in the case of Hari Ram & Anr. vs. State of Haryana & Ors. (2010) 3 SCC 621 wherein with reference to the Policy dated 26.10.2007 it is indicated that the similar land owners should receive a similar consideration when representation is made for deletion.13. Having taken note of all the above aspects, the fact of the possession actually having been taken would require determination at the outset based on examination of records. Secondly the aspects as pointed out relating to the deletion of similar lands and as to whether the land acquired from the appellants is lying vacant and if so whether the appellant is similarly placed as that of the other land owners whose case was considered under the Policy for deletion are aspects which are to be examined by the High Court by notifying the respondents and permitting them to file their objection statement and also after securing the records and verifying the same. Since such exercise was not undertaken by the High Court, though was required in the present facts and circumstances it would be appropriate to set aside the order and restore the writ petition to the file of the High Court for consideration in accordance with law. Any of the observations contained herein are limited to the disposal of this appeal and the High Court shall dispose of the writ petition by a considered order on its own merits. All contentions in that regard are left open. | 1[ds]6. At the outset, it is necessary to take note that the writ petition was dismissed at the threshold without directing notice to the respondents and considering the grievance of the appellants in the backdrop of the contention urged. In a normal circumstance we do not find that there would be any impediment to dispose of at the threshold. However, in the present facts we notice that the order dated 10.11.2014 which was impugned before the High Court was an order which was passed pursuant to the direction issued in earlier order dated27.03.2014 passed by the High Court in CWP No.5836/2014. In the said writ petition the High Court had taken note of the grievance that had been put forth by the appellants that the respondents had acquired the land much more than what was needed for the notified public purpose and after utilisation of such land for the said public purpose, a substantial part of the acquired land is lying unutilised. It was also taken note that the appellants had averred that they are still in possession of the land as is evident from the entries in the Revenue record and the photographs. Having taken note of the case put forth, the Court had also observed that the High Court has already taken a view in another matter that the acquisition of land in excess to what is needed for a bonafide public purpose is also detrimental to public interest as it would be an unwarranted burden on the State Exchequer. Having observed so, the High Court had indicated that the question as to whether or not the appellant?s unutilised land is still needed for a bonafide public purpose has to be essentially determined by the authorities only. It is in that light a direction had been issued for consideration of the representation.7. In that background a perusal of the order dated 10.11.2014 impugned in the present writ petition bearing CWP.No.22656/2015 would disclose that the competent authority has noted that as per the fresh site survey, the land of the appellants is lying vacant. It is further observed that as per the layout plan of Sector 36 which is approved, the appellants? land has been planned for institutional plot, green belt and parking area. In that circumstance, it is stated that the C.A., HUDA has recommended not to release any land in favour of the appellants. In that circumstance when presently the said order had been assailed in the writ petition challenging its correctness, that too when such order had been passed pursuant to the direction issued earlier by the High Court, a deeper examination was required by the High Court after calling for objections from the respondents.8. It is no doubt true that presently in the instant appeal before this Court the respondents have filed their objection statement and have sought to contend that the land is required for the purpose of the layout; that the land in question being vacant land and since the appellants had not filed the objections under Section 5-A of the L.A. Act the consideration for deletion under the Policy does notthis stage itself it is necessary to be noticed that the said decision was in the circumstance where a subsequent purchaser had approached the Court and further in the instant case a policy is adopted by the respondents for release of land and appellant is seeking consideration on parity which is a matter for consideration one way or theso far as the contention urged by the learned counsel for the respondents that the appellants had entered into a collaboration agreement with M/s Sharad Farm and Holdings (P) Ltd. on 23.04.2007 after issuance of Notification under Section 4 of the L.A. Act and has received a sum of Rs.28,20,000/- from them, the same would have arisen for consideration and denial of relief at the threshold only if the said M/s Sharad Farm and Holding (P) Ltd based on such collaboration agreement had approached the Court seeking for deletion of the land. In the instant proceedings the appellants being the owners of the notified land are seeking deletion and the validity of such agreement would be an inter-seat this stage we are not in a position to determine the correctness of the contrary rival contentions that is also one of the aspects which required consideration by the High Court to come to a conclusion as to whether the benefit of the policy is available. Further the Notification for acquisition was issued far back as on 15.12.2006. The consideration pursuant to the earlier order dated 27.03.2014 passed in CWP No. 5836/2014 was made by the competent authority on 10.11.2014. Even as on that day, admittedly the lands belonging to the appellants is kept vacant though the competent authority states that in the layout plan of Sector 36 the lands of the appellants is kept for institutional plot, green belt and parking area.Having taken note of all the above aspects, the fact of the possession actually having been taken would require determination at the outset based on examination of records. Secondly the aspects as pointed out relating to the deletion of similar lands and as to whether the land acquired from the appellants is lying vacant and if so whether the appellant is similarly placed as that of the other land owners whose case was considered under the Policy for deletion are aspects which are to be examined by the High Court by notifying the respondents and permitting them to file their objection statement and also after securing the records and verifying the same. Since such exercise was not undertaken by the High Court, though was required in the present facts and circumstances it would be appropriate to set aside the order and restore the writ petition to the file of the High Court for consideration in accordance with law. Any of the observations contained herein are limited to the disposal of this appeal and the High Court shall dispose of the writ petition by a considered order on its own merits. All contentions in that regard are left open. | 1 | 2,594 | ### 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?
### Input:
taking possession was not at the spot and in that regard has relied on the decision in the case of Banda Development Authority, Banda vs. Moti Lal Agarwal and Ors. 2011 (5) SCC 394. In that background though the fact of taking possession would become relevant in a circumstance to de-notify the land in terms of Section 48 of the L.A. Act, the other aspects of the matter would also arise herein, in view of the nature of consideration made by the High Court in the earlier round and in that background the correctness of the impugned order passed by the competent authority dated 10.11.2014 was to be noted in the present round of litigation. In so far as the contention urged by the learned counsel for the respondents that the appellants had entered into a collaboration agreement with M/s Sharad Farm and Holdings (P) Ltd. on 23.04.2007 after issuance of Notification under Section 4 of the L.A. Act and has received a sum of Rs.28,20,000/- from them, the same would have arisen for consideration and denial of relief at the threshold only if the said M/s Sharad Farm and Holding (P) Ltd based on such collaboration agreement had approached the Court seeking for deletion of the land. In the instant proceedings the appellants being the owners of the notified land are seeking deletion and the validity of such agreement would be an inter-se issue.11. Though the respondents have further contended that the Policy for deletion provide for consideration only if objections under Section 5-A is filed and it is contended that no such objection was filed by the appellants, the representation dated 20.02.2014 (Annexure P.1) filed by the appellants indicates that the appellants have stated therein that the applicants have filed objections under Section 5-A of the L.A. Act to the proposed acquisition. Though at this stage we are not in a position to determine the correctness of the contrary rival contentions that is also one of the aspects which required consideration by the High Court to come to a conclusion as to whether the benefit of the policy is available. Further the Notification for acquisition was issued far back as on 15.12.2006. The consideration pursuant to the earlier order dated 27.03.2014 passed in CWP No. 5836/2014 was made by the competent authority on 10.11.2014. Even as on that day, admittedly the lands belonging to the appellants is kept vacant though the competent authority states that in the layout plan of Sector 36 the lands of the appellants is kept for institutional plot, green belt and parking area. The appellants on the other hand by relying on the layout plan of sector 36 produced before this Court seek to contend that the lands surrounding the lands of the appellants has been released.12. In the backdrop of such contentions and keeping in view that the writ petition filed before the High Court was in a certiorari proceeding, it was necessary for the High Court to secure the records and consider as to whether the possession had been validly taken and handed over to HUDA as claimed. Further whether in the layout plan as referred in the order dated 11.10.2014 impugned in the writ petition, the very item of land belonging to the appellants was reserved for the institutional plot, green belt and parking areas as claimed and as to whether the surrounding area had been developed by HUDA by forming the residential plots was also to be considered, though not in the nature of an appeal, but to satisfy itself on perusal of relevant records. The further contention on behalf of the appellants is that in respect of the very same layout this Court in the case of Patasi Devi Vs. State of Haryana & Ors. (2012) 9 SCC 503 has directed that the land involved therein be released. It is no doubt seen that in the said case the appellant who was the owner of the land which was acquired had constructed a house and in that light there being no document to indicate that the possession was taken over by putting a lock, it was held that the possession was not taken. Though that be the position it is also indicated that the case of the appellant therein was required to be considered in the same manner as was done in the case of M/s Sharad Farm and Holdings (P) Ltd. Apart from the said decision which relates to the very same layout, the learned counsel for the appellants has also relied on the decision in the case of Hari Ram & Anr. vs. State of Haryana & Ors. (2010) 3 SCC 621 wherein with reference to the Policy dated 26.10.2007 it is indicated that the similar land owners should receive a similar consideration when representation is made for deletion.13. Having taken note of all the above aspects, the fact of the possession actually having been taken would require determination at the outset based on examination of records. Secondly the aspects as pointed out relating to the deletion of similar lands and as to whether the land acquired from the appellants is lying vacant and if so whether the appellant is similarly placed as that of the other land owners whose case was considered under the Policy for deletion are aspects which are to be examined by the High Court by notifying the respondents and permitting them to file their objection statement and also after securing the records and verifying the same. Since such exercise was not undertaken by the High Court, though was required in the present facts and circumstances it would be appropriate to set aside the order and restore the writ petition to the file of the High Court for consideration in accordance with law. Any of the observations contained herein are limited to the disposal of this appeal and the High Court shall dispose of the writ petition by a considered order on its own merits. All contentions in that regard are left open.
### Response:
1
|
1,027 | Amrit Banaspati Co. Ltd Vs. Union Of India And Ors | to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved... 8. It is settled law that the allegations regarding the violation of constitutional provision should be specific, clear and unambiguous and should give relevant particulars, and the burden is on the person who impeaches the law as violative of constitutional guarantee to show that the particular provision is infirm for all or any or the reasons stated by him. In the recent decision of this Court Gauri Shankar and Ors. v. Union of India and Ors. etc. (1994 (6) SCC 349 ), to which both of us were parties, it was reiterated that- (a) there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks is to show that there has been a clear transgression of the constitutional principles; (b) it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (c) in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. 9. We scanned the entire pleadings in this case. Tested in the light of the above principles, we are of opinion that there is no sufficient or specific or definite pleadings with particulars, to state that section 178 of the Act violates Art. 301 of the Constitution or is discriminatory. Moreover, on facts, the presumptions which are applicable in the instant case as stated above, have not been rebutted. On this short ground, the writ petition filed in the High Court by the appellant should fail. 10. The scope and content of Article 301 of the Constitution of India has been laid down in innumerable decisions of this Court beginning from Atiabari Tea Co. Ltd. v. The State of Assam & Anr. (AIR 1961 SC 232 = 1961 (1) SCR 809 ). Suffice it to say that it is only when the intra-State or inter-State movement of the persons or goods are impeded directly and immediately as distinct from creating some indirect or inconsequential impediment, by any legislative or executive action, infringement of the freedom envisaged by Article 301 can arise. Without anything more, a tax law, per se, may not impair the said freedom. At the same time, it should be stated that a fiscal measure is not outside the purview of Article 301 of the Constitution. It is unnecessary to refer to all the decisions on the point. We shall only refer to a few important decisions of this Court on this aspect - Automobile Transport Ltd. etc. v. State of Rajasthan & Ors. (AIR 1962 SC 1406 ), Andhra Sugars Ltd. & Anr. vs. State of Andhra Pradesh and Ors. (AIR 1968 SC 599 , State of Madras vs. N.K. Nataraja Mudaliar (AIR 1969 SC 147 ) and a recent decision which as surveyed the entire case law on the subject -M/s. Video Electronics Pvt. Ltd. v. State of Punjab & Anr. (AIR 1990 SC 820 ). 11. Even proceeding on the basis that section 178 of the Act directly immediately impedes the movement of the goods (vanaspati) from the State of Haryana into the Union Territory of Delhi, we are of the view that the statutory provision aforesaid is saved by Article 302 of the Constitution of India. It is true that a tax may in certain cases, directly and immediately impede the movement of flow of trade, but the imposition of a tax does not do so in every case. It depends upon the context and circumstances. Shah, J., on behalf of the Constitution Bench, in the State of Madras v. N.K. Nataraja Mudaliar (AIR 1969 SC 147 ), at p.155, stated thus: There is also no doubt that exercise of the power to tax may normally be presumed to be in the public interest. 12. In this case the impugned tax law is enacted by Parliament. There is a presumption that the imposition of the tax is in public interest. That has not been off-set by any contra material. So viewed, section 178 of the Act is saved by Art. 302 of the Constitution of India. It was so held by the High Court and we concur with the said view. In this connection it is only appropriate to quote what Mathew, J. observed on behalf of the bench in G.K. Krishnan v. State of Tamil Nadu (AIR 1975 SC 583 ), in paragraph 39: 39. Judicial deference to legislature in instances of economic regulation is sometimes explained by the argument that rationality of a classification may depend upon `local conditions about which local legislative or administrative body would be better informed than a court. Consequently, lacking the capacity to inform itself fully about the peculiarities of a particular local situation, a court should hesitate to dub the legislative classification irrational (see Carmichael v. Southern Coal & Coak Co., (1936) 301 US 495) Tax Laws, for example, may respond closely to local needs and courts familiarity with these needs is likely to be limited. Therefore, the Court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent on peculiar needs and specific difficulties of the community. The needs and the difficulties of a community are constituted out of facts and information beyond the easy ken of the court. The above perspective has been restated by the Constitution Bench in R.K. Garg v. Union of India and Ors. (AIR 1981 SC 2138 ), at paragraph 2147, paragraph 8, which we have adverted to, in the earlier portion of this Judgment. | 0[ds]8. It is settled law that the allegations regarding the violation of constitutional provision should be specific, clear and unambiguous and should give relevant particulars, and the burden is on the person who impeaches the law as violative of constitutional guarantee to show that the particular provision is infirm for all or any or the reasons stated by him9. We scanned the entire pleadings in this case. Tested in the light of the above principles, we are of opinion that there is no sufficient or specific or definite pleadings with particulars, to state that section 178 of the Act violates Art. 301 of the Constitution or is discriminatory. Moreover, on facts, the presumptions which are applicable in the instant case as stated above, have not been rebutted. On this short ground, the writ petition filed in the High Court by the appellant should fail10. The scope and content of Article 301 of the Constitution of India has been laid down in innumerable decisions of this Court beginning from Atiabari Tea Co. Ltd. v. The State of Assam & Anr. (AIR 1961 SC 232 = 1961 (1) SCR 809 ). Suffice it to say that it is only when the intra-State or inter-State movement of the persons or goods are impeded directly and immediately as distinct from creating some indirect or inconsequential impediment, by any legislative or executive action, infringement of the freedom envisaged by Article 301 can arise. Without anything more, a tax law, per se, may not impair the said freedom. At the same time, it should be stated that a fiscal measure is not outside the purview of Article 301 of the Constitution. It is unnecessary to refer to all the decisions on the point11. Even proceeding on the basis that section 178 of the Act directly immediately impedes the movement of the goods (vanaspati) from the State of Haryana into the Union Territory of Delhi, we are of the view that the statutory provision aforesaid is saved by Article 302 of the Constitution of India. It is true that a tax may in certain cases, directly and immediately impede the movement of flow of trade, but the imposition of a tax does not do so in every case. It depends upon the context and circumstances12. In this case the impugned tax law is enacted by Parliament. There is a presumption that the imposition of the tax is in public interest. That has not been off-set by any contra material. So viewed, section 178 of the Act is saved by Art. 302 of the Constitution of India. It was so held by the High Court and we concur with the said view. | 0 | 2,881 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved... 8. It is settled law that the allegations regarding the violation of constitutional provision should be specific, clear and unambiguous and should give relevant particulars, and the burden is on the person who impeaches the law as violative of constitutional guarantee to show that the particular provision is infirm for all or any or the reasons stated by him. In the recent decision of this Court Gauri Shankar and Ors. v. Union of India and Ors. etc. (1994 (6) SCC 349 ), to which both of us were parties, it was reiterated that- (a) there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks is to show that there has been a clear transgression of the constitutional principles; (b) it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (c) in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. 9. We scanned the entire pleadings in this case. Tested in the light of the above principles, we are of opinion that there is no sufficient or specific or definite pleadings with particulars, to state that section 178 of the Act violates Art. 301 of the Constitution or is discriminatory. Moreover, on facts, the presumptions which are applicable in the instant case as stated above, have not been rebutted. On this short ground, the writ petition filed in the High Court by the appellant should fail. 10. The scope and content of Article 301 of the Constitution of India has been laid down in innumerable decisions of this Court beginning from Atiabari Tea Co. Ltd. v. The State of Assam & Anr. (AIR 1961 SC 232 = 1961 (1) SCR 809 ). Suffice it to say that it is only when the intra-State or inter-State movement of the persons or goods are impeded directly and immediately as distinct from creating some indirect or inconsequential impediment, by any legislative or executive action, infringement of the freedom envisaged by Article 301 can arise. Without anything more, a tax law, per se, may not impair the said freedom. At the same time, it should be stated that a fiscal measure is not outside the purview of Article 301 of the Constitution. It is unnecessary to refer to all the decisions on the point. We shall only refer to a few important decisions of this Court on this aspect - Automobile Transport Ltd. etc. v. State of Rajasthan & Ors. (AIR 1962 SC 1406 ), Andhra Sugars Ltd. & Anr. vs. State of Andhra Pradesh and Ors. (AIR 1968 SC 599 , State of Madras vs. N.K. Nataraja Mudaliar (AIR 1969 SC 147 ) and a recent decision which as surveyed the entire case law on the subject -M/s. Video Electronics Pvt. Ltd. v. State of Punjab & Anr. (AIR 1990 SC 820 ). 11. Even proceeding on the basis that section 178 of the Act directly immediately impedes the movement of the goods (vanaspati) from the State of Haryana into the Union Territory of Delhi, we are of the view that the statutory provision aforesaid is saved by Article 302 of the Constitution of India. It is true that a tax may in certain cases, directly and immediately impede the movement of flow of trade, but the imposition of a tax does not do so in every case. It depends upon the context and circumstances. Shah, J., on behalf of the Constitution Bench, in the State of Madras v. N.K. Nataraja Mudaliar (AIR 1969 SC 147 ), at p.155, stated thus: There is also no doubt that exercise of the power to tax may normally be presumed to be in the public interest. 12. In this case the impugned tax law is enacted by Parliament. There is a presumption that the imposition of the tax is in public interest. That has not been off-set by any contra material. So viewed, section 178 of the Act is saved by Art. 302 of the Constitution of India. It was so held by the High Court and we concur with the said view. In this connection it is only appropriate to quote what Mathew, J. observed on behalf of the bench in G.K. Krishnan v. State of Tamil Nadu (AIR 1975 SC 583 ), in paragraph 39: 39. Judicial deference to legislature in instances of economic regulation is sometimes explained by the argument that rationality of a classification may depend upon `local conditions about which local legislative or administrative body would be better informed than a court. Consequently, lacking the capacity to inform itself fully about the peculiarities of a particular local situation, a court should hesitate to dub the legislative classification irrational (see Carmichael v. Southern Coal & Coak Co., (1936) 301 US 495) Tax Laws, for example, may respond closely to local needs and courts familiarity with these needs is likely to be limited. Therefore, the Court must be aware of its own remoteness and lack of familiarity with the local problems. Classification is dependent on peculiar needs and specific difficulties of the community. The needs and the difficulties of a community are constituted out of facts and information beyond the easy ken of the court. The above perspective has been restated by the Constitution Bench in R.K. Garg v. Union of India and Ors. (AIR 1981 SC 2138 ), at paragraph 2147, paragraph 8, which we have adverted to, in the earlier portion of this Judgment.
### Response:
0
|
1,028 | Vedica Procon Private Limited Vs. Balleshwar Greens Private Limited | date of the original sale was worth around Rs.6.25 crores as against the highest offer of Rs.1.3 crores of the appellant herein. Therefore, the decision of the Company Judge to reject the highest offer is perfectly justified. 44. A survey of the abovementioned judgments relied upon by the first respondent does not indicate that this Court has ever laid down a principle that whenever a higher offer is received in respect of the sale of the property of a company in liquidation, the Court would be justified in reopening the concluded proceedings. The earliest judgment relied upon by the first respondent in Navalkha & Sons (supra) laid down the legal position very clearly that a subsequent higher offer is no valid ground for refusing confirmation of a sale or offer already made. Unfortunately, in Divya Manufacturing Company (supra) this Court departed from the principle laid down in Navalkha & Sons (supra). We have already explained what exactly is the departure and how such a departure was not justified. 45. Coming to the decision in FCS Software Solutions Ltd., we have already noticed that this Court rightly reopened the finalized sale on the ground that there was material irregularity in the conduct of the sale. 46. Shradhha Aromatics (supra), as already noticed, is a decision rendered on the peculiar facts of the case and, in our opinion, does not lay down any principle applicable across the board. Whereas in Manoj I Naik (supra) the Company Court itself declined to accept the highest offer, therefore, it has no relevance in the context of the case on hand. 47. In our opinion, in the case on hand, the High Court was not justified in recalling the order dated 17.12.2013 for following reasons: 48. The highest bid of the appellant herein was accepted by the Company Court and all the stake-holders of the company in liquidation were heard before such an acceptance. Nobody ever objected including the first respondent herein at that stage on any ground whatsoever, such as, that there was any fraud or irregularity in the sale nor was there any objection from any one of them that the price offered by the appellant herein was inadequate. No doubt, the property in question became more valuable in view of the subsequent development. In our opinion, it is not a relevant consideration in determining the legality of the order dated 17.12.2013. Imagine, if instead of increasing the floor space index for construction from 1.0 to 1.8 the State of Gujarat had decided to reduce it below 1.0 subsequent to 17.12.2013, could the appellant be heard to argue that it would be legally justified in resiling from its earlier offer which was accepted by the Court and not bound by the contractual obligation flowing from such an offer and acceptance? 49. Certain incidental questions raised by the first respondent are required to be answered at this stage. 50. The first respondent submitted that the order dated 17.12.2013 only accepted the highest bid but it did not confirm the sale and, therefore, the Court is at liberty to decline confirmation of the sale in view of the subsequent developments. In our opinion, the said submission is to be rejected because there is no specific format in which a sale conducted by the official liquidator is to be confirmed by the Company Court. The mere absence of the expression “that the sale is confirmed” in the order dated 17.12.2013 is not determinative of the question. The totality of the circumstances, such as, the very tenor of the order (Footnote 1 supra) that none of the stake-holders of the Company in liquidation ever objected to the offer of the appellant herein on the ground that it is inadequate consideration for the property; the fact that the official liquidator himself understood the order dated 17.12.2013 to be an order not only accepting the highest bid of the appellant herein but also as an order confirming the sale in favour of the appellant, as evidenced by his letter dated 19.12.2013, (the relevant portion of which is already extracted earlier) and the fact that the first instalment of the payment of 25% of the sale consideration was accepted both by the official liquidator and the Company Court without raising any objection for the same and the fact that the first respondent withdrew its earnest money deposit without raising any objection regarding adequacy of the price offered by the appellant herein, in our view, clearly indicate that the sale in favour of the appellant was confirmed by the order dated 17.12.2013. Assuming for the sake of argument that there is no confirmation, in the absence of any legally tenable ground for not confirming the sale, it cannot be declined to the appellant as it was observed in Navalkha case (supra) that “…no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already made”. 51. The other submission made before the Division Bench of the High Court and before us by the first respondent that there was a change in the share-holding pattern of the appellant company subsequent to the order dated 17.12.2013 and that such a change would virtually amount to a nomination by the successful bidder in favour a of third party contrary to the conditions of the tender notice, in our opinion, does not deserve any consideration. This was not the ground on which the first respondent initially sought recall of the order dated 17.12.2013. Such a recall was sought only on one ground, the details for which are already noted earlier in this judgment. The first respondent kept on adding new grounds from stage to stage for attacking the order dated 17.12.2013. The conduct of the first respondent is understandable. The value of the property in question must have escalated substantially in view of the developments subsequent to the order dated 17.12.2013 but allowing such an attempt, in our opinion, would rob the sales conducted by the Courts of all sanctity. | 1[ds]No doubt, the penultimate statement of the paragraph recognises the discretion of the Company Court either for accepting or refusing the highest bid at the auction, it also emphasizes the obligation of the Court to see that the price fixed at the auction is adequate price even though there is no irregularity or fraud in the conduct of the sale.But the fact remains that one of the secured creditors objected to the sale in favour of the appellant before this Court on the ground that the value of the property even on the date of the original sale was worth around Rs.6.25 crores as against the highest offer of Rs.1.3 crores of the appellant herein. Therefore, the decision of the Company Judge to reject the highest offer is perfectly justified.In our opinion, in the case on hand, the High Court was not justified in recalling the order dated 17.12.The highest bid of the appellant herein was accepted by the Company Court and all theof the company in liquidation were heard before such an acceptance. Nobody ever objected including the first respondent herein at that stage on any ground whatsoever, such as, that there was any fraud or irregularity in the sale nor was there any objection from any one of them that the price offered by the appellant herein was inadequate. No doubt, the property in question became more valuable in view of the subsequent development. In our opinion, it is not a relevant consideration in determining the legality of the order dated 17.12.2013. Imagine, if instead of increasing the floor space index for construction from 1.0 to 1.8 the State of Gujarat had decided to reduce it below 1.0 subsequent to 17.12.2013, could the appellant be heard to argue that it would be legally justified in resiling from its earlier offer which was accepted by the Court and not bound by the contractual obligation flowing from such an offer andour opinion, the said submission is to be rejected because there is no specific format in which a sale conducted by the official liquidator is to be confirmed by the Company Court. The mere absence of the expressionthe sale isin the order dated 17.12.2013 is not determinative of theThe other submission made before the Division Bench of the High Court and before us by the first respondent that there was a change in thepattern of the appellant company subsequent to the order dated 17.12.2013 and that such a change would virtually amount to a nomination by the successful bidder in favour a of third party contrary to the conditions of the tender notice, in our opinion, does not deserve any consideration. This was not the ground on which the first respondent initially sought recall of the order dated 17.12.2013. Such a recall was sought only on one ground, the details for which are already noted earlier in this judgment. The first respondent kept on adding new grounds from stage to stage for attacking the order dated 17.12.2013. The conduct of the first respondent is understandable. The value of the property in question must have escalated substantially in view of the developments subsequent to the order dated 17.12.2013 but allowing such an attempt, in our opinion, would rob the sales conducted by the Courts of all sanctity. | 1 | 9,094 | ### 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:
date of the original sale was worth around Rs.6.25 crores as against the highest offer of Rs.1.3 crores of the appellant herein. Therefore, the decision of the Company Judge to reject the highest offer is perfectly justified. 44. A survey of the abovementioned judgments relied upon by the first respondent does not indicate that this Court has ever laid down a principle that whenever a higher offer is received in respect of the sale of the property of a company in liquidation, the Court would be justified in reopening the concluded proceedings. The earliest judgment relied upon by the first respondent in Navalkha & Sons (supra) laid down the legal position very clearly that a subsequent higher offer is no valid ground for refusing confirmation of a sale or offer already made. Unfortunately, in Divya Manufacturing Company (supra) this Court departed from the principle laid down in Navalkha & Sons (supra). We have already explained what exactly is the departure and how such a departure was not justified. 45. Coming to the decision in FCS Software Solutions Ltd., we have already noticed that this Court rightly reopened the finalized sale on the ground that there was material irregularity in the conduct of the sale. 46. Shradhha Aromatics (supra), as already noticed, is a decision rendered on the peculiar facts of the case and, in our opinion, does not lay down any principle applicable across the board. Whereas in Manoj I Naik (supra) the Company Court itself declined to accept the highest offer, therefore, it has no relevance in the context of the case on hand. 47. In our opinion, in the case on hand, the High Court was not justified in recalling the order dated 17.12.2013 for following reasons: 48. The highest bid of the appellant herein was accepted by the Company Court and all the stake-holders of the company in liquidation were heard before such an acceptance. Nobody ever objected including the first respondent herein at that stage on any ground whatsoever, such as, that there was any fraud or irregularity in the sale nor was there any objection from any one of them that the price offered by the appellant herein was inadequate. No doubt, the property in question became more valuable in view of the subsequent development. In our opinion, it is not a relevant consideration in determining the legality of the order dated 17.12.2013. Imagine, if instead of increasing the floor space index for construction from 1.0 to 1.8 the State of Gujarat had decided to reduce it below 1.0 subsequent to 17.12.2013, could the appellant be heard to argue that it would be legally justified in resiling from its earlier offer which was accepted by the Court and not bound by the contractual obligation flowing from such an offer and acceptance? 49. Certain incidental questions raised by the first respondent are required to be answered at this stage. 50. The first respondent submitted that the order dated 17.12.2013 only accepted the highest bid but it did not confirm the sale and, therefore, the Court is at liberty to decline confirmation of the sale in view of the subsequent developments. In our opinion, the said submission is to be rejected because there is no specific format in which a sale conducted by the official liquidator is to be confirmed by the Company Court. The mere absence of the expression “that the sale is confirmed” in the order dated 17.12.2013 is not determinative of the question. The totality of the circumstances, such as, the very tenor of the order (Footnote 1 supra) that none of the stake-holders of the Company in liquidation ever objected to the offer of the appellant herein on the ground that it is inadequate consideration for the property; the fact that the official liquidator himself understood the order dated 17.12.2013 to be an order not only accepting the highest bid of the appellant herein but also as an order confirming the sale in favour of the appellant, as evidenced by his letter dated 19.12.2013, (the relevant portion of which is already extracted earlier) and the fact that the first instalment of the payment of 25% of the sale consideration was accepted both by the official liquidator and the Company Court without raising any objection for the same and the fact that the first respondent withdrew its earnest money deposit without raising any objection regarding adequacy of the price offered by the appellant herein, in our view, clearly indicate that the sale in favour of the appellant was confirmed by the order dated 17.12.2013. Assuming for the sake of argument that there is no confirmation, in the absence of any legally tenable ground for not confirming the sale, it cannot be declined to the appellant as it was observed in Navalkha case (supra) that “…no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already made”. 51. The other submission made before the Division Bench of the High Court and before us by the first respondent that there was a change in the share-holding pattern of the appellant company subsequent to the order dated 17.12.2013 and that such a change would virtually amount to a nomination by the successful bidder in favour a of third party contrary to the conditions of the tender notice, in our opinion, does not deserve any consideration. This was not the ground on which the first respondent initially sought recall of the order dated 17.12.2013. Such a recall was sought only on one ground, the details for which are already noted earlier in this judgment. The first respondent kept on adding new grounds from stage to stage for attacking the order dated 17.12.2013. The conduct of the first respondent is understandable. The value of the property in question must have escalated substantially in view of the developments subsequent to the order dated 17.12.2013 but allowing such an attempt, in our opinion, would rob the sales conducted by the Courts of all sanctity.
### Response:
1
|
1,029 | Anand Narain Shukla Vs. State Of Madhya Pradesh | UNTWALIA, J.1. The appellant was an office Superintendent in the office of Agriculture Department. Certain charges were levelled against him. An enquiry was purported to be held. After finding him guilty of some charges, he was reverted to a lower rank. He challenged that order by filing a Writ Petition in the Madhya Pradesh High Court. That Writ Petition was allowed and the order of reversion was quashed on the ground that the enquiry held was not proper and legal. In view of the order of the High Court, the appellant was reinstated in his original post of office Superintendent. But shortly after, he was put under suspension and fresh proceedings were started on the basis of the same old charges. In the second proceedings, he has been found guilty of certain charges, the de tails of which are not necessary to be mentioned in our judgment. He was again reverted and it was also directed in the order that the allowance paid to him during the period of suspension could remain intact. The appellant filed a second Wr it Petition in the High Court to challenge the fresh order of reversion. The High Court has dismissed his Writ Petition. Hence this appeal in this Court on grant of a certificate by the High Court.2. Mr. D. N. Mukherjee, learned counsel for the app ellant urged only two points before us; (1) that after the earlier order of reversion was quashed by the High Court and after the appellant was reinstated, no second enquiry on the very same charges could be held and no second order of reversion could be legally and validly , made; and (2) that appellant was entitled to the full salary for the period of suspension. We find no substance in either of the points urged on behalf of the appellant. The earlier order was quashed on the technical ground. On merits, a second enquiry could be held. It was rightly held. The order of reinstatement does not bring about any distinction in that regard. The Government had to pass that order because the earlier order of reversion had been quashed by the High Court. Without reinstating the appellant, it would have been difficult perhaps unlawful, to start a fresh enquiry against the appellant. The observations of this Court in the last paragraph of the judgment in State of Assam &Anr. v. J. N. Roy Biswas are not applicable to the facts of the present case and do not help the appellant at all.3. The reduced amount paid to the appellant for the period of suspension was affirmed by making it a part of the order of reversion itself. That being so, the second point urged by the counsel is also, of no substance. | 0[ds]We find no substance in either of the points urged on behalf of the appellant. The earlier order was quashed on the technical ground. On merits, a second enquiry could be held. It was rightly held. The order of reinstatement does not bring about any distinction in that regard. The Government had to pass that order because the earlier order of reversion had been quashed by the High Court. Without reinstating the appellant, it would have been difficult perhaps unlawful, to start a fresh enquiry against the appellant. The observations of this Court in the last paragraph of the judgment in State of Assam &Anr. v. J. N. Roy Biswas are not applicable to the facts of the present case and do not help the appellant atreduced amount paid to the appellant for the period of suspension was affirmed by making it a part of the order of reversion itself. That being so, the second point urged by the counsel is also, of no substance. | 0 | 504 | ### 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:
UNTWALIA, J.1. The appellant was an office Superintendent in the office of Agriculture Department. Certain charges were levelled against him. An enquiry was purported to be held. After finding him guilty of some charges, he was reverted to a lower rank. He challenged that order by filing a Writ Petition in the Madhya Pradesh High Court. That Writ Petition was allowed and the order of reversion was quashed on the ground that the enquiry held was not proper and legal. In view of the order of the High Court, the appellant was reinstated in his original post of office Superintendent. But shortly after, he was put under suspension and fresh proceedings were started on the basis of the same old charges. In the second proceedings, he has been found guilty of certain charges, the de tails of which are not necessary to be mentioned in our judgment. He was again reverted and it was also directed in the order that the allowance paid to him during the period of suspension could remain intact. The appellant filed a second Wr it Petition in the High Court to challenge the fresh order of reversion. The High Court has dismissed his Writ Petition. Hence this appeal in this Court on grant of a certificate by the High Court.2. Mr. D. N. Mukherjee, learned counsel for the app ellant urged only two points before us; (1) that after the earlier order of reversion was quashed by the High Court and after the appellant was reinstated, no second enquiry on the very same charges could be held and no second order of reversion could be legally and validly , made; and (2) that appellant was entitled to the full salary for the period of suspension. We find no substance in either of the points urged on behalf of the appellant. The earlier order was quashed on the technical ground. On merits, a second enquiry could be held. It was rightly held. The order of reinstatement does not bring about any distinction in that regard. The Government had to pass that order because the earlier order of reversion had been quashed by the High Court. Without reinstating the appellant, it would have been difficult perhaps unlawful, to start a fresh enquiry against the appellant. The observations of this Court in the last paragraph of the judgment in State of Assam &Anr. v. J. N. Roy Biswas are not applicable to the facts of the present case and do not help the appellant at all.3. The reduced amount paid to the appellant for the period of suspension was affirmed by making it a part of the order of reversion itself. That being so, the second point urged by the counsel is also, of no substance.
### Response:
0
|
1,030 | O. Rm. M. Sp. Sv. Firm Vs. The Commissioner Of Income-Tax-Madras | only if the tax on the business was charged under the provisions of the Indian Income-tax Act, 1918. If the foreign business at Muor was not and could not have been charged under the Act and the share in the profits of the family from that foreign business was charged under S. 3 only on the receipt in British India, can it be said that the charge so made was a charge of a tax on the foreign business. The income received by the joint family could not have been charged under the head "income derived from business but only as a receipt under S. 3. The argument, however, on behalf of the assessee by his learned Advocate Mr. Rajah Iyer was that the words "on which tax was at any time charged" should be construed as meaning "with reference to which tax was at any time charged." In other words, the contention is that the income derived by the assessee was in relation to a business and, therefore, the assessment of the income must be treated as an assessment of the business. No doubt, under the provisions of the Income-tax Act, the tax is payable by an assessee but the assessment of the tax is on the basis of various heads of income derived by the assessee one of which is business. It cannot, therefore, be said that because tax was payable by the assessee on the profits received from a business in a foreign territory such assessment is an assessment of the business."In our opinion, the view adopted by the High Court in 1951-20 ITR 170 : (AIR 1952 Mad 92 ), must be taken to be impliedly overruled by the recent decision of this Court in Commissioner of Income-tax. Bombay, City 1 v. Chugandas and Co., 1965-55 ITR 17 : (AIR 1965 SC 568 ), in Which the question was whether the interest on securities formed part of the assessees business income for the purpose of the exemption from tax under S. 25 (3) of the 1922 Act. It was held by this Court that the assessee was entitled to exemption under S. 25 (3) in respect of interest on securities as well, and there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head "Profits and gains of business, profession or vocation". It was further observed in that case that tax is charged under the Income-tax Acts or specific units, such as, individuals, Hindu undivided families, companies, local authorities, firms and associations of persons etc. and business, profession or vocation is not a unit of assessment. When,therefore, S. 25 (3) enacts that tax was charged at any time on any business, it is intended that the tax was at any time charged on the owner of any business. If that condition be fulfilled in respect of the income of the business under the 19l8 Act, the owner or his successor-in-interest in relation to the business, Will be entitled to get the benefit of the exemption under it if the business is discontinued. We are accordingly of the opinion that the High Court was in error in holding that the foreign business of the assessee was not charged under the provisions of the 1918 Act. The first question must, therefore, be answered in favour of the assessee and it must be held that the assessee is entitled to both parts of relief contemplated under S. 25 (3) of the 1922 Act in respect of the foreign business at Penang, Ipoh and Kambar.6. The second question of law arising in this appeal is whether the assessee was entitled to relief under S. 25 (3) of the 1922 Act with regard to the rental income from house properties owned by the foreign firm which was discontinued in the year of account. A similar question was the subject-matter of consideration in 1965-55 ITR 17 : (AIR l965 SC 568), which has already been referred to. In that case, the assessee firm, a dealer in securities holding securities as its stock-in-trade, had been charged to tax under the 1918 Act, in respect of business. It received Rs. 4,13,992 and Rs. 1,01,229 as interest on securities in the years 1946 and 1947, respectively. The firm discontinued its business on June 30, 1947. The question at issue was whether the interest on securities formed part of the assessees business income for the purpose of the exemption from tax under S. 25 (3) of the 1922 Act. It was held by this Court that the assessee was entitled to exemption under S. 25 (3) in respect of interest on securities as well. It was pointed out that there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head Profits and gains of business, profession or vocation. The exemption under S. 25 (3) is general. It was explained by this Court that the heads of income described in S. 6 of the 1922 Act, and further elaborated for the purposes of computation in Ss. 7 to 10 and 12, 12A, 12AA and 12B, are intended merely to indicate the classes of income. The heads do not exhaustively delimit sources from which income arises. Business income is broken up under different heads only for the purpose of computation of the total income. By that breaking up the income does not cease to be the income of the business, the different heads of income being only the classification prescribed by the Income-tax Act for computation. The ratio of this decision applies to the present case and if must accordingly be held that the assessee is entitled to relief under S. 25 (3) of the 1922 Act with regard to the rental income from the house properties owned by the foreign firm which was discontinued in the year of account. | 1[ds]Section 9 of the 1918 Act enumerated the permissible deductions in the computation of the profits of the business. The question for determination is whether the foreign business of the assessee was at any time charged under the provisions of S. 3 of the 1918 Act. It has been found in this case that the entire income of the foreign business was remitted to the assessee and tax imposed on that income under the 1918 Act. We are of the opinion that in the context of these facts the foreign business of the assessee must be held to be charged under the provisions of the 1918 Act within the meaning of S. 25 (3) of the l922 Act. It is manifest that by S. 3 of the 1918 Act the charge was made on the receipt of income in British India and as the income received by the assessee was derived from the foreign business and was in relation to the foreign business it must be taken that there was an assessment to tax on the foreign business within the meaning of S. 25 (3) of the 1922 Act. In other words, the tax under the 1918 Act was charged upon the assessee in respect of his activity styled foreign business and in relation to it and it must hence be taken, upon the facts found by the appellate Tribunal in this case, that the foreign business of the assessee was charged under the 1918 Act within the meaning of S. 25 (3) of the 1922 Act. The High Court has taken the view that the foreign business of the assessee was not charged under the 1918 Act because what was taxed was the remittances received by the assessee from the foreign business and not the foreign businessour opinion, the view adopted by the High Court in 1951-20 ITR 170 : (AIR 1952 Mad 92 ), must be taken to be impliedly overruled by the recent decision of this Court in Commissioner of Income-tax. Bombay, City 1 v. Chugandas and Co., 1965-55 ITR 17 : (AIR 1965 SC 568 ), in Which the question was whether the interest on securities formed part of the assessees business income for the purpose of the exemption from tax under S. 25 (3) of the 1922 Act. It was held by this Court that the assessee was entitled to exemption under S. 25 (3) in respect of interest on securities as well, and there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head "Profits and gains of business, profession or vocation". It was further observed in that case that tax is charged under the Income-tax Acts or specific units, such as, individuals, Hindu undivided families, companies, local authorities, firms and associations of persons etc. and business, profession or vocation is not a unit of assessment. When,therefore, S. 25 (3) enacts that tax was charged at any time on any business, it is intended that the tax was at any time charged on the owner of any business. If that condition be fulfilled in respect of the income of the business under the 19l8 Act, the owner or his successor-in-interest in relation to the business, Will be entitled to get the benefit of the exemption under it if the business is discontinued. We are accordingly of the opinion that the High Court was in error in holding that the foreign business of the assessee was not charged under the provisions of the 1918 Act. The first question must, therefore, be answered in favour of the assessee and it must be held that the assessee is entitled to both parts of relief contemplated under S. 25 (3) of the 1922 Act in respect of the foreign business at Penang, Ipoh andwas pointed out that there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head Profits and gains of business, profession or vocation. The exemption under S. 25 (3) is general. It was explained by this Court that the heads of income described in S. 6 of the 1922 Act, and further elaborated for the purposes of computation in Ss. 7 to 10 and 12, 12A, 12AA and 12B, are intended merely to indicate the classes of income. The heads do not exhaustively delimit sources from which income arises. Business income is broken up under different heads only for the purpose of computation of the total income. By that breaking up the income does not cease to be the income of the business, the different heads of income being only the classification prescribed by the Income-tax Act for computation. The ratio of this decision applies to the present case and if must accordingly be held that the assessee is entitled to relief under S. 25 (3) of the 1922 Act with regard to the rental income from the house properties owned by the foreign firm which was discontinued in the year ofhave, therefore, to proceed on the footing that the assessee received the entire profits of the foreign business in British India and the entire profits were assessed toin the hands of the assessee under the 1918 Act. It is necessary, at this stage, to set out the relevant provisions of the 1918 Act. | 1 | 3,461 | ### 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:
only if the tax on the business was charged under the provisions of the Indian Income-tax Act, 1918. If the foreign business at Muor was not and could not have been charged under the Act and the share in the profits of the family from that foreign business was charged under S. 3 only on the receipt in British India, can it be said that the charge so made was a charge of a tax on the foreign business. The income received by the joint family could not have been charged under the head "income derived from business but only as a receipt under S. 3. The argument, however, on behalf of the assessee by his learned Advocate Mr. Rajah Iyer was that the words "on which tax was at any time charged" should be construed as meaning "with reference to which tax was at any time charged." In other words, the contention is that the income derived by the assessee was in relation to a business and, therefore, the assessment of the income must be treated as an assessment of the business. No doubt, under the provisions of the Income-tax Act, the tax is payable by an assessee but the assessment of the tax is on the basis of various heads of income derived by the assessee one of which is business. It cannot, therefore, be said that because tax was payable by the assessee on the profits received from a business in a foreign territory such assessment is an assessment of the business."In our opinion, the view adopted by the High Court in 1951-20 ITR 170 : (AIR 1952 Mad 92 ), must be taken to be impliedly overruled by the recent decision of this Court in Commissioner of Income-tax. Bombay, City 1 v. Chugandas and Co., 1965-55 ITR 17 : (AIR 1965 SC 568 ), in Which the question was whether the interest on securities formed part of the assessees business income for the purpose of the exemption from tax under S. 25 (3) of the 1922 Act. It was held by this Court that the assessee was entitled to exemption under S. 25 (3) in respect of interest on securities as well, and there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head "Profits and gains of business, profession or vocation". It was further observed in that case that tax is charged under the Income-tax Acts or specific units, such as, individuals, Hindu undivided families, companies, local authorities, firms and associations of persons etc. and business, profession or vocation is not a unit of assessment. When,therefore, S. 25 (3) enacts that tax was charged at any time on any business, it is intended that the tax was at any time charged on the owner of any business. If that condition be fulfilled in respect of the income of the business under the 19l8 Act, the owner or his successor-in-interest in relation to the business, Will be entitled to get the benefit of the exemption under it if the business is discontinued. We are accordingly of the opinion that the High Court was in error in holding that the foreign business of the assessee was not charged under the provisions of the 1918 Act. The first question must, therefore, be answered in favour of the assessee and it must be held that the assessee is entitled to both parts of relief contemplated under S. 25 (3) of the 1922 Act in respect of the foreign business at Penang, Ipoh and Kambar.6. The second question of law arising in this appeal is whether the assessee was entitled to relief under S. 25 (3) of the 1922 Act with regard to the rental income from house properties owned by the foreign firm which was discontinued in the year of account. A similar question was the subject-matter of consideration in 1965-55 ITR 17 : (AIR l965 SC 568), which has already been referred to. In that case, the assessee firm, a dealer in securities holding securities as its stock-in-trade, had been charged to tax under the 1918 Act, in respect of business. It received Rs. 4,13,992 and Rs. 1,01,229 as interest on securities in the years 1946 and 1947, respectively. The firm discontinued its business on June 30, 1947. The question at issue was whether the interest on securities formed part of the assessees business income for the purpose of the exemption from tax under S. 25 (3) of the 1922 Act. It was held by this Court that the assessee was entitled to exemption under S. 25 (3) in respect of interest on securities as well. It was pointed out that there was no reason to restrict the condition of the applicability of the exemption under S. 25 (3) only to income on which the tax was payable under the head Profits and gains of business, profession or vocation. The exemption under S. 25 (3) is general. It was explained by this Court that the heads of income described in S. 6 of the 1922 Act, and further elaborated for the purposes of computation in Ss. 7 to 10 and 12, 12A, 12AA and 12B, are intended merely to indicate the classes of income. The heads do not exhaustively delimit sources from which income arises. Business income is broken up under different heads only for the purpose of computation of the total income. By that breaking up the income does not cease to be the income of the business, the different heads of income being only the classification prescribed by the Income-tax Act for computation. The ratio of this decision applies to the present case and if must accordingly be held that the assessee is entitled to relief under S. 25 (3) of the 1922 Act with regard to the rental income from the house properties owned by the foreign firm which was discontinued in the year of account.
### Response:
1
|
1,031 | M/S. Coal Handlers Pvt. Ltd Vs. Commnr. Of Central Excise, Kolkata | of sub-contractors. The nature of the carriage, the language used by the parties in describing the role of the person concerned, and any course of dealing between the parties will be relevant factors.Persons properly described as shipping and forwarding agents frequently act as carriers themselves with respect to part of the carriage, for example, by performing collection and delivery services between the customers premises, their own depots, and warehouses, docks and carriers depots. In such cases they would have the rights and duties of carriers with respect to such carriage as they undertake personally, but the rights and duties of forwarding agents with respect to the remainder of the transit.443. Rights and liabilities of forwarding agents.The rights and liabilities of a forwarding agent are governed by the general principles of the law of agency: and so he is entitled to be indemnified against all expenses incurred on behalf of his principal and to be paid his proper charges for his services. He is liable for failure to make proper arrangements for the carriage and for ancillary matters which he has undertaken, such as customs clearance. He is not liable for the failings of persons with whom he makes contracts on behalf of his principal, unless he know of those failings and ought to have taken action either to remedy them or at least to inform his principal so that damage might be avoided or mitigated: thus he is under no duty to supervise the actions of carriers whom he reasonably and properly expects to perform their normal obligations competently.In ordinary transactions a forwarding agent is not liable for failing to insure the goods, in the absence of instructions from his customer to do so: but he may, in certain circumstances, be liable for not consulting his customer and advising him as to the proper transport and insurance arrangements which should be made for valuable goods.A forwarding agent is not normally personally liable to pay the charges of carriers whom he engages to carry the gods on behalf of his principal; but there is a custom of the London freight market that forwarding agents incur personal liability to shipowners for the payment of freight or of dead freight for booked space left unfilled.A forwarding agent who tenders dangerous goods to carriers without warning them of their nature or of the precautions which should be taken in their carriage is personally liable to the carriers for any resulting damage through breach of the implied warranty that the goods are fit for carriage.” 11) From the reading of the definition contained in the aforesaid provision, together with its dictionary meanings contained in Legal and Commercial dictionaries, it becomes apparent that in order to qualify as a C&F Agent, such a person is to be found to be engaged in providing any service connected with clearing and forwarding operations. Of course, once it is found that such a person is providing the services which are connected with the clearing and forwarding operations, then whether such services are provided directly or indirectly would be of no significance and such a person would be covered by the definition. Therefore, we have to see as to what would constitute clearing and forwarding operations. As is clear from the plain meaning of the aforesaid expression, it would cover those activities which pertain to clearing of the goods and thereafter forwarding those goods to a particular destination, at the instance and on the directions of the principal. In the context of these appeals, it would essentially include getting the coal cleared as an agent on behalf of the principal from the supplier of the coal (which would mean collieries in the present case) and thereafter dispatching/forwarding the said coal to different destinations as per the instructions of the principal. In the process, it may include warehousing of the goods so cleared, receiving dispatch orders from the principal, arranging dispatch of the goods as per the instructions of the principal by engaging transport on his own or through the transporters of the principal, maintaining records of the receipt and dispatch of the goods and the stock available on the warehouses and preparing invoices on behalf of the principal. The larger Bench rightly enumerated these activities which the C&F Agent is supposed to perform.12) On the facts of the present case, we find that none of the aforesaid activities are performed by the appellant. There is no role of the appellant in getting the coal cleared from the collieries/supplier of the coal. Movement of the coal is under the contract of sale between the coal company and Ambuja companies. Even the coal is loaded on to the railway wagons by the coal company. The goods are not under any legal detention from which they need to be freed by the appellant. Not only this, destination of the goods is known to the coal company and the railway rakes are placed by the coal company for the said destinations. The destination is the factories of the principal itself, namely, Ambuja companies, where the coal is to be delivered by the coal company as per pre-determined/agreed covenants between them. Therefore, there is no occasion for Ambuja companies to instruct the appellant to dispatch/forward the goods to a particular destination which is already fixed as per the contract between the coal company and the Ambuja companies. The appellant does not even undertake any loading operation. The primary job of the appellant, as per the contract between the appellant and the Ambuja companies, is of supervising and liaisoning with the coal company as well as the Railways to see that the material required by Ambuja companies is loaded as per the schedule. At no stage custody of the coal is taken by the appellant or transportation of the coal, as forwarders, is arranged by the appellant. We are, thus, of the clear opinion that the services rendered by the appellant would not qualify as C&F Agent within the meaning of Section 65(25) of the Act. | 1[ds]6) As is clear from the reading of the aforesaid extracted portion of the order, the Tribunal has rested its impugned decision on its earlier judgment in the case of Prabhat Zarda (supra) and the reasons contained in the said judgment are restated in support of the view taken by the Tribunal in the impugnedSince the appellant in that case was engaged only for procuring purchase orders for vendor on commission basis and was not engaged in any of the above activities, the larger Bench concluded that the services provided by the said appellant would not fall within the definition ofagent as contained in theFrom the reading of the definition contained in the aforesaid provision, together with its dictionary meanings contained in Legal and Commercial dictionaries, it becomes apparent that in order to qualify as a C&F Agent, such a person is to be found to be engaged in providing any service connected withs. Of course, once it is found that such a person is providing the services which are connected with thens, then whether such services are provided directly or indirectly would be of no significance and such a person would be covered by the definition. Therefore, we have to see as to what would constituteoperations. As is clear from the plain meaning of the aforesaid expression, it would cover those activities which pertain to clearing of the goods and thereafter forwarding those goods to a particular destination, at the instance and on the directions of the principal. In the context of these appeals, it would essentially include getting the coal cleared as an agent on behalf of the principal from the supplier of the coal (which would mean collieries in the present case) and thereafter dispatching/forwarding the said coal to different destinations as per the instructions of the principal. In the process, it may include warehousing of the goods so cleared, receiving dispatch orders from the principal, arranging dispatch of the goods as per the instructions of the principal by engaging transport on his own or through the transporters of the principal, maintaining records of the receipt and dispatch of the goods and the stock available on the warehouses and preparing invoices on behalf of the principal. The larger Bench rightly enumerated these activities which the C&F Agent is supposed to perform.12) On the facts of the present case, we find that none of the aforesaid activities are performed by the appellant. There is no role of the appellant in getting the coal cleared from the collieries/supplier of the coal. Movement of the coal is under the contract of sale between the coal company and Ambuja companies. Even the coal is loaded on to the railway wagons by the coal company. The goods are not under any legal detention from which they need to be freed by the appellant. Not only this, destination of the goods is known to the coal company and the railway rakes are placed by the coal company for the said destinations. The destination is the factories of the principal itself, namely, Ambuja companies, where the coal is to be delivered by the coal company as percovenants between them. Therefore, there is no occasion for Ambuja companies to instruct the appellant to dispatch/forward the goods to a particular destination which is already fixed as per the contract between the coal company and the Ambuja companies. The appellant does not even undertake any loading operation. The primary job of the appellant, as per the contract between the appellant and the Ambuja companies, is of supervising and liaisoning with the coal company as well as the Railways to see that the material required by Ambuja companies is loaded as per the schedule. At no stage custody of the coal is taken by the appellant or transportation of the coal, as forwarders, is arranged by the appellant. We are, thus, of the clear opinion that the services rendered by the appellant would not qualify as C&F Agent within the meaning of Section 65(25) of the Act. | 1 | 4,832 | ### 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:
of sub-contractors. The nature of the carriage, the language used by the parties in describing the role of the person concerned, and any course of dealing between the parties will be relevant factors.Persons properly described as shipping and forwarding agents frequently act as carriers themselves with respect to part of the carriage, for example, by performing collection and delivery services between the customers premises, their own depots, and warehouses, docks and carriers depots. In such cases they would have the rights and duties of carriers with respect to such carriage as they undertake personally, but the rights and duties of forwarding agents with respect to the remainder of the transit.443. Rights and liabilities of forwarding agents.The rights and liabilities of a forwarding agent are governed by the general principles of the law of agency: and so he is entitled to be indemnified against all expenses incurred on behalf of his principal and to be paid his proper charges for his services. He is liable for failure to make proper arrangements for the carriage and for ancillary matters which he has undertaken, such as customs clearance. He is not liable for the failings of persons with whom he makes contracts on behalf of his principal, unless he know of those failings and ought to have taken action either to remedy them or at least to inform his principal so that damage might be avoided or mitigated: thus he is under no duty to supervise the actions of carriers whom he reasonably and properly expects to perform their normal obligations competently.In ordinary transactions a forwarding agent is not liable for failing to insure the goods, in the absence of instructions from his customer to do so: but he may, in certain circumstances, be liable for not consulting his customer and advising him as to the proper transport and insurance arrangements which should be made for valuable goods.A forwarding agent is not normally personally liable to pay the charges of carriers whom he engages to carry the gods on behalf of his principal; but there is a custom of the London freight market that forwarding agents incur personal liability to shipowners for the payment of freight or of dead freight for booked space left unfilled.A forwarding agent who tenders dangerous goods to carriers without warning them of their nature or of the precautions which should be taken in their carriage is personally liable to the carriers for any resulting damage through breach of the implied warranty that the goods are fit for carriage.” 11) From the reading of the definition contained in the aforesaid provision, together with its dictionary meanings contained in Legal and Commercial dictionaries, it becomes apparent that in order to qualify as a C&F Agent, such a person is to be found to be engaged in providing any service connected with clearing and forwarding operations. Of course, once it is found that such a person is providing the services which are connected with the clearing and forwarding operations, then whether such services are provided directly or indirectly would be of no significance and such a person would be covered by the definition. Therefore, we have to see as to what would constitute clearing and forwarding operations. As is clear from the plain meaning of the aforesaid expression, it would cover those activities which pertain to clearing of the goods and thereafter forwarding those goods to a particular destination, at the instance and on the directions of the principal. In the context of these appeals, it would essentially include getting the coal cleared as an agent on behalf of the principal from the supplier of the coal (which would mean collieries in the present case) and thereafter dispatching/forwarding the said coal to different destinations as per the instructions of the principal. In the process, it may include warehousing of the goods so cleared, receiving dispatch orders from the principal, arranging dispatch of the goods as per the instructions of the principal by engaging transport on his own or through the transporters of the principal, maintaining records of the receipt and dispatch of the goods and the stock available on the warehouses and preparing invoices on behalf of the principal. The larger Bench rightly enumerated these activities which the C&F Agent is supposed to perform.12) On the facts of the present case, we find that none of the aforesaid activities are performed by the appellant. There is no role of the appellant in getting the coal cleared from the collieries/supplier of the coal. Movement of the coal is under the contract of sale between the coal company and Ambuja companies. Even the coal is loaded on to the railway wagons by the coal company. The goods are not under any legal detention from which they need to be freed by the appellant. Not only this, destination of the goods is known to the coal company and the railway rakes are placed by the coal company for the said destinations. The destination is the factories of the principal itself, namely, Ambuja companies, where the coal is to be delivered by the coal company as per pre-determined/agreed covenants between them. Therefore, there is no occasion for Ambuja companies to instruct the appellant to dispatch/forward the goods to a particular destination which is already fixed as per the contract between the coal company and the Ambuja companies. The appellant does not even undertake any loading operation. The primary job of the appellant, as per the contract between the appellant and the Ambuja companies, is of supervising and liaisoning with the coal company as well as the Railways to see that the material required by Ambuja companies is loaded as per the schedule. At no stage custody of the coal is taken by the appellant or transportation of the coal, as forwarders, is arranged by the appellant. We are, thus, of the clear opinion that the services rendered by the appellant would not qualify as C&F Agent within the meaning of Section 65(25) of the Act.
### Response:
1
|
1,032 | Satwant Singh Vs. Malkeet Singh | Kurian Joseph, J.1. This is a case where the appellant was punished for civil contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971.2. Both the learned Single Judge and the Division Bench have taken the view that once the respondent had been granted interim bail under Section 438, Cr.P.C. as per order dated 17.02.2006, his arrest on 26.05.2007 on a charge which has been later on added under Section 307, IPC constitutes contempt.3. We find that this addition of charge is based on a subsequent investigation on the direction issued by the Senior Superintendent of Police after disposal of the Section 438 petition by the High Court and the arrest also was carried out on his instruction. It is significant to note that when the FIR was originally registered Section 307 had been included. It was deleted based on the instruction of a superior officer. After such deletion only, the respondent approached the High Court.4. We find that the appellant had tendered an apology explaining his conduct before this Court in the Civil Appeal. We also find that the appellant had tendered unconditional apology explaining that he only carried out the instruction of the Superintendent and he bona fide understood the order passed by the Court to mean that the respondent is entitled to protection under Section 438, Cr.P.C. only in respect of those offences reflected in the order dated 17.02.2017. Section 307, IPC having been added subsequently there was no impediment in proceeding with the investigation after arresting the respondent on that count. In our view, in the facts of the present case, it is a plausible explanation to show that there was no wilful or deliberate attempt to violate the Court order. No doubt, it would have been certainly more appropriate to apprise the Court on this development and seek modification. On the facts of this case we are, however, convinced there was no intentional move to overstep the order of the Court.5. It is in that context, his apology becomes relevant. The appellant has tendered an unconditional apology for bona fide exercise of his powers as an Investigating Officer. Apology is one of the defences in the case of a civil contempt and the Court is bound to explain as to why the apology should not be accepted.6. In the facts and circumstances of the case, we are of the view that the apology tendered by the appellant has to be accepted. | 1[ds]3. We find that this addition of charge is based on a subsequent investigation on the direction issued by the Senior Superintendent of Police after disposal of the Section 438 petition by the High Court and the arrest also was carried out on his instruction. It is significant to note that when the FIR was originally registered Section 307 had been included. It was deleted based on the instruction of a superior officer. After such deletion only, the respondent approached the High Court.4. We find that the appellant had tendered an apology explaining his conduct before this Court in the Civil Appeal. We also find that the appellant had tendered unconditional apology explaining that he only carried out the instruction of the Superintendent and he bona fide understood the order passed by the Court to mean that the respondent is entitled to protection under Section 438, Cr.P.C. only in respect of those offences reflected in the order dated 17.02.2017. Section 307, IPC having been added subsequently there was no impediment in proceeding with the investigation after arresting the respondent on that count. In our view, in the facts of the present case, it is a plausible explanation to show that there was no wilful or deliberate attempt to violate the Court order. No doubt, it would have been certainly more appropriate to apprise the Court on this development and seek modification. On the facts of this case we are, however, convinced there was no intentional move to overstep the order of the Court.5. It is in that context, his apology becomes relevant. The appellant has tendered an unconditional apology for bona fide exercise of his powers as an Investigating Officer. Apology is one of the defences in the case of a civil contempt and the Court is bound to explain as to why the apology should not be accepted.6. In the facts and circumstances of the case, we are of the view that the apology tendered by the appellant has to be accepted. | 1 | 446 | ### 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:
Kurian Joseph, J.1. This is a case where the appellant was punished for civil contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971.2. Both the learned Single Judge and the Division Bench have taken the view that once the respondent had been granted interim bail under Section 438, Cr.P.C. as per order dated 17.02.2006, his arrest on 26.05.2007 on a charge which has been later on added under Section 307, IPC constitutes contempt.3. We find that this addition of charge is based on a subsequent investigation on the direction issued by the Senior Superintendent of Police after disposal of the Section 438 petition by the High Court and the arrest also was carried out on his instruction. It is significant to note that when the FIR was originally registered Section 307 had been included. It was deleted based on the instruction of a superior officer. After such deletion only, the respondent approached the High Court.4. We find that the appellant had tendered an apology explaining his conduct before this Court in the Civil Appeal. We also find that the appellant had tendered unconditional apology explaining that he only carried out the instruction of the Superintendent and he bona fide understood the order passed by the Court to mean that the respondent is entitled to protection under Section 438, Cr.P.C. only in respect of those offences reflected in the order dated 17.02.2017. Section 307, IPC having been added subsequently there was no impediment in proceeding with the investigation after arresting the respondent on that count. In our view, in the facts of the present case, it is a plausible explanation to show that there was no wilful or deliberate attempt to violate the Court order. No doubt, it would have been certainly more appropriate to apprise the Court on this development and seek modification. On the facts of this case we are, however, convinced there was no intentional move to overstep the order of the Court.5. It is in that context, his apology becomes relevant. The appellant has tendered an unconditional apology for bona fide exercise of his powers as an Investigating Officer. Apology is one of the defences in the case of a civil contempt and the Court is bound to explain as to why the apology should not be accepted.6. In the facts and circumstances of the case, we are of the view that the apology tendered by the appellant has to be accepted.
### Response:
1
|
1,033 | M/S. Prakash Tradings Company Vs. Commissioner Of Income Tax,Gujarat | film and paper(4) textiles (including those dyed, printed or otherwise processed) made wholly or in part of jute, including jute twine and rope(5) newsprint(6) pulp - wood pulp, mechanical, chemical including dissolving pulp(7) sugar(8) vegetable oils and vanaspati(9) cement and gypsum products(10) arms and ammunition, and(11) cigarettesrespectively, specified in Items 2, 18, 20, 23(2), 24(2), 24(5), 25, 28, 35, 37 and 38 of the First Schedule to the Industries (Development and Regulation) Act, 1951 (LXV of 1951)." 3. The appellant-assessee is a registered partnership firm engaged in the manufacture of groundnut oil at Veraval. It has a solvent extraction plant at Veraval. It exported, or sold to exporters, de-oiled cakes of the value of Rs 48, 92, 902 and Rs 24, 13, 040 respectively during the accounting years relevant to the Assessment Years 1966-67 and 1967-68 and claimed the additional deduction in respect of the said amounts under the provisions of Section 2(5)(a)(ii) and (iii) of the Finance Act, 1966 and under Section 2(4)(a)(ii) and (iii) of the Finance Act, 1967. The Income Tax Officer rejected the claim with reference to and relying upon clause (c) of Section 2(5) of the Finance Act, 1966 and clause (c) of Section 2(4) of the Finance Act, 1967. On appeal, the Appellate Assistant Commissioner agreed with the assessees contention that clause (c) aforesaid refers to articles as such and not to industries and since de-oiled cake is not mentioned in clause (c), the assessee is entitled to additional deduction. The tribunal affirmed the said view in appeal. At the instance of the Revenue, the tribunal referred the aforesaid two questions under Section 256(1). 4. The only question that arises in these appeals is whether clause (c) refers to articles mentioned therein or whether it refers to industries engaged in the manufacture of those articles. For answering this question, we have to turn to the scheme underlying the provisions aforementioned. Sub-clauses (ii) and (iii), which provide the additional deduction, speak of the articles manufactured in "an industry specified in the First Schedule to the IDR Act", which have been exported out of India by the manufacturer during the relevant accounting year or which have been sold to an exporter who has actually exported them out of India. Clause (c) of Section 2(5) of the 1966 Act [or Section 2(4) of the 1967 Act] is in the nature of an exception to sub-clauses (ii) and (iii) of clause (a). It follows, as it must, the same pattern. Clause (c) opens with the words " (N)othing contained in sub-clause (ii) or sub-clause (iii) of clause (a) shall apply in relation to -". Then it proceeds to mention several articles, at the same time specifying the item numbers in the First Schedule to the IDR Act under which the said articles fall. Just as the First Schedule (to the IDR Act) mentions several articles under various heads, so does clause (c) of Section 2(5) of the Finance Act, 1966 and Section 2(4) of the Finance Act, 1967. The description is identical in both the First Schedule and clause (c). We may illustrate what we say. The pattern in the First Schedule and clause (c). We may illustrate what was say. The pattern in the First Schedule is to mention an article under a heading (item) and then mention several categories thereof under the sub-headings (sub-items). For example, Item 2 in First Schedule reads "2. FUELS(1) Coal, lignite, coke and their derivatives(2) Mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like(3) Fuel gases - (coal gas, natural gas and the like)." 5. Now, clause (c) adheres to the said pattern. Where it seeks to refer to the entire item in the First Schedule, it does so and where it seeks to refer only to a particular sub-item of an item in the First Schedule, it says so - and the description is identical. To wit, Item (1) in clause (c) is Fuels, the same as the heading of Item 2 of the First Schedule. Item (2) in clause (c) is Fertilizers, the same as in Item 18 of the First Schedule. Similarly, Item (3) in clause (c) is "photographic raw film and paper", the same as Item 20 in the First Schedule. However, when it comes to Item (4) in clause (c), it covers only a sub-item of Item 23 in the First Schedule. Item 23 of the First Schedule "Textiles (including those dyed, printed or otherwise processed)" has five sub-items. It reads. "23. TEXTILES (INCLUDING THOSE DYED, PRINTED OR OTHERWISE PROCESSED)(1) made wholly or in part of cotton, including cotton yarn, hosiery and rope;(2) made wholly or in part of jute, including jute, twine and rope;(3) made wholly or in part of wool, including wool tops, woollen yarn, hosiery, carpets and druggets;(4) made wholly or in part of silk, including silk yarn and hosiery;(5) made wholly or in part of synthetic, artificial (man-made) fibres, including yarn and hosiery of such fibres." * 6. Item (4) in clause (c), however, refers only to sub-item (2) of Item 23 in the First Schedule but not to other sub-items. Item (4) in clause (c) reads : "Textiles (including those dyed, printed or otherwise processed) made wholly or in part of jute including jute, twine and rope." Similarly, Item (5) in clause (c) refers to sub-item (2) of Item 24 of the First Schedule and Item (6) in clause (c) refers to sub-item (5) of Item 24. In all cases, however, the description of articles is identical. To repeat, both clause (ii) and (iii) of clause (a) and clause (c) refer to articles only, as does the First Schedule to the IDR Act. If so, all of them must carry the same meaning and purport. Moreover, clause (c) being an exception to sub-clauses (ii) and (iii) must follow the same pattern as in the said sub-clauses. It is reasonable to presume so. | 0[ds]For answering this question, we have to turn to the scheme underlying the provisions aforementioned. Sub-clauses (ii) and (iii), which provide the additional deduction, speak of the articles manufactured in "an industry specified in the First Schedule to the IDR Act", which have been exported out of India by the manufacturer during the relevant accounting year or which have been sold to an exporter who has actually exported them out of India. Clause (c) of Section 2(5) of the 1966 Act [or Section 2(4) of the 1967 Act] is in the nature of an exception to sub-clauses (ii) and (iii) of clause (a). It follows, as it must, the same pattern. Clause (c) opens with the words " (N)othing contained in sub-clause (ii) or sub-clause (iii) of clause (a) shall apply in relation to -". Then it proceeds to mention several articles, at the same time specifying the item numbers in the First Schedule to the IDR Act under which the said articles fall. Just as the First Schedule (to the IDR Act) mentions several articles under various heads, so does clause (c) of Section 2(5) of the Finance Act, 1966 and Section 2(4) of the Finance Act, 1967. The description is identical in both the First Schedule and clause (c). We may illustrate what we say. The pattern in the First Schedule and clause (c). We may illustrate what was say. The pattern in the First Schedule is to mention an article under a heading (item) and then mention several categories thereof under the sub-headings (sub-items).Now, clause (c) adheres to the said pattern. Where it seeks to refer to the entire item in the First Schedule, it does so and where it seeks to refer only to a particular sub-item of an item in the First Schedule, it says so - and the description is identical. To wit, Item (1) in clause (c) is Fuels, the same as the heading of Item 2 of the First Schedule. Item (2) in clause (c) is Fertilizers, the same as in Item 18 of the First Schedule. Similarly, Item (3) in clause (c) is "photographic raw film and paper", the same as Item 20 in the First Schedule. However, when it comes to Item (4) in clause (c), it covers only a sub-item of Item 23 in the First Schedule. Item 23 of the First Schedule "Textiles (including those dyed, printed or otherwise processed)" has five sub-items.Item (4) in clause (c), however, refers only to sub-item (2) of Item 23 in the First Schedule but not to other sub-items. Item (4) in clause (c) reads : "Textiles (including those dyed, printed or otherwise processed) made wholly or in part of jute including jute, twine and rope." Similarly, Item (5) in clause (c) refers to sub-item (2) of Item 24 of the First Schedule and Item (6) in clause (c) refers to sub-item (5) of Item 24. In all cases, however, the description of articles is identical. To repeat, both clause (ii) and (iii) of clause (a) and clause (c) refer to articles only, as does the First Schedule to the IDR Act. If so, all of them must carry the same meaning and purport. Moreover, clause (c) being an exception to sub-clauses (ii) and (iii) must follow the same pattern as in the said sub-clauses. It is reasonable to presume | 0 | 2,216 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
film and paper(4) textiles (including those dyed, printed or otherwise processed) made wholly or in part of jute, including jute twine and rope(5) newsprint(6) pulp - wood pulp, mechanical, chemical including dissolving pulp(7) sugar(8) vegetable oils and vanaspati(9) cement and gypsum products(10) arms and ammunition, and(11) cigarettesrespectively, specified in Items 2, 18, 20, 23(2), 24(2), 24(5), 25, 28, 35, 37 and 38 of the First Schedule to the Industries (Development and Regulation) Act, 1951 (LXV of 1951)." 3. The appellant-assessee is a registered partnership firm engaged in the manufacture of groundnut oil at Veraval. It has a solvent extraction plant at Veraval. It exported, or sold to exporters, de-oiled cakes of the value of Rs 48, 92, 902 and Rs 24, 13, 040 respectively during the accounting years relevant to the Assessment Years 1966-67 and 1967-68 and claimed the additional deduction in respect of the said amounts under the provisions of Section 2(5)(a)(ii) and (iii) of the Finance Act, 1966 and under Section 2(4)(a)(ii) and (iii) of the Finance Act, 1967. The Income Tax Officer rejected the claim with reference to and relying upon clause (c) of Section 2(5) of the Finance Act, 1966 and clause (c) of Section 2(4) of the Finance Act, 1967. On appeal, the Appellate Assistant Commissioner agreed with the assessees contention that clause (c) aforesaid refers to articles as such and not to industries and since de-oiled cake is not mentioned in clause (c), the assessee is entitled to additional deduction. The tribunal affirmed the said view in appeal. At the instance of the Revenue, the tribunal referred the aforesaid two questions under Section 256(1). 4. The only question that arises in these appeals is whether clause (c) refers to articles mentioned therein or whether it refers to industries engaged in the manufacture of those articles. For answering this question, we have to turn to the scheme underlying the provisions aforementioned. Sub-clauses (ii) and (iii), which provide the additional deduction, speak of the articles manufactured in "an industry specified in the First Schedule to the IDR Act", which have been exported out of India by the manufacturer during the relevant accounting year or which have been sold to an exporter who has actually exported them out of India. Clause (c) of Section 2(5) of the 1966 Act [or Section 2(4) of the 1967 Act] is in the nature of an exception to sub-clauses (ii) and (iii) of clause (a). It follows, as it must, the same pattern. Clause (c) opens with the words " (N)othing contained in sub-clause (ii) or sub-clause (iii) of clause (a) shall apply in relation to -". Then it proceeds to mention several articles, at the same time specifying the item numbers in the First Schedule to the IDR Act under which the said articles fall. Just as the First Schedule (to the IDR Act) mentions several articles under various heads, so does clause (c) of Section 2(5) of the Finance Act, 1966 and Section 2(4) of the Finance Act, 1967. The description is identical in both the First Schedule and clause (c). We may illustrate what we say. The pattern in the First Schedule and clause (c). We may illustrate what was say. The pattern in the First Schedule is to mention an article under a heading (item) and then mention several categories thereof under the sub-headings (sub-items). For example, Item 2 in First Schedule reads "2. FUELS(1) Coal, lignite, coke and their derivatives(2) Mineral oil (crude oil), motor and aviation spirit, diesel oil, kerosene oil, fuel oil, diverse hydrocarbon oils and their blends including synthetic fuels, lubricating oils and the like(3) Fuel gases - (coal gas, natural gas and the like)." 5. Now, clause (c) adheres to the said pattern. Where it seeks to refer to the entire item in the First Schedule, it does so and where it seeks to refer only to a particular sub-item of an item in the First Schedule, it says so - and the description is identical. To wit, Item (1) in clause (c) is Fuels, the same as the heading of Item 2 of the First Schedule. Item (2) in clause (c) is Fertilizers, the same as in Item 18 of the First Schedule. Similarly, Item (3) in clause (c) is "photographic raw film and paper", the same as Item 20 in the First Schedule. However, when it comes to Item (4) in clause (c), it covers only a sub-item of Item 23 in the First Schedule. Item 23 of the First Schedule "Textiles (including those dyed, printed or otherwise processed)" has five sub-items. It reads. "23. TEXTILES (INCLUDING THOSE DYED, PRINTED OR OTHERWISE PROCESSED)(1) made wholly or in part of cotton, including cotton yarn, hosiery and rope;(2) made wholly or in part of jute, including jute, twine and rope;(3) made wholly or in part of wool, including wool tops, woollen yarn, hosiery, carpets and druggets;(4) made wholly or in part of silk, including silk yarn and hosiery;(5) made wholly or in part of synthetic, artificial (man-made) fibres, including yarn and hosiery of such fibres." * 6. Item (4) in clause (c), however, refers only to sub-item (2) of Item 23 in the First Schedule but not to other sub-items. Item (4) in clause (c) reads : "Textiles (including those dyed, printed or otherwise processed) made wholly or in part of jute including jute, twine and rope." Similarly, Item (5) in clause (c) refers to sub-item (2) of Item 24 of the First Schedule and Item (6) in clause (c) refers to sub-item (5) of Item 24. In all cases, however, the description of articles is identical. To repeat, both clause (ii) and (iii) of clause (a) and clause (c) refer to articles only, as does the First Schedule to the IDR Act. If so, all of them must carry the same meaning and purport. Moreover, clause (c) being an exception to sub-clauses (ii) and (iii) must follow the same pattern as in the said sub-clauses. It is reasonable to presume so.
### Response:
0
|
1,034 | THE KANGRA CENTRAL COOPERATIVE BANK PENSIONERS WELFARE ASSOCIATION (REGISTERED) Vs. STATE OF HIMACHAL PRADESH & ORS | final decision in the matter whether to continue the Scheme with some modifications, if required or to completely disband it or suggest alternative proposal. Such a decision be taken after affording hearing to the petitioners and also the respondentbank within four months from the production of the copy of this judgment. 4. During the course of his judgment, the Single Judge dealt with all the relevant submissions including one concerning maintainability of the writ petition and observed as under: 19. The learned counsel for the respondents admitted that the State had more than 50 per cent share in the capital of the bank. The Registrar of the Cooperative Societies is a member of Himachal Pradesh Administrative Services. The perusal of the Cooperative Societies Act reveals that the respondent-Society cannot budge even an inch without his approval, therefore, there is deep and pervasive control of the State Government not only on its employees by the second respondent as ventilated by the learned counsel for the respondents but also on the working of respondents-Bank, as is evident from the facts in hand that the respondent-bank has more than 50% share of the Government, it is financially, functionally and administratively dominated by or is under the control of the State Government, as also the Government nominates members of the Managing Committee (BOD) under Section 35 of Cooperative Societies Act, also 1/3 of the members are appointed by the Registrar under Rule 39 framed under the Act. Even under Rule 49, he is empowered to inter-alia issue general or special orders to the Managing Committee to raise and invest funds. Therefore, the State has a deep and pervasive control on its working. Hence, the respondent-bank is an instrumentality of the State within the meaning of Article 12 of the Constitution. Therefore, in my opinion, the writ is maintainable against the respondent-bank. 5. It appears that in a different context, the issue concerning maintainability of a Writ Petition against Kangra Central Co-operative Bank Ltd. (the Bank, for short) again came up before the Full bench of the High Court, which by its judgment dated 14.05.2013 observed as under: 15. For the view taken by us on both facets of the referred questions, we proceed to answer the Reference as under: (1) The question as to whether Kangra Bank is a State within the meaning of Article 12 of the Constitution of India, is no more res integra. It has been authoritatively answered by the Apex Court in S.S. Ranas case (supra.) (2) Even in the case of H.P. State Cooperative Bank Ltd., the question has been answered by the Division Bench of our High Court in Chandra Kumar Malhotras case (supra). There is no conflicting decision of coordinate Bench of this Court necessitating pronouncement on that question by the Full Bench. (3) In the case of Jogindra Central Cooperative Bank, the decision in Mehar Chands case (supra) is rendered by the learned Single Judge of this Court and no conflicting decision of the co-ordinate Bench much less of the Division Bench or Larger Bench of our High Court with regard to the stated Bank has been brought to our notice. In any case, the said question can be conveniently answered by the Division Bench in appropriate proceedings whether in the form of writ petition or Reference made by the learned Single Judge of this Court, as the case may be. As and when such occasion arises, the issue can be answered on the basis of settled legal principles and including keeping in mind the exposition of S.S. Ranas case (supra) of the Apex Court concerning another Cooperative Bank constituted under the Himachal Pradesh State Cooperative Act. (4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even against a Corporative Society. Whether the same should be issued by the High Court would depend on the facts of each case. 16. Accordingly, having answered the referred questions, we direct the Registry to place the concerned writ petitions and the LPA before the appropriate Bench for proceeding on merits in accordance with law. 6. In the Review Petition preferred against the decision of the Single Judge, the decision rendered by the Full Bench was relied upon and the Review Petition was rejected. 7. The matter however was carried in appeal before the Division Bench at the instance of the Bank. 8. Relying on its earlier decision in Sanjeev Kumar & Others v. State of Himachal Pradesh & Others, C.W.P. No.6709 of 2013 the Division Bench by its judgment and order which is presently under challenge, set aside the view taken by the Single Judge. The matter essentially turned on the issue of maintainability. 9. We have heard Mr. Kavin Gulati, learned Senior Advocate in support of the appeal, Mr. Abhinav Mukerji, learned Additional Advocate General for the State and Mr. Ritesh Khatri, learned Advocate for the Bank. 10. The issue concerning maintainability was considered by the Full bench and the observations made by the Full Bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition. | 1[ds]10. The issue concerning maintainability was considered by the Full bench and the observations made by the Full Bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition.2. Though the issue raised in this matter also pertains to the maintainability of a writ petition filed in the High Court; and the instant matter was tagged with the Special Leave Petition from which the aforestated appeal arose, in the facts and circumstances of the case, we refuse to entertain this Special Leave Petition.3. It has been brought to our notice that the Joint Registrar (Credit) Cooperative Societies, H.P., while disposing of the action initiated before him had observed as under:24. In view of the findings recorded hereinabove, the respondent bank shall consider the applicants/petitioners along with other similarly situated subordinate category employees for promotion to vacant post of junior clerks/ Gr.IV under specified promotion quota earmarked under bank service rules for them subject to their eligibility and fitness for promotion as and when vacancies under promotion quota or otherwise are filled by the respondent bank in near future. Further, the period of service rendered by the applicants/petitioners as sub-helpers on contract/ad hoc basis shall be considered as qualifying service by the bank for determining their length of service in feeder/subordinate category for the purpose of promotion to junior clerks/ Gr.IV as per rules and settled principles of service jurisprudence and in view of the fact that bank had extended their contract period till 2011 as per terms of the scheme of appointment and rules etc.25. In the aforesaid terms, the representations/ references u/s 72 of the Act ibid preferred by the applicants/petitioners stand disposed of in compliance of the orders of Honble High Court, H.P. these findings made before the parties present today on 18.8.2012 at Shimla shall also be kept on record in concerned files of the applicants/petitioners as those are preferred on similar grounds before Registrar Cooperative Societies, H.P. and stood clubbed as discussed above and accordingly disposed of along with applications filed for stay etc. if any. These case files be returned along with findings to the Registrar Cooperative Societies, H.P. for record and further appropriate action after due completion.4. The further action initiated by the present petitioners in the form of a Writ Petition did not meet with success on the ground of maintainability. However, as indicated in the Additional Affidavit filed by the respondents, out of six petitioners presently before this Court, four of them were granted the benefit of regularization (Shri Suresh Kumar Mehta, petitioner No.1 by office order dated 02.09.2019; Shri Rajinder Kumar, petitioner No.2 by order dated 20.06.2020; Shri Anil Prakash, petitioner no.4 by office order dated 28.01.2020; and, Shri Kuldeep Singh, petitioner No.5 by order dated 28.01.2021) to the next higher post. Ms. Pragati Neekhra, learned Advocate appearing for the H.P. State Cooperative Bank Ltd. submits that since the filing of the additional affidavit, other two petitioners have also been afforded the similar benefit. | 1 | 1,337 | ### 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:
final decision in the matter whether to continue the Scheme with some modifications, if required or to completely disband it or suggest alternative proposal. Such a decision be taken after affording hearing to the petitioners and also the respondentbank within four months from the production of the copy of this judgment. 4. During the course of his judgment, the Single Judge dealt with all the relevant submissions including one concerning maintainability of the writ petition and observed as under: 19. The learned counsel for the respondents admitted that the State had more than 50 per cent share in the capital of the bank. The Registrar of the Cooperative Societies is a member of Himachal Pradesh Administrative Services. The perusal of the Cooperative Societies Act reveals that the respondent-Society cannot budge even an inch without his approval, therefore, there is deep and pervasive control of the State Government not only on its employees by the second respondent as ventilated by the learned counsel for the respondents but also on the working of respondents-Bank, as is evident from the facts in hand that the respondent-bank has more than 50% share of the Government, it is financially, functionally and administratively dominated by or is under the control of the State Government, as also the Government nominates members of the Managing Committee (BOD) under Section 35 of Cooperative Societies Act, also 1/3 of the members are appointed by the Registrar under Rule 39 framed under the Act. Even under Rule 49, he is empowered to inter-alia issue general or special orders to the Managing Committee to raise and invest funds. Therefore, the State has a deep and pervasive control on its working. Hence, the respondent-bank is an instrumentality of the State within the meaning of Article 12 of the Constitution. Therefore, in my opinion, the writ is maintainable against the respondent-bank. 5. It appears that in a different context, the issue concerning maintainability of a Writ Petition against Kangra Central Co-operative Bank Ltd. (the Bank, for short) again came up before the Full bench of the High Court, which by its judgment dated 14.05.2013 observed as under: 15. For the view taken by us on both facets of the referred questions, we proceed to answer the Reference as under: (1) The question as to whether Kangra Bank is a State within the meaning of Article 12 of the Constitution of India, is no more res integra. It has been authoritatively answered by the Apex Court in S.S. Ranas case (supra.) (2) Even in the case of H.P. State Cooperative Bank Ltd., the question has been answered by the Division Bench of our High Court in Chandra Kumar Malhotras case (supra). There is no conflicting decision of coordinate Bench of this Court necessitating pronouncement on that question by the Full Bench. (3) In the case of Jogindra Central Cooperative Bank, the decision in Mehar Chands case (supra) is rendered by the learned Single Judge of this Court and no conflicting decision of the co-ordinate Bench much less of the Division Bench or Larger Bench of our High Court with regard to the stated Bank has been brought to our notice. In any case, the said question can be conveniently answered by the Division Bench in appropriate proceedings whether in the form of writ petition or Reference made by the learned Single Judge of this Court, as the case may be. As and when such occasion arises, the issue can be answered on the basis of settled legal principles and including keeping in mind the exposition of S.S. Ranas case (supra) of the Apex Court concerning another Cooperative Bank constituted under the Himachal Pradesh State Cooperative Act. (4) As regards the second part of the question as to whether a writ would lie against the stated Cooperative Banks, we hold that it is not appropriate to give a definite answer to this question. For, it would depend on several attending factors. Further, even if the said Banks were held to be not a State within the meaning of Article 12, the High Court in exercise of powers under Article 226 of the Constitution of India, can certainly issue a writ or order in the nature of writ even against any person or Authority, if the fact situation of the case so warrants. In other words, writ can lie even against a Corporative Society. Whether the same should be issued by the High Court would depend on the facts of each case. 16. Accordingly, having answered the referred questions, we direct the Registry to place the concerned writ petitions and the LPA before the appropriate Bench for proceeding on merits in accordance with law. 6. In the Review Petition preferred against the decision of the Single Judge, the decision rendered by the Full Bench was relied upon and the Review Petition was rejected. 7. The matter however was carried in appeal before the Division Bench at the instance of the Bank. 8. Relying on its earlier decision in Sanjeev Kumar & Others v. State of Himachal Pradesh & Others, C.W.P. No.6709 of 2013 the Division Bench by its judgment and order which is presently under challenge, set aside the view taken by the Single Judge. The matter essentially turned on the issue of maintainability. 9. We have heard Mr. Kavin Gulati, learned Senior Advocate in support of the appeal, Mr. Abhinav Mukerji, learned Additional Advocate General for the State and Mr. Ritesh Khatri, learned Advocate for the Bank. 10. The issue concerning maintainability was considered by the Full bench and the observations made by the Full Bench summed up the law on the point quite succinctly. On the facts as found by the Single Judge, which were recorded in paragraph 19 of the judgment, without entering into any other question, in our view, the petition as filed was perfectly maintainable. The Division Bench was in error in setting aside the view taken by the Single Judge in allowing the writ petition and in rejecting the review petition.
### Response:
1
|
1,035 | Vithal Yeshwant Jathar Vs. Shikandarkhan Makhtumkhansardesai | for consequential relief. As has been already indicated the Collector who heard the appeal was of opinion that the order appealed against "was undoubtedly correct in the main" but still he ordered "an additional amount of rent equal to the cess to be paid." There is no suggestion in the Collectors order that in his view the Assistant Collector had been wrong in thinking that there are no reasons for declaring the alienation to be null and void. On the contrary the Collectors order indicates that he agreed with the Assistant Collector in the new that the alienation could not be declared null and void. To read this appellate order as making by implication a declaration that the lease of 1863 was null and void is not only to read into it words which are not there but indeed to go against the clear tenor of the words which have been actually used. There is no justification in our opinion, to hold that when the Collector made the order that an additional amount of rent equal to the cess be paid he must have had in mind the provisions of S. 9(2) of the Watan Act and so the entire order should be read as giving first, by implication a declaration that the lease was null and void and, secondly, making an order for collection of profits on behalf of the Watantar from the person in possession. It is true that under the law the Collector was not entitled to made this order for payment of additional rent unless be first declared the previous lease to be null and void and then found that the previous rent together with the additional amount of rent represented the full rent ordinarily paid by tenants of land of similar description in the same locality. From the mere fact that this order was made by him for payment of additional amount of rent equal to cess, it is not however permissible to work back, and imagine something which was not said by him. When the matter came up to the government after the Commissioner had dismissed the appeal from the Collectors decision the government also made no declaration that the lease of 1863 was null and void. But, after setting out certain circumstances which seemed to show that at the time when the lease was granted the interests of the Watandar were not properly considered by the lessee who held a quasi fiduciary relation towards the Watandar, the government ordered: -"The rent should therefore now be revised and fixed at Rs. 1,245/41- being a sum equal to the present rental plus the judi plus the local fund cess." The government was thus clearly acting on the basis that the person in possession was a tenant of the Watandar but rent for the tenancy should be fixed at Rs. 1,245/4/-. Such action cannot by any stretch of imagination be considered to be an action under S. 9 of the Watan Act. The only legal basis that can be found for the governments action is in S. 5 of the Watan Act. That section provides that without the sanction of the State Government ------ -------- ------ it shall not be competent to a Watandar to mortgage, charge, lease or alienate, for a period beyond the terms of his natural life, any watan or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan.By necessary implication this section authorises the State Government to sanction the mortgage, charge, alienation or lease, by a Watandar for a period beyond the term of his natural life of any watan, or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan, and on such sanction being given the Watandar has power to act accordingly.It is known that after the order of the government made in 1911, the former tenant continued in possession and the Watandar received from him the rent fixed by the government, that is, Rs. 1,245/4/- for the Watan. In all these circumstances, it is reasonable to hold that by the order of 1911 the government was giving its sanction to the lease of the watan lands to the person in possession at this revised rent. In consequence of the governments order therefore a lease came into existence at the rate of Rs. 1,245/41- in place of the old lease of 1863.17. If that be the position is the Watandar entitled to increase his rent? There was no document in writing for the lease which came into existence after the governments order of 1913. It is quite clear, however, from the order of the government that the only change it sanctioned in the terms of the former lease was as regards rent. That was changed from Rs. 727/to 1,245/4/-; but the other terms, namely, that the lease was permanent and the rate of rent would remain fixed from the date of creation of the lease remained unaltered. To use the words of Chief Justice Beaumont in the earlier litigation between the parties: "the Government resolution dated the 23rd May, 1911, amounts to an opinion to a confirmation of the 1863 lease with a modification as to the rent." The Watandar had therefore no right to increase the rent.18. The result is that out of the amount of compensation awarded for these lands, the respondent being the landlord is entitled to only the capitalised value of the rent. The rent for the entire Watan, which is stated to be 400 acres of land, being Rs. 1,245/4/- the proportionate rent for the lands acquired, that is, 30 acres and 32 gunthas works out at about Rs. 95/9/-. The capitalised value of this at twenty-five times amounts to Rs. 2,389/1/-. The apportionment should therefore be that Rs. 2,389/1/- of the amount of compensation be awarded to the respondent and the remainder to the appellant. | 1[ds]12. We do not propose to investigate the question whether the High Courts earlier decision that the governments order of 1911 amounted in law to sanctioning a fresh lease operates as res judicata or not, as, quite independently of that decision, we think it proper to hold that the governments order of 1911 is not an order under S. 9(2) of the Watan Act but amounted only to a sanction of a freshhe decides that there are no such reasons the application must be rejected. If, on the contrary, the Collector is satisfied that there are good reasons for declaring the alienation null and void he is to record his reasons and give a declaration as prayed for that the alienation was null and void. Having made such declaration he is then to decide whether the possession should be transferred to the Watandar or action should be taken under S. 9(2), that is, instead of transferring the possession of the land, he should collect from the person in possession the proper amount as the profits from the land, for payment to the Watandar. It is important to notice that action under sub section (2) can be taken only on the basis that the alienation has ceased to have any legal force. Thus when the alienation was by way of lease, action under S. 9(2) can be taken only on the basis that the lease no longer effective in law and the relationship of landlord and tenant has ceased between the Watandar and the person in possession. Where the Collector takes action under S. 9(2), the person formerly in possession as a lessee, continues in possession henceforth not as a lessee but on the strength of the Collectors permission only. In other words, in taking action under S. 9(2) the Collector is not creating a fresh lease in place of the lease that has been declared null and void but only directs that the person in possession is to continue in possession subject to the payment of such amount as he decides to be the full rent ordinarily paid by tenants of land of similar description in the same locality.16. The Assistant Collector, before whom the application of the Watandars, predecessors of the present respondent uncle, S. 9 of the Watan Act came up for consideration rejected the application in these words: - "I reject the application of Matumkhan asking that the lands enjoyed by Bhaskarrao Jather on a perpetual lease should be fully restored to his possession cancelling the lease passed in 1863." That is, he refused the prayer for a declaration that the alienation was null and void and necessarily refused the prayer for consequential relief. As has been already indicated the Collector who heard the appeal was of opinion that the order appealed against "was undoubtedly correct in the main" but still he ordered "an additional amount of rent equal to the cess to be paid." There is no suggestion in the Collectors order that in his view the Assistant Collector had been wrong in thinking that there are no reasons for declaring the alienation to be null and void. On the contrary the Collectors order indicates that he agreed with the Assistant Collector in the new that the alienation could not be declared null and void. To read this appellate order as making by implication a declaration that the lease of 1863 was null and void is not only to read into it words which are not there but indeed to go against the clear tenor of the words which have been actually used. There is no justification in our opinion, to hold that when the Collector made the order that an additional amount of rent equal to the cess be paid he must have had in mind the provisions of S. 9(2) of the Watan Act and so the entire order should be read as giving first, by implication a declaration that the lease was null and void and, secondly, making an order for collection of profits on behalf of the Watantar from the person in possession. It is true that under the law the Collector was not entitled to made this order for payment of additional rent unless be first declared the previous lease to be null and void and then found that the previous rent together with the additional amount of rent represented the full rent ordinarily paid by tenants of land of similar description in the same locality. From the mere fact that this order was made by him for payment of additional amount of rent equal to cess, it is not however permissible to work back, and imagine something which was not said by him. When the matter came up to the government after the Commissioner had dismissed the appeal from the Collectors decision the government also made no declaration that the lease of 1863 was null and void. But, after setting out certain circumstances which seemed to show that at the time when the lease was granted the interests of the Watandar were not properly considered by the lessee who held a quasi fiduciary relation towards the Watandar, the government ordered: -"The rent should therefore now be revised and fixed at Rs. 1,245/41- being a sum equal to the present rental plus the judi plus the local fund cess." The government was thus clearly acting on the basis that the person in possession was a tenant of the Watandar but rent for the tenancy should be fixed at Rs. 1,245/4/-. Such action cannot by any stretch of imagination be considered to be an action under S. 9 of the Watan Act. The only legal basis that can be found for the governments action is in S. 5 of the Watan Act. That section provides that without the sanction of the State Government ------ -------- ------ it shall not be competent to a Watandar to mortgage, charge, lease or alienate, for a period beyond the terms of his natural life, any watan or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan.By necessary implication this section authorises the State Government to sanction the mortgage, charge, alienation or lease, by a Watandar for a period beyond the term of his natural life of any watan, or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan, and on such sanction being given the Watandar has power to act accordingly.It is known that after the order of the government made in 1911, the former tenant continued in possession and the Watandar received from him the rent fixed by the government, that is, Rs. 1,245/4/- for the Watan. In all these circumstances, it is reasonable to hold that by the order of 1911 the government was giving its sanction to the lease of the watan lands to the person in possession at this revised rent. In consequence of the governments order therefore a lease came into existence at the rate of Rs. 1,245/41- in place of the old lease ofwas no document in writing for the lease which came into existence after the governments order of 1913. It is quite clear, however, from the order of the government that the only change it sanctioned in the terms of the former lease was as regards rent. That was changed from Rs. 727/to 1,245/4/-; but the other terms, namely, that the lease was permanent and the rate of rent would remain fixed from the date of creation of the lease remained unaltered. To use the words of Chief Justice Beaumont in the earlier litigation between the parties: "the Government resolution dated the 23rd May, 1911, amounts to an opinion to a confirmation of the 1863 lease with a modification as to the rent." The Watandar had therefore no right to increase the rent.18. The result is that out of the amount of compensation awarded for these lands, the respondent being the landlord is entitled to only the capitalised value of the rent. The rent for the entire Watan, which is stated to be 400 acres of land, being Rs. 1,245/4/- the proportionate rent for the lands acquired, that is, 30 acres and 32 gunthas works out at about Rs. 95/9/-. The capitalised value of this at twenty-five times amounts to Rs. 2,389/1/-. The apportionment should therefore be that Rs. 2,389/1/- of the amount of compensation be awarded to the respondent and the remainder to the appellant. | 1 | 3,578 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
for consequential relief. As has been already indicated the Collector who heard the appeal was of opinion that the order appealed against "was undoubtedly correct in the main" but still he ordered "an additional amount of rent equal to the cess to be paid." There is no suggestion in the Collectors order that in his view the Assistant Collector had been wrong in thinking that there are no reasons for declaring the alienation to be null and void. On the contrary the Collectors order indicates that he agreed with the Assistant Collector in the new that the alienation could not be declared null and void. To read this appellate order as making by implication a declaration that the lease of 1863 was null and void is not only to read into it words which are not there but indeed to go against the clear tenor of the words which have been actually used. There is no justification in our opinion, to hold that when the Collector made the order that an additional amount of rent equal to the cess be paid he must have had in mind the provisions of S. 9(2) of the Watan Act and so the entire order should be read as giving first, by implication a declaration that the lease was null and void and, secondly, making an order for collection of profits on behalf of the Watantar from the person in possession. It is true that under the law the Collector was not entitled to made this order for payment of additional rent unless be first declared the previous lease to be null and void and then found that the previous rent together with the additional amount of rent represented the full rent ordinarily paid by tenants of land of similar description in the same locality. From the mere fact that this order was made by him for payment of additional amount of rent equal to cess, it is not however permissible to work back, and imagine something which was not said by him. When the matter came up to the government after the Commissioner had dismissed the appeal from the Collectors decision the government also made no declaration that the lease of 1863 was null and void. But, after setting out certain circumstances which seemed to show that at the time when the lease was granted the interests of the Watandar were not properly considered by the lessee who held a quasi fiduciary relation towards the Watandar, the government ordered: -"The rent should therefore now be revised and fixed at Rs. 1,245/41- being a sum equal to the present rental plus the judi plus the local fund cess." The government was thus clearly acting on the basis that the person in possession was a tenant of the Watandar but rent for the tenancy should be fixed at Rs. 1,245/4/-. Such action cannot by any stretch of imagination be considered to be an action under S. 9 of the Watan Act. The only legal basis that can be found for the governments action is in S. 5 of the Watan Act. That section provides that without the sanction of the State Government ------ -------- ------ it shall not be competent to a Watandar to mortgage, charge, lease or alienate, for a period beyond the terms of his natural life, any watan or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan.By necessary implication this section authorises the State Government to sanction the mortgage, charge, alienation or lease, by a Watandar for a period beyond the term of his natural life of any watan, or any part thereof, or any interest therein, to or for the benefit of any person who is not a Watandar of the same watan, and on such sanction being given the Watandar has power to act accordingly.It is known that after the order of the government made in 1911, the former tenant continued in possession and the Watandar received from him the rent fixed by the government, that is, Rs. 1,245/4/- for the Watan. In all these circumstances, it is reasonable to hold that by the order of 1911 the government was giving its sanction to the lease of the watan lands to the person in possession at this revised rent. In consequence of the governments order therefore a lease came into existence at the rate of Rs. 1,245/41- in place of the old lease of 1863.17. If that be the position is the Watandar entitled to increase his rent? There was no document in writing for the lease which came into existence after the governments order of 1913. It is quite clear, however, from the order of the government that the only change it sanctioned in the terms of the former lease was as regards rent. That was changed from Rs. 727/to 1,245/4/-; but the other terms, namely, that the lease was permanent and the rate of rent would remain fixed from the date of creation of the lease remained unaltered. To use the words of Chief Justice Beaumont in the earlier litigation between the parties: "the Government resolution dated the 23rd May, 1911, amounts to an opinion to a confirmation of the 1863 lease with a modification as to the rent." The Watandar had therefore no right to increase the rent.18. The result is that out of the amount of compensation awarded for these lands, the respondent being the landlord is entitled to only the capitalised value of the rent. The rent for the entire Watan, which is stated to be 400 acres of land, being Rs. 1,245/4/- the proportionate rent for the lands acquired, that is, 30 acres and 32 gunthas works out at about Rs. 95/9/-. The capitalised value of this at twenty-five times amounts to Rs. 2,389/1/-. The apportionment should therefore be that Rs. 2,389/1/- of the amount of compensation be awarded to the respondent and the remainder to the appellant.
### Response:
1
|
1,036 | JAGDISH PRASAD PATEL(D) THR. LRS Vs. SHIVNATH | of DW-1-Hanuman Din. The learned senior counsel appearing for the appellants has drawn our attention to the provisions of Vindhya Pradesh Act and submitted that as per Section 5 of the said Act, the State Government by a notification appointed a date for the resumption of any class of Jagir Lands and the consequences of such resumption are set out in Section 6 of the said Act. We find substance in the submission of the learned senior counsel for the appellants that in terms of Section 28 of the said Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of the said lands. Section 28 of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 reads as under:-"28. Certain occupants of lands to be pattedar tenants. – (1) Subject to the provisions of sub-section (2) every person who is entered in the revenue record for a continuous period of three years as an occupant of any Jagir-land at the date of resumption, shall be deemed to be pattedar tenant in respect of such land which shall be assessed at the village rate. (2) Nothing in sub-section (1) shall apply to any sir or khudkasht land which is allotted to the Jagirdar under Section 22 or any grove land possession of which the Jagirdar is entitled to retain under clause (c) of Section 7."In view of the provisions of the above Act, the first appellate court erred in saying that the patta in favour of Gaya Din was granted in the year 1954 and by that time, Pawaidar/iIlaqedar was not having jurisdiction to issue patta. 40. Re: Finding of the first appellate court: Ownership of the respondents not terminated in a legal way:- The first appellate court held that the ownership of Rameshwar and Ram Sahai was not terminated in a legal way and therefore, they are to be treated as owners of the suit properties. The first Appellate Court further held that since the ownership of Rameshwar and Ram Sahai was not terminated in a legal way, the lease deed- Ex.D-20 which has been produced on behalf of defendant No.1 cannot be treated to be a proved document and on those findings, set aside the finding of the trial court that defendant No.1 is having a legal right of ownership of the disputed lands. The first Appellate Court, in our view, was not right in doubting the correctness of Ex. D-20 and not right in observing that defendant No.1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex.D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son- Hanuman Din and the appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records. 41. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269 , it was held as under:-?15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.?42. Upon appreciation of evidence, the trial court has recorded findings on various issues which was reversed by the first Appellate Court. Since the first Appellate Court reversed the judgment of the trial court, in the second appeal, the High Court ought to have weighed and considered the evidence and materials. The order of the High Court dismissing the appellant?s appeal by affirming the findings of the first Appellate Court is mainly on the ground that in the absence of any order of abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendants was illegal. The High Court, in our view, did not appreciate the patta (Ex.D-20) granted in favour of the forefathers of the appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex.D-1- Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, Gaya Din and Hanuman Din were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside. | 1[ds]10. The impugned judgment of the High Court is the concurrent finding of the High Court and the first Appellate Court. We are conscious that in an appeal under Article 136 of the Constitution of India, the concurrent findings cannot be interfered with unless warranted by compelling reasons. When the finding of the first Appellate court and the High Court are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the High Court. [Vide Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCCIn his evidence, PW-1 has stated that patta-lease was issued in the name of his father. In his written statement, defendant Hanuman Din also admitted that the plaintiffs- respondents? fathers were lessees and patta-lease was originally granted in their favour during the settlement period for cultivation on the basis of Batai-crop sharing. The trial court as well as the first appellate court held that the lease was granted in favour of father of respondents-plaintiffs at time of the settlement and they were held to be original lessees. The trial court while deciding issue No.2(A), observed that the grant of lease in the name of father of respondents-plaintiffs in the settlement is not rebutted by the appellants-defendants. Drawing our attention to the findings of the trial court that patta was granted in favour of the father of the respondents-plaintiffs, the learned senior counsel for the respondents-plaintiffs submitted that this amounts to admission and in terms of Section 58 of the Evidence Act, admitted facts need not be proved. Placing reliance upon Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others (1974) 1 SCC 242 and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and others (2017) 3 SCC 702 , it was submitted that in view of clear admission of grant of lease in the name of father of respondents-plaintiffs, the said admitted fact need not be proved.Section 58 of the Evidence Act, no doubt, postulates that the things admitted need not be proved. However, proviso to Section 58 of the Evidence Act gives full discretion to the court to require the facts admitted to be proved otherwise than by such admission. When the respondents-plaintiffs have filed the suit for declaration of their title, the respondents-plaintiffs cannot isolate few sentences in the written statement and take advantage of only those part of the written statement which are favourable to them. The written statement filed by the appellants-defendants has to be read in toto. It is pertinent to note that in para No.(2) of the written statement, the appellants-defendants averred that the lands were in the ownership of Ram Raj Singh at the time of the settlement, but because he was not in a position to cultivate the same himself, the lands were given to the father of the respondents-plaintiffs for cultivation on the basis of Batai-crop sharing. It is further averred that the then Halkedar cancelled the lease in respect of disputed lands and the same were auctioned in which the bid of the defendants? father Gaya Din was accepted and the disputed lands were transferred in his name in the sale in Samvat 1986 i.e. 1929 A.D. The lease of the lands was issued in the name of Gaya Din. The admission of the defendants as to the lease of the plaintiffs? father was the lease earlier granted in favour of the forefathers of the respondents. In the light of the pleadings and the oral and documentary evidence adduced by the defendants, notwithstanding the admission in the written statement, the burden lies upon the respondents-plaintiffs to prove that the patta-lease continues to be in their favour and that they are the holders of patta and that they are in continued possession of the suit properties.In his cross-examination, PW-1 stated that his father left for Jabalpur about forty years prior to the institution of the suit. In the cross-examination, PW-1 however denied the suggestion that when his father left for Jabalpur, he handed over the disputed lands to Pawaidar and all the records at the relevant time were kept by the iIlaqedar. From the statement of PW-1-Vishwanath and PW-2-Ram Gopal, it is evident that the father of Vishwanath had started living in Jabalpur forty years back prior to institution of the suit and settled there. In the light of the evidence adduced, the trial court rightly accepted the case of the defendants that in Samvat 1986 (1929 A.D.), in the auction held by Pawaidar for lease of suit lands and other lands, bid of Gaya Din was accepted and the suit properties along with other lands were given on lease to Gaya Din. We find substance in the submission of the learned senior counsel for the appellants that if the lands were not left so abandoned by the father of respondents-plaintiffs, it would not have been possible for the Pawaidar to auction the lease of the suit lands and grant lease of the lands in favour of Gaya Din.From perusal of the Khatauni for the year 1952-53 (Ex.P-2) produced by the plaintiffs, it is seen that the appellants- defendants are in possession of the suit lands from the year 1950-51 to 1954-55 (Ex. P-8) and thereafter, the subsequent khasras 1960-61 onwards. The names of the appellants- defendants being mentioned in the khasra 1950-51 to 1954-55 is very crucial. The reason being Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (Vindhya Pradesh Act) came into force on 30.07.1953. Ex. D-20 (Ex. P-21) - lease was granted in favour of the predecessors of the appellants- defendants namely Gaya Din by Pawaidar under Section 44 of the Rewa State Malgujari and Kashtkari Act, 1935 (Rewa Land Revenue and Tenancy Act, 1935). After referring to Ex. D-20, the trial court rightly held that the Pawaidar was empowered to issue the lease and that lease (Ex. D-20) was issued under Section 141 of the Act. It was therefore rightly held by the trial court that the lease (Ex. D-20) is valid and that the appellants- defendants have proved that the lease of the lands was legally given by illaqedar in favour of their father.The revenue records produced by the appellants for several years amply strengthen the case of the appellants that patta (Ex. D-20) was granted to them and that they are in possession of the suit properties for several years. The oral and documentary evidence clearly establish that the father of the respondents- plaintiffs has abandoned the suit properties, pursuant to which, auction was held by the Pawaidar and lease was issued by illaqedar in favour of Gaya Din and that he was in continuous possession of the suit properties.In the plaint, the respondents/plaintiffs have alleged that Ex. D-20-patta is a forged one. In para No.(4) of the plaint, it is alleged that without knowledge of the respondents/plaintiffs? father, defendants? father Gaya Din got the lease from Ilaqa Churhat by illegal means and Gaya Din never remained in possession of the properties. The respondents-plaintiffs have not produced any document to prove that Ex. D-20 is a forged one. The plaintiffs at one place averred that without the knowledge of the plaintiffs and their father, Gaya Din succeeded in getting the lease by illegal means of the disputed lands from iIlaqa therein; whereas in para No.(5), the respondents-plaintiffs alleged that the document is a forged one. In fact, as pointed out earlier, the respondents themselves have filed the patta granted in favour of the appellants-defendants. It is pertinent to note that Vishwanath had given an application for inspection of the area (patta) in respect of land numbers 41, 131, 162, 163 and 164 situated in Village Bairath. The Collector called for the report from the Revenue Inspector and as per the Report of the Revenue Inspector (Ex. P-3), though the names of Ram Sahai and Rameshwar are found recorded as owners of the said lands, patta illaqa of the above land numbers was found registered in the name of Gaya Din. The report of the Revenue Inspector refers to the entry in respect of patta granted vide order No.146/1960 dated 21.11.1960 issued by the Tahsildar. It also refers to entry in khasra made by the concerned Patwari on 10.01.1961 which is in possession of Hanuman Din-predecessor of the appellants. Ex. P-3-Report of Revenue Inspector states that the patta-Ex. D-20 was granted in favour of Gaya Din.The entries which are consistently in favour of the appellants ought not to have been ignored in preference to the entries in favour of the respondents only for two years i.e. 1955- 56 and 1956-57. Moreover, in the light of the findings by the revenue authorities on several occasions, the said entries in the name of the respondents cannot be said to be genuine. The first Appellate Court and the High Court were not right in brushing aside Ex. P-21 (Ex.D-20) patta granted in the name of the appellants and other crucial documents like report of the Revenue Inspector (Ex. P-3) which notes that patta illaqa is in the name of Gaya Din and the several entries in the revenue records are in the name of the appellants. In the absence of the contra evidence adduced by the respondents-plaintiffs, the trial court rightly held that the appellants have been in continuous possession of the suit properties and that the respondents have failed to prove their right over the suit properties prior to filing of thethe above order of the Commissioner and the report of the other revenue authorities, it is clear that the plaintiffs-respondents have made interpolation in the revenue entries in connivance with Patwari and got the revenue entries recorded in their names. The High Court and the first Appellate Court erred in not considering Ex.D-1-order of the Commissioner in its proper perspective.The learned senior counsel appearing for the plaintiffs- respondents raised strong objections contending that the said order of the Tahsildar dated 28.07.1971 in Civil Suit No.26A74/70- 71 cannot be received as additional evidence and cannot be looked into as the said documents were not produced before the trial court nor were there reference to those documents in the written statement. We find no merit in the contention that the order of the Tahsildar dated 28.07.1971 cannot be looked into on the ground that they were not adduced as evidence before the trial court. Order of the Commissioner, Rewa in Case No.52A 61/71-73 marked as Ex. D-1 dated 17.07.1973 makes a clear reference to the order of the Tahsildar dated 28.07.1971. Since in Ex.D-1 (17.07.1973), there is reference to the order of the Tahsildar dated 28.07.1971, the same is received as additional evidence. The order of the Tahsildar dated 28.07.1971 has a direct bearing on the main issue in the suit and in the interest of justice, the same has to be received as additional evidence. Since Ex. D-1 makes a reference to the order of the Tahsildar, in our view, there is no impediment in receiving the order of the Tahsildar dated 28.07.1971 as additional documents and considering the same. Since the order of the Tahsildar has been referred to in the order of the Commissioner dated 17.07.1973 (Ex.D-1), in our view, it will not have the effect of introducing new case necessitating remittance of the matter. So far as the other two additional documents namely, order of the Naib Tahsildar dated 01.09.1962 – order passed in the suit filed under Section 250 of the M.P. Land Revenue Code and the order of the District Collector dated 21.11.1972, they are not received as additional evidence.The order of the Commissioner dated 17.07.1973 makes a reference to the order of the Tahsildar dated 28.07.1971 which in turn refers to the suit filed by the predecessors of the plaintiffs- respondents under Section 250 of the MP Code in which plaintiffs-respondents were unsuccessful in challenging the lease in favour of Gaya Din/Hanuman Din. This document was not produced before the Courts below and now only produced as additional evidence. As discussed earlier, we are not inclined to receive this document as additional evidence. In our considered view, the first Appellate Court and the High Court fell in error in not taking into consideration the categorical findings recorded in the order of the Commissioner (Ex. D-1) that the plaintiffs- respondents got the entries in the revenue records in connivance with the Patwari and that the Patwari was guilty of grave misconduct.The finding of the first appellate court that the patta was granted to Gaya Din in 1954 and that illaqedar was not competent to issue patta is misconceived. As discussed earlier, patta was granted to Gaya Din not in 1954 but in Samvat 1986 (1929 A.D.) when admittedly the illaqedar had such power. That apart, the validity of patta so granted cannot be determined based on the inference drawn as to the age of DW-1-Hanuman Din. The learned senior counsel appearing for the appellants has drawn our attention to the provisions of Vindhya Pradesh Act and submitted that as per Section 5 of the said Act, the State Government by a notification appointed a date for the resumption of any class of Jagir Lands and the consequences of such resumption are set out in Section 6 of the said Act. We find substance in the submission of the learned senior counsel for the appellants that in terms of Section 28 of the said Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of the said lands.view of the provisions of the above Act, the first appellate court erred in saying that the patta in favour of Gaya Din was granted in the year 1954 and by that time, Pawaidar/iIlaqedar was not having jurisdiction to issue patta.Re: Finding of the first appellate court: Ownership of the respondents not terminated in a legal way:- The first appellate court held that the ownership of Rameshwar and Ram Sahai was not terminated in a legal way and therefore, they are to be treated as owners of the suit properties. The first Appellate Court further held that since the ownership of Rameshwar and Ram Sahai was not terminated in a legal way, the lease deed- Ex.D-20 which has been produced on behalf of defendant No.1 cannot be treated to be a proved document and on those findings, set aside the finding of the trial court that defendant No.1 is having a legal right of ownership of the disputed lands. The first Appellate Court, in our view, was not right in doubting the correctness of Ex. D-20 and not right in observing that defendant No.1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex.D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son- Hanuman Din and the appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records.In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269 , it was held asIt is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.Upon appreciation of evidence, the trial court has recorded findings on various issues which was reversed by the first Appellate Court. Since the first Appellate Court reversed the judgment of the trial court, in the second appeal, the High Court ought to have weighed and considered the evidence and materials. The order of the High Court dismissing the appellant?s appeal by affirming the findings of the first Appellate Court is mainly on the ground that in the absence of any order of abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendants was illegal. The High Court, in our view, did not appreciate the patta (Ex.D-20) granted in favour of the forefathers of the appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex.D-1- Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, Gaya Din and Hanuman Din were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside. | 1 | 9,318 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
of DW-1-Hanuman Din. The learned senior counsel appearing for the appellants has drawn our attention to the provisions of Vindhya Pradesh Act and submitted that as per Section 5 of the said Act, the State Government by a notification appointed a date for the resumption of any class of Jagir Lands and the consequences of such resumption are set out in Section 6 of the said Act. We find substance in the submission of the learned senior counsel for the appellants that in terms of Section 28 of the said Act, the appellants who were till then the tenants of intermediary/Jagirdar shall be deemed to be pattedar tenant in respect of the said lands. Section 28 of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 reads as under:-"28. Certain occupants of lands to be pattedar tenants. – (1) Subject to the provisions of sub-section (2) every person who is entered in the revenue record for a continuous period of three years as an occupant of any Jagir-land at the date of resumption, shall be deemed to be pattedar tenant in respect of such land which shall be assessed at the village rate. (2) Nothing in sub-section (1) shall apply to any sir or khudkasht land which is allotted to the Jagirdar under Section 22 or any grove land possession of which the Jagirdar is entitled to retain under clause (c) of Section 7."In view of the provisions of the above Act, the first appellate court erred in saying that the patta in favour of Gaya Din was granted in the year 1954 and by that time, Pawaidar/iIlaqedar was not having jurisdiction to issue patta. 40. Re: Finding of the first appellate court: Ownership of the respondents not terminated in a legal way:- The first appellate court held that the ownership of Rameshwar and Ram Sahai was not terminated in a legal way and therefore, they are to be treated as owners of the suit properties. The first Appellate Court further held that since the ownership of Rameshwar and Ram Sahai was not terminated in a legal way, the lease deed- Ex.D-20 which has been produced on behalf of defendant No.1 cannot be treated to be a proved document and on those findings, set aside the finding of the trial court that defendant No.1 is having a legal right of ownership of the disputed lands. The first Appellate Court, in our view, was not right in doubting the correctness of Ex. D-20 and not right in observing that defendant No.1 is not having a legal right of ownership on the disputed lands. The first appellate court and the High Court fell in error in not taking into consideration Ex.D-1-order of the Commissioner dated 17.07.1973 and the order of the Tahsildar dated 28.07.1971 and other documents showing grant of lease/patta in the name of Gaya Din and the continued possession of Gaya Din and his son- Hanuman Din and the appellants. The first Appellate Court and the High Court erred in brushing aside the findings recorded by the Commissioner dated 17.07.1973 as to the misconduct of the patwari in making entries in the revenue records. 41. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants- appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffs-respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs- respondents are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co- operative Housing Society Limited and others (2014) 2 SCC 269 , it was held as under:-?15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.?42. Upon appreciation of evidence, the trial court has recorded findings on various issues which was reversed by the first Appellate Court. Since the first Appellate Court reversed the judgment of the trial court, in the second appeal, the High Court ought to have weighed and considered the evidence and materials. The order of the High Court dismissing the appellant?s appeal by affirming the findings of the first Appellate Court is mainly on the ground that in the absence of any order of abandonment or revocation of the patta granted to the respondents-plaintiffs, grant of patta (Ex.D-20) in favour of the appellants-defendants was illegal. The High Court, in our view, did not appreciate the patta (Ex.D-20) granted in favour of the forefathers of the appellants by the competent authority in 1929 and the report of the Revenue Inspector dated 05.10.1969. The first Appellate Court and the High Court did not consider Ex.D-1- Order of the Commissioner dated 17.07.1973 and the report of the SDO dated 21.10.1969 and other revenue records showing that the forefather of the appellants-defendants namely Gaya Din was given the patta (Ex.D-20) and since then, Gaya Din and Hanuman Din were in possession of the properties. The High Court has not properly appreciated the evidence and materials on record and the impugned judgment is liable to be set aside.
### Response:
1
|
1,037 | Institute Of Chartered Accountants Of India Vs. P. K. Mukherji And Anr | be debited to the loan account bearing interest at 6 per cent p. a. with effect from the issue of the cheques. It is manifest therefore that on June 30, 1955 when respondent No. 1 signed the statement of accounts he fully knew that a loan had been granted by the trustees to the Company in violation of Rules 11 and l2 and further that cheques received in repayment of the loan were not cashed and, indeed, were not intended to be cashed. In other words, the cheques were issued by the Company not with the intention of repayment of the loan by their being cashed but they really represented acknowledgment of the loan by the Company. In fact, the cheques had been returned to the Company uncashed by virtue of the resolution of the Board of trustees dated May 27, 1955 before the statement of account was signed by respondent No. 1. To put it differently, the cheques were apparently issued by the Company not so much for repayment of the loan as for a false indication of adjustment at the end of the accounting year. We are of opinion that in these circumstances it was the duty of respondent No. 1 to point out in the statement of account that a major part of the cash in hand represented uncashed cheques and that the cheques were apparently given by the Company for repayment of the loan and the transaction was in violation of Rules 11 and 12 of the Provident Fund Rules. We accordingly consider that the failure of respondent No. 1 in not pointing out these facts in the statement of accounts for the year 1954 constituted professional misconduct falling within Cl. (o) of the Schedule to the Act. It is not necessary for us to express any opinion on whether the case also falls within Cls. (p) and (q) of the Schedule.6. On behalf of respondent No. I Mr. Chagla put forward the argument that since the cheques had already been given by the Company the loans stood cleared and, in any event, respondent No. 1 had already informed the Company of the irregularity in his letter dated May 25, 1955.It was therefore contended that there was no professional misconduct on the part of respondent No 1 we are unable accept this argument as correct. It is true that the cheques had been given by the Company before the close of the year 1954 but respondent No. 1 knew that the cheques were not really intended to be encashed by the trustees. Respondent No. 1 also knew of the resolution of the trustees dated May 27,1955 that the cheques were to be returned to the Company and the amount was ordered by the trustees to be entered and carried over to the loan account. It was also maintained by Mr Chagla that respondent No. 1 owed a duty only to the Company which appointed him to audit the accounts of the Provident Fund and there was no duty owed by respondent No. 1 to the beneficiaries of the Fund. It is not possible for us to accept this argument Respondent No. 1 owed a duty to all the subscribers of the Provident Fund who were in the position of beneficiaries. It is not correct to say that respondent No. 1 owed a duty only to the Company which had appointed him to perform the auditing. The contributors to the Provident Fund had a beneficial interest in the Fund and the primary object of auditing the Fund was to appraise them of the true financial position of the accounts and investments made from time to time. Respondent No. 1 therefore owed a duty to the contributors to the Provident Fund for making a true report to them of the financial position. In other words, the auditing was intended for protection of the beneficiaries and the auditor was expected to examine the accounts maintained by the trustees with a view to inform the beneficiaries of the true financial position. The auditor is, in such a case, under a clear duty towards the beneficiaries "to probe into the transactions" and to report on their true character. In our opinion, the legal position of the auditor in the present case is similar to that of the auditor under the Indian Companies Act, 1956. In such a case the audit is intended for the protection of the shareholders and the auditor is expected to examine the accounts maintained by the Directors with a view to inform the shareholders of the true financial position of the Company. The Directors occupy a fiduciary position in relation to the share-holders and in auditing the accounts maintained by the Directors the auditor acts in the interest of the shareholders who are in the position of beneficiaries.In London Oil Storage Co. Ltd. v Seear, Hasluck and Co. Dicksee on Auditing, 17th Edn. p 632. Lord Alverstone stated as follows :He must exercise such reasonable care as would satisfy a man that the accounts are genuine, assuming that there is nothing to arouse his suspicion of honesty and if he does that he fulfils his duty, if his suspicion is aroused, his duty is to probe the thing to the bottom and tell the directors of it and get what information he can"(Vide also the observations in - In re: London and General Bank (No. 2); (1895) 2 Ch 673 - In re. Kingston Cotton Mill Co. (No 2), 1896-2 Ch 279 and - In re: City Equitable Fire Insurance Co Ltd., 1925 Ch 407.7. It was therefore no defence for respondent No 1 in this case to say that he had disclosed the irregularity to the Company by his letter dated May 25, 1955. On the contrary it was a breach of duty on his part not to have made a disclosure thereof to the beneficiaries of the Provident Fund in the statement of accounts for the year 1954 which he signed on June 30, 1955. | 1[ds]It is the admitted position in this case that respondent No. 1 signed the statement of account for 1954 on June 30, 1955. At the time when be signed the statement be was aware that loans were granted by the trustees of the Fund to the Company in 1954 and cheques had been issued in repayment of the loan. This is apparent from the letter of respondent No. 1 dated May 25, 1955 addressed to the Company in which he pointed out that the loans granted by the trustees do not appear to be in accordance with the Provident Fund Rules and the cheques issued by the Company should be cleared promptly. As a sequel to this letter the trustees passed resolution on May 27, 1955 that the cheques amounting to Rupees 6,21,864/- and odd were not presented to the Bank on the verbal request of the Company and that the cheques should be returned to the Company and the amount should be debited to the loan account bearing interest at 6 per cent p. a. with effect from the issue of the cheques. It is manifest therefore that on June 30, 1955 when respondent No. 1 signed the statement of accounts he fully knew that a loan had been granted by the trustees to the Company in violation of Rules 11 and l2 and further that cheques received in repayment of the loan were not cashed and, indeed, were not intended to be cashed. In other words, the cheques were issued by the Company not with the intention of repayment of the loan by their being cashed but they really represented acknowledgment of the loan by the Company. In fact, the cheques had been returned to the Company uncashed by virtue of the resolution of the Board of trustees dated May 27, 1955 before the statement of account was signed by respondent No. 1. To put it differently, the cheques were apparently issued by the Company not so much for repayment of the loan as for a false indication of adjustment at the end of the accounting year. We are of opinion that in these circumstances it was the duty of respondent No. 1 to point out in the statement of account that a major part of the cash in hand represented uncashed cheques and that the cheques were apparently given by the Company for repayment of the loan and the transaction was in violation of Rules 11 and 12 of the Provident Fund Rules. We accordingly consider that the failure of respondent No. 1 in not pointing out these facts in the statement of accounts for the year 1954 constituted professional misconduct falling within Cl. (o) of the Schedule to the Act. It is not necessary for us to express any opinion on whether the case also falls within Cls. (p) and (q) of the Schedule.6. On behalf of respondent No. I Mr. Chagla put forward the argument that since the cheques had already been given by the Company the loans stood cleared and, in any event, respondent No. 1 had already informed the Company of the irregularity in his letter dated May 25, 1955.It was therefore contended that there was no professional misconduct on the part of respondent No 1 we are unable accept this argument as correct. It is true that the cheques had been given by the Company before the close of the year 1954 but respondent No. 1 knew that the cheques were not really intended to be encashed by the trustees. Respondent No. 1 also knew of the resolution of the trustees dated May 27,1955 that the cheques were to be returned to the Company and the amount was ordered by the trustees to be entered and carried over to the loan account. It was also maintained by Mr Chagla that respondent No. 1 owed a duty only to the Company which appointed him to audit the accounts of the Provident Fund and there was no duty owed by respondent No. 1 to the beneficiaries of the Fund. It is not possible for us to accept this argument Respondent No. 1 owed a duty to all the subscribers of the Provident Fund who were in the position of beneficiaries. It is not correct to say that respondent No. 1 owed a duty only to the Company which had appointed him to perform the auditing. The contributors to the Provident Fund had a beneficial interest in the Fund and the primary object of auditing the Fund was to appraise them of the true financial position of the accounts and investments made from time to time. Respondent No. 1 therefore owed a duty to the contributors to the Provident Fund for making a true report to them of the financial position. In other words, the auditing was intended for protection of the beneficiaries and the auditor was expected to examine the accounts maintained by the trustees with a view to inform the beneficiaries of the true financial position. The auditor is, in such a case, under a clear duty towards the beneficiaries "to probe into the transactions" and to report on their true character. In our opinion, the legal position of the auditor in the present case is similar to that of the auditor under the Indian Companies Act, 1956. In such a case the audit is intended for the protection of the shareholders and the auditor is expected to examine the accounts maintained by the Directors with a view to inform the shareholders of the true financial position of the Company. The Directors occupy a fiduciary position in relation to the share-holders and in auditing the accounts maintained by the Directors the auditor acts in the interest of the shareholders who are in the position ofIt was therefore no defence for respondent No 1 in this case to say that he had disclosed the irregularity to the Company by his letter dated May 25, 1955. On the contrary it was a breach of duty on his part not to have made a disclosure thereof to the beneficiaries of the Provident Fund in the statement of accounts for the year 1954 which he signed on June 30, 1955.8. For these reasons we hold that the charge of professional misconduct is established against respondent No. 1 falling under Cl. (o) of the Schedule to the Act.The only question which now remains is the final order to be passed against respondent No. 1. In our opinion, the conduct of respondent No. 1 is wholly unworthy of a Chartered Accountant who is expected to maintain a high standard of professional conduct. The proper punishment would have bees the removal of the respondent No. ls name from the Register for a limited period but in view of the fact that the proceedings have been pending against respondent No. 1 for a long time, we think that the ends of justice will be served in this particular case if respondent No. 1 is severely reprimanded for his misconduct under S. 21 (2) of the Act. | 1 | 3,401 | ### 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:
be debited to the loan account bearing interest at 6 per cent p. a. with effect from the issue of the cheques. It is manifest therefore that on June 30, 1955 when respondent No. 1 signed the statement of accounts he fully knew that a loan had been granted by the trustees to the Company in violation of Rules 11 and l2 and further that cheques received in repayment of the loan were not cashed and, indeed, were not intended to be cashed. In other words, the cheques were issued by the Company not with the intention of repayment of the loan by their being cashed but they really represented acknowledgment of the loan by the Company. In fact, the cheques had been returned to the Company uncashed by virtue of the resolution of the Board of trustees dated May 27, 1955 before the statement of account was signed by respondent No. 1. To put it differently, the cheques were apparently issued by the Company not so much for repayment of the loan as for a false indication of adjustment at the end of the accounting year. We are of opinion that in these circumstances it was the duty of respondent No. 1 to point out in the statement of account that a major part of the cash in hand represented uncashed cheques and that the cheques were apparently given by the Company for repayment of the loan and the transaction was in violation of Rules 11 and 12 of the Provident Fund Rules. We accordingly consider that the failure of respondent No. 1 in not pointing out these facts in the statement of accounts for the year 1954 constituted professional misconduct falling within Cl. (o) of the Schedule to the Act. It is not necessary for us to express any opinion on whether the case also falls within Cls. (p) and (q) of the Schedule.6. On behalf of respondent No. I Mr. Chagla put forward the argument that since the cheques had already been given by the Company the loans stood cleared and, in any event, respondent No. 1 had already informed the Company of the irregularity in his letter dated May 25, 1955.It was therefore contended that there was no professional misconduct on the part of respondent No 1 we are unable accept this argument as correct. It is true that the cheques had been given by the Company before the close of the year 1954 but respondent No. 1 knew that the cheques were not really intended to be encashed by the trustees. Respondent No. 1 also knew of the resolution of the trustees dated May 27,1955 that the cheques were to be returned to the Company and the amount was ordered by the trustees to be entered and carried over to the loan account. It was also maintained by Mr Chagla that respondent No. 1 owed a duty only to the Company which appointed him to audit the accounts of the Provident Fund and there was no duty owed by respondent No. 1 to the beneficiaries of the Fund. It is not possible for us to accept this argument Respondent No. 1 owed a duty to all the subscribers of the Provident Fund who were in the position of beneficiaries. It is not correct to say that respondent No. 1 owed a duty only to the Company which had appointed him to perform the auditing. The contributors to the Provident Fund had a beneficial interest in the Fund and the primary object of auditing the Fund was to appraise them of the true financial position of the accounts and investments made from time to time. Respondent No. 1 therefore owed a duty to the contributors to the Provident Fund for making a true report to them of the financial position. In other words, the auditing was intended for protection of the beneficiaries and the auditor was expected to examine the accounts maintained by the trustees with a view to inform the beneficiaries of the true financial position. The auditor is, in such a case, under a clear duty towards the beneficiaries "to probe into the transactions" and to report on their true character. In our opinion, the legal position of the auditor in the present case is similar to that of the auditor under the Indian Companies Act, 1956. In such a case the audit is intended for the protection of the shareholders and the auditor is expected to examine the accounts maintained by the Directors with a view to inform the shareholders of the true financial position of the Company. The Directors occupy a fiduciary position in relation to the share-holders and in auditing the accounts maintained by the Directors the auditor acts in the interest of the shareholders who are in the position of beneficiaries.In London Oil Storage Co. Ltd. v Seear, Hasluck and Co. Dicksee on Auditing, 17th Edn. p 632. Lord Alverstone stated as follows :He must exercise such reasonable care as would satisfy a man that the accounts are genuine, assuming that there is nothing to arouse his suspicion of honesty and if he does that he fulfils his duty, if his suspicion is aroused, his duty is to probe the thing to the bottom and tell the directors of it and get what information he can"(Vide also the observations in - In re: London and General Bank (No. 2); (1895) 2 Ch 673 - In re. Kingston Cotton Mill Co. (No 2), 1896-2 Ch 279 and - In re: City Equitable Fire Insurance Co Ltd., 1925 Ch 407.7. It was therefore no defence for respondent No 1 in this case to say that he had disclosed the irregularity to the Company by his letter dated May 25, 1955. On the contrary it was a breach of duty on his part not to have made a disclosure thereof to the beneficiaries of the Provident Fund in the statement of accounts for the year 1954 which he signed on June 30, 1955.
### Response:
1
|
1,038 | M/S TREATY CONSTRUCTION Vs. M/S RUBY TOWER CO OP HSG. SOCIETY LTD | while issuing directions for executing the Deed of Conveyance by obtaining Completion Certificate and Occupation Certificate, also directed the appellants to pay Rs. 26,25,000/- with interest, being the amount illegally collected towards possession charges. The State Commission, however, held that there was no documentary evidence to establish that the amount of Rs. 46,40,000/- was incurred by the members of the respondent-society to complete the interior civil works. On the other hand, the National Commission agreed with the submissions of the appellants that the directions regarding refund of Rs. 26,25,000/- could not have been issued when there was no cogent proof and when the President of the society, who had issued the receipt in question, was deleted from the array of the parties on the request of the complainant. However, the National Commission ordered payment of Rs. 25,00,000/- by the appellants as agreed by them in the meeting dated 17.12.2003.9. When the prayers made in the complaint are read along with the contents of the application dated 21.03.2013 as also with the findings of the State Commission and the National Commission, it may appear at the first blush that the amount claimed towards temporary loan in prayer (d) was given up by the respondent-society whereas no proof was found in relation to amounts claimed in prayers (e) and (f) towards possession charges and interior civil works respectively. However, fact of the matter remains that there had been long drawn disputes between the parties on several issues, including those regarding monetary claims made by the respondent-society and its members; and meetings were held for resolution of such disputes. The prayers (d) to (f) for money recovery in the complaint and the submissions made in the application dated 21.03.2013 are required to be viewed in the context of such claims and the resolutions adopted in the meetings. In our view, it would be wholly inappropriate and unjustified to consider the prayers as made in the complaint and as modified in the application de hors the context and disjointed from the decisions taken in the meetings aforesaid.10. Indisputably, in the application dated 21.03.2013 as moved before the State Commission, the respondent-society restricted its prayer for money recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final settlement of the claim of the respondent-society. The appellants having agreed to make such payment, in our view, the National Commission has rightly put them to the terms of honouring their unequivocal commitment/promise. In the given set of facts and circumstance, we are unable to accept the contention that a particular part of order of the State Commission having not been challenged by the respondent-society, the National Commission could not have granted the relief otherwise available on the face of record. In an overall view of the matter, when such a relief emanates from the very commitment made by the appellants in the meetings aforesaid, the National Commission had been fully justified in granting the same to the respondent-society. Therefore, we find no reason to consider any interference in this part of direction by the National Commission (as contained in paragraph 10 of the order impugned).11. Even when we find no reason to interfere with the above-mentioned parts of the order impugned, it appears difficult to approve the directions in the remaining parts thereof, particularly those relating to other pecuniary reliefs. The National Commission has saddled the appellants with a liability to pay compensation to the tune of Rs. 3,00,000/- for not obtaining Occupancy Certificate and has issued further directions to the appellants to obtain such certificate as also to execute the requisite Deed and to pay Rs. 1,000/- per day for every day of delay. True it is that Occupancy Certificate was not obtained by the appellants but then, fact of the matter remains that the members of respondent-society chose to take over possession without such certificate; and then, several questions have arisen as regards the alteration allegedly carried out by them for which, the Municipal Corporation has the objections to raise. In any case, there appears nothing on record to find the basis for holding the appellants liable for compensation and then, for assessing the quantum of compensation, if at all there be any liability of the appellants. In other words, there is no material on record to find if the respondent-society or its members suffered any loss; and if so, the extent thereof. Therefore, this part of the order impugned, directing the appellants to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.12. As regards direction to appellants to convey the title of the property in question by executing a registered Deed within a period of four months after obtaining Occupancy Certificate, in our view, though the appellants cannot avoid their legal obligation to execute the requisite Deed but then, having regard to the facts and circumstances of the case and more particularly the facts relating to the issuance of notices by the Municipal Corporation; and the dispute/objection regarding alterations by the members of the respondent-society having not been settled as yet with the High Court having issued directions for inspection of the building and for necessary follow-up steps, awarding of Rs. 1,000/- per day for every day of delay seems rather unwarranted. In the given situation, where the Municipal Corporation had been of the view that there were visible illegal constructions made by the members of respondent-society because of which the Certificate cannot be issued; and in view of the orders dated 12.06.2017 and 07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of Rs. 1,000/- per day deserves to be waived at present but with the requirements on the parties to complete the respective requisites, while leaving it open for them to take recourse to appropriate remedies, in case of any grievance arising in future. | 0[ds]6. Having heard learned counsel for the parties and having perused the material placed on record, we are satisfied that in the given set of facts and circumstances, directions by the National Commission as regards payment of a sum of Rs. 25,00,000/ by the appellants to the respondent-society calls for no interference but then, other parts of the order impugned call for suitable modification.7. The contention on the part of appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage.When the prayers made in the complaint are read along with the contents of the application dated 21.03.2013 as also with the findings of the State Commission and the National Commission, it may appear at the first blush that the amount claimed towards temporary loan in prayer (d) was given up by the respondent-society whereas no proof was found in relation to amounts claimed in prayers (e) and (f) towards possession charges and interior civil works respectively. However, fact of the matter remains that there had been long drawn disputes between the parties on several issues, including those regarding monetary claims made by the respondent-society and its members; and meetings were held for resolution of such disputes. The prayers (d) to (f) for money recovery in the complaint and the submissions made in the application dated 21.03.2013 are required to be viewed in the context of such claims and the resolutions adopted in the meetings. In our view, it would be wholly inappropriate and unjustified to consider the prayers as made in the complaint and as modified in the application de hors the context and disjointed from the decisions taken in the meetings aforesaid.10. Indisputably, in the application dated 21.03.2013 as moved before the State Commission, the respondent-society restricted its prayer for money recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final settlement of the claim of the respondent-society. The appellants having agreed to make such payment, in our view, the National Commission has rightly put them to the terms of honouring their unequivocal commitment/promise. In the given set of facts and circumstance, we are unable to accept the contention that a particular part of order of the State Commission having not been challenged by the respondent-society, the National Commission could not have granted the relief otherwise available on the face of record. In an overall view of the matter, when such a relief emanates from the very commitment made by the appellants in the meetings aforesaid, the National Commission had been fully justified in granting the same to the respondent-society. Therefore, we find no reason to consider any interference in this part of direction by the National Commission (as contained in paragraph 10 of the order impugned).11. Even when we find no reason to interfere with the above-mentioned parts of the order impugned, it appears difficult to approve the directions in the remaining parts thereof, particularly those relating to other pecuniary reliefs. The National Commission has saddled the appellants with a liability to pay compensation to the tune of Rs. 3,00,000/- for not obtaining Occupancy Certificate and has issued further directions to the appellants to obtain such certificate as also to execute the requisite Deed and to pay Rs. 1,000/- per day for every day of delay. True it is that Occupancy Certificate was not obtained by the appellants but then, fact of the matter remains that the members of respondent-society chose to take over possession without such certificate; and then, several questions have arisen as regards the alteration allegedly carried out by them for which, the Municipal Corporation has the objections to raise. In any case, there appears nothing on record to find the basis for holding the appellants liable for compensation and then, for assessing the quantum of compensation, if at all there be any liability of the appellants. In other words, there is no material on record to find if the respondent-society or its members suffered any loss; and if so, the extent thereof. Therefore, this part of the order impugned, directing the appellants to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.12. As regards direction to appellants to convey the title of the property in question by executing a registered Deed within a period of four months after obtaining Occupancy Certificate, in our view, though the appellants cannot avoid their legal obligation to execute the requisite Deed but then, having regard to the facts and circumstances of the case and more particularly the facts relating to the issuance of notices by the Municipal Corporation; and the dispute/objection regarding alterations by the members of the respondent-society having not been settled as yet with the High Court having issued directions for inspection of the building and for necessary follow-up steps, awarding of Rs. 1,000/- per day for every day of delay seems rather unwarranted. In the given situation, where the Municipal Corporation had been of the view that there were visible illegal constructions made by the members of respondent-society because of which the Certificate cannot be issued; and in view of the orders dated 12.06.2017 and 07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of Rs. 1,000/- per day deserves to be waived at present but with the requirements on the parties to complete the respective requisites, while leaving it open for them to take recourse to appropriate remedies, in case of any grievance arising in future. | 0 | 6,419 | ### 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:
while issuing directions for executing the Deed of Conveyance by obtaining Completion Certificate and Occupation Certificate, also directed the appellants to pay Rs. 26,25,000/- with interest, being the amount illegally collected towards possession charges. The State Commission, however, held that there was no documentary evidence to establish that the amount of Rs. 46,40,000/- was incurred by the members of the respondent-society to complete the interior civil works. On the other hand, the National Commission agreed with the submissions of the appellants that the directions regarding refund of Rs. 26,25,000/- could not have been issued when there was no cogent proof and when the President of the society, who had issued the receipt in question, was deleted from the array of the parties on the request of the complainant. However, the National Commission ordered payment of Rs. 25,00,000/- by the appellants as agreed by them in the meeting dated 17.12.2003.9. When the prayers made in the complaint are read along with the contents of the application dated 21.03.2013 as also with the findings of the State Commission and the National Commission, it may appear at the first blush that the amount claimed towards temporary loan in prayer (d) was given up by the respondent-society whereas no proof was found in relation to amounts claimed in prayers (e) and (f) towards possession charges and interior civil works respectively. However, fact of the matter remains that there had been long drawn disputes between the parties on several issues, including those regarding monetary claims made by the respondent-society and its members; and meetings were held for resolution of such disputes. The prayers (d) to (f) for money recovery in the complaint and the submissions made in the application dated 21.03.2013 are required to be viewed in the context of such claims and the resolutions adopted in the meetings. In our view, it would be wholly inappropriate and unjustified to consider the prayers as made in the complaint and as modified in the application de hors the context and disjointed from the decisions taken in the meetings aforesaid.10. Indisputably, in the application dated 21.03.2013 as moved before the State Commission, the respondent-society restricted its prayer for money recovery to a sum of Rs. 25,00,000/- with reference to the aforesaid minutes dated 17.12.2003 and 14.12.2003. It is at once clear that the aforesaid sum of Rs. 25,00,000/- was agreed to be paid by the appellants in full and final settlement of the claim of the respondent-society. The appellants having agreed to make such payment, in our view, the National Commission has rightly put them to the terms of honouring their unequivocal commitment/promise. In the given set of facts and circumstance, we are unable to accept the contention that a particular part of order of the State Commission having not been challenged by the respondent-society, the National Commission could not have granted the relief otherwise available on the face of record. In an overall view of the matter, when such a relief emanates from the very commitment made by the appellants in the meetings aforesaid, the National Commission had been fully justified in granting the same to the respondent-society. Therefore, we find no reason to consider any interference in this part of direction by the National Commission (as contained in paragraph 10 of the order impugned).11. Even when we find no reason to interfere with the above-mentioned parts of the order impugned, it appears difficult to approve the directions in the remaining parts thereof, particularly those relating to other pecuniary reliefs. The National Commission has saddled the appellants with a liability to pay compensation to the tune of Rs. 3,00,000/- for not obtaining Occupancy Certificate and has issued further directions to the appellants to obtain such certificate as also to execute the requisite Deed and to pay Rs. 1,000/- per day for every day of delay. True it is that Occupancy Certificate was not obtained by the appellants but then, fact of the matter remains that the members of respondent-society chose to take over possession without such certificate; and then, several questions have arisen as regards the alteration allegedly carried out by them for which, the Municipal Corporation has the objections to raise. In any case, there appears nothing on record to find the basis for holding the appellants liable for compensation and then, for assessing the quantum of compensation, if at all there be any liability of the appellants. In other words, there is no material on record to find if the respondent-society or its members suffered any loss; and if so, the extent thereof. Therefore, this part of the order impugned, directing the appellants to pay compensation to the tune of Rs. 3,00,000/-, cannot be approved.12. As regards direction to appellants to convey the title of the property in question by executing a registered Deed within a period of four months after obtaining Occupancy Certificate, in our view, though the appellants cannot avoid their legal obligation to execute the requisite Deed but then, having regard to the facts and circumstances of the case and more particularly the facts relating to the issuance of notices by the Municipal Corporation; and the dispute/objection regarding alterations by the members of the respondent-society having not been settled as yet with the High Court having issued directions for inspection of the building and for necessary follow-up steps, awarding of Rs. 1,000/- per day for every day of delay seems rather unwarranted. In the given situation, where the Municipal Corporation had been of the view that there were visible illegal constructions made by the members of respondent-society because of which the Certificate cannot be issued; and in view of the orders dated 12.06.2017 and 07.01.2019 passed by the High Court in W.P. No. 970 of 2015, the penalty of Rs. 1,000/- per day deserves to be waived at present but with the requirements on the parties to complete the respective requisites, while leaving it open for them to take recourse to appropriate remedies, in case of any grievance arising in future.
### Response:
0
|
1,039 | Bhaurao Shankar Lokhande & Anr Vs. State Of Maharashtra & Anr | It is not disputed that these two essential ceremonies were not performed when appellant No. 1 married Kamalbai in February 1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was, it led evidence of what was performed at the time of the alleged marriage. It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the gandharva form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the marriage of the appellant No. 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage. 10. What took place that night when appellant No. 1 married Kamlabai, has been stated thus, by P.W. 1:"The marriage took place at 10 p.m. Pat-wooden sheets-- -were brought. A carpet was spread. Accused No. 1 then sat on the wooden sheet. On the other sheet Accused No. 3 sat. She was sitting nearby Accused No. 1. Accused No. 4 then performed some Puja by bringing a Tambya-pitcher. Betel leaves and coconut was kept on the Tambya. Two garlands were brought. Accused No. 2 was having one, and Accused No. 4 having one in his hand. Accused No. 4 gave the garland to Accused No. 3 and Accused No. 2 gave the garland to Accused No. 1. Accused Nos. 1 and 3 then garlanded each other. Then they each struck each others forehead. " In cross-examination this witness stated:"It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a Brahmin Priest is required to perform the Gandharva marriage. No Mangala Ashtakas are required to be chanted at the time of Gandharva marriage. At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called Bher in vernacular." Sitaram, witness No. 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination-in-chief :"Surpan is the village of Accused No. 3s maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva." He stated in cross-examination:"A barber is not required and Accused No. 5 was not present at the time of marriage. There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act. " 11. It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage In the absence of a statement by the witness himself that according to customs these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the fore-heads completed the Gandharva. form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage. 12. Bhagwan, witness No. 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not necessary for the valid performance of Gandharva marriage in their community that a Brahmin priest was required and Mangal Ashtakas were to be chanted. The statement of Jeebhau, witness No. 4. for the complainant, does not show how the custom has modified the essential forms of marriage. He stated in cross-examination:"I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin priest, a Barber and a Thakur are not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangal Ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the spouses together. A Brahmin from Kasara and Dhadana comes to our village for doing rituals but I do not know their names." This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies, which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act. 13. Clause (a) of S. 3 of the Act provides that the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. 14. We are, therefore, of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabal in February 1962 performed in accordance with the customary rites as required by S. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. | 1[ds]6. We are of opinion that unless the marriage which took place between appellant No. 1 and Kamlabai in February 1962 was performed in accordance with the requirements of the law applicable to a marriage between the parties, the marriage cannot be said to have been solemnized and, therefore, appellant No.1 cannot be held to have committed the offence under S. 494, I.P.CIn the absence of a statement by the witness himself that according to customs these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of theforeheadscompleted the Gandharva. form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage12. Bhagwan, witness No. 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not necessary for the valid performance of Gandharva marriage in their community that a Brahmin priest was required and Mangal Ashtakas were to be chanted. The statement of Jeebhau, witness No. 4. for the complainant, does not show how the custom has modified the essential forms of marriage. He stated in cross-examination:"I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin priest, a Barber and a Thakur are not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangal Ashtakas. It was necessary to have a maternal uncle or any other person to make touch theforeheadsof the spouses together. A Brahmin from Kasara and Dhadana comes to our village for doing rituals but I do not know their names."This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies, which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act13. Clause (a) of S. 3 of the Act provides that the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family14. We are, therefore, of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabal in February 1962 performed in accordance with the customary rites as required by S. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law. | 1 | 2,464 | ### 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:
It is not disputed that these two essential ceremonies were not performed when appellant No. 1 married Kamalbai in February 1962. There is no evidence on record to establish that the performance of these two essential ceremonies has been abrogated by the custom prevalent in their community. In fact, the prosecution led no evidence as to what the custom was, it led evidence of what was performed at the time of the alleged marriage. It was the counsel for the accused in the case who questioned certain witnesses about the performance of certain ceremonies and to such questions the witnesses replied that they were not necessary for the gandharva form of marriage in their community. Such a statement does not mean that the custom of the community deemed what took place at the marriage of the appellant No. 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage. 10. What took place that night when appellant No. 1 married Kamlabai, has been stated thus, by P.W. 1:"The marriage took place at 10 p.m. Pat-wooden sheets-- -were brought. A carpet was spread. Accused No. 1 then sat on the wooden sheet. On the other sheet Accused No. 3 sat. She was sitting nearby Accused No. 1. Accused No. 4 then performed some Puja by bringing a Tambya-pitcher. Betel leaves and coconut was kept on the Tambya. Two garlands were brought. Accused No. 2 was having one, and Accused No. 4 having one in his hand. Accused No. 4 gave the garland to Accused No. 3 and Accused No. 2 gave the garland to Accused No. 1. Accused Nos. 1 and 3 then garlanded each other. Then they each struck each others forehead. " In cross-examination this witness stated:"It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a Brahmin Priest is required to perform the Gandharva marriage. No Mangala Ashtakas are required to be chanted at the time of Gandharva marriage. At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called Bher in vernacular." Sitaram, witness No. 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination-in-chief :"Surpan is the village of Accused No. 3s maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva." He stated in cross-examination:"A barber is not required and Accused No. 5 was not present at the time of marriage. There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act. " 11. It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage In the absence of a statement by the witness himself that according to customs these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the fore-heads completed the Gandharva. form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage. 12. Bhagwan, witness No. 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not necessary for the valid performance of Gandharva marriage in their community that a Brahmin priest was required and Mangal Ashtakas were to be chanted. The statement of Jeebhau, witness No. 4. for the complainant, does not show how the custom has modified the essential forms of marriage. He stated in cross-examination:"I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin priest, a Barber and a Thakur are not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangal Ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the spouses together. A Brahmin from Kasara and Dhadana comes to our village for doing rituals but I do not know their names." This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies, which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act. 13. Clause (a) of S. 3 of the Act provides that the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. 14. We are, therefore, of opinion that the prosecution has failed to establish that the marriage between appellant No. 1 and Kamlabal in February 1962 performed in accordance with the customary rites as required by S. 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.
### Response:
1
|
1,040 | Bagal Kot Cement Company Vs. State of Mysore | agreement the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause (7) it was authorised to collect sales tax both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the companys remuneration was to be credited to the Corporations account.Section 2(b) of the Central Act reads as follows:" "dealer" means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business;""sale" within the meaning of clause (g) means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration. "sale price" under clause (h) means the amount payable to a dealer as consideration for the sale of any goods. On the facts stated above it is abundantly clear that sale was made by the appellant company as it effected transfer of property in the goods to the customers and realized sale price from them by issuing invoices in its own name. The restricted definition of the term dealer in the Central Act is not wide enough to cover all kinds of agents such as brokers or a commission agent simplicter as many of the State Acts include them within their definitions. As for example the term dealer defined in section 2(k) of the Mysore State Act includes "a commission agent, a broker or del credere agent or an auctioneer or any other mercantile a gent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;" The term dealer as defined in the Central Act would, however, include a del credere agent or a mercantile agent who carries on the business of buying or selling goods not as an agent simplicter on behalf of the disclosed principal but as a principal visa-vis its customers.8. In Halsburys Laws of England, Fourth Edition, Volume 1, para 71 2 it is stated:"A mercantile agent is one having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. An agent may be a mercantile agent although he has no general occupation as an agent, or has only one customer, or although his general occupation is that of an independent dealer in the commodity entrusted to him, provided that he acts in the transaction in his capacity as mercantile agent; but he must not be a mere servant or shopman."In para 713 is stated:"A del credere agent is one who, usually for extra remuneration, undertakes to indemnify his employer against loss arising from the failure of persons with whom he contracts to carry out their contracts."9. In the judgment under appeal the High Court repelled the stand of the appellant relying upon the decision of a full Bench of the Madras High Court in Kandula Radhakrishna Rao and others v. The Province of Madras represented by the Collector of West Godavari, Eluru and another(1). Referring to the identical definition of the dealer in the Madras Act Rajamannar, C.J. delivering the judgment on behalf of the Bench has stated at page 723 column 2:"In the case of a commission agent, the accepted mercantile practice is that he has control over or possession of the goods and he has the authority from the owner of the goods to pass the property in and title to the goods. If this is so, undoubtedly when a commission agent sells goods belonging to his principal wit h his authority and consent and without disclosing to the buyer the name of the owner, there is certainly a transfer of property in the goods from the commission agent to the buyer. A business which consists in such transactions ca n properly be described as a business of selling goods. A similar position would arise even in the case of a commission agent buying for an undisclosed principal. A commission agent doing this kind of business would in my opinion, fall within the definition of dealer in the Sales Tax Act. Neither the definition of dealer nor of sale contemplates as a necessary condition, that the goods sold should belong to the person selling or buying. Thee re can be a sale or purchase on behalf of another."10. We agree with the above view of the learned Chief Justice.Mr. D. V. Patel, learned counsel for the appellant heavily relied on the definition of the expression "place of business" given in clause (dd) of section 2 of the Central Act which includes "(i) in any case where a dealer carries on business through an agent (by whatever name called), the place of business of such agent;" Counsel submitted that the above inclusive definition would show that it was the Corporation which was carrying on the business through the appellant company as its agent and for the purpose of the Central Act the place where the business was carried on by the company as the Corporations agent would be the place of the business of the Corporation. On the other hand, learned Additional Solicitor General II pointed out that if the appellant was the dealer within the meaning of section 2(b) then it was not the Corporation which was carrying on the business through it as an agent to attract the definition given in clause (dd). In our judgment it was the appellant company which carried on the business of selling cement although it was acting as selling agents of the Corporation. The Corporation was not the dealer which effected the sales but it was the company which did so.11. | 0[ds]In our opinion there is no substance in the appellants argument. After having realized the sales tax from the various customers and voluntarily and ex-contractu paid it as per the Return submitted it was ill-advised to take an unsustainable stand of its not being liable to pay sales tax under the Centralcannot be any doubt that the sales of cement made during the period in question in the course of inter-State trade were exigible to sales tax under the Centralfacts were not disputed before us. Rather in the special leave petition it is admitted that the invoices were issued by the appellant company in its ownwould thus be seen from the course of conduct of the appellants business and the terms of agreement that the Company was not a mere commission agent or broker selling the goods on behalf of its principal-the Corporation. There was no privity of contract between the various customers of cement and the Corporation. No property in the goods sold was passed by the Corporation to them. After taking the symbolical delivery of the entire cement produced at the works of the company as per clause (1) of the agreement the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause (7) it was authorised to collect sales tax both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the companys remuneration was to be credited to the Corporationsthe facts stated above it is abundantly clear that sale was made by the appellant company as it effected transfer of property in the goods to the customers and realized sale price from them by issuing invoices in its own name. The restricted definition of the term dealer in the Central Act is not wide enough to cover all kinds of agents such as brokers or a commission agent simplicter as many of the State Acts include them within their definitions. As for example the term dealer defined in section 2(k) of the Mysore State Act includes "a commission agent, a broker or del credere agent or an auctioneer or any other mercantile a gent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;" The term dealer as defined in the Central Act would, however, include a del credere agent or a mercantile agent who carries on the business of buying or selling goods not as an agent simplicter on behalf of the disclosed principal but as a principal visa-vis itsagree with the above view of the learned Chiefour judgment it was the appellant company which carried on the business of selling cement although it was acting as selling agents of the Corporation. The Corporation was not the dealer which effected the sales but it was the company which did so. | 0 | 2,342 | ### 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:
agreement the company was in possession and custody of the goods. It was entering into contracts for sale of cement and selling it. The property in the goods was passed on to the buyers by the company. Under clause (7) it was authorised to collect sales tax both on intra-State and inter-State sales, and to discharge its liability devolving upon it as dealer under the various Sales Tax Acts and Rules. As per clause 13 of the agreement only the difference of price after deducting the companys remuneration was to be credited to the Corporations account.Section 2(b) of the Central Act reads as follows:" "dealer" means any person who carries on the business of buying or selling goods, and includes a Government which carries on such business;""sale" within the meaning of clause (g) means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration. "sale price" under clause (h) means the amount payable to a dealer as consideration for the sale of any goods. On the facts stated above it is abundantly clear that sale was made by the appellant company as it effected transfer of property in the goods to the customers and realized sale price from them by issuing invoices in its own name. The restricted definition of the term dealer in the Central Act is not wide enough to cover all kinds of agents such as brokers or a commission agent simplicter as many of the State Acts include them within their definitions. As for example the term dealer defined in section 2(k) of the Mysore State Act includes "a commission agent, a broker or del credere agent or an auctioneer or any other mercantile a gent by whatever name called, who carries on the business of buying, selling, supplying or distributing goods on behalf of any principal;" The term dealer as defined in the Central Act would, however, include a del credere agent or a mercantile agent who carries on the business of buying or selling goods not as an agent simplicter on behalf of the disclosed principal but as a principal visa-vis its customers.8. In Halsburys Laws of England, Fourth Edition, Volume 1, para 71 2 it is stated:"A mercantile agent is one having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods. An agent may be a mercantile agent although he has no general occupation as an agent, or has only one customer, or although his general occupation is that of an independent dealer in the commodity entrusted to him, provided that he acts in the transaction in his capacity as mercantile agent; but he must not be a mere servant or shopman."In para 713 is stated:"A del credere agent is one who, usually for extra remuneration, undertakes to indemnify his employer against loss arising from the failure of persons with whom he contracts to carry out their contracts."9. In the judgment under appeal the High Court repelled the stand of the appellant relying upon the decision of a full Bench of the Madras High Court in Kandula Radhakrishna Rao and others v. The Province of Madras represented by the Collector of West Godavari, Eluru and another(1). Referring to the identical definition of the dealer in the Madras Act Rajamannar, C.J. delivering the judgment on behalf of the Bench has stated at page 723 column 2:"In the case of a commission agent, the accepted mercantile practice is that he has control over or possession of the goods and he has the authority from the owner of the goods to pass the property in and title to the goods. If this is so, undoubtedly when a commission agent sells goods belonging to his principal wit h his authority and consent and without disclosing to the buyer the name of the owner, there is certainly a transfer of property in the goods from the commission agent to the buyer. A business which consists in such transactions ca n properly be described as a business of selling goods. A similar position would arise even in the case of a commission agent buying for an undisclosed principal. A commission agent doing this kind of business would in my opinion, fall within the definition of dealer in the Sales Tax Act. Neither the definition of dealer nor of sale contemplates as a necessary condition, that the goods sold should belong to the person selling or buying. Thee re can be a sale or purchase on behalf of another."10. We agree with the above view of the learned Chief Justice.Mr. D. V. Patel, learned counsel for the appellant heavily relied on the definition of the expression "place of business" given in clause (dd) of section 2 of the Central Act which includes "(i) in any case where a dealer carries on business through an agent (by whatever name called), the place of business of such agent;" Counsel submitted that the above inclusive definition would show that it was the Corporation which was carrying on the business through the appellant company as its agent and for the purpose of the Central Act the place where the business was carried on by the company as the Corporations agent would be the place of the business of the Corporation. On the other hand, learned Additional Solicitor General II pointed out that if the appellant was the dealer within the meaning of section 2(b) then it was not the Corporation which was carrying on the business through it as an agent to attract the definition given in clause (dd). In our judgment it was the appellant company which carried on the business of selling cement although it was acting as selling agents of the Corporation. The Corporation was not the dealer which effected the sales but it was the company which did so.11.
### Response:
0
|
1,041 | Veerappa Rachappa Saboji Vs. B.P. Dalal & Another | Judicial Magistrate by an order of the Government of Maharashtra dated 31-10-60. The appointment was initially on probation for a period of two years and it was provided that after the period of probation was over, his service would be liable to be terminated on one months notice so long as his appointment was temporary. Pursuant to the order of appointment, the appellant worked as Civil Judge (Junior Division) and Judicial Magistrate and after watching his performance during the period of probation the Govt. of Maharashtra by a Resolution dt. 19th April, 1963 directed that he should be treated as having satisfactorily completed his probationary period from 6th December, 1962 afternoon and thereafter he should continue on an officiating basis as Civil Judge (Junior Division) and Judicial Magistrate. The appellant accordingly continued to officiate as Civil Judge Junior Division) and Judicial Magistrate.It appears that a substantive vacancy in a permanent post of Civil Judge Junior Division) and Judicial Magistrate arose sometime in 1968 in which the appellant could have been confirmed but the Government of Maharashtra, instead of confirming him in that post, passed an order dated 15th December, 1971, terminating his service with effect from 1st February 1972. The first respondent, who is Secretary to the Government of Maharashtra, Law and Judiciary Department, by a letter of the same date intimated to the appellant that his appointment being still temporary, his service was liable to be terminated on one months notice and the Government had accordingly decided to terminate his service with effect from 1st February, 1972 and enclosed a copy of the order of termination. The appellant thereupon filed a petition in the High Court of Bombay under Article 226 of the Constitution challenging the validity of the order of termination.2. There were three grounds on which the order of termination was assailed as invalid in the petition. The first ground rested on Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. That rule provided that unless otherwise expressly directed, every person appointed as Civil Judge Junior Division) and Judicial Magistrate shall be on probation for a period of two years and on the expiration of such period, he may be confirmed, if (a) there is a vacancy and (b) his work is found satisfactory. The argument of the appellant was that on a proper construction of this rule every Civil Judge (Junior Division) and Judicial Magistrate, appointed on probation, for a period of two years, was entitled to be confirmed if on the expiration of such period of probation his work was found satisfactory and there was a vacancy in which he could be confirmed. Here in the present case, said the appellant, the Government Resolution dated 19th April, 1963 showed that on the expiration of the period of probation, his work was found satisfactory and sometime in 1968 a vacancy did arise in which he could be confirmed and, therefore, under this Rule, he was entitled to be confirmed in such vacancy and he had a right to the post of Civil Judge Junior Division) and Judicial Magistrate. The Government could not take away this right to the post by terminating the service of the appellant in the manner it did. The termination of the service of the appellant was in the circumstances tantamount to dismissal and since the procedural requirement of Article 311 (2) was admittedly not complied with by the Government before passing the order of termination, it was void and inoperative. The second ground of challenge was that in the circumstances in which the order of termination was passed by the Government, it was not an order of termination simpliciter but it was by way of punishment and it could not be passed without complying with the procedural requirement of Article 311 (2). Lastly, it was urged and that was the third ground of challenge - that the order of termination was in any event violative of Articles 14 and 16 of the Constitution, since Civil Judges Junior Division) and Judicial Magistrates, Junior to the appellant, were retained in service, while the service of the appellant was terminated. These were the three main grounds taken in the petition for challenging the validity of the order of termination.3. When the petition came up for admission before a Division Bench of the High Court, the Division Bench summarily rejected it without even issuing a notice to the respondents. The Division Bench however gave liberty to the appellant to file a suit for vindicating his rights. The appellant being aggrieved by the summary rejection of his petition, applied to the High Court for leave to appeal to this Court, but the application was refused. Hence the appellant preferred the present appeal by special leave obtained from this Court.4. We do not think the High Court was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits and referring the appellant to a suit. We must, in the circumstances, set aside the order of summary rejection passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents. | 1[ds]4. We do not think the High Court was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits and referring the appellant to a suit. We must, in the circumstances, set aside the order of summary rejection passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents. | 1 | 1,194 | ### 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:
Judicial Magistrate by an order of the Government of Maharashtra dated 31-10-60. The appointment was initially on probation for a period of two years and it was provided that after the period of probation was over, his service would be liable to be terminated on one months notice so long as his appointment was temporary. Pursuant to the order of appointment, the appellant worked as Civil Judge (Junior Division) and Judicial Magistrate and after watching his performance during the period of probation the Govt. of Maharashtra by a Resolution dt. 19th April, 1963 directed that he should be treated as having satisfactorily completed his probationary period from 6th December, 1962 afternoon and thereafter he should continue on an officiating basis as Civil Judge (Junior Division) and Judicial Magistrate. The appellant accordingly continued to officiate as Civil Judge Junior Division) and Judicial Magistrate.It appears that a substantive vacancy in a permanent post of Civil Judge Junior Division) and Judicial Magistrate arose sometime in 1968 in which the appellant could have been confirmed but the Government of Maharashtra, instead of confirming him in that post, passed an order dated 15th December, 1971, terminating his service with effect from 1st February 1972. The first respondent, who is Secretary to the Government of Maharashtra, Law and Judiciary Department, by a letter of the same date intimated to the appellant that his appointment being still temporary, his service was liable to be terminated on one months notice and the Government had accordingly decided to terminate his service with effect from 1st February, 1972 and enclosed a copy of the order of termination. The appellant thereupon filed a petition in the High Court of Bombay under Article 226 of the Constitution challenging the validity of the order of termination.2. There were three grounds on which the order of termination was assailed as invalid in the petition. The first ground rested on Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. That rule provided that unless otherwise expressly directed, every person appointed as Civil Judge Junior Division) and Judicial Magistrate shall be on probation for a period of two years and on the expiration of such period, he may be confirmed, if (a) there is a vacancy and (b) his work is found satisfactory. The argument of the appellant was that on a proper construction of this rule every Civil Judge (Junior Division) and Judicial Magistrate, appointed on probation, for a period of two years, was entitled to be confirmed if on the expiration of such period of probation his work was found satisfactory and there was a vacancy in which he could be confirmed. Here in the present case, said the appellant, the Government Resolution dated 19th April, 1963 showed that on the expiration of the period of probation, his work was found satisfactory and sometime in 1968 a vacancy did arise in which he could be confirmed and, therefore, under this Rule, he was entitled to be confirmed in such vacancy and he had a right to the post of Civil Judge Junior Division) and Judicial Magistrate. The Government could not take away this right to the post by terminating the service of the appellant in the manner it did. The termination of the service of the appellant was in the circumstances tantamount to dismissal and since the procedural requirement of Article 311 (2) was admittedly not complied with by the Government before passing the order of termination, it was void and inoperative. The second ground of challenge was that in the circumstances in which the order of termination was passed by the Government, it was not an order of termination simpliciter but it was by way of punishment and it could not be passed without complying with the procedural requirement of Article 311 (2). Lastly, it was urged and that was the third ground of challenge - that the order of termination was in any event violative of Articles 14 and 16 of the Constitution, since Civil Judges Junior Division) and Judicial Magistrates, Junior to the appellant, were retained in service, while the service of the appellant was terminated. These were the three main grounds taken in the petition for challenging the validity of the order of termination.3. When the petition came up for admission before a Division Bench of the High Court, the Division Bench summarily rejected it without even issuing a notice to the respondents. The Division Bench however gave liberty to the appellant to file a suit for vindicating his rights. The appellant being aggrieved by the summary rejection of his petition, applied to the High Court for leave to appeal to this Court, but the application was refused. Hence the appellant preferred the present appeal by special leave obtained from this Court.4. We do not think the High Court was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4 (2) (iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits and referring the appellant to a suit. We must, in the circumstances, set aside the order of summary rejection passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents.
### Response:
1
|
1,042 | State of Bombay Vs. Mulji Jetha & Company | were issued as also the prescribed form for the sanads. We have also been taken through the contents of the sanads actually issued in these cases as well as through the concurrent findings of the first appellate court and the High Court as regards the substance of the correspondence contained in Exs. 41 to 43.11. A forceful argument has been advanced to us with reference to all the above material, that the view taken by the learned Judges of the High Courts erroneous. It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 and 1912.12. The relevant portions of these three Sections as they stood prior to their amendment in 1913 were as follows :"48. The land revenue liable under the provisions of this Act shall be chargeable-(a) upon land appropriated for purpose of agricultural ;(b) upon land appropriated for any purpose from which any other profit or advantage than that ordinarily acquired by agriculture is derived;(c) upon land appropriated for building sites.65. An occupant of land appropriated for purposes of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives to erect farm buildings, construct wells or tanks or any other improvements thereon for the better cultivation of land or its more convenient occupation for the purposes aforesaid.If any occupant wishes to appropriate his holding or any part thereof to any other purpose, the Collectors permission shall in the first place be applied for by the registered occupant.The Collector, on receipt of such application,xxxx(b) may, after due inquiry, either grant or refuse the permission applied for.When any such land is thus appropriated to any purpose unconnected with agriculture, it shall be lawful for the Collector subject to the general orders of Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of S. 48.67. Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid in special cases on such terms or conditions as may be agreed on between Government and the registered occupant."13. Now, there is no. dispute that the permission that was granted by the Collector in the years 1911 and 1912 for diversion of the suit lands from agricultural use to non-agricultural use for building purposes related to the entirety of the area comprised within the suit survey numbers. All that is claimed on behalf of the State is that the permission was limited by the condition that the buildings to be erected were to be in accordance with the plans then approved and that any alteration thereof requires the further permission of the Collector or a mutual agreement in respect thereof. Admittedly the basis for this contention is S. 67 of the Code. As it then stood, this Section provided that nothing in S. 65 was to prevent the granting of permission in special cases on such terms or conditions as may @page-SC328 be agreed upon between the Government and the registered occupant. It is clear from this that the grant of permission under S. 65 may be subjected to conditions. But the imposing of such conditions is to be (1) in special cases, and (2) in such cases it is to be the result of an agreement between the Government and the registered occupant. What has been pleaded in these cases in paragraph 4 of the written-statement, as set out above, is an agreement, between the Collector, and the registered occupant and what the correspondence, Exs. 41 to 43, discloses is only an agreement, if any, between the Collector, and the registered occupant. There is no. pleading or proof that there was any agreement between the registered occupant and, the Government. Nor is there any indication that applications of the kind in this area had to be treated as special cases.14. Obviously "the Collector" is not the same as "the Government" nor have we been shown any rule framed by the Government which empowers the Collector to act on behalf of the Government with reference to S. 67. That the Collector is different from the Government under the Code is clear from Section 8 of the Code which shows that "the Government" shall appoint in each district an officer who shall be "the Collector" and who may exercise, throughout his district, all the powers and discharge all the duties imposed on a Collector by this Act. The learned Attorney-General could not contest this position. It is clear, therefore, that the State has not made out that there is any valid and legal condition attached to the permission granted by the Collector for the diversion of these lands from agricultural to building purposes. In this view of the matter there is no. reason to reverse the declarations granted in favour of the plaintiff -respondent by the High Court.15. It appears likely that in this litigation the content of S. 67 as it stood prior to 1913 was not noticed and that the defence on behalf of the State and the proof in pursuance thereof was based on S. 67 as it now stands which is as follows :"Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rule made in this behalf by the Government"16. The plea taken in paragraph 4 of the written statement does no. doubt indicate that it was realised that the condition was to be a matter of agreement but it does not seem to have been appreciated that the agreement was to be between the Government and the registered occupant and not between the Collector and the registered occupant. | 0[ds]It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 andthe basis for this contention is S. 67 of the Code. As it then stood, this Section provided that nothing in S. 65 was to prevent the granting of permission in special cases on such terms or conditions as maybe agreed upon between the Government and the registered occupant. It is clear from this that the grant of permission under S. 65 may be subjected to conditions. But the imposing of such conditions is to be (1) in special cases, and (2) in such cases it is to be the result of an agreement between the Government and the registered occupant. What has been pleaded in these cases in paragraph 4 of theas set out above, is an agreement, between the Collector, and the registered occupant and what the correspondence, Exs. 41 to 43, discloses is only an agreement, if any, between the Collector, and the registered occupant. There is no. pleading or proof that there was any agreement between the registered occupant and, the Government. Nor is there any indication that applications of the kind in this area had to be treated as special cases.14. Obviously "the Collector" is not the same as "the Government" nor have we been shown any rule framed by the Government which empowers the Collector to act on behalf of the Government with reference to S. 67. That the Collector is different from the Government under the Code is clear from Section 8 of the Code which shows that "the Government" shall appoint in each district an officer who shall be "the Collector" and who may exercise, throughout his district, all the powers and discharge all the duties imposed on a Collector by this Act. The learnedcould not contest this position. It is clear, therefore, that the State has not made out that there is any valid and legal condition attached to the permission granted by the Collector for the diversion of these landsfrom agricultural tobuilding purposes. In this view of the matter there is no. reason to reverse the declarations granted in favour of the plaintiffrespondent by the High Court.The plea taken in paragraph 4 of the written statement does no. doubt indicate that it was realised that the condition was to be a matter of agreement but it does not seem to have been appreciated that the agreement was to be between the Government and the registered occupant and not between the Collector and the registered occupant. | 0 | 2,615 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
were issued as also the prescribed form for the sanads. We have also been taken through the contents of the sanads actually issued in these cases as well as through the concurrent findings of the first appellate court and the High Court as regards the substance of the correspondence contained in Exs. 41 to 43.11. A forceful argument has been advanced to us with reference to all the above material, that the view taken by the learned Judges of the High Courts erroneous. It is unnecessary, however, to deal with the argument thus advanced since the appeals can be disposed of on a very short ground. For this purpose it is sufficient to notice Ss. 48, 65 and 67 as they stood prior to 1913, which admittedly applied to the present case in view of the fact that the permission was granted in the years 1911 and 1912.12. The relevant portions of these three Sections as they stood prior to their amendment in 1913 were as follows :"48. The land revenue liable under the provisions of this Act shall be chargeable-(a) upon land appropriated for purpose of agricultural ;(b) upon land appropriated for any purpose from which any other profit or advantage than that ordinarily acquired by agriculture is derived;(c) upon land appropriated for building sites.65. An occupant of land appropriated for purposes of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives to erect farm buildings, construct wells or tanks or any other improvements thereon for the better cultivation of land or its more convenient occupation for the purposes aforesaid.If any occupant wishes to appropriate his holding or any part thereof to any other purpose, the Collectors permission shall in the first place be applied for by the registered occupant.The Collector, on receipt of such application,xxxx(b) may, after due inquiry, either grant or refuse the permission applied for.When any such land is thus appropriated to any purpose unconnected with agriculture, it shall be lawful for the Collector subject to the general orders of Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of S. 48.67. Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid in special cases on such terms or conditions as may be agreed on between Government and the registered occupant."13. Now, there is no. dispute that the permission that was granted by the Collector in the years 1911 and 1912 for diversion of the suit lands from agricultural use to non-agricultural use for building purposes related to the entirety of the area comprised within the suit survey numbers. All that is claimed on behalf of the State is that the permission was limited by the condition that the buildings to be erected were to be in accordance with the plans then approved and that any alteration thereof requires the further permission of the Collector or a mutual agreement in respect thereof. Admittedly the basis for this contention is S. 67 of the Code. As it then stood, this Section provided that nothing in S. 65 was to prevent the granting of permission in special cases on such terms or conditions as may @page-SC328 be agreed upon between the Government and the registered occupant. It is clear from this that the grant of permission under S. 65 may be subjected to conditions. But the imposing of such conditions is to be (1) in special cases, and (2) in such cases it is to be the result of an agreement between the Government and the registered occupant. What has been pleaded in these cases in paragraph 4 of the written-statement, as set out above, is an agreement, between the Collector, and the registered occupant and what the correspondence, Exs. 41 to 43, discloses is only an agreement, if any, between the Collector, and the registered occupant. There is no. pleading or proof that there was any agreement between the registered occupant and, the Government. Nor is there any indication that applications of the kind in this area had to be treated as special cases.14. Obviously "the Collector" is not the same as "the Government" nor have we been shown any rule framed by the Government which empowers the Collector to act on behalf of the Government with reference to S. 67. That the Collector is different from the Government under the Code is clear from Section 8 of the Code which shows that "the Government" shall appoint in each district an officer who shall be "the Collector" and who may exercise, throughout his district, all the powers and discharge all the duties imposed on a Collector by this Act. The learned Attorney-General could not contest this position. It is clear, therefore, that the State has not made out that there is any valid and legal condition attached to the permission granted by the Collector for the diversion of these lands from agricultural to building purposes. In this view of the matter there is no. reason to reverse the declarations granted in favour of the plaintiff -respondent by the High Court.15. It appears likely that in this litigation the content of S. 67 as it stood prior to 1913 was not noticed and that the defence on behalf of the State and the proof in pursuance thereof was based on S. 67 as it now stands which is as follows :"Nothing in the last two preceding Sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rule made in this behalf by the Government"16. The plea taken in paragraph 4 of the written statement does no. doubt indicate that it was realised that the condition was to be a matter of agreement but it does not seem to have been appreciated that the agreement was to be between the Government and the registered occupant and not between the Collector and the registered occupant.
### Response:
0
|
1,043 | M/S. Sawant Constructions & Another Vs. Guruchhaya Co-Operative Housing Society Limited & Others | CHS Ltd. & Ors. [2013(2) ALL MR 278]. There is no dispute regarding ratio of this judgment. However, it has no application to the facts of the present case.6. On the other hand, Mr. S. G. Surana, counsel appearing on behalf of Respondent No. 1 Society submitted that the agreement in terms had made a reference to recitals of Final Plot No. 52. He submitted that in the recital it was clearly mentioned that the Petitioner had proposed either to demolish and reconstruct the existing structures, standing on plot belonging to the second original vendor viz. Mrs. Hirabai Solunki, and/or to utilise the balance Floor Space Index available on the piece or parcel of the land in the building, which was proposed to be constructed on the piece and parcel of land belonging to the First Original Vendor. He submitted that the said Final Plot has been mentioned and referred in the Second Schedule of the Agreement. He submitted that it is an admitted position that the FSI of Final Plot No. 52 has been utilized on Final Plot No. 51. He submitted that the Petitioner had amalgamated said two plots. He has invited our attention to the order of amalgamation. He submitted that even occupation certificate dated 25th February, 1991 was granted in respect of building on Final Plot Nos. 51 and 52. It is contended that therefore there was a clear understanding between the parties that the FSI on Final Plot No. 52 was to be utilised on the final Plot No. 51, where the building was constructed. It is submitted that the District Dy. Registrar had, after having perused all the documents produced on record, recorded the finding to that effect, and there was no question of any dispute regarding the agreement entered into between the parties in respect of ownership of the land.7. After having heard both the counsel appearing on behalf of Petitioners and Respondent No. 1, we are of the view that it will not be possible to accept the submissions made by the learned senior counsel appearing on behalf of the Petitioners. It will be useful to have a look at the relevant provisions viz. sub-section (3) and (4) of Section 11 of the MOFA Act, which reads as under:11. Promoter to convey title, etc., and execute documents, according to agreement (1) (2) (3) If the promoter fails to execute the conveyance in favour of the co-operative society formed under Section 10 or, as the case may be, the company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such co-operative society or, as the case may be, the company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or company or the association, who have purchased the flats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.(4) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months, after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue a certificate to the Sub-registrar or any other appropriate Registration Officer under the Registration Act, 1908, certifying that it is a fit case for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the land and building in favour of the applicant, as deemed conveyance.8. Perusal of the said clauses reveals that the District Dy. Registrar is authorised to make an enquiry which was submitted before him to find out whether there was agreement between the parties to convey the property and if it is found that though the obligation, which is cast on the developer or builder or contractor or promoter under sub-section (1) of Section 11 to convey the property to the flat purchasers of all Society, the developer or the promoter does not fulfill the said obligation, then in that event after enquiry, as contemplated under sub-section (3) and (4) of Section 11 of the MOFA Act, the District Dy. Registrar has been authorised to issue certificate of deemed conveyance. The said provision has been made when it is found that developers and builders after having sold the flats to the individual flat purchasers, refused to convey the property to the housing society or to the association of flat purchasers. Taking into consideration the situation which had arisen in metropolitan area, the legislature was constrained to make suitable amendments to the provisions of Section 11 and authorise the District Dy. Registrar to hold an enquiry. In the present case, in our view, the District Dy. Registrar, after having gone through the documentary evidence on record, had arrived at a conclusion that there was an agreement to convey both the plots to the Society, and accordingly has recorded a finding to that effect. The Schedule which is annexed to the Agreement to Sale, which was entered into between the Petitioner and the flat purchasers, clearly stipulates that he Petitioner was obliged to convey both the Final plots to the Society. It is not in dispute that FSI on Final Plot No. 52 has been utilised for the construction of the building on Final Plot No. 51. Taking into consideration all the aforesaid facts, we are of the view that the District Dy. Registrar has not committed any error of law, either apparent on the face of record or any material irregularity, in referring the documentary evidence, which was produced before him. | 0[ds]Learned senior counsel invited our attention to a letter dated 28.6.1991, written by the Chairman of the Society to the Petitioner, in which it was mentioned that a compound wall should be put up by the Petitioner, so that Final Plot No. 52 would be separated from the building, which was constructed on Final Plot No. 51.5. Reliance is placed on the judgment of the learned Single Judge of this Court in the case ofa Construction Company. Vs. Sultanbad Darshan CHS Ltd.. [2013(2) ALL MR278]. There is no dispute regarding ratio of this judgment. However, it has no application to the facts of the present case.After having heard both the counsel appearing on behalf of Petitioners and Respondent No. 1, we are of the view that it will not be possible to accept the submissions made by the learned senior counsel appearing on behalf of thethe present case, in our view, the District Dy. Registrar, after having gone through the documentary evidence on record, had arrived at a conclusion that there was an agreement to convey both the plots to the Society, and accordingly has recorded a finding to that effect. The Schedule which is annexed to the Agreement to Sale, which was entered into between the Petitioner and the flat purchasers, clearly stipulates that he Petitioner was obliged to convey both the Final plots to the Society. It is not in dispute that FSI on Final Plot No. 52 has been utilised for the construction of the building on Final Plot No. 51. Taking into consideration all the aforesaid facts, we are of the view that the District Dy. Registrar has not committed any error of law, either apparent on the face of record or any material irregularity, in referring the documentary evidence, which was produced before him. We are, therefore, not inclined to interfere with the impugned order dated 21st June, 2013, which is passed by the District Dy. Registrar, while exercising our writ jurisdiction under Article 226 of the Constitution of India. | 0 | 2,188 | ### 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?
### Input:
CHS Ltd. & Ors. [2013(2) ALL MR 278]. There is no dispute regarding ratio of this judgment. However, it has no application to the facts of the present case.6. On the other hand, Mr. S. G. Surana, counsel appearing on behalf of Respondent No. 1 Society submitted that the agreement in terms had made a reference to recitals of Final Plot No. 52. He submitted that in the recital it was clearly mentioned that the Petitioner had proposed either to demolish and reconstruct the existing structures, standing on plot belonging to the second original vendor viz. Mrs. Hirabai Solunki, and/or to utilise the balance Floor Space Index available on the piece or parcel of the land in the building, which was proposed to be constructed on the piece and parcel of land belonging to the First Original Vendor. He submitted that the said Final Plot has been mentioned and referred in the Second Schedule of the Agreement. He submitted that it is an admitted position that the FSI of Final Plot No. 52 has been utilized on Final Plot No. 51. He submitted that the Petitioner had amalgamated said two plots. He has invited our attention to the order of amalgamation. He submitted that even occupation certificate dated 25th February, 1991 was granted in respect of building on Final Plot Nos. 51 and 52. It is contended that therefore there was a clear understanding between the parties that the FSI on Final Plot No. 52 was to be utilised on the final Plot No. 51, where the building was constructed. It is submitted that the District Dy. Registrar had, after having perused all the documents produced on record, recorded the finding to that effect, and there was no question of any dispute regarding the agreement entered into between the parties in respect of ownership of the land.7. After having heard both the counsel appearing on behalf of Petitioners and Respondent No. 1, we are of the view that it will not be possible to accept the submissions made by the learned senior counsel appearing on behalf of the Petitioners. It will be useful to have a look at the relevant provisions viz. sub-section (3) and (4) of Section 11 of the MOFA Act, which reads as under:11. Promoter to convey title, etc., and execute documents, according to agreement (1) (2) (3) If the promoter fails to execute the conveyance in favour of the co-operative society formed under Section 10 or, as the case may be, the company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such co-operative society or, as the case may be, the company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or company or the association, who have purchased the flats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered.(4) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months, after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue a certificate to the Sub-registrar or any other appropriate Registration Officer under the Registration Act, 1908, certifying that it is a fit case for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the land and building in favour of the applicant, as deemed conveyance.8. Perusal of the said clauses reveals that the District Dy. Registrar is authorised to make an enquiry which was submitted before him to find out whether there was agreement between the parties to convey the property and if it is found that though the obligation, which is cast on the developer or builder or contractor or promoter under sub-section (1) of Section 11 to convey the property to the flat purchasers of all Society, the developer or the promoter does not fulfill the said obligation, then in that event after enquiry, as contemplated under sub-section (3) and (4) of Section 11 of the MOFA Act, the District Dy. Registrar has been authorised to issue certificate of deemed conveyance. The said provision has been made when it is found that developers and builders after having sold the flats to the individual flat purchasers, refused to convey the property to the housing society or to the association of flat purchasers. Taking into consideration the situation which had arisen in metropolitan area, the legislature was constrained to make suitable amendments to the provisions of Section 11 and authorise the District Dy. Registrar to hold an enquiry. In the present case, in our view, the District Dy. Registrar, after having gone through the documentary evidence on record, had arrived at a conclusion that there was an agreement to convey both the plots to the Society, and accordingly has recorded a finding to that effect. The Schedule which is annexed to the Agreement to Sale, which was entered into between the Petitioner and the flat purchasers, clearly stipulates that he Petitioner was obliged to convey both the Final plots to the Society. It is not in dispute that FSI on Final Plot No. 52 has been utilised for the construction of the building on Final Plot No. 51. Taking into consideration all the aforesaid facts, we are of the view that the District Dy. Registrar has not committed any error of law, either apparent on the face of record or any material irregularity, in referring the documentary evidence, which was produced before him.
### Response:
0
|
1,044 | Pratapray Manmohandas Vs. Bombay Bullion Association Ltd | Clearing House Committee to give an opportunity to the appellant to submit his kaplis because that was the meaning of the words "and can thereafter, if such a kapli is not submitted, the Clearing House Committee can declare him a defaulter." In other words the Committee had to give the member a locus paenitentiae and that after giving his explanation a member could still submit a kapli and escape the penalty of being a defaulter. From the conduct of the appellant and his counsel however it appeared quite clearly that having challenged the jurisdiction of the Committee and having told them that they could not proceed in the absence of reference to arbitration the appellant had no intention of giving the Kaplis. 7. Two questions have been raised in this appeal; (1) the question of interpretation and (2) that no opportunity was given after the decision was made against the appellant to give the kaplis. The submission of the respondents on the other hand was that the appellant had deliberately made a false allegation that after he made a submission he was asked to leave. This was to buttress his plea that the matter was decided in his absence. The courts below have found that whether an opportunity had been given to the appellant or not, he had no intention of giving his kaplis. Issue No. 5 was specific on this point. That issue was "whether the appellant and his legal advisers voluntarily left the meeting after indicating that the appellant was not going to give the kaplis" and that was the principal question which has been raised throughout the course of these proceedings. Even in the statement of the appellants case he has put in the forefront of the questions for decision the question whether the appellant left the meeting dated June 21, 1949, voluntarily after indicating his unwillingness to submit the kaplis. The finding of both the courts on this question was against the appellant. In our opinion that is fully justified by the evidence on the record. According to the evidence days were fixed by the Association for the settlement of all transactions which had been entered into for that period. According to the chart of Bombay Bullion Exchange settlement had to be made, i.e. the monies had to be paid by 3.30 p. m. on June 21, 1949. The appellant made it clear, however, that he was not going to make the payment in accordance with the requirements of the Valan Day; on the other hand he stated that he will pay after the arbitration award was made. The evidence produced by the respondents makes it abundantly clear that the contention of the appellant was that no action should be taken unless the arbitration which he had asked for had been disposed of and after saying that he went away. This is clear from the Attendance Book of Mr. Trikamdas Dwarkadas solicitor. The respondent Association was therefore justified in taking the action that it did. The minutes of the proceedings of the Clearing House Committee dated June 21, 1949, also show that the appellant and his legal advisers stated that they wanted to go to arbitration and that no action should be taken against them until the arbitrators had given their award. It is stated therein that the appellant admitted that the transactions which his solicitor said were fictions were entered in his books and they had been rajued (tallied) and that he had shown the transaction in his olias" (clearance sheet). All this indicated that the contention raised by the appellant was false and had been raised in order to gain time. In these circumstances it cannot be said that the respondent Committee acted without giving due consideration to the facts of the case or in any precipitate manner. 8. Bye-law 155(4) reads :"If any member does not submit a kapli in the prescribed form in respect of the amount found claimable from him to his party (creditor), the Clearing House Committee shall call him and demand an explanation from him and can thereafter, if such a kapli is not submitted the Clearing House Committee can declare him a defaulter." That clause requires that in the event of default of submission of a kapli the Clearing House Committee shall call the defaulter and demand an explanation and thereafter, if such kapli is not submitted, declare him a defaulter. It was contended that the meaning of this is that first the Clearing House Committee is to demand an explanation and after such an explanation is given, time has to be given for the purpose of enabling the person not giving the kapli to submit his kaplis. In our opinion the interpretation of the learned Chief Justice of the High Court is in consonance with the language used i. e. first the explanation is called and after explanation is given and some decision is arrived at in regard to the validity of the reasons for not giving the kaplis then the person complained against can file the Kaplis but it does not mean that the time to be given has to be one or half an hour or any other specific period. 9. As we have said above the appellant had made it clear that he was not going to make the payment and had just left after making his submissions. It is not a requirement of the bye-law that the Clearing House Committee should call the person defaulting either by telephone or by letter or by giving him a notice and considering the promptitude with which the payments have to be made and the dates fixed for the finishing of all the transactions it will be unreasonable to bold that such is the procedure contemplated by cl. (4) of bye-law 155. The period of time, must, in each case, depend upon the circumstances, but where it is made absolutely clear that no payment is going to be made the giving of time is wholly without utility. | 1[ds]The courts below have found that whether an opportunity had been given to the appellant or not, he had no intention of giving his kaplis. Issue No. 5 was specific on this point. That issue was "whether the appellant and his legal advisers voluntarily left the meeting after indicating that the appellant was not going to give the kaplis" and that was the principal question which has been raised throughout the course of these proceedings. Even in the statement of the appellants case he has put in the forefront of the questions for decision the question whether the appellant left the meeting dated June 21, 1949, voluntarily after indicating his unwillingness to submit the kaplis. The finding of both the courts on this question was against the appellant. In our opinion that is fully justified by the evidence on the record. According to the evidence days were fixed by the Association for the settlement of all transactions which had been entered into for that period. According to the chart of Bombay Bullion Exchange settlement had to be made, i.e. the monies had to be paid by 3.30 p. m. on June 21, 1949. The appellant made it clear, however, that he was not going to make the payment in accordance with the requirements of the Valan Day; on the other hand he stated that he will pay after the arbitration award was made. The evidence produced by the respondents makes it abundantly clear that the contention of the appellant was that no action should be taken unless the arbitration which he had asked for had been disposed of and after saying that he went away. This is clear from the Attendance Book of Mr. Trikamdas Dwarkadas solicitor. The respondent Association was therefore justified in taking the action that it did. The minutes of the proceedings of the Clearing House Committee dated June 21, 1949, also show that the appellant and his legal advisers stated that they wanted to go to arbitration and that no action should be taken against them until the arbitrators had given their award. It is stated therein that the appellant admitted that the transactions which his solicitor said were fictions were entered in his books and they had been rajued (tallied) and that he had shown the transaction in his olias" (clearance sheet). All this indicated that the contention raised by the appellant was false and had been raised in order to gain time. In these circumstances it cannot be said that the respondent Committee acted without giving due consideration to the facts of the case or in any precipitate mannerThat clause requires that in the event of default of submission of a kapli the Clearing House Committee shall call the defaulter and demand an explanation and thereafter, if such kapli is not submitted, declare him a defaulter. It was contended that the meaning of this is that first the Clearing House Committee is to demand an explanation and after such an explanation is given, time has to be given for the purpose of enabling the person not giving the kapli to submit his kaplis. In our opinion the interpretation of the learned Chief Justice of the High Court is in consonance with the language used i. e. first the explanation is called and after explanation is given and some decision is arrived at in regard to the validity of the reasons for not giving the kaplis then the person complained against can file the Kaplis but it does not mean that the time to be given has to be one or half an hour or any other specific period9. As we have said above the appellant had made it clear that he was not going to make the payment and had just left after making his submissions. It is not a requirement of the bye-law that the Clearing House Committee should call the person defaulting either by telephone or by letter or by giving him a notice and considering the promptitude with which the payments have to be made and the dates fixed for the finishing of all the transactions it will be unreasonable to bold that such is the procedure contemplated by cl. (4) of bye-law 155. The period of time, must, in each case, depend upon the circumstances, but where it is made absolutely clear that no payment is going to be made the giving of time is wholly without utility. | 1 | 2,119 | ### 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:
Clearing House Committee to give an opportunity to the appellant to submit his kaplis because that was the meaning of the words "and can thereafter, if such a kapli is not submitted, the Clearing House Committee can declare him a defaulter." In other words the Committee had to give the member a locus paenitentiae and that after giving his explanation a member could still submit a kapli and escape the penalty of being a defaulter. From the conduct of the appellant and his counsel however it appeared quite clearly that having challenged the jurisdiction of the Committee and having told them that they could not proceed in the absence of reference to arbitration the appellant had no intention of giving the Kaplis. 7. Two questions have been raised in this appeal; (1) the question of interpretation and (2) that no opportunity was given after the decision was made against the appellant to give the kaplis. The submission of the respondents on the other hand was that the appellant had deliberately made a false allegation that after he made a submission he was asked to leave. This was to buttress his plea that the matter was decided in his absence. The courts below have found that whether an opportunity had been given to the appellant or not, he had no intention of giving his kaplis. Issue No. 5 was specific on this point. That issue was "whether the appellant and his legal advisers voluntarily left the meeting after indicating that the appellant was not going to give the kaplis" and that was the principal question which has been raised throughout the course of these proceedings. Even in the statement of the appellants case he has put in the forefront of the questions for decision the question whether the appellant left the meeting dated June 21, 1949, voluntarily after indicating his unwillingness to submit the kaplis. The finding of both the courts on this question was against the appellant. In our opinion that is fully justified by the evidence on the record. According to the evidence days were fixed by the Association for the settlement of all transactions which had been entered into for that period. According to the chart of Bombay Bullion Exchange settlement had to be made, i.e. the monies had to be paid by 3.30 p. m. on June 21, 1949. The appellant made it clear, however, that he was not going to make the payment in accordance with the requirements of the Valan Day; on the other hand he stated that he will pay after the arbitration award was made. The evidence produced by the respondents makes it abundantly clear that the contention of the appellant was that no action should be taken unless the arbitration which he had asked for had been disposed of and after saying that he went away. This is clear from the Attendance Book of Mr. Trikamdas Dwarkadas solicitor. The respondent Association was therefore justified in taking the action that it did. The minutes of the proceedings of the Clearing House Committee dated June 21, 1949, also show that the appellant and his legal advisers stated that they wanted to go to arbitration and that no action should be taken against them until the arbitrators had given their award. It is stated therein that the appellant admitted that the transactions which his solicitor said were fictions were entered in his books and they had been rajued (tallied) and that he had shown the transaction in his olias" (clearance sheet). All this indicated that the contention raised by the appellant was false and had been raised in order to gain time. In these circumstances it cannot be said that the respondent Committee acted without giving due consideration to the facts of the case or in any precipitate manner. 8. Bye-law 155(4) reads :"If any member does not submit a kapli in the prescribed form in respect of the amount found claimable from him to his party (creditor), the Clearing House Committee shall call him and demand an explanation from him and can thereafter, if such a kapli is not submitted the Clearing House Committee can declare him a defaulter." That clause requires that in the event of default of submission of a kapli the Clearing House Committee shall call the defaulter and demand an explanation and thereafter, if such kapli is not submitted, declare him a defaulter. It was contended that the meaning of this is that first the Clearing House Committee is to demand an explanation and after such an explanation is given, time has to be given for the purpose of enabling the person not giving the kapli to submit his kaplis. In our opinion the interpretation of the learned Chief Justice of the High Court is in consonance with the language used i. e. first the explanation is called and after explanation is given and some decision is arrived at in regard to the validity of the reasons for not giving the kaplis then the person complained against can file the Kaplis but it does not mean that the time to be given has to be one or half an hour or any other specific period. 9. As we have said above the appellant had made it clear that he was not going to make the payment and had just left after making his submissions. It is not a requirement of the bye-law that the Clearing House Committee should call the person defaulting either by telephone or by letter or by giving him a notice and considering the promptitude with which the payments have to be made and the dates fixed for the finishing of all the transactions it will be unreasonable to bold that such is the procedure contemplated by cl. (4) of bye-law 155. The period of time, must, in each case, depend upon the circumstances, but where it is made absolutely clear that no payment is going to be made the giving of time is wholly without utility.
### Response:
1
|
1,045 | Shri Durga Prasad & Another Vs. The Banaras Bank Limited | Lal thereafter transferred the house to Durga Prasad reciting in the deed that the latter was "the real owner" of the houses and that the sale deed from the Official Liquidator was obtained by him benami for Durga Prasad. On coming to learn about this conveyance, the Official Liquidator moved the High Court of Allahabad for an Order that the sale be declared null and void and that Durga Prasad be called upon to surrender the two houses and to re-transfer the same to the Bank. The High Court held that the sale deed was obtained by Durga Prasad who was the real purchaser, that he had suppressed his interest in the purchase, and that being a member of the committee for inspection, qua the Bank he occupied the position of a trustee and was on that account precluded from buying the property of the Bank. The High Court accordingly directed Durga Prasad to convey the houses to the official Liquidator of the Bank. This Order was confirmed in appeal under Cl. 10 of the Letters Patent by a Division Bench of the High Court. The High Court however, certified the case under Art. 133(1) of the Constitution for appeal to this Court. The High Court observed :"It is not in dispute that the judgment of this Court involves directly or indirectly a claim respecting property of a value of not less than Rs. 20,000/- and, in view of the decision of this Court in Shri Deoki Nandan v. State of Uttar Pradesh, ILR (1958) 2 All 657: (AIR 1959 All 10 ) the applicants are entitled as of right to a certificate under Art. 133(1) of the Constitution without an additional certificate that the case gives rise to a substantial question of law. The requisite certificate will accordingly issue."2. At the hearing before this Court counsel for the official Liquidator submitted that the appeal is incompetent, for the High Court had no jurisdiction to grant the certificate under Art. 133(1) (a) of the Constitution without certifying that the appeal involved some substantial question of law. In our view this contention must succeed.3. In ILR (1958) 2 All 657: (AIR 1959 All 10 ) the Allahabad High Court held:"The words the Court immediately below within the meaning of cl. (1) of Art. 133 of the Constitution must be a Court other than the High Court. A single Judge of a High Court is not a Court subordinate to the High Court.An appeal against an Order of an appellate Bench of the High Court dismissing an appeal from an Order of a single Judge of the Court on its original side rejecting, a petition under Art. 226 of the Constitution lies as a matter of right under Art. 133(1) of the Constitution, if the claim is in respect of property of a value in excess of Rs. 20,000/- and it is not necessary that the case should give rise to a substantial question of law."But the expression Court immediately below in Art. 133(1) has not the same connotation as expression Court subordinate to the High Court. In Toolse Persaud Bhuckt v. Benayck Misser. 23 Ind App 102 (PC) the Privy Council appears to have expressed the view that a single Judge of High Court trying an original proceeding was a Court immediately below the High Court hearing an appeal under the Letters Patent from his judgment and therefore an appeal under S. 596 of the Code of Civil Procedure, Act XIV of 1882 (of which the terms were in substance identical with the terms of Art. 133(1), could be certified for appeal to the Privy Council only if a substantial question of Law was involved. The Judicial Committee observed:"There Lordships think that no question of law, either as to construction of documents or any other point, arises on the judgment of the High Court, and that there are concurrent findings of the two Courts below on the oral and documentary evidence submitted to them. That being so, the present appeal cannot be entertained."In Probhawati Kanwar v. Panmal Lodha, 45 Cal WN 1002, the High Court of Calcutta held that an appeal to the Privy Council cannot be certified if the High Court confirms the judgment of a single Judge trying an original proceedings, unless it involves a substantial question of law. In a recent case Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd., C. A. 535 of 1960, D/- 17-12-1962: (AIR 1963 SC 1279 ) this Court held that a single Judge hearing a second appeal under S. 100 of the Code of Civil Procedure, 1908 is for purposes of Art. 133(1), the Court immediately, below a Division Bench of the High Court hearing an appeal against his judgment under the Letters Patent. It was observed in that case that the expression Court immediately below used in Art. 133 (1) does not mean Court subordinate to the High Court. " A Court subordinate to the High Court is a Court subject to the superintendence of the High Court, whereas a Court immediately below is the Court from whose decision the appeal has been filed." In that case the Attorney-General appearing for the respondents conceded that a single Judge of a High Court trying a suit or proceeding as a Court of original jurisdiction was a Court immediately below the High Court hearing an appeal from his decision, and it was observed in the judgment of this Court that the concession was properly made.4. In the appeal before us, the judgment of the High Court affirms the judgment of the single Judge and the High Court has not certified that the decision appealed from involves any substantial question of law. The appeal cannot accordingly be entertained. Counsel for the appellant requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But we are of the view, having regard to all the circumstances that this is not a fit case for granting leave to appeal. | 0[ds]In our view this contention must succeed.3. In ILR (1958) 2 All 657: (AIR 1959 All 10 ) the Allahabad High Court held:"The words the Court immediately below within the meaning of cl. (1) of Art. 133 of the Constitution must be a Court other than the High Court. A single Judge of a High Court is not a Court subordinate to the High Court.An appeal against an Order of an appellate Bench of the High Court dismissing an appeal from an Order of a single Judge of the Court on its original side rejecting, a petition under Art. 226 of the Constitution lies as a matter of right under Art. 133(1) of the Constitution, if the claim is in respect of property of a value in excess of Rs. 20,000/and it is not necessary that the case should give rise to a substantial question of law."But the expression Court immediately below in Art. 133(1) has not the same connotation as expression Court subordinate to the High Court. In Toolse Persaud Bhuckt v. Benayck Misser. 23 Ind App 102 (PC) the Privy Council appears to have expressed the view that a single Judge of High Court trying an original proceeding was a Court immediately below the High Court hearing an appeal under the Letters Patent from his judgment and therefore an appeal under S. 596 of the Code of Civil Procedure, Act XIV of 1882 (of which the terms were in substance identical with the terms of Art. 133(1), could be certified for appeal to the Privy Council only if a substantial question of Law was involved. The Judicial Committee observed:"There Lordships think that no question of law, either as to construction of documents or any other point, arises on the judgment of the High Court, and that there are concurrent findings of the two Courts below on the oral and documentary evidence submitted to them. That being so, the present appeal cannot be entertained."In Probhawati Kanwar v. Panmal Lodha, 45 Cal WN 1002, the High Court of Calcutta held that an appeal to the Privy Council cannot be certified if the High Court confirms the judgment of a single Judge trying an original proceedings, unless it involves a substantial question of law. In a recent case Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd., C. A. 535 of 1960, D/(AIR 1963 SC 1279 ) this Court held that a single Judge hearing a second appeal under S. 100 of the Code of Civil Procedure, 1908 is for purposes of Art. 133(1), the Court immediately, below a Division Bench of the High Court hearing an appeal against his judgment under the Letters Patent. It was observed in that case that the expression Court immediately below used in Art. 133 (1) does not mean Court subordinate to the High Court. " A Court subordinate to the High Court is a Court subject to the superintendence of the High Court, whereas a Court immediately below is the Court from whose decision the appeal has been filed." In that case theappearing for the respondents conceded that a single Judge of a High Court trying a suit or proceeding as a Court of original jurisdiction was a Court immediately below the High Court hearing an appeal from his decision, and it was observed in the judgment of this Court that the concession was properly made.4. In the appeal before us, the judgment of the High Court affirms the judgment of the single Judge and the High Court has not certified that the decision appealed from involves any substantial question of law. The appeal cannot accordingly be entertained. Counsel for the appellant requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But we are of the view, having regard to all the circumstances that this is not a fit case for granting leave to appeal. | 0 | 1,265 | ### 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:
Lal thereafter transferred the house to Durga Prasad reciting in the deed that the latter was "the real owner" of the houses and that the sale deed from the Official Liquidator was obtained by him benami for Durga Prasad. On coming to learn about this conveyance, the Official Liquidator moved the High Court of Allahabad for an Order that the sale be declared null and void and that Durga Prasad be called upon to surrender the two houses and to re-transfer the same to the Bank. The High Court held that the sale deed was obtained by Durga Prasad who was the real purchaser, that he had suppressed his interest in the purchase, and that being a member of the committee for inspection, qua the Bank he occupied the position of a trustee and was on that account precluded from buying the property of the Bank. The High Court accordingly directed Durga Prasad to convey the houses to the official Liquidator of the Bank. This Order was confirmed in appeal under Cl. 10 of the Letters Patent by a Division Bench of the High Court. The High Court however, certified the case under Art. 133(1) of the Constitution for appeal to this Court. The High Court observed :"It is not in dispute that the judgment of this Court involves directly or indirectly a claim respecting property of a value of not less than Rs. 20,000/- and, in view of the decision of this Court in Shri Deoki Nandan v. State of Uttar Pradesh, ILR (1958) 2 All 657: (AIR 1959 All 10 ) the applicants are entitled as of right to a certificate under Art. 133(1) of the Constitution without an additional certificate that the case gives rise to a substantial question of law. The requisite certificate will accordingly issue."2. At the hearing before this Court counsel for the official Liquidator submitted that the appeal is incompetent, for the High Court had no jurisdiction to grant the certificate under Art. 133(1) (a) of the Constitution without certifying that the appeal involved some substantial question of law. In our view this contention must succeed.3. In ILR (1958) 2 All 657: (AIR 1959 All 10 ) the Allahabad High Court held:"The words the Court immediately below within the meaning of cl. (1) of Art. 133 of the Constitution must be a Court other than the High Court. A single Judge of a High Court is not a Court subordinate to the High Court.An appeal against an Order of an appellate Bench of the High Court dismissing an appeal from an Order of a single Judge of the Court on its original side rejecting, a petition under Art. 226 of the Constitution lies as a matter of right under Art. 133(1) of the Constitution, if the claim is in respect of property of a value in excess of Rs. 20,000/- and it is not necessary that the case should give rise to a substantial question of law."But the expression Court immediately below in Art. 133(1) has not the same connotation as expression Court subordinate to the High Court. In Toolse Persaud Bhuckt v. Benayck Misser. 23 Ind App 102 (PC) the Privy Council appears to have expressed the view that a single Judge of High Court trying an original proceeding was a Court immediately below the High Court hearing an appeal under the Letters Patent from his judgment and therefore an appeal under S. 596 of the Code of Civil Procedure, Act XIV of 1882 (of which the terms were in substance identical with the terms of Art. 133(1), could be certified for appeal to the Privy Council only if a substantial question of Law was involved. The Judicial Committee observed:"There Lordships think that no question of law, either as to construction of documents or any other point, arises on the judgment of the High Court, and that there are concurrent findings of the two Courts below on the oral and documentary evidence submitted to them. That being so, the present appeal cannot be entertained."In Probhawati Kanwar v. Panmal Lodha, 45 Cal WN 1002, the High Court of Calcutta held that an appeal to the Privy Council cannot be certified if the High Court confirms the judgment of a single Judge trying an original proceedings, unless it involves a substantial question of law. In a recent case Ladli Prasad Jaiswal v. The Karnal Distillery Co. Ltd., C. A. 535 of 1960, D/- 17-12-1962: (AIR 1963 SC 1279 ) this Court held that a single Judge hearing a second appeal under S. 100 of the Code of Civil Procedure, 1908 is for purposes of Art. 133(1), the Court immediately, below a Division Bench of the High Court hearing an appeal against his judgment under the Letters Patent. It was observed in that case that the expression Court immediately below used in Art. 133 (1) does not mean Court subordinate to the High Court. " A Court subordinate to the High Court is a Court subject to the superintendence of the High Court, whereas a Court immediately below is the Court from whose decision the appeal has been filed." In that case the Attorney-General appearing for the respondents conceded that a single Judge of a High Court trying a suit or proceeding as a Court of original jurisdiction was a Court immediately below the High Court hearing an appeal from his decision, and it was observed in the judgment of this Court that the concession was properly made.4. In the appeal before us, the judgment of the High Court affirms the judgment of the single Judge and the High Court has not certified that the decision appealed from involves any substantial question of law. The appeal cannot accordingly be entertained. Counsel for the appellant requested that in any event special leave to appeal under Art. 136 of the Constitution be granted. But we are of the view, having regard to all the circumstances that this is not a fit case for granting leave to appeal.
### Response:
0
|
1,046 | RAGINI SINHA Vs. STATE OF BIHAR | 1. These appeals are directedagainstthefinal judgment and order dated 18.01.2008 passed by the High Court of Judicature at Patna in LPA No.530/1998 and order dated 18.01.2008 in LPA No.620/1998 whereby the High Court dismissed the appeals filed by the appellant herein and confirmed the orders of the Single Judge dated 31.03.19a98 passed in CWJC No.12009/1996 and dated 22.04.1998 in CWJC No.12010/1996. 2. The controversy involved in these appeals lies in a narrow compass as would be clear from the few facts mentioned hereinbelow. 3. Two persons, namely, Santosh Kumar and Hira Singh filed their claim petitions before the competent authority under the Minimum Wages Act, 1948 (for shortthe Act) against the appellant herein being case Nos. MW (2) - 19/93 and MW (2) - 20/93. 4. In these claim petitions, the respondents claimed that they had worked with the appellant on her land for the period from 01.01.1991 to 30.10.1992 but she did not pay them their legitimate wages despite rendering their services for her. 5. This, in substance, was their grievance. The two applicants (workers/employees), therefore, claimed that their legitimate wages for the period in question be determined in the light of the provisions of the Act and the claimants be accordingly paid their minimum wages for the period in question by the appellant. 6. The appellant contested the matter. An enquiry was accordingly held. Report from the concerned authority was also called for. By order dated 29.10.1995 the competent authority allowed the claim petitions of the two workers and accordingly directed the appellant (employer) to pay them wages as determined along with the penalty amount awarded by the authority. 7. The appellant felt aggrieved and filed appeal before the appellate authority under the Act. By order dated 08.10.1996, the appellate authority dismissed the appeal and affirmed the order of the competent authority. 8. The appellant felt aggrieved and filed writ petition in the High Court at Patna. By orders dated 31.03.1998 and 22.04.1998, the Single Judge of the High Court dismissed the writ petitions. The appellant felt aggrieved and filed LPAs before the Division Bench inthe HighCourt. By impugned orders, the Division Bench dismissed the appeals, which have given rise to filing of these appeals by way of special leave by the appellant(employer) in this Court. 9. The short question, which arises for consideration in these appeals, is whether the High Court was justified in upholding the orders passed by the two authorities under the Act. 10. We have heard Mr. Vivek Singh, learned counsel for the appellant and Mr. Gopal Singh, learned counsel for the respondents and have also perused the written submissions filed by the counsel for the appellant. 11. Having heard the learned counsel for the parties and on perusal of the record of the case and the written submissions of the learned counsel, we find no merit in these appeals. 12. In our considered opinion, no case has been made out to call for any interference in the impugned orders for more than one reason. Firstly, what is involved in this case is a pure question of fact which cannot be gone into in these appeals; Secondly, the question as to whether the two workers ever worked with the appellant and, if so, for how much period and how much wages were payable to them by their employer are the material questions, which were gone into by the competent authority and appellateauthority and decidedin favour of the two workers. A concurrent finding of fact recorded on these issues by the two authorities was binding on the High Court while deciding the writ petitions and theintra Courtappeals; Thirdly, the writ Court rightly dismissed the writ petitions inter alia on the ground that two workers in whose favour the orders had been passed by the authorities under the Act were necessary parties in the writ petitions and since they were not impleaded in the writ petitions, the writ petitions were liable to be dismissed on this ground alone; Fourthly, even in the intra Court appeals, the appellant though filed an application for their impleadment but it was done after a long lapse of time and, therefore, the Division Bench rightly dismissed the application on the ground of delay and laches. Moreover, in the meantime, both the workers also expired and their legal representatives were not made parties either in theintraCourt appeals or in these appeals. This ground is, therefore, enough for dismissal of the writ petitions,intraCourt appeals and these appeals. 13. That apart, we find that the claim in question relates to the year 1991 and pertains to the payment of minimum wages payable to two workers, who are now dead and not represented before this Court. 14. Even then we examined the appellants case on merits. We, however, find that the appellant has not been able to make out any case on merits. 15. The only grievance of the appellant before the High Court was that she was not afforded an adequate opportunity in the proceedings and secondly penalty imposed by the authorities on her was excessive in quantum and hence either it should be set aside or reduced to some extent. 16. We find no merit in the aforementioned submissions. In our view, the appellant was afforded a sufficient opportunity to defend and which she also availed of. That apart, no material was produced by the appellant at any stage of the proceedings to show that any prejudice was caused to her. We also find that having regard to the nature of breaches committed by the appellant and which were held proved, the authority was justified in imposing the penalty on the appellant. 17. It is not in dispute that the authority has the power under the Act to impose the penalty, once the breaches alleged against the employer are proved. Neither the appellate authority, nor the writ Court and nor the Division Bench in their respective jurisdiction considered it proper to interfere on any of these issues and, in our view, rightly. 18. | 0[ds]In our considered opinion, no case has been made out to call for any interference in the impugned orders for more than one reason. Firstly, what is involved in this case is a pure question of fact which cannot be gone into in these appeals; Secondly, the question as to whether the two workers ever worked with the appellant and, if so, for how much period and how much wages were payable to them by their employer are the material questions, which were gone into by the competent authority and appellatein favour of the two workers. A concurrent finding of fact recorded on these issues by the two authorities was binding on the High Court while deciding the writ petitions and theappeals; Thirdly, the writ Court rightly dismissed the writ petitions inter alia on the ground that two workers in whose favour the orders had been passed by the authorities under the Act were necessary parties in the writ petitions and since they were not impleaded in the writ petitions, the writ petitions were liable to be dismissed on this ground alone; Fourthly, even in the intra Court appeals, the appellant though filed an application for their impleadment but it was done after a long lapse of time and, therefore, the Division Bench rightly dismissed the application on the ground of delay and laches. Moreover, in the meantime, both the workers also expired and their legal representatives were not made parties either in theor in these appeals. This ground is, therefore, enough for dismissal of the writ petitions,and these appeals.That apart, we find that the claim in question relates to the year 1991 and pertains to the payment of minimum wages payable to two workers, who are now dead and not represented before this Court.Even then we examined the appellants case on merits. We, however, find that the appellant has not been able to make out any case on merits.The only grievance of the appellant before the High Court was that she was not afforded an adequate opportunity in the proceedings and secondly penalty imposed by the authorities on her was excessive in quantum and hence either it should be set aside or reduced to some extent.We find no merit in the aforementioned submissions. In our view, the appellant was afforded a sufficient opportunity to defend and which she also availed of. That apart, no material was produced by the appellant at any stage of the proceedings to show that any prejudice was caused to her. We also find that having regard to the nature of breaches committed by the appellant and which were held proved, the authority was justified in imposing the penalty on the appellant.It is not in dispute that the authority has the power under the Act to impose the penalty, once the breaches alleged against the employer are proved. Neither the appellate authority, nor the writ Court and nor the Division Bench in their respective jurisdiction considered it proper to interfere on any of these issues and, in our view, rightly. | 0 | 1,122 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
1. These appeals are directedagainstthefinal judgment and order dated 18.01.2008 passed by the High Court of Judicature at Patna in LPA No.530/1998 and order dated 18.01.2008 in LPA No.620/1998 whereby the High Court dismissed the appeals filed by the appellant herein and confirmed the orders of the Single Judge dated 31.03.19a98 passed in CWJC No.12009/1996 and dated 22.04.1998 in CWJC No.12010/1996. 2. The controversy involved in these appeals lies in a narrow compass as would be clear from the few facts mentioned hereinbelow. 3. Two persons, namely, Santosh Kumar and Hira Singh filed their claim petitions before the competent authority under the Minimum Wages Act, 1948 (for shortthe Act) against the appellant herein being case Nos. MW (2) - 19/93 and MW (2) - 20/93. 4. In these claim petitions, the respondents claimed that they had worked with the appellant on her land for the period from 01.01.1991 to 30.10.1992 but she did not pay them their legitimate wages despite rendering their services for her. 5. This, in substance, was their grievance. The two applicants (workers/employees), therefore, claimed that their legitimate wages for the period in question be determined in the light of the provisions of the Act and the claimants be accordingly paid their minimum wages for the period in question by the appellant. 6. The appellant contested the matter. An enquiry was accordingly held. Report from the concerned authority was also called for. By order dated 29.10.1995 the competent authority allowed the claim petitions of the two workers and accordingly directed the appellant (employer) to pay them wages as determined along with the penalty amount awarded by the authority. 7. The appellant felt aggrieved and filed appeal before the appellate authority under the Act. By order dated 08.10.1996, the appellate authority dismissed the appeal and affirmed the order of the competent authority. 8. The appellant felt aggrieved and filed writ petition in the High Court at Patna. By orders dated 31.03.1998 and 22.04.1998, the Single Judge of the High Court dismissed the writ petitions. The appellant felt aggrieved and filed LPAs before the Division Bench inthe HighCourt. By impugned orders, the Division Bench dismissed the appeals, which have given rise to filing of these appeals by way of special leave by the appellant(employer) in this Court. 9. The short question, which arises for consideration in these appeals, is whether the High Court was justified in upholding the orders passed by the two authorities under the Act. 10. We have heard Mr. Vivek Singh, learned counsel for the appellant and Mr. Gopal Singh, learned counsel for the respondents and have also perused the written submissions filed by the counsel for the appellant. 11. Having heard the learned counsel for the parties and on perusal of the record of the case and the written submissions of the learned counsel, we find no merit in these appeals. 12. In our considered opinion, no case has been made out to call for any interference in the impugned orders for more than one reason. Firstly, what is involved in this case is a pure question of fact which cannot be gone into in these appeals; Secondly, the question as to whether the two workers ever worked with the appellant and, if so, for how much period and how much wages were payable to them by their employer are the material questions, which were gone into by the competent authority and appellateauthority and decidedin favour of the two workers. A concurrent finding of fact recorded on these issues by the two authorities was binding on the High Court while deciding the writ petitions and theintra Courtappeals; Thirdly, the writ Court rightly dismissed the writ petitions inter alia on the ground that two workers in whose favour the orders had been passed by the authorities under the Act were necessary parties in the writ petitions and since they were not impleaded in the writ petitions, the writ petitions were liable to be dismissed on this ground alone; Fourthly, even in the intra Court appeals, the appellant though filed an application for their impleadment but it was done after a long lapse of time and, therefore, the Division Bench rightly dismissed the application on the ground of delay and laches. Moreover, in the meantime, both the workers also expired and their legal representatives were not made parties either in theintraCourt appeals or in these appeals. This ground is, therefore, enough for dismissal of the writ petitions,intraCourt appeals and these appeals. 13. That apart, we find that the claim in question relates to the year 1991 and pertains to the payment of minimum wages payable to two workers, who are now dead and not represented before this Court. 14. Even then we examined the appellants case on merits. We, however, find that the appellant has not been able to make out any case on merits. 15. The only grievance of the appellant before the High Court was that she was not afforded an adequate opportunity in the proceedings and secondly penalty imposed by the authorities on her was excessive in quantum and hence either it should be set aside or reduced to some extent. 16. We find no merit in the aforementioned submissions. In our view, the appellant was afforded a sufficient opportunity to defend and which she also availed of. That apart, no material was produced by the appellant at any stage of the proceedings to show that any prejudice was caused to her. We also find that having regard to the nature of breaches committed by the appellant and which were held proved, the authority was justified in imposing the penalty on the appellant. 17. It is not in dispute that the authority has the power under the Act to impose the penalty, once the breaches alleged against the employer are proved. Neither the appellate authority, nor the writ Court and nor the Division Bench in their respective jurisdiction considered it proper to interfere on any of these issues and, in our view, rightly. 18.
### Response:
0
|
1,047 | Abdul Motin Vs. Manisankar Maiti and Ors | C.A. Nos. 4667-4668/2018 (@ SLP(C) Nos. 8497-8498/2015, C.A. No. 4669/2018 (@ SLP(C) No. 11708/2015 and C.A. No. 4670/2018 (@ SLP(C) No. 13663/2015Leave granted. The West Bengal College Service Commission (for short, the Commission) prepared a panel for the post of Principal of Non-Government Colleges affiliated to the Universities of the State of West Bengal. In the said panel, Dr. Nandan Bhattacharya ranked first, Dr. Abdul Motin stood second and Dr. Mani Shankar Maity stood third. Since Dr. Bhattacharya refused to accept the offer of appointment for the said post, the Commission recommended the name of Dr. Abdul Motin who ranked second in the panel for appointment as Principal. Thereafter, two writ petitions were filed separately - one by Dr. Mani Shankar Maity and another by Dr. Abdul Motin.2. In Writ Petition being W.P. No. 20024(w) of 2012, Dr. Mani Shankar Maity challenged the acceptability of the Ph.D. degree granted by the Netaji Subhas Open University as an essential academic qualification for the post of Principal. According to him, Dr. Motin who ranked second in the panel was an ineligible candidate as his Ph.D. degree which he obtained from Netaji Subhas Open University, cannot be accepted as a valid Ph.D. degree by the Commission. Dr. Maity contended that since first empanelled candidate viz., Dr. Nandan Bhattacharya having refused to accept the offer for his appointment for the post of Principal, and the second empanelled candidate viz., Dr. Motin being ineligible, he should be appointed as Principal by the Commission.3. On the other hand, in Writ Petition being W.P. No. 10296(w) of 2013, Dr. Abdul Motin sought direction to the concerned Authority for appointing him to the Post of Principal as he ranked second in the panel and the first empanelled candidate viz., Dr. Nandan Bhattacharya refused to accept the appointment for the said post.4. Learned Single Judge of the High Court allowed the writ petition filed by Dr. Maity, and held inter alia that Ph.D. degree obtained by Dr. Motin from Netaji Subhas Open University cannot be accepted as a valid Ph.D. degree for the post of Principal and accordingly, a direction was given to recast the panel for the post of Principal. The writ petition filed by Dr. Motin was dismissed by the learned Single Judge for an identical reason. The learned Single Judge made it clear that Dr. Motin whose Ph.D. degree was conferred by Netaji Subhas Open University did not hold equivalent qualification to that held by Dr. Maity because Ph.D. degree of the latter was conferred by Calcutta University which is a formal conventional university.5. Being aggrieved, Dr. Motin preferred two appeals being MAT No. 1068 of 2014 and MAT No. 20007 of 2014 before the Division Bench of the High Court. The Division Bench dismissed the said appeals with a direction that selection process may be concluded in the light of the judgment and order passed by the learned Single Judge subject to the condition as imposed by it vide the impugned order. Hence, these appeals by special leave being preferred by Dr. Abdul Motin and the other Appellant i.e. the Registrar, Netaji Subhas Open University.6. The only issue that arises in the instant appeals is whether a Ph.D. degree conferred by an Open university under the Netaji Subhash Open University Act, 1997, and a Ph.D. degree conferred by a regular University ought to be treated differently for the purpose of appointment for the post of Principal/Lecturer/Reader etc., in the non-government colleges where such Ph.D. degree is an essential qualification.7. We have heard learned Counsel appearing for the parties and perused the record.8. At this stage, we might note as a matter of fact that Dr. Mani Shankar Maity who ranked third and was proposed to be appointed as Principal in pursuance of the judgments of the High Court, would have retired in January, 2018, even if he had accepted the appointment in pursuance of the said judgments of the High Court. Thus, there is no rival claim on the said post today. Dr. Abdul Motin who ranked second in the panel, has not reached the age of superannuation till date.9. In these circumstances, Mr. Anip Sachthey, learned Counsel appearing on behalf of the Respondent-Commission, states that they have no objection in case Dr. Abdul Motin is appointed to the post of Principal in question. | 1[ds]8. At this stage, we might note as a matter of fact that Dr. Mani Shankar Maity who ranked third and was proposed to be appointed as Principal in pursuance of the judgments of the High Court, would have retired in January, 2018, even if he had accepted the appointment in pursuance of the said judgments of the High Court. Thus, there is no rival claim on the said post today. Dr. Abdul Motin who ranked second in the panel, has not reached the age of superannuation till date13. Having heard learned Counsel appearing for the parties and having considered the ratio in the case of Annamalai University (supra), we are of the view that the effect of that decision is to the contraryIn Annamalai University (supra), this Court observed that the University Grants Commission Act which was enacted by Parliament under Entry 66 List I of the Seventh Schedule to the Constitution of India, was so enacted for effectuating co-ordination and determination of standards in Universities. Its provisions are binding on all universities whether conventional or open and its powers are very broad. The Regulations framed under that Act apply equally to open universities as well as also to formal conventional universities vide para (40), (41) and (42) of the said judgment which read as under:40. The UGC Act was enacted by Parliament in exercise of its power under Entry 66 List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnance of the provisions of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalize educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible41. Was the alternative system envisaged under the Open University Act in substitution of the formal system, is the question. In our opinion, in the matter of ensuring the standard of education, it is not. The distinction between a formal system and informal system is in the mode and manner in which education is imparted. The UGC Act was enacted for effectuating coordination and determination of standards in Universities. The purport and object for which it was enacted must be given full effect42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of Clauses (c), (f), (g) and (h) of Sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC Under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinabove that the functions of UGC are all-pervasive in respect of the matters specified in Clause (d) of Sub-section (1) of Section 12-A and Clause (a) and (c) of Sub-section (2) thereof15. In view of the observations in the case of Annamalai University (supra) and the above directive, we are of the view that as a consequence, Ph.D. degree issued by an Open University and another Ph.D. degree issued by a formal conventional university must, therefore, be treated at par having been so issued under the uniform standards prescribed by University Grants Commission Act. | 1 | 811 | ### 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:
C.A. Nos. 4667-4668/2018 (@ SLP(C) Nos. 8497-8498/2015, C.A. No. 4669/2018 (@ SLP(C) No. 11708/2015 and C.A. No. 4670/2018 (@ SLP(C) No. 13663/2015Leave granted. The West Bengal College Service Commission (for short, the Commission) prepared a panel for the post of Principal of Non-Government Colleges affiliated to the Universities of the State of West Bengal. In the said panel, Dr. Nandan Bhattacharya ranked first, Dr. Abdul Motin stood second and Dr. Mani Shankar Maity stood third. Since Dr. Bhattacharya refused to accept the offer of appointment for the said post, the Commission recommended the name of Dr. Abdul Motin who ranked second in the panel for appointment as Principal. Thereafter, two writ petitions were filed separately - one by Dr. Mani Shankar Maity and another by Dr. Abdul Motin.2. In Writ Petition being W.P. No. 20024(w) of 2012, Dr. Mani Shankar Maity challenged the acceptability of the Ph.D. degree granted by the Netaji Subhas Open University as an essential academic qualification for the post of Principal. According to him, Dr. Motin who ranked second in the panel was an ineligible candidate as his Ph.D. degree which he obtained from Netaji Subhas Open University, cannot be accepted as a valid Ph.D. degree by the Commission. Dr. Maity contended that since first empanelled candidate viz., Dr. Nandan Bhattacharya having refused to accept the offer for his appointment for the post of Principal, and the second empanelled candidate viz., Dr. Motin being ineligible, he should be appointed as Principal by the Commission.3. On the other hand, in Writ Petition being W.P. No. 10296(w) of 2013, Dr. Abdul Motin sought direction to the concerned Authority for appointing him to the Post of Principal as he ranked second in the panel and the first empanelled candidate viz., Dr. Nandan Bhattacharya refused to accept the appointment for the said post.4. Learned Single Judge of the High Court allowed the writ petition filed by Dr. Maity, and held inter alia that Ph.D. degree obtained by Dr. Motin from Netaji Subhas Open University cannot be accepted as a valid Ph.D. degree for the post of Principal and accordingly, a direction was given to recast the panel for the post of Principal. The writ petition filed by Dr. Motin was dismissed by the learned Single Judge for an identical reason. The learned Single Judge made it clear that Dr. Motin whose Ph.D. degree was conferred by Netaji Subhas Open University did not hold equivalent qualification to that held by Dr. Maity because Ph.D. degree of the latter was conferred by Calcutta University which is a formal conventional university.5. Being aggrieved, Dr. Motin preferred two appeals being MAT No. 1068 of 2014 and MAT No. 20007 of 2014 before the Division Bench of the High Court. The Division Bench dismissed the said appeals with a direction that selection process may be concluded in the light of the judgment and order passed by the learned Single Judge subject to the condition as imposed by it vide the impugned order. Hence, these appeals by special leave being preferred by Dr. Abdul Motin and the other Appellant i.e. the Registrar, Netaji Subhas Open University.6. The only issue that arises in the instant appeals is whether a Ph.D. degree conferred by an Open university under the Netaji Subhash Open University Act, 1997, and a Ph.D. degree conferred by a regular University ought to be treated differently for the purpose of appointment for the post of Principal/Lecturer/Reader etc., in the non-government colleges where such Ph.D. degree is an essential qualification.7. We have heard learned Counsel appearing for the parties and perused the record.8. At this stage, we might note as a matter of fact that Dr. Mani Shankar Maity who ranked third and was proposed to be appointed as Principal in pursuance of the judgments of the High Court, would have retired in January, 2018, even if he had accepted the appointment in pursuance of the said judgments of the High Court. Thus, there is no rival claim on the said post today. Dr. Abdul Motin who ranked second in the panel, has not reached the age of superannuation till date.9. In these circumstances, Mr. Anip Sachthey, learned Counsel appearing on behalf of the Respondent-Commission, states that they have no objection in case Dr. Abdul Motin is appointed to the post of Principal in question.
### Response:
1
|
1,048 | State Bank Of India Vs. Bidyut Kumar Mitra | case. In the case of S.K. Sharma (supra), this Court held that violation of any and every procedural provision can not be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. In the present case, we have noticed above that the respondent did not even care to submit the list of documents within the stipulated time. Further, he did not even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has not transgressed any of the principles laid down in the aforesaid judgment whilst conducting and concluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharmas case are of no avail to the respondent. In the case of Nagarjuna Construction Company Limited (supra), this Court observed as follows:- "The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were not supplied to the appellants. Accordingly, the High Court for the first time made reference to the report/inspection notes which were not even referred to by the State Government while exercising revisional power." These observations are of no relevance in the facts and circumstances of the present case. The respondent herein is merely trying to make capital of his own lapse in not submitting the list of documents in time and also not stating the relevance of the documents required to be produced. By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him. 27. At this stage, it would be relevant to make a reference to certain observations made by this Court in the case of Haryana Financial Corporation and Anr. Vs. Kailash Chandra Ahuja ((2008) 9 SCC 31 ), which are as under:- "From the ratio laid down in B. Karunakar1 it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." 28. We may also notice here that there is not much substance in the submission of Mr. Bandopadhyay that mere breach of Rule 50(11) would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under:- "(x) (a) the inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.(b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence:I. inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow:II. submit a list of documents and witnesses that he wants for inquiry:III. be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority. IV. give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at (II) above. Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the employee concerned.(xi) the Inquiry Authority shall, on receipt of the notice for the discovery of production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified." A perusal of the note under Clause 4 of the aforesaid rule would make it obvious that the respondent was not only to submit a list of documents and witnesses but was also required to state the relevancy of the documents and the examination of the witnesses. The respondent himself having not complied with the procedural requirements can hardly complain that a breach of the procedural requirements under Clause xi would ipso facto result in rendering the enquiry null and void. In any event, since the Disciplinary Authority has not relied on any recommendations of the CVC and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings can not be said to be vitiated. 29. In our opinion, the aforesaid observations of this Court are fully applicable to the facts and circumstances of this case. In our opinion, the respondent has failed to prove any prejudice caused which has resulted in miscarriage of justice. In our opinion, the judgment of the Division Bench can not be sustained in law. | 1[ds]25. In our opinion, the Division Bench has erroneously relied on the judgment in D.C. Aggarwals case (supra). As rightly observed by the learned Single Judge, in that case this Court considered a situation where the Disciplinary Authority passed an elaborate order regarding findings against the Charge Sheet Officer agreeing on each charge on which CVC had found against him. In these circumstances, this Court observed that:-"The order is vitiated not because of mechanical exercise of powers or for non-supply of the inquiry report but for relying and acting on material which was not only irrelevant but could not have been looked into. Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of sub-rule (5). But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the disciplinary authority but was examined and relied on, was certainly violative of procedural safeguard and contrary to fair and just inquiry."These observations would not be applicable in the facts of the present case as the Disciplinary Authority did not take into consideration any recommendations of the CVC. The judgment was, therefore, rightly distinguished by the learned Single Judge.26. We may now consider the other judgments relied upon by Mr. Bandopadhyay. In the case of Kisan Degree College (supra), this Court noticed that the respondent was dismissed from service on the basis of an Enquiry Report. In that case, the respondent had at the earliest sought for inspection of the documents. He was, however, told to inspect the same at the time of final arguments in the enquiry. It was, therefore, held that the enquiry proceeding had been conducted in breach of rule of natural justice. The aforesaid judgment would have no relevance in the facts of this case. In the case of S.K. Sharma (supra), this Court held that violation of any and every procedural provision can not be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. In the present case, we have noticed above that the respondent did not even care to submit the list of documents within the stipulated time. Further, he did not even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has not transgressed any of the principles laid down in the aforesaid judgment whilst conducting and concluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharmas case are of no avail to the respondent. In the case of Nagarjuna Construction Company Limited (supra), this Court observed as follows:-"The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were not supplied to the appellants. Accordingly, the High Court for the first time made reference to the report/inspection notes which were not even referred to by the State Government while exercising revisional power."These observations are of no relevance in the facts and circumstances of the present case. The respondent herein is merely trying to make capital of his own lapse in not submitting the list of documents in time and also not stating the relevance of the documents required to be produced. By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him.We may also notice here that there is not much substance in the submission of Mr. Bandopadhyay that mere breach of Rule 50(11) would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under:-"(x) (a) the inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.(b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence:I. inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow:II. submit a list of documents and witnesses that he wants for inquiry:III. be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority. IV. give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at (II) above. Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the employee concerned.(xi) the Inquiry Authority shall, on receipt of the notice for the discovery of production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified."A perusal of the note under Clause 4 of the aforesaid rule would make it obvious that the respondent was not only to submit a list of documents and witnesses but was also required to state the relevancy of the documents and the examination of the witnesses. The respondent himself having not complied with the procedural requirements can hardly complain that a breach of the procedural requirements under Clause xi would ipso facto result in rendering the enquiry null and void. In any event, since the Disciplinary Authority has not relied on any recommendations of the CVC and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings can not be said to be vitiated. | 1 | 6,049 | ### 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:
case. In the case of S.K. Sharma (supra), this Court held that violation of any and every procedural provision can not be said to automatically vitiate the enquiry held or order passed. Except in cases falling under - "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. In the present case, we have noticed above that the respondent did not even care to submit the list of documents within the stipulated time. Further, he did not even care to specify the relevance of the documents sought to be requisitioned. In our opinion, the appellant Bank has not transgressed any of the principles laid down in the aforesaid judgment whilst conducting and concluding the departmental proceedings against the respondent. Therefore, the aforesaid observations in S.K. Sharmas case are of no avail to the respondent. In the case of Nagarjuna Construction Company Limited (supra), this Court observed as follows:- "The basic principles of natural justice seem to have been disregarded by the State government while revising the order. It acted on materials which were not supplied to the appellants. Accordingly, the High Court for the first time made reference to the report/inspection notes which were not even referred to by the State Government while exercising revisional power." These observations are of no relevance in the facts and circumstances of the present case. The respondent herein is merely trying to make capital of his own lapse in not submitting the list of documents in time and also not stating the relevance of the documents required to be produced. By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him. 27. At this stage, it would be relevant to make a reference to certain observations made by this Court in the case of Haryana Financial Corporation and Anr. Vs. Kailash Chandra Ahuja ((2008) 9 SCC 31 ), which are as under:- "From the ratio laid down in B. Karunakar1 it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non- supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." 28. We may also notice here that there is not much substance in the submission of Mr. Bandopadhyay that mere breach of Rule 50(11) would give rise to a presumption of prejudice having been caused to the respondent. The aforesaid rule is as under:- "(x) (a) the inquiring authority shall where the employee does not admit all or any of the articles of charge furnish to such employee a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be proved.(b) The Inquiring Authority shall also record an order that the employee may for the purpose of preparing his defence:I. inspect and take notes of the documents listed within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow:II. submit a list of documents and witnesses that he wants for inquiry:III. be supplied with copies of statements of witnesses, if any, recorded earlier and the Inquiring Authority shall furnish such copies not later than three days before the commencement of the examination of the witnesses by the Inquiring Authority. IV. give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Authority may allow for the discovery or production of the documents referred to at (II) above. Note: The relevancy of the documents and the examination of the witnesses referred to at (II) above shall be given by the employee concerned.(xi) the Inquiry Authority shall, on receipt of the notice for the discovery of production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified." A perusal of the note under Clause 4 of the aforesaid rule would make it obvious that the respondent was not only to submit a list of documents and witnesses but was also required to state the relevancy of the documents and the examination of the witnesses. The respondent himself having not complied with the procedural requirements can hardly complain that a breach of the procedural requirements under Clause xi would ipso facto result in rendering the enquiry null and void. In any event, since the Disciplinary Authority has not relied on any recommendations of the CVC and the respondent has failed to plead or prove any prejudice having been caused, the disciplinary proceedings can not be said to be vitiated. 29. In our opinion, the aforesaid observations of this Court are fully applicable to the facts and circumstances of this case. In our opinion, the respondent has failed to prove any prejudice caused which has resulted in miscarriage of justice. In our opinion, the judgment of the Division Bench can not be sustained in law.
### Response:
1
|
1,049 | Kartar Singh & Another Vs. Union of India & Others | Hegde, J.1. This appeal by certificate arises from a writ petition filed by the appellant in the High Court of Punjab and Haryana. That writ petition was summarily dismissed yet it became necessary for the High Court to grant a certificate under Art. 133 (1) (a) of the Constitution as the property in dispute was worth more than Rs. 20,000/-.2. The family of Mahant Janki Nath was the owner of the properties with which we are concerned in this appeal. On May 3, 1945, Mahant Janki Nath as the karta of his family mortgaged those properties in favour of one Fauzdar for Rs. 4,000/-. Necessary mutation was effected in the revenue records. Mahant Janki Nath sold a portion of the mortgaged properties to Islam Din on October 12, 1946. He sold the remaining portion to Ali Mohd. and two others on November 29, 1946. The vendees of both those deeds migrated to Pakistan after the partition of India. Hence the properties purchased by them became evacuee properties. On November 12,1949 the appellant purported to purchase the same property from some of the heirs of Janki Nath.Thereafter on December 29, 1959, he deposited with the competent officer Rs. 4,000/- due to Fouzdar who had also become an evacuee. The competent officer thinking that the property in question was a composite property received the same and allowed the mortgage in favour of Fouzdar to be redeemed, being ignorant of the fact that the properties in question had been sold to certain evacuees. The Tehsildar (Sales) cum-Managing Officer, Gurdaspur by his order dated January 31, 1966 held that the property in question is evacuee property and not composite property. The appellant appealed to the Assistant Settlement Commissioner against the order of the Tehsildar. The Assistant Settlement Commissioner set aside the order of the Tehsildar on the ground that it was without jurisdiction because the property in question had already been declared composite. The Respondent No. 7 herein took up the matter in appeal to the Chief Settlement Commissioner as a portion of that land had been allotted to him. The Chief Settlement Commissioner accepted that appeal. He held that the property in question was not composite property as its original owner had sold the property to muslim evacuees after mortgaging the same to Fouzdar. He further held that the property having vested with the Government, the order of the competent officer allowing the redemption of the property was without jurisdiction. This older was confirmed by the Chief Settlement Commissioner. That order was challenged, by the appellant in the writ petition referred to earlier.3. The only point urged by Mr. S. P. Sinha, the learned Counsel for the appellant was that the respondent was estopped from contending that the appellant had no right in those properties in view of S. 41 of the Transfer of Property Act. Apart from the fact that this is a prima facie untenable plea, the same has not been taken in the writ petition. Hence we are not called upon to consider that plea. | 0[ds]3. The only point urged by Mr. S. P. Sinha, the learned Counsel for the appellant was that the respondent was estopped from contending that the appellant had no right in those properties in view of S. 41 of the Transfer of Property Act. Apart from the fact that this is a prima facie untenable plea, the same has not been taken in the writ petition. Hence we are not called upon to consider that plea. | 0 | 555 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
Hegde, J.1. This appeal by certificate arises from a writ petition filed by the appellant in the High Court of Punjab and Haryana. That writ petition was summarily dismissed yet it became necessary for the High Court to grant a certificate under Art. 133 (1) (a) of the Constitution as the property in dispute was worth more than Rs. 20,000/-.2. The family of Mahant Janki Nath was the owner of the properties with which we are concerned in this appeal. On May 3, 1945, Mahant Janki Nath as the karta of his family mortgaged those properties in favour of one Fauzdar for Rs. 4,000/-. Necessary mutation was effected in the revenue records. Mahant Janki Nath sold a portion of the mortgaged properties to Islam Din on October 12, 1946. He sold the remaining portion to Ali Mohd. and two others on November 29, 1946. The vendees of both those deeds migrated to Pakistan after the partition of India. Hence the properties purchased by them became evacuee properties. On November 12,1949 the appellant purported to purchase the same property from some of the heirs of Janki Nath.Thereafter on December 29, 1959, he deposited with the competent officer Rs. 4,000/- due to Fouzdar who had also become an evacuee. The competent officer thinking that the property in question was a composite property received the same and allowed the mortgage in favour of Fouzdar to be redeemed, being ignorant of the fact that the properties in question had been sold to certain evacuees. The Tehsildar (Sales) cum-Managing Officer, Gurdaspur by his order dated January 31, 1966 held that the property in question is evacuee property and not composite property. The appellant appealed to the Assistant Settlement Commissioner against the order of the Tehsildar. The Assistant Settlement Commissioner set aside the order of the Tehsildar on the ground that it was without jurisdiction because the property in question had already been declared composite. The Respondent No. 7 herein took up the matter in appeal to the Chief Settlement Commissioner as a portion of that land had been allotted to him. The Chief Settlement Commissioner accepted that appeal. He held that the property in question was not composite property as its original owner had sold the property to muslim evacuees after mortgaging the same to Fouzdar. He further held that the property having vested with the Government, the order of the competent officer allowing the redemption of the property was without jurisdiction. This older was confirmed by the Chief Settlement Commissioner. That order was challenged, by the appellant in the writ petition referred to earlier.3. The only point urged by Mr. S. P. Sinha, the learned Counsel for the appellant was that the respondent was estopped from contending that the appellant had no right in those properties in view of S. 41 of the Transfer of Property Act. Apart from the fact that this is a prima facie untenable plea, the same has not been taken in the writ petition. Hence we are not called upon to consider that plea.
### Response:
0
|
1,050 | V.R. Sadagopa Naidu (decreased) and after him his legal representatives & Others Vs. Bakthavatsalam & Another | under the existing law. The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected. In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. Some other directions were also given in the decree, with which however we are not concerned. 3. On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathsalam was the issue of that marriage, being born of Padmavathi to Sadagopa. The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa. Assuming however for arguments sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act. 1949, and so, the plaintiff would have all the rights of legitimate son vis-a-vis the coparcenary to which his father belonged. The validity of the Act was unsuccessfully challenged. Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Against this decision of the High Court the present appeal has been filed by the defendants with special leave. 4. In support of the appeal Mr. Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage. Learned Counsel wanted to say that the findings of the High Court on those points were vitiated by misreading of important items of evidence. He could not however point out any such misreading nor any other error to justify our reassessment of the evidence. 5. Having failed in this attempt Mr. Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa in spite of the provisions of the Hindu Marriages Validity Act, 1949. According to the learned Counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act. 6. The relevant provision of the Act is in S. 3 and is in these words:-"Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu Law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub-castes or sects." 7. For his proposition the learned Counsel could not cite any authority; and that is natural because the contention raised is entirely misconceived and can be characterized as extravagant. He tried to persuade us however that a proper construction of the words used in the section justifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected. He conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegitimate then. The illegitimate children, he argues, were not made legitimate by this Act. For that purpose an express provision was necessary, according to the learned Counsel. In support of his arguments he has drawn our attention to the workings of S. 1 of the Hindu Widows Re-marriage Act, 1856, which is in these words:-"No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu law to the contrary notwithstanding." 8. The absence of any phrase similar to "the issue of no such marriage shall be illegitimate" in the Hindu Marriages Validity Act, 1949, is claimed by the learned Counsel to support his contention. 9. We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in S. 1 of the Hindu Widows Re-marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate. These words were put in the section by the legislature in 1856 as a matter of abundant caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different castes, sub-castes and sects. It is idle to contend that the object of the legislature was only to regularise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate. 10. We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the Courts below, viz., it was a valid Hindu marriage and Bhakthavathsalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters. | 0[ds]9. We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in S. 1 of the Hindu Widows Re-marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate. These words were put in the section by the legislature in 1856 as a matter of abundant caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different castes, sub-castes and sects. It is idle to contend that the object of the legislature was only to regularise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate10. We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the Courts below, viz., it was a valid Hindu marriage and Bhakthavathsalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.. We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in S. 1 of the Hindu Widows Re-marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate. These words were put in the section by the legislature in 1856 as a matter of abundant caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different castes, sub-castes and sects. It is idle to contend that the object of the legislature was only to regularise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate10. We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the Courts below, viz., it was a valid Hindu marriage and Bhakthavathsalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters. | 0 | 1,344 | ### 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:
under the existing law. The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected. In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint. Some other directions were also given in the decree, with which however we are not concerned. 3. On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathsalam was the issue of that marriage, being born of Padmavathi to Sadagopa. The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa. Assuming however for arguments sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act. 1949, and so, the plaintiff would have all the rights of legitimate son vis-a-vis the coparcenary to which his father belonged. The validity of the Act was unsuccessfully challenged. Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Against this decision of the High Court the present appeal has been filed by the defendants with special leave. 4. In support of the appeal Mr. Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage. Learned Counsel wanted to say that the findings of the High Court on those points were vitiated by misreading of important items of evidence. He could not however point out any such misreading nor any other error to justify our reassessment of the evidence. 5. Having failed in this attempt Mr. Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa in spite of the provisions of the Hindu Marriages Validity Act, 1949. According to the learned Counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act. 6. The relevant provision of the Act is in S. 3 and is in these words:-"Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu Law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub-castes or sects." 7. For his proposition the learned Counsel could not cite any authority; and that is natural because the contention raised is entirely misconceived and can be characterized as extravagant. He tried to persuade us however that a proper construction of the words used in the section justifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected. He conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegitimate then. The illegitimate children, he argues, were not made legitimate by this Act. For that purpose an express provision was necessary, according to the learned Counsel. In support of his arguments he has drawn our attention to the workings of S. 1 of the Hindu Widows Re-marriage Act, 1856, which is in these words:-"No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the woman having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any interpretation of Hindu law to the contrary notwithstanding." 8. The absence of any phrase similar to "the issue of no such marriage shall be illegitimate" in the Hindu Marriages Validity Act, 1949, is claimed by the learned Counsel to support his contention. 9. We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in S. 1 of the Hindu Widows Re-marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the issue of the marriage was legitimate. These words were put in the section by the legislature in 1856 as a matter of abundant caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different castes, sub-castes and sects. It is idle to contend that the object of the legislature was only to regularise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate. 10. We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the Courts below, viz., it was a valid Hindu marriage and Bhakthavathsalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.
### Response:
0
|
1,051 | Lala Kapurchand Godha & Others Vs. Mir Nawab Himayatalikhan Azamjah | effectual only if authorised or ratified by the debtor. In India, however, the words of S. 41 of the Contract Act leave no room for doubt, and when the appellants have accepted performance of the promise from a third person, they cannot afterwards enforce it against the promisor, namely, the respondent.9. When a statute clearly covers a case, it is hardly necessary to refer to decisions. In deference, however, to the arguments advanced on behalf of the appellants, we refer to the two decisions on which learned Counsel for the appellants has relied. One is the decision in Day v. Melea, (1889) 22 QBD 610. In that case the plaintiffs made a claim against the defendants for a sum of money as damages for breach of contract; the defendants sent a cheque for a less amount stating that it was in full payment of all demands. The plaintiffs kept the cheque stating they did so on account and brought an action for the balance of their claim. It was held that keeping the cheque was not as a matter of law conclusive that there was an accord and satisfaction of the claim; but that it was a question of fact on what terms the cheque was kept. We do not think that that decision is of any help to the appellants. As Lord Justice Bowen said in (1889) 22 QBD 610."If a person sends a sum of money on the terms that it is to be taken, if at all, in satisfaction of a larger claim; and if the money is kept it is a question of fact as to the terms upon which it is so kept. Accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken in satisfaction of the claim, and to cause him to act upon that view. In either case it is a question of fact." (p. 613)We have already referred to the facts which are clearly established by the evidence in this case. Those facts clearly established that the appellants took the second instalment in full satisfaction of their claim. The second decision relied on behalf of the appellants Neuchatel Asphalte Co. Ltd. v. Barnett, (1957) 1 All ER 362 also proceeded on a similar ground. In that case the claim of the plaintiff company amounted to ?259 but the defendant raised some minor queries which might reduce it by ? 14 or ? 15. The defendant then sent a cheque for ? 125 and stated in a covering letter that this sum was "on account" pending the receipt of the plaintiffs reply to outstanding queries in connection with the work done. Some time later the defendant enclosed a further cheque for? 75 and on the back of the cheque was endorsed in full and final settlement of the account." The cheque was accepted by the plaintiff company, which later sued for the balance of the amount of the claim. It was held that having regard to the correspondence and the surrounding circumstances, there was no intention on the part of the plaintiff company to accept the cheque for ? 75 in full satisfaction of the plaintiffs claim, because the words "in full and final settlement of the account" typed on the back of the cheque were inconsistent with the main object and intention of the transaction particulars since (a) the covering letter sent by the defendants plainly imported that the cheque was sent only on account and not in full and final settlement, and (b) it could not reasonably be supposed that in the circumstances, the plaintiff company had agreed to a reduction of the amount claimed. The facts of the case before us are entirely different. The appellants were clearly and unambiguously told that unless they gave a full satisfaction of their claim, they would not be paid the amount. The appellants were left in no doubt as to the condition on which payment would be made to them. The appellants clearly accepted the condition and recorded full satisfaction on all the promissory notes. It is now impossible to accept the position that the appellants reserved their right to sue the respondent for the balance of the amount. In Hirachand Punamchand v. Temple, (1911) 2 KB 330 the father of a debtor wrote to the creditor offering an amount less than that of the debt in full settlement of the debt end enclosing a draft for that amount. The creditor cashed and retained the proceeds of the draft and afterwards brought an action against the debtor for the balance of the debt. It was held that the creditor must be taken to have accepted the amount received by him on the terms upon which it was offered and therefore he could not maintain the action. The case was considered under the English law and it was observed that assuming that there was no accord and satisfaction in the strict sense of the law in England, it could still be held that the creditor had ceased really to be holder of the negotiable instrument on which he sued. With the niceties of English law in the matter of accord and satisfaction we are not concerned. The position in the present case is that the appellants must have known that they could receive the second instalment and retain the first instalment by accepting the condition on which the sum of Rs. 20 lacs was offered to them, namely, that they must record a full satisfaction of their claim. They accepted the money on the condition on which it was offered and it is not now open to them to say, either in fact or in law, that they accepted the money but not the condition. | 0[ds]We may here state that no plea was raised by the appellants to the effect that the endorsements on the promissory notes had been obtained by coercion, and no issue was struck between the parties as to the endorsements on the promissory notes having been obtained by coercion. That being the position, what is the effect of Madhava Raos evidence? The clear effect is that the authorities who were paying the money in discharge of the debt of the respondent made it clear that they would pay the money only if a full satisfaction of the claim was given by the appellants. The appellants after some initial protests agreed and duly discharged all the promissory notes by endorsing thereon full payment and satisfaction. The question of coercion was introduced as and by way of after-thought. Two facts seem to be clearly established by the evidence of Madhava Rao. One is that the authorities refused to pay the second instalment unless full satisfaction of the claim was endorsed in accordance with the recommendation of the Committee; the second is that the appellants did record full payment in satisfaction of the promissory notes before they received the money. In our opinion, these two facts clearly established the case of the respondent that the appellants had given a full discharge when they received the second instalment. Indeed, the evidence of Madhava Rao is supported by the evidence of Kapurchand Godha. Kapurchand Godha said that when he presented the receipt Ex. C to Madhava Rao the latter said that he would not accept the receipt in that form. Madhava Rao then took Kapurchand to the Accountant-General. Kapurchand was asked to produce the promissory notes and was told that unless the promissory notes were endorsed with full satisfaction no payment would beevidence is in accord with the evidence of Madhava Rao and again establishes that the appellants when they received the second and the last instalment of Rs. 8,75,000/- gave a full discharge of their claim and the plea of coercion was later introduced as and by way of an afterthought.7. There was some difference of evidence is to whether Ex. C. bore the signature of Kapurchand when it was first presented to Madhava Rao or whether the signature was later put on it. With that difference we are not now concerned. Nor are we concerned with certain minor discrepancies between the evidence of the two witnesses referred to above. The substantial result of the evidence of the two witnesses to whom we have referred is that whatever reluctance Kapurchand might have had in accepting Rs. 20 lacs in full satisfaction of the claim of the appellants, he ultimately agreed to do so. Not only did he agree, but he actually endorsed full satisfaction and payment on all the promissory notes and thereafter he received payment of the second instalment of Rs. 8,75,000/- which along with the first instalment of Rs. 11,25,000/- made up the sum of Rs. 20 lacs. On these facts which are established by the evidence given on behalf of the appellants themselves, the only conclusion is that there was full satisfaction of the claim ofseems to us that this case is completely covered by S. 63 and illustration (C) thereof. The appellants having accepted payment in full satisfaction of their claim are not now entitled to sue the respondent for the balance. A reference may also be made in this connection to S. 41 of the Contract Act under which when a promise accepts performance of the promise from a third person, he cannot afterwards enforce it against the promiser. There is some English authority to the effect that discharge of a contract by a third person is effectual only if authorised or ratified by the debtor. In India, however, the words of S. 41 of the Contract Act leave no room for doubt, and when the appellants have accepted performance of the promise from a third person, they cannot afterwards enforce it against the promisor, namely, the respondent.9. When a statute clearly covers a case, it is hardly necessary to refer to decisions. In deference, however, to the arguments advanced on behalf of the appellants, we refer to the two decisions on which learned Counsel for the appellants has relied. One is the decision in Dayv. Melea, (1889) 22 QBD610. In that case the plaintiffs made a claim against the defendants for a sum of money as damages for breach of contract; the defendants sent a cheque for a less amount stating that it was in full payment of all demands. The plaintiffs kept the cheque stating they did so on account and brought an action for the balance of their claim. It was held that keeping the cheque was not as a matter of law conclusive that there was an accord and satisfaction of the claim; but that it was a question of fact on what terms the cheque was kept. We do not think that that decision is of any help to thefacts of the case before us are entirely different. The appellants were clearly and unambiguously told that unless they gave a full satisfaction of their claim, they would not be paid the amount. The appellants were left in no doubt as to the condition on which payment would be made to them. The appellants clearly accepted the condition and recorded full satisfaction on all the promissory notes. It is now impossible to accept the position that the appellants reserved their right to sue the respondent for the balance of the amount. In Hirachand Punamchand v. Temple, (1911) 2 KB 330 the father of a debtor wrote to the creditor offering an amount less than that of the debt in full settlement of the debt end enclosing a draft for that amount. The creditor cashed and retained the proceeds of the draft and afterwards brought an action against the debtor for the balance of the debt. It was held that the creditor must be taken to have accepted the amount received by him on the terms upon which it was offered and therefore he could not maintain the action. The case was considered under the English law and it was observed that assuming that there was no accord and satisfaction in the strict sense of the law in England, it could still be held that the creditor had ceased really to be holder of the negotiable instrument on which he sued. With the niceties of English law in the matter of accord and satisfaction we are not concerned. The position in the present case is that the appellants must have known that they could receive the second instalment and retain the first instalment by accepting the condition on which the sum of Rs. 20 lacs was offered to them, namely, that they must record a full satisfaction of their claim. They accepted the money on the condition on which it was offered and it is not now open to them to say, either in fact or in law, that they accepted the money but not the condition. | 0 | 4,282 | ### 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:
effectual only if authorised or ratified by the debtor. In India, however, the words of S. 41 of the Contract Act leave no room for doubt, and when the appellants have accepted performance of the promise from a third person, they cannot afterwards enforce it against the promisor, namely, the respondent.9. When a statute clearly covers a case, it is hardly necessary to refer to decisions. In deference, however, to the arguments advanced on behalf of the appellants, we refer to the two decisions on which learned Counsel for the appellants has relied. One is the decision in Day v. Melea, (1889) 22 QBD 610. In that case the plaintiffs made a claim against the defendants for a sum of money as damages for breach of contract; the defendants sent a cheque for a less amount stating that it was in full payment of all demands. The plaintiffs kept the cheque stating they did so on account and brought an action for the balance of their claim. It was held that keeping the cheque was not as a matter of law conclusive that there was an accord and satisfaction of the claim; but that it was a question of fact on what terms the cheque was kept. We do not think that that decision is of any help to the appellants. As Lord Justice Bowen said in (1889) 22 QBD 610."If a person sends a sum of money on the terms that it is to be taken, if at all, in satisfaction of a larger claim; and if the money is kept it is a question of fact as to the terms upon which it is so kept. Accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent. If accord is a question of agreement, there must be either two minds agreeing or one of the two persons acting in such a way as to induce the other to think that the money is taken in satisfaction of the claim, and to cause him to act upon that view. In either case it is a question of fact." (p. 613)We have already referred to the facts which are clearly established by the evidence in this case. Those facts clearly established that the appellants took the second instalment in full satisfaction of their claim. The second decision relied on behalf of the appellants Neuchatel Asphalte Co. Ltd. v. Barnett, (1957) 1 All ER 362 also proceeded on a similar ground. In that case the claim of the plaintiff company amounted to ?259 but the defendant raised some minor queries which might reduce it by ? 14 or ? 15. The defendant then sent a cheque for ? 125 and stated in a covering letter that this sum was "on account" pending the receipt of the plaintiffs reply to outstanding queries in connection with the work done. Some time later the defendant enclosed a further cheque for? 75 and on the back of the cheque was endorsed in full and final settlement of the account." The cheque was accepted by the plaintiff company, which later sued for the balance of the amount of the claim. It was held that having regard to the correspondence and the surrounding circumstances, there was no intention on the part of the plaintiff company to accept the cheque for ? 75 in full satisfaction of the plaintiffs claim, because the words "in full and final settlement of the account" typed on the back of the cheque were inconsistent with the main object and intention of the transaction particulars since (a) the covering letter sent by the defendants plainly imported that the cheque was sent only on account and not in full and final settlement, and (b) it could not reasonably be supposed that in the circumstances, the plaintiff company had agreed to a reduction of the amount claimed. The facts of the case before us are entirely different. The appellants were clearly and unambiguously told that unless they gave a full satisfaction of their claim, they would not be paid the amount. The appellants were left in no doubt as to the condition on which payment would be made to them. The appellants clearly accepted the condition and recorded full satisfaction on all the promissory notes. It is now impossible to accept the position that the appellants reserved their right to sue the respondent for the balance of the amount. In Hirachand Punamchand v. Temple, (1911) 2 KB 330 the father of a debtor wrote to the creditor offering an amount less than that of the debt in full settlement of the debt end enclosing a draft for that amount. The creditor cashed and retained the proceeds of the draft and afterwards brought an action against the debtor for the balance of the debt. It was held that the creditor must be taken to have accepted the amount received by him on the terms upon which it was offered and therefore he could not maintain the action. The case was considered under the English law and it was observed that assuming that there was no accord and satisfaction in the strict sense of the law in England, it could still be held that the creditor had ceased really to be holder of the negotiable instrument on which he sued. With the niceties of English law in the matter of accord and satisfaction we are not concerned. The position in the present case is that the appellants must have known that they could receive the second instalment and retain the first instalment by accepting the condition on which the sum of Rs. 20 lacs was offered to them, namely, that they must record a full satisfaction of their claim. They accepted the money on the condition on which it was offered and it is not now open to them to say, either in fact or in law, that they accepted the money but not the condition.
### Response:
0
|
1,052 | M/S MAYAVTI TRADING PVT. LTD Vs. PRADYUAT BED MURMAN | also apply to sections 8 and 45 of the Act – since the scope and nature of judicial intervention should not change upon whether a party (intending to defeat the arbitration agreement) refuses to appoint an arbitrator in terms of the arbitration agreement, or moves a proceeding before a judicial authority in the face of such an arbitration agreement. 32. In relation to the nature of intervention, the exposition of the law is to be found in the decision of the Supreme Court in Shin Etsu Chemicals Co. Ltd. v. Aksh Optifibre, (2005) 7 SCC 234 , (in the context of section 45 of the Act), where the Supreme Court has ruled in favour of looking at the issues/controversy only prima facie. 33. It is in this context, the Commission has recommended amendments to sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the Court/Judicial Authority finds that the arbitration agreement does not exist or is null and void. In so far as the nature of intervention is concerned, it is recommended that in the event the Court/Judicial Authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator, under sections 8 and 11 respectively, such a decision will be final and non-appealable. An appeal can be maintained under section 37 only in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator.? 18. Pursuant to the Law Commission recommendations, Section 11(6A) was introduced first by Ordinance and then by the Amendment Act, 2015. The Statement of Objects and Reasons which were appended to the Arbitration and Conciliation (Amendment) Bill, 2015 which introduced the Amendment Act, 2015 read as follows: STATEMENT OF OBJECTS AND REASONS xxx xxx xxx 6. It is proposed to introduce the Arbitration and Conciliation (Amendment) Bill, 2015, to replace the Arbitration and Conciliation (Amendment) Ordinance, 2015, which inter alia, provides for the following, namely:- (i) to amend the definition of ?Court? to provide that in the case of international commercial arbitrations, the Court should be the High Court; (ii) to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India; (iii) an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days; (iv) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues; (v) to provide that the arbitral tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause; (vi) to provide that a model fee Schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of arbitral tribunal, where a High Court appoints arbitrator in terms of section 11 of the Act; (vii) to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast track procedure and the award in such cases shall be made within a period of six months; (viii) to provide for neutrality of arbitrators, when a person is approached in connection with possible appointment as an arbitrator; (ix) to provide that application to challenge the award is to be disposed of by the Court within one year. 7. The amendments proposed in the Bill will ensure that arbitration process becomes more user-friendly, cost effective and lead to expeditious disposal of cases. xxx xxx xxx? 19. A reading of the Law Commission Report, together with the Statement of Objects and Reasons, shows that the Law Commission felt that the judgments in SBP & Co. (supra) and Boghara Polyfab (supra) required a relook, as a result of which, so far as Section 11 is concerned, the Supreme Court or, as the case may be, the High Court, while considering any application under Section 11(4) to 11(6) is to confine itself to the examination of the existence of an arbitration agreement and leave all other preliminary issues to be decided by the arbitrator.? 10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment Duro Felguera, S.A. (supra) – see paras 48 & 59. | 1[ds]Section 3 of the amendment Act of 2019 insofar as it pertains to this omission has not yet been brought into force. The omission is pursuant to a High Level Committee Review regarding institutionalization of arbitration in India, headed by Justice B. N. Srikrishna. The Report given by this Committee is dated 30 th July, 2017. The omission of the sub-section is not so as to resuscitate the law that was prevailing prior to the amendment Act ofit can be seen that after the amendment Act of 2019, Section 11(6A) has been omitted because appointment of arbitrators is to be done institutionally, in which case the Supreme Court or the High Court under the old statutory regime are no longer required to appoint arbitrators and consequently to determine whether an arbitration agreement exists.Prior to Section 11(6A), this Court in several judgments beginning with SBP & Co. vs. Patel Engineering Ltd. and Anr. (2005) 8 SCC 618 has held that at the stage of a Section 11(6) application being filed, the Court need not merely confine itself to the examination of the existence of an arbitration agreement but could also go into certain preliminary questions such as stale claims, accord and satisfaction having been reached etc.This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment Duro Felguera, S.A. (supra) – see paras 48 & 59.On the facts of this case, we do not propose to interfere with the impugned decision of 12.03.2019 and, therefore, do not find it necessary to exercise our extraordinary jurisdiction under Article 136 of the Constitution of India.n the facts of this case, we do not propose to interfere with the impugned decision of 12.03.2019 and, therefore, do not find it necessary to exercise our extraordinary jurisdiction under Article 136 of the Constitution of India. | 1 | 4,746 | ### 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:
also apply to sections 8 and 45 of the Act – since the scope and nature of judicial intervention should not change upon whether a party (intending to defeat the arbitration agreement) refuses to appoint an arbitrator in terms of the arbitration agreement, or moves a proceeding before a judicial authority in the face of such an arbitration agreement. 32. In relation to the nature of intervention, the exposition of the law is to be found in the decision of the Supreme Court in Shin Etsu Chemicals Co. Ltd. v. Aksh Optifibre, (2005) 7 SCC 234 , (in the context of section 45 of the Act), where the Supreme Court has ruled in favour of looking at the issues/controversy only prima facie. 33. It is in this context, the Commission has recommended amendments to sections 8 and 11 of the Arbitration and Conciliation Act, 1996. The scope of the judicial intervention is only restricted to situations where the Court/Judicial Authority finds that the arbitration agreement does not exist or is null and void. In so far as the nature of intervention is concerned, it is recommended that in the event the Court/Judicial Authority is prima facie satisfied against the argument challenging the arbitration agreement, it shall appoint the arbitrator and/or refer the parties to arbitration, as the case may be. The amendment envisages that the judicial authority shall not refer the parties to arbitration only if it finds that there does not exist an arbitration agreement or that it is null and void. If the judicial authority is of the opinion that prima facie the arbitration agreement exists, then it shall refer the dispute to arbitration, and leave the existence of the arbitration agreement to be finally determined by the arbitral tribunal. However, if the judicial authority concludes that the agreement does not exist, then the conclusion will be final and not prima facie. The amendment also envisages that there shall be a conclusive determination as to whether the arbitration agreement is null and void. In the event that the judicial authority refers the dispute to arbitration and/or appoints an arbitrator, under sections 8 and 11 respectively, such a decision will be final and non-appealable. An appeal can be maintained under section 37 only in the event of refusal to refer parties to arbitration, or refusal to appoint an arbitrator.? 18. Pursuant to the Law Commission recommendations, Section 11(6A) was introduced first by Ordinance and then by the Amendment Act, 2015. The Statement of Objects and Reasons which were appended to the Arbitration and Conciliation (Amendment) Bill, 2015 which introduced the Amendment Act, 2015 read as follows: STATEMENT OF OBJECTS AND REASONS xxx xxx xxx 6. It is proposed to introduce the Arbitration and Conciliation (Amendment) Bill, 2015, to replace the Arbitration and Conciliation (Amendment) Ordinance, 2015, which inter alia, provides for the following, namely:- (i) to amend the definition of ?Court? to provide that in the case of international commercial arbitrations, the Court should be the High Court; (ii) to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India; (iii) an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days; (iv) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues; (v) to provide that the arbitral tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause; (vi) to provide that a model fee Schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of arbitral tribunal, where a High Court appoints arbitrator in terms of section 11 of the Act; (vii) to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast track procedure and the award in such cases shall be made within a period of six months; (viii) to provide for neutrality of arbitrators, when a person is approached in connection with possible appointment as an arbitrator; (ix) to provide that application to challenge the award is to be disposed of by the Court within one year. 7. The amendments proposed in the Bill will ensure that arbitration process becomes more user-friendly, cost effective and lead to expeditious disposal of cases. xxx xxx xxx? 19. A reading of the Law Commission Report, together with the Statement of Objects and Reasons, shows that the Law Commission felt that the judgments in SBP & Co. (supra) and Boghara Polyfab (supra) required a relook, as a result of which, so far as Section 11 is concerned, the Supreme Court or, as the case may be, the High Court, while considering any application under Section 11(4) to 11(6) is to confine itself to the examination of the existence of an arbitration agreement and leave all other preliminary issues to be decided by the arbitrator.? 10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid judgment as Section 11(6A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment Duro Felguera, S.A. (supra) – see paras 48 & 59.
### Response:
1
|
1,053 | Suresh Dhanuka Vs. Sunita Mohapatra | the negative covenant contained in the Deed of Assignment, was contrary to the provisions of Section 27 of the Indian Contract Act, 1872, or not, we are inclined to accept Mr. Ghoshs submissions that the injunction sought for by the Appellant was not to restrain the Respondent from carrying on trade or business, but from using the Trade Mark which was the subject matter of dispute. Accordingly, the provisions of Section 27 of the Indian Contract Act, 1872, would not be attracted to the facts in this case. For the sake of reference, Section 27 of the above Act is reproduced hereinbelow :- 27. Agreement in restraint of trade, void.- Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exception 1.- Saving of agreement not to carry on business of which goodwill is sold.- One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business. It is obvious that what is declared to be void by virtue of Section 27 is any Agreement to restrain any person from exercising his right to carry on a profession or trade or business and any restraint thereupon by an Agreement would be void. 34. As will be seen from the materials on record, the Appellant did not ask for any injunction against the Respondent from carrying on any trade or business, but he objected to the use by the Respondent of the Trade Mark, in which he had acquired a 50% interest, while selling her products. 35. The conditions in the Deed of Assignment clearly stipulate that all the goods manufactured by the Respondent under the Trade Mark Naturoma would be marketed solely by the Appellant. It was also submitted that the said Trade Mark would be used only in relation to goods connected in the course of trade with both the parties. One of the other conditions of the Deed of Assignment was that both the parties would be entitled to assign their respective shares in the Trade Mark subject to prior written consent of the other party, which presupposes that the parties were the absolute owners of their respective shares in the Trade Mark and even on termination of the joint venture, as has been done in the instant case, neither of the parties would be entitled to use or register the Mark in their own names or jointly with some other party. 36. Accordingly, having regard to the arbitration clause, which is Condition No.10 of the terms and conditions of the Deed of Assignment, the interim order passed on the application under Section 9 of the Arbitration and Conciliation Act, 1996, filed by the Appellant in keeping with the terms and conditions agreed upon between the parties, was justified and within the jurisdiction of the District Judge, Khurda. As we have mentioned hereinbefore, the interim order passed by the learned District Judge, Khurda, restraining the Respondent from selling her products by herself or by any other person, save and except through the Appellant, was apposite to the circumstances. The said order took into consideration the interests of both the parties flowing from the Agreement and the Deed of Assignment, pending decision by an Arbitral Tribunal. The cause of action for the suit filed by the Respondent before the District Judge, Khurda was the incorporation of a Company by the Appellant with his son under the name and style of Naturoma Herbals (P) Ltd. and the subsequent application made before the Registrar of Trade Marks to register Naturoma Herbal in the name of the said Company. It is in that context that the interim order was passed restraining the Appellant from distributing, manufacturing or marketing any of the products in the name of Naturoma or Trade Mark Naturoma Herbal. The said order of injunction did not permit the Respondent to manufacture and market the goods under the said Trade Mark in violation of the provisions of the Deed of Assignment referred to hereinabove. 37. The learned Single Judge of the High Court, while referring to some of the provisions of the Agreement between the parties, apparently overlooked the provisions relating to the use of the Trade Mark contained in the Deed of Assignment. Although, reference was made to Clause 19 of the Agreement, the High Court failed to notice that the same was not contained in the Deed of Assignment, whereby 50% of the right, title and interest of the Respondent in the Trade Mark Naturoma Herbal was assigned in favour of the Appellant absolutely and forever. As has been emphasized hereinbefore, even upon termination of the joint venture under the Agreement between the parties, neither the Appellant nor the Respondent would be entitled to use or register the Mark in their own names or jointly with some other party. In fact, the relevant terms and conditions of the Deed of Assignment had been extracted by the learned Single Judge in the impugned judgment, but the same appear to have been lost sight of while considering the terms and conditions of the Agreement executed between the parties. 38. In our view, this is not a case where money can be an adequate compensation, since the Appellant has apparently acquired a 50% interest in the Trade Mark in question, together with the goodwill of the business in relation to the products in which the Trade Mark is used. 39. We are, therefore, of the view that the High Court erred in reversing the order passed by the District Judge in ARBP No.576 of 2007 filed by the Appellant, under which the status-quo would have been maintained till the dispute was settled in arbitration. 40. | 1[ds]31. As far as the first two questions are concerned, the terms of the Deed of Assignment clearly indicate that the Respondent had of her own volition parted with 50% of her right, title and interest in the Trade Mark Naturoma Herbal with proportional goodwill of the business concerning the goods in respect of which the Mark was used, absolutely and forever, from the date of the Deed, namely, 1st October, 2000. It is no doubt true that on behalf of the Respondent it has been claimed that the Deed of Assignment had never been acted upon and that, in any event, the same had been revoked on 25th September, 2007, when the Agreement dated 1st April, 1999, was cancelled. However, in view of the provisions of the Deed of Assignment, it is yet to be adjudicated upon and decided as to whether by virtue of the revocation of the Deed of Assignment by the Respondent, the Appellant was no longer entitled to the benefits of the Trade Mark which had been transferred to him to the extent of 50% absolutely and forever. In such circumstances, the order passed by the District Judge, Khurda, in ARBP No.576 of 2007, restraining the Respondent from marketing her products through any person, other than the Appellant, was more apposite in the facts of the case, as the rights of both the parties stood protected till such time as a final decision could be taken in arbitral proceedings, which, in effect, is the object and intention of Section 9 of the Arbitration and Conciliation Act, 199632. As far as the third question is concerned, it was inappropriate on the part of the High Court to allow the Respondent to file an affidavit, on which reliance was placed, after the hearing had been concluded and judgment had been reserved, without giving the Appellant an opportunity of dealing with the same. However innocuous the additional affidavit may have been, once the hearing was concluded and judgment was reserved, it would have been prudent on the part of the High Court to have given an opportunity to the Appellant to deal with the same before allowing it to be taken on record. It has been submitted that the additional affidavit which was filed on behalf of the Respondent after the judgment had been reserved by the Appeal Court, only sought to bring on record the proceedings whereby the corrigendum which had been issued by the Trade Mark Registrar on 1st July, 2008, showing the Appellant as the Joint Proprietor of the Trade Mark Naturoma Herbal, had been subsequently cancelled on 26th September, 2008. Since what was produced was a record of the official proceedings, the Appellant could not have been prejudiced since he himself had knowledge of the same33. Coming to the last question, as to whether the invocation of Section 42 of the Specific Relief Act, 1963, to enforce the negative covenant contained in the Deed of Assignment, was contrary to the provisions of Section 27 of the Indian Contract Act, 1872, or not, we are inclined to accept Mr. Ghoshs submissions that the injunction sought for by the Appellant was not to restrain the Respondent from carrying on trade or business, but from using the Trade Mark which was the subject matter of dispute. Accordingly, the provisions of Section 27 of the Indian Contract Act, 1872, would not be attracted to the facts in this case. For the sake of reference, Section 27 of the above Act is reproduced hereinbelow :27. Agreement in restraint of trade, void.Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exception 1.Saving of agreement not to carry on business of which goodwill is sold.One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the businessIt is obvious that what is declared to be void by virtue of Section 27 is any Agreement to restrain any person from exercising his right to carry on a profession or trade or business and any restraint thereupon by an Agreement would be void34. As will be seen from the materials on record, the Appellant did not ask for any injunction against the Respondent from carrying on any trade or business, but he objected to the use by the Respondent of the Trade Mark, in which he had acquired a 50% interest, while selling her products35. The conditions in the Deed of Assignment clearly stipulate that all the goods manufactured by the Respondent under the Trade Mark Naturoma would be marketed solely by the Appellant. It was also submitted that the said Trade Mark would be used only in relation to goods connected in the course of trade with both the parties. One of the other conditions of the Deed of Assignment was that both the parties would be entitled to assign their respective shares in the Trade Mark subject to prior written consent of the other party, which presupposes that the parties were the absolute owners of their respective shares in the Trade Mark and even on termination of the joint venture, as has been done in the instant case, neither of the parties would be entitled to use or register the Mark in their own names or jointly with some other party36. Accordingly, having regard to the arbitration clause, which is Condition No.10 of the terms and conditions of the Deed of Assignment, the interim order passed on the application under Section 9 of the Arbitration and Conciliation Act, 1996, filed by the Appellant in keeping with the terms and conditions agreed upon between the parties, was justified and within the jurisdiction of the District Judge, Khurda. As we have mentioned hereinbefore, the interim order passed by the learned District Judge, Khurda, restraining the Respondent from selling her products by herself or by any other person, save and except through the Appellant, was apposite to the circumstances. The said order took into consideration the interests of both the parties flowing from the Agreement and the Deed of Assignment, pending decision by an Arbitral Tribunal. The cause of action for the suit filed by the Respondent before the District Judge, Khurda was the incorporation of a Company by the Appellant with his son under the name and style of Naturoma Herbals (P) Ltd. and the subsequent application made before the Registrar of Trade Marks to register Naturoma Herbal in the name of the said Company. It is in that context that the interim order was passed restraining the Appellant from distributing, manufacturing or marketing any of the products in the name of Naturoma or Trade Mark Naturoma Herbal. The said order of injunction did not permit the Respondent to manufacture and market the goods under the said Trade Mark in violation of the provisions of the Deed of Assignment referred to hereinabove37. The learned Single Judge of the High Court, while referring to some of the provisions of the Agreement between the parties, apparently overlooked the provisions relating to the use of the Trade Mark contained in the Deed of Assignment. Although, reference was made to Clause 19 of the Agreement, the High Court failed to notice that the same was not contained in the Deed of Assignment, whereby 50% of the right, title and interest of the Respondent in the Trade Mark Naturoma Herbal was assigned in favour of the Appellant absolutely and forever. As has been emphasized hereinbefore, even upon termination of the joint venture under the Agreement between the parties, neither the Appellant nor the Respondent would be entitled to use or register the Mark in their own names or jointly with some other party. In fact, the relevant terms and conditions of the Deed of Assignment had been extracted by the learned Single Judge in the impugned judgment, but the same appear to have been lost sight of while considering the terms and conditions of the Agreement executed between the parties38. In our view, this is not a case where money can be an adequate compensation, since the Appellant has apparently acquired a 50% interest in the Trade Mark in question, together with the goodwill of the business in relation to the products in which the Trade Mark is used39. We are, therefore, of the view that the High Court erred in reversing the order passed by the District Judge in ARBP No.576 of 2007 filed by the Appellant, under which theo would have been maintained till the dispute was settled in arbitration. | 1 | 6,620 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
the negative covenant contained in the Deed of Assignment, was contrary to the provisions of Section 27 of the Indian Contract Act, 1872, or not, we are inclined to accept Mr. Ghoshs submissions that the injunction sought for by the Appellant was not to restrain the Respondent from carrying on trade or business, but from using the Trade Mark which was the subject matter of dispute. Accordingly, the provisions of Section 27 of the Indian Contract Act, 1872, would not be attracted to the facts in this case. For the sake of reference, Section 27 of the above Act is reproduced hereinbelow :- 27. Agreement in restraint of trade, void.- Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exception 1.- Saving of agreement not to carry on business of which goodwill is sold.- One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business. It is obvious that what is declared to be void by virtue of Section 27 is any Agreement to restrain any person from exercising his right to carry on a profession or trade or business and any restraint thereupon by an Agreement would be void. 34. As will be seen from the materials on record, the Appellant did not ask for any injunction against the Respondent from carrying on any trade or business, but he objected to the use by the Respondent of the Trade Mark, in which he had acquired a 50% interest, while selling her products. 35. The conditions in the Deed of Assignment clearly stipulate that all the goods manufactured by the Respondent under the Trade Mark Naturoma would be marketed solely by the Appellant. It was also submitted that the said Trade Mark would be used only in relation to goods connected in the course of trade with both the parties. One of the other conditions of the Deed of Assignment was that both the parties would be entitled to assign their respective shares in the Trade Mark subject to prior written consent of the other party, which presupposes that the parties were the absolute owners of their respective shares in the Trade Mark and even on termination of the joint venture, as has been done in the instant case, neither of the parties would be entitled to use or register the Mark in their own names or jointly with some other party. 36. Accordingly, having regard to the arbitration clause, which is Condition No.10 of the terms and conditions of the Deed of Assignment, the interim order passed on the application under Section 9 of the Arbitration and Conciliation Act, 1996, filed by the Appellant in keeping with the terms and conditions agreed upon between the parties, was justified and within the jurisdiction of the District Judge, Khurda. As we have mentioned hereinbefore, the interim order passed by the learned District Judge, Khurda, restraining the Respondent from selling her products by herself or by any other person, save and except through the Appellant, was apposite to the circumstances. The said order took into consideration the interests of both the parties flowing from the Agreement and the Deed of Assignment, pending decision by an Arbitral Tribunal. The cause of action for the suit filed by the Respondent before the District Judge, Khurda was the incorporation of a Company by the Appellant with his son under the name and style of Naturoma Herbals (P) Ltd. and the subsequent application made before the Registrar of Trade Marks to register Naturoma Herbal in the name of the said Company. It is in that context that the interim order was passed restraining the Appellant from distributing, manufacturing or marketing any of the products in the name of Naturoma or Trade Mark Naturoma Herbal. The said order of injunction did not permit the Respondent to manufacture and market the goods under the said Trade Mark in violation of the provisions of the Deed of Assignment referred to hereinabove. 37. The learned Single Judge of the High Court, while referring to some of the provisions of the Agreement between the parties, apparently overlooked the provisions relating to the use of the Trade Mark contained in the Deed of Assignment. Although, reference was made to Clause 19 of the Agreement, the High Court failed to notice that the same was not contained in the Deed of Assignment, whereby 50% of the right, title and interest of the Respondent in the Trade Mark Naturoma Herbal was assigned in favour of the Appellant absolutely and forever. As has been emphasized hereinbefore, even upon termination of the joint venture under the Agreement between the parties, neither the Appellant nor the Respondent would be entitled to use or register the Mark in their own names or jointly with some other party. In fact, the relevant terms and conditions of the Deed of Assignment had been extracted by the learned Single Judge in the impugned judgment, but the same appear to have been lost sight of while considering the terms and conditions of the Agreement executed between the parties. 38. In our view, this is not a case where money can be an adequate compensation, since the Appellant has apparently acquired a 50% interest in the Trade Mark in question, together with the goodwill of the business in relation to the products in which the Trade Mark is used. 39. We are, therefore, of the view that the High Court erred in reversing the order passed by the District Judge in ARBP No.576 of 2007 filed by the Appellant, under which the status-quo would have been maintained till the dispute was settled in arbitration. 40.
### Response:
1
|
1,054 | M/s. Karfule Private Limited and Another Vs. State of Maharashtra and Others | (India) Ltd., (5) Indo-Burma Petroleum Company Ltd. The petitioners pay sales tax at this stage itself to the above corporations and these corporations then deposit the sales tax in the treasury of the Government. The basic claim raised by the petitioners is that there is always some leakage and evaporation in the motor spirit and the quantity sold by them to the consumers is reduced and as there is no sale at all of such quantity of evaporated or leaked motor spirit, they should not be made liable for any sales tax on such quantity. It has been further submitted that rule 15(3) is liable to be struck down as it makes an unreasonable discrimination as it allows refund of sales tax to the selling trader like Caltex (India) Ltd. but not the purchasing trader like the petitioners. The rule should provide for refund of sales tax to the trader like the petitioners in whose storage the evaporation of motor spirit takes place.We find no force in the above contention of the petitioners. Rule 15(3) of the Rules reads as under :"15. Liability of trader to pay tax. - (1) ..............(2) ................(3) Where any motor spirit purchased by any trader has been stored in the storage installation belonging to a trader who sells it, the quantity of motor spirit lost on account of leakage or evaporation shall be deducted from the total sales on which the tax is payable, if a refund in respect of such quantity is allowed by the trader who has sold such motor spirit." *So far as the above rule is concerned, it comes into play only where the purchasing trader stores the motor spirit in a storage installed and belonging to the selling trader and the loss on account of evaporation or leakage takes place while the motor spirit is stored in the installation of the selling trader. It is further required that it must be established that refund was granted by the selling trader to the purchasing trader in respect of quantity of motor spirit lost on account of evaporation or leakage. The entire case of the petitioners is based on a wrong apprehension of the transaction. It may be noted that sales tax is chargeable only at one stage of the transaction of sale and not on further sales. In the present case the incidence of sales tax arises on the transaction of sale from Caltex (India) Ltd. to the petitioners and the motor spirit then becomes the property of the petitioners. Further sale of the motor spirit by the petitioners to the consumers is not liable to any tax. All the assessment orders clearly go to show that the liability of sales tax has been determined as nil, as would be clear from orders of assessment filed by the petitioners along with the special leave petition. The assessing authority in all the assessment orders has observed as under : "All the purchases are from licensed traders, viz. : (1) Indian Oil Corporation Ltd., (2) Bharat Refineries Ltd., (3) Hindustan Petroleum Corporation Ltd., (4) Caltex (India) Ltd., (5) Indo-Burma Petroleum Co. Ltd. Hence all the sales are allowed as resales. The tax payable by the trader assessed at nil. Issue formal notice of demand accordingly." * Thus it would be clear from the above observations that all the sales made by the petitioners have been considered as resales which are not liable to any tax. In view of these circumstances there is no question of claiming any refund by the petitioners from the Government. So far as the provisions of rule 15(3) are concerned, which allow the refund in case the motor spirit is stored in the storage installation belonging to a trader who sells it is perfectly in order and does not suffer from any illegality inasmuch as the motor spirit still remains in the storage installed by the trader who sells it and the quantity of the motor spirit is reduced on account of evaporation or leakage at the stage of first sale which is liable to tax. So far as the petitioners are concerned, they purchase the motor spirit and make the payment of its price along with the sales tax and thereafter any further sale made by them is not liable to any tax and as such they cannot claim any refund of tax in respect of any quantity of motor spirit being lost on account of evaporation or leakage. There cannot be any dispute that the petitioners paid sales tax on a quantity of motor spirit actually purchased and delivered to them by the selling trader. The provisions of rule 15(3) are thus neither discriminatory nor violative of any provisions of the Act or the Constitution. The petitioners pay the sales tax on the quantity of motor spirit actually purchased by them at the time of the first transaction of sale and admittedly the motor spirit, if any, evaporates or leaks, subsequently from the custody of the petitioners, nobody is claiming any sales tax from the petitioners on any transaction of sale made by them. The petitioners after purchase become the full owner of the motor spirit and they have not been able to show that they were allowed any claim of money or compensation, in respect of any loss or shortage in motor spirit on account of leakage or evaporation, from the selling trader. If they are not entitled to claim any compensation for such loss from the selling trader how can they claim any refund of sales tax from the selling trader, or from the Government ? The basis of the petitioners claim is on a misunderstanding of the provisions of the Act and the Rules as if the liability of sales tax arises on a further sale made by them to the consumers. The petitioners have also not placed the Act and the Rules of other States in order to show that traders in such business of the State of Maharashtra alone are treated differently. | 0[ds]So far as the provisions of rule 15(3) are concerned, which allow the refund in case the motor spirit is stored in the storage installation belonging to a trader who sells it is perfectly in order and does not suffer from any illegality inasmuch as the motor spirit still remains in the storage installed by the trader who sells it and the quantity of the motor spirit is reduced on account of evaporation or leakage at the stage of first sale which is liable to tax. So far as the petitioners are concerned, they purchase the motor spirit and make the payment of its price along with the sales tax and thereafter any further sale made by them is not liable to any tax and as such they cannot claim any refund of tax in respect of any quantity of motor spirit being lost on account of evaporation or leakage. There cannot be any dispute that the petitioners paid sales tax on a quantity of motor spirit actually purchased and delivered to them by the selling trader. The provisions of rule 15(3) are thus neither discriminatory nor violative of any provisions of the Act or the Constitution. The petitioners pay the sales tax on the quantity of motor spirit actually purchased by them at the time of the first transaction of sale and admittedly the motor spirit, if any, evaporates or leaks, subsequently from the custody of the petitioners, nobody is claiming any sales tax from the petitioners on any transaction of sale made by them. The petitioners after purchase become the full owner of the motor spirit and they have not been able to show that they were allowed any claim of money or compensation, in respect of any loss or shortage in motor spirit on account of leakage or evaporation, from the selling trader. If they are not entitled to claim any compensation for such loss from the selling trader how can they claim any refund of sales tax from the selling trader, or from the Government ? The basis of the petitioners claim is on a misunderstanding of the provisions of the Act and the Rules as if the liability of sales tax arises on a further sale made by them to the consumers. The petitioners have also not placed the Act and the Rules of other States in order to show that traders in such business of the State of Maharashtra alone are treated differently. | 0 | 1,718 | ### 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?
### Input:
(India) Ltd., (5) Indo-Burma Petroleum Company Ltd. The petitioners pay sales tax at this stage itself to the above corporations and these corporations then deposit the sales tax in the treasury of the Government. The basic claim raised by the petitioners is that there is always some leakage and evaporation in the motor spirit and the quantity sold by them to the consumers is reduced and as there is no sale at all of such quantity of evaporated or leaked motor spirit, they should not be made liable for any sales tax on such quantity. It has been further submitted that rule 15(3) is liable to be struck down as it makes an unreasonable discrimination as it allows refund of sales tax to the selling trader like Caltex (India) Ltd. but not the purchasing trader like the petitioners. The rule should provide for refund of sales tax to the trader like the petitioners in whose storage the evaporation of motor spirit takes place.We find no force in the above contention of the petitioners. Rule 15(3) of the Rules reads as under :"15. Liability of trader to pay tax. - (1) ..............(2) ................(3) Where any motor spirit purchased by any trader has been stored in the storage installation belonging to a trader who sells it, the quantity of motor spirit lost on account of leakage or evaporation shall be deducted from the total sales on which the tax is payable, if a refund in respect of such quantity is allowed by the trader who has sold such motor spirit." *So far as the above rule is concerned, it comes into play only where the purchasing trader stores the motor spirit in a storage installed and belonging to the selling trader and the loss on account of evaporation or leakage takes place while the motor spirit is stored in the installation of the selling trader. It is further required that it must be established that refund was granted by the selling trader to the purchasing trader in respect of quantity of motor spirit lost on account of evaporation or leakage. The entire case of the petitioners is based on a wrong apprehension of the transaction. It may be noted that sales tax is chargeable only at one stage of the transaction of sale and not on further sales. In the present case the incidence of sales tax arises on the transaction of sale from Caltex (India) Ltd. to the petitioners and the motor spirit then becomes the property of the petitioners. Further sale of the motor spirit by the petitioners to the consumers is not liable to any tax. All the assessment orders clearly go to show that the liability of sales tax has been determined as nil, as would be clear from orders of assessment filed by the petitioners along with the special leave petition. The assessing authority in all the assessment orders has observed as under : "All the purchases are from licensed traders, viz. : (1) Indian Oil Corporation Ltd., (2) Bharat Refineries Ltd., (3) Hindustan Petroleum Corporation Ltd., (4) Caltex (India) Ltd., (5) Indo-Burma Petroleum Co. Ltd. Hence all the sales are allowed as resales. The tax payable by the trader assessed at nil. Issue formal notice of demand accordingly." * Thus it would be clear from the above observations that all the sales made by the petitioners have been considered as resales which are not liable to any tax. In view of these circumstances there is no question of claiming any refund by the petitioners from the Government. So far as the provisions of rule 15(3) are concerned, which allow the refund in case the motor spirit is stored in the storage installation belonging to a trader who sells it is perfectly in order and does not suffer from any illegality inasmuch as the motor spirit still remains in the storage installed by the trader who sells it and the quantity of the motor spirit is reduced on account of evaporation or leakage at the stage of first sale which is liable to tax. So far as the petitioners are concerned, they purchase the motor spirit and make the payment of its price along with the sales tax and thereafter any further sale made by them is not liable to any tax and as such they cannot claim any refund of tax in respect of any quantity of motor spirit being lost on account of evaporation or leakage. There cannot be any dispute that the petitioners paid sales tax on a quantity of motor spirit actually purchased and delivered to them by the selling trader. The provisions of rule 15(3) are thus neither discriminatory nor violative of any provisions of the Act or the Constitution. The petitioners pay the sales tax on the quantity of motor spirit actually purchased by them at the time of the first transaction of sale and admittedly the motor spirit, if any, evaporates or leaks, subsequently from the custody of the petitioners, nobody is claiming any sales tax from the petitioners on any transaction of sale made by them. The petitioners after purchase become the full owner of the motor spirit and they have not been able to show that they were allowed any claim of money or compensation, in respect of any loss or shortage in motor spirit on account of leakage or evaporation, from the selling trader. If they are not entitled to claim any compensation for such loss from the selling trader how can they claim any refund of sales tax from the selling trader, or from the Government ? The basis of the petitioners claim is on a misunderstanding of the provisions of the Act and the Rules as if the liability of sales tax arises on a further sale made by them to the consumers. The petitioners have also not placed the Act and the Rules of other States in order to show that traders in such business of the State of Maharashtra alone are treated differently.
### Response:
0
|
1,055 | Mahadeo Prasad Singh & Anr Vs. Ram Lochan & Ors | terms while the conditions and limitations under which alone the respective mode s can be availed of are prescribed further on by different provisions". (See.... I.R. Commentaries Vol. I, 9th Edn. p. 863). The opening words of the Section "Subject to such conditions and limitations as may be prescribed" put it beyond doubt that there is no wide or unrestricted jurisdiction to order execution or to claim execution in every case in all the modes indicated therein. Prescribed has been defined in Section 2(16) of the Code to mean "prescribed by rules", and "rules", under Section 2(18) means "rules and forms" contained in the First Schedule of the Code or framed by the respective superior Courts in different States under Section 122 or Section 125.24. We are one with the High Court (majority) that this phrase cannot be construed to mean that the powers of the executing Court under this Section are not subject to the other conditions and limitations enacted in the other sections of the Code. For instance, the mode, (b), by attachment and sale of the property of the judgment-debtor, may not be available in respect of property which falls within the exemption of section 60 of the Code. Although ordinarily the decree-holder has an option to choose any particular mode for execution of his money-decree, it will not be correct to say that the Court has absolutely no discretion to place any limitation as to the mode in which the decree is to be executed. The option of the judgment- debtor, for instance, to apply under Order 21. Rule 30, C.P.C. for execution of a decree simultaneously against both the person and the property of the judgment-debtor is subject to exercise by the Court of a judicial discretion vested in it under Order 21, Rule 21, C.P.C.We have already noticed, that under Section 39(1) (d), the decree holder has no indefeasible, substantive right to get a decree of a Court of Small Causes passed in his favour transferred to another Court. Cases are conceivable where the decree is of such a petty amount that the Court of Small Causes thinks that it can easily be executed by it by attachment and sale of the movable property of the judgment debtor. In the instant case, also the decree was for a small amount of Rs. 300 and odd and we understand that the application for transfer was made under clause (d) of Section 39(1). Thus, the decree-holders right to make an application for transfer of his decree under section 39(1) (d) is a m ere procedural right. The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to transfer it to the Court of the Munsif. In other words, the decree-holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution. The first limb of the issue is therefore answered against the appellant.25. As regards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions o f Section 51 are merely procedural in character. A decree-holder gets a right to execute the decree only in accordance with the procedure provided by law in force at the time when the execution is sought. If a mode of procedure different from the one which obtained at the date of the passing of the decree, has been provided by law, the decree-holder is bound to proceed in execution according to the altered procedure.26. The Amendment Act XXIV of 1954 had taken away the power of the transferee court to execute the transferred decree by attachment and sale of the immovable property by making it coterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the prohibition contained in Order 21, Rule 82, Code of Civil Procedure, had no power to execute its decree by sale of immovable property. That being the position, the Court of the Munsif to whom the decree had also been transferred for execution, had also no jurisdiction to order sale of the immovable property of the judgment-debtor. Thus considered, the sale of the immovable property ordered by the Munsif in execution of the decree of the Court of Small Causes transferred to him, was wholly without jurisdiction and a nullity.Once we come to the conclusion that the sale in question was totally null and void, the alternative contention of the appellants with regard to the suit being barred by Section 47 of the Code of Civil Procedure, does not survive.27. This is not a case of an irregular or voidable sale which continues to subsist so long as it is not set aside, but of a sale which was entirely without jurisdiction. It was non est in the eye of law. Such a nullity does not from its very nature, need setting aside.28. As pointed out by this Court in Kiran Singh v. Chaman Paswan, "...it is a fundamental principle, well established that a decree passed by a Court without jurisdiction, is a nullity; and that its invalidity could be set up whenever it is sought to be enforced or relied upon, even at the stage of execution, and even in collateral proceedings".29. Most of the rulings which have been cited in support of their alternative contention by the appellants , were also cited before the High Court and have been rightly distinguished. We need not go into the same.30. Before we part with the judgment, we may, however, note that the amendment made by the U.P. (Act XXIV) of 1954 was deleted by another U. P. (Amendment) Act XIV of 1970, and the unamended sub-section (1) of Section 42, as it existed before the amendment of 1954, was revived. But, this Amendment Act (XIV of 1970) was not given retrospective operation. It did not affect the previous operation of the Amendment Act XXIV of 1954 or anything suffered or done thereunder.31. | 0[ds]In the instant case, the decree was transferred under clause (d) of sub-section (1) of Section 39. Unlike the other clauses (a) to (c) of the sub-section, it seems that under clause (d), the Court has a rational discretion to transfer or not to transfer th e decree passed by it. This is apparent from the word "may" used in the opening part of sub-section (1), and the requirement of recording reasons for the transfer under clause (d). It follows therefore, that under Section 39 (1) a decree-holder has no indefeasible right to get his application for transfer of decree to another Court ipso facto accepted by the Court which passed it, particularly in a case which is not covered by clauses (a), (b) and (c) of thatdealing with the contentions canvassed, we may remind ourselves of some well-known principles of interpretation in regard to the retrospective operation of statutes. As a general rule, a statute which takes away or impairs substantive right s acquired under the existing law is construed to have a prospective operation unless the language of that statute expressly or by inevitable intendment compels a contrary construction. But this presumption as to prospective operation of a statute does not apply to an enactment affecting procedure or practice such as theCode of Civil Procedure. The reason is that no person has a vested right in any course of procedure. "The general principle indeed seems to be that alterations in the procedure are always retrospective, unless there be some good reason against it". (See MullasCode of Civil Procedure, 13th Edn. Vol. I, page 6, and 1958 S.C.R.Section "merely enumerates the different modes of execution in general terms while the conditions and limitations under which alone the respective mode s can be availed of are prescribed further on by different provisions". (See.... I.R. Commentaries Vol. I, 9th Edn. p. 863). The opening words of the Section "Subject to such conditions and limitations as may be prescribed" put it beyond doubt that there is no wide or unrestricted jurisdiction to order execution or to claim execution in every case in all the modes indicated therein. Prescribed has been defined in Section 2(16) of the Code to mean "prescribed by rules", and "rules", under Section 2(18) means "rules and forms" contained in the First Schedule of the Code or framed by the respective superior Courts in different States under Section 122 or Sectionare one with the High Court (majority) that this phrase cannot be construed to mean that the powers of the executing Court under this Section are not subject to the other conditions and limitations enacted in the other sections of the Code. For instance, the mode, (b), by attachment and sale of the property of the judgment-debtor, may not be available in respect of property which falls within the exemption of section 60 of the Code. Although ordinarily the decree-holder has an option to choose any particular mode for execution of his money-decree, it will not be correct to say that the Court has absolutely no discretion to place any limitation as to the mode in which the decree is to be executed. The option of the judgment- debtor, for instance, to apply under Order 21. Rule 30, C.P.C. for execution of a decree simultaneously against both the person and the property of the judgment-debtor is subject to exercise by the Court of a judicial discretion vested in it under Order 21, Rule 21, C.P.C.We have already noticed, that under Section 39(1) (d), the decree holder has no indefeasible, substantive right to get a decree of a Court of Small Causes passed in his favour transferred to another Court. Cases are conceivable where the decree is of such a petty amount that the Court of Small Causes thinks that it can easily be executed by it by attachment and sale of the movable property of the judgment debtor. In the instant case, also the decree was for a small amount of Rs. 300 and odd and we understand that the application for transfer was made under clause (d) of Section 39(1). Thus, the decree-holders right to make an application for transfer of his decree under section 39(1) (d) is a m ere procedural right. The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to transfer it to the Court of the Munsif. In other words, the decree-holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution. The first limb of the issue is therefore answered against theregards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions o f Section 51 are merely procedural in character. A decree-holder gets a right to execute the decree only in accordance with the procedure provided by law in force at the time when the execution is sought. If a mode of procedure different from the one which obtained at the date of the passing of the decree, has been provided by law, the decree-holder is bound to proceed in execution according to the alteredAmendment Act XXIV of 1954 had taken away the power of the transferee court to execute the transferred decree by attachment and sale of the immovable property by making it coterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the prohibition contained in Order 21, Rule 82,Code of Civil Procedure, had no power to execute its decree by sale of immovable property. That being the position, the Court of the Munsif to whom the decree had also been transferred for execution, had also no jurisdiction to order sale of the immovable property of the judgment-debtor. Thus considered, the sale of the immovable property ordered by the Munsif in execution of the decree of the Court of Small Causes transferred to him, was wholly without jurisdiction and a nullity.Once we come to the conclusion that the sale in question was totally null and void, the alternative contention of the appellants with regard to the suit being barred by Section 47 of theCode of Civil Procedure, does notis not a case of an irregular or voidable sale which continues to subsist so long as it is not set aside, but of a sale which was entirely without jurisdiction. It was non est in the eye of law. Such a nullity does not from its very nature, need settingof the rulings which have been cited in support of their alternative contention by the appellants , were also cited before the High Court and have been rightly distinguished. We need not go into thewe part with the judgment, we may, however, note that the amendment made by the U.P. (Act XXIV) of 1954 was deleted by another U. P. (Amendment) Act XIV of 1970, and the unamended sub-section (1) of Section 42, as it existed before the amendment of 1954, was revived. But, this Amendment Act (XIV of 1970) was not given retrospective operation. It did not affect the previous operation of the Amendment Act XXIV of 1954 or anything suffered or done thereunder. | 0 | 4,878 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
terms while the conditions and limitations under which alone the respective mode s can be availed of are prescribed further on by different provisions". (See.... I.R. Commentaries Vol. I, 9th Edn. p. 863). The opening words of the Section "Subject to such conditions and limitations as may be prescribed" put it beyond doubt that there is no wide or unrestricted jurisdiction to order execution or to claim execution in every case in all the modes indicated therein. Prescribed has been defined in Section 2(16) of the Code to mean "prescribed by rules", and "rules", under Section 2(18) means "rules and forms" contained in the First Schedule of the Code or framed by the respective superior Courts in different States under Section 122 or Section 125.24. We are one with the High Court (majority) that this phrase cannot be construed to mean that the powers of the executing Court under this Section are not subject to the other conditions and limitations enacted in the other sections of the Code. For instance, the mode, (b), by attachment and sale of the property of the judgment-debtor, may not be available in respect of property which falls within the exemption of section 60 of the Code. Although ordinarily the decree-holder has an option to choose any particular mode for execution of his money-decree, it will not be correct to say that the Court has absolutely no discretion to place any limitation as to the mode in which the decree is to be executed. The option of the judgment- debtor, for instance, to apply under Order 21. Rule 30, C.P.C. for execution of a decree simultaneously against both the person and the property of the judgment-debtor is subject to exercise by the Court of a judicial discretion vested in it under Order 21, Rule 21, C.P.C.We have already noticed, that under Section 39(1) (d), the decree holder has no indefeasible, substantive right to get a decree of a Court of Small Causes passed in his favour transferred to another Court. Cases are conceivable where the decree is of such a petty amount that the Court of Small Causes thinks that it can easily be executed by it by attachment and sale of the movable property of the judgment debtor. In the instant case, also the decree was for a small amount of Rs. 300 and odd and we understand that the application for transfer was made under clause (d) of Section 39(1). Thus, the decree-holders right to make an application for transfer of his decree under section 39(1) (d) is a m ere procedural right. The Court of Small Causes could in its discretion, for reasons to be recorded, refuse to transfer it to the Court of the Munsif. In other words, the decree-holder had no vested or substantive right to get the decree transferred to the Court of the Munsif for execution. The first limb of the issue is therefore answered against the appellant.25. As regards the second limb of the issue, we find ourselves entirely in agreement with the High Court that the provisions o f Section 51 are merely procedural in character. A decree-holder gets a right to execute the decree only in accordance with the procedure provided by law in force at the time when the execution is sought. If a mode of procedure different from the one which obtained at the date of the passing of the decree, has been provided by law, the decree-holder is bound to proceed in execution according to the altered procedure.26. The Amendment Act XXIV of 1954 had taken away the power of the transferee court to execute the transferred decree by attachment and sale of the immovable property by making it coterminous with that of the transferor Court which, in the instant case, was the Small Cause Court and in view of the prohibition contained in Order 21, Rule 82, Code of Civil Procedure, had no power to execute its decree by sale of immovable property. That being the position, the Court of the Munsif to whom the decree had also been transferred for execution, had also no jurisdiction to order sale of the immovable property of the judgment-debtor. Thus considered, the sale of the immovable property ordered by the Munsif in execution of the decree of the Court of Small Causes transferred to him, was wholly without jurisdiction and a nullity.Once we come to the conclusion that the sale in question was totally null and void, the alternative contention of the appellants with regard to the suit being barred by Section 47 of the Code of Civil Procedure, does not survive.27. This is not a case of an irregular or voidable sale which continues to subsist so long as it is not set aside, but of a sale which was entirely without jurisdiction. It was non est in the eye of law. Such a nullity does not from its very nature, need setting aside.28. As pointed out by this Court in Kiran Singh v. Chaman Paswan, "...it is a fundamental principle, well established that a decree passed by a Court without jurisdiction, is a nullity; and that its invalidity could be set up whenever it is sought to be enforced or relied upon, even at the stage of execution, and even in collateral proceedings".29. Most of the rulings which have been cited in support of their alternative contention by the appellants , were also cited before the High Court and have been rightly distinguished. We need not go into the same.30. Before we part with the judgment, we may, however, note that the amendment made by the U.P. (Act XXIV) of 1954 was deleted by another U. P. (Amendment) Act XIV of 1970, and the unamended sub-section (1) of Section 42, as it existed before the amendment of 1954, was revived. But, this Amendment Act (XIV of 1970) was not given retrospective operation. It did not affect the previous operation of the Amendment Act XXIV of 1954 or anything suffered or done thereunder.31.
### Response:
0
|
1,056 | M/s Mitra S.P. (P) Ltd. & Anr Vs. Dhiren Kumar | or else disciplinary action would be initiated against the workman. Thereafter, the workman was placed under suspension. Domestic enquiry was ordered. The enquiry proceeded exparte. Subsequently, the management dismissed the workman from service w.e.f. 15.09.1998. Aggrieved by the dismissal order, the workman filed I.D. No. 219/1998 before the Labour Court. The Labour Court vide judgment and award dated 23.10.2000 modified the order of dismissal with stoppage of one increment with cumulative effect and ordered for reinstatement of the workman into service, with a direction to the workman to join at the place of his transfer i.e., at Jharsuguda within a period of one month from the date of receipt of the order, failing which, he shall not be entitled to the reinstatement. The Labour Court also further directed that the management shall consider the request of the workman for retransfer to Visakhapatnam or Mangalore after the workman joins at his new station and that if the workman fails to report for duty at Jharsuguda within one month he shall not be entitled to back wages or continuity of service. The management filed W.P. No. 2955/2001 before the learned Single Judge of the High Court. On 22.02.2001 while admitting the writ petition, the learned Single Judge granted interim suspension of the order of the Labour Court. Subsequently, learned Single Judge modified the said interim order granting interim stay subject to the condition of the management complying with Section 17-B of the Industrial Disputes Act. 2.1 It is the case on behalf of the workman that thereafter he reported at Jharsuguda but he was not permitted to join on the ground that no instructions were received from the head office. Therefore, the workman filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for short ID Act) before the Labour Court for recovery of wages from 01.01.1998 to 30.04.2005. The said application under Section 33(C)(2) of the ID Act came to be dismissed by the Labour Court on the ground that the workman did not go to Jharsuguda to join duty. Aggrieved by the same, the workman filed W.P. No. 5271/2009. Both the writ petitions, one, filed by the management against the judgment and award passed by the Labour Court and another, filed by the workman challenging the order passed by the Labour Court dismissing the application under Section 33(C)(2) were heard together. Before the learned Single Judge for the first time the management raised the issue with respect to territorial jurisdiction of the Labour Court. The learned Single Judge dismissed the writ petition preferred by the management by observing that the management shall not be permitted to raise the issue with respect to territorial jurisdiction for the first time before the High Court. At the same time, without any further discussion on merits on the order passed by the Labour Court rejecting the application under Section 33(C)(2) of the ID Act, the learned Single Judge allowed Writ Petition No. 5271/2009 preferred by the workman and set aside the order of the Labour Court rejecting the application under Section 33(C)(2) of the ID Act – M.P. No. 43/2005 dated 16.12.2008. The learned Single Judge observed and held that the workman is entitled for all the benefits in pursuance of the order of the Tribunal in I.D. No. 219 of 1998 with all consequential benefits. 2.2 Feeling aggrieved and dissatisfied with the common judgment and order passed by the learned Single Judge of the High Court in Writ Petition Nos. 2955/2001 and 5271/2009, the management preferred writ appeals before the Division Bench of the High Court. By the common impugned judgment and order, the Division Bench of the High Court has dismissed the appeals as not maintainable by observing and holding that the writ petitions were under Article 227 of the Constitution of India and therefore, the writ appeals before the Division Bench of the High Court would not be maintainable. Hence, the present appeals. 3. We have heard Mr. Siddhartha Dave, learned Senior Advocate, appearing on behalf of the appellant(s) and Mr. K. Parameshwar, learned Advocate, appearing on behalf of the respondent. 4. From the judgment and order passed by the learned Single Judge, it appears that what was challenged before the learned Single Judge was the order passed by the Labour Court rejecting the application under Section 33(C)(2) of the Industrial Disputes Act, 1947 preferred by the workman as well as the original award passed by the Labour Court. Learned Single Judge passed the common judgment and order dismissing the writ petition preferred by the Management in which the Management challenged the original judgment and award passed by the Labour Court and allowed the writ petition preferred by the workman rejecting his Section 33(C)(2) application. 4.1 So far as challenge to the award passed by the Labour Court by the Management is concerned, from the judgment and order passed by the learned Single Judge, it appears that there was only one submission made with respect to territorial jurisdiction and the learned Single Judge negatived the same. Therefore, so far as the order passed by the learned Single Judge dismissing the writ petition preferred by the Management against the original judgment and award by the Labour Court is concerned, the same does not warrant any interference. 4.2 However, at the same time, while allowing the writ petition preferred by the workman challenging the dismissal of application under Section 33(C)(2), from the order passed by the learned Single Judge it appears that there is no discussion at all on the order passed by the Labour Court rejecting the 33(C)(2) application and without any discussion and/or recording any specific findings on the merits of the order passed by the Labour Court rejecting the 33(C)(2) application, the writ petition preferred by the workman has been allowed. The learned Single Judge ought to have considered the writ petition preferred by the workman on merits and ought to have given some findings on the order passed by the Labour Court rejecting the 33(C) (2) application. | 1[ds]4. From the judgment and order passed by the learned Single Judge, it appears that what was challenged before the learned Single Judge was the order passed by the Labour Court rejecting the application under Section 33(C)(2) of the Industrial Disputes Act, 1947 preferred by the workman as well as the original award passed by the Labour Court. Learned Single Judge passed the common judgment and order dismissing the writ petition preferred by the Management in which the Management challenged the original judgment and award passed by the Labour Court and allowed the writ petition preferred by the workman rejecting his Section 33(C)(2) application.4.1 So far as challenge to the award passed by the Labour Court by the Management is concerned, from the judgment and order passed by the learned Single Judge, it appears that there was only one submission made with respect to territorial jurisdiction and the learned Single Judge negatived the same. Therefore, so far as the order passed by the learned Single Judge dismissing the writ petition preferred by the Management against the original judgment and award by the Labour Court is concerned, the same does not warrant any interference.4.2 However, at the same time, while allowing the writ petition preferred by the workman challenging the dismissal of application under Section 33(C)(2), from the order passed by the learned Single Judge it appears that there is no discussion at all on the order passed by the Labour Court rejecting the 33(C)(2) application and without any discussion and/or recording any specific findings on the merits of the order passed by the Labour Court rejecting the 33(C)(2) application, the writ petition preferred by the workman has been allowed. The learned Single Judge ought to have considered the writ petition preferred by the workman on merits and ought to have given some findings on the order passed by the Labour Court rejecting the 33(C) (2) application. | 1 | 1,383 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
or else disciplinary action would be initiated against the workman. Thereafter, the workman was placed under suspension. Domestic enquiry was ordered. The enquiry proceeded exparte. Subsequently, the management dismissed the workman from service w.e.f. 15.09.1998. Aggrieved by the dismissal order, the workman filed I.D. No. 219/1998 before the Labour Court. The Labour Court vide judgment and award dated 23.10.2000 modified the order of dismissal with stoppage of one increment with cumulative effect and ordered for reinstatement of the workman into service, with a direction to the workman to join at the place of his transfer i.e., at Jharsuguda within a period of one month from the date of receipt of the order, failing which, he shall not be entitled to the reinstatement. The Labour Court also further directed that the management shall consider the request of the workman for retransfer to Visakhapatnam or Mangalore after the workman joins at his new station and that if the workman fails to report for duty at Jharsuguda within one month he shall not be entitled to back wages or continuity of service. The management filed W.P. No. 2955/2001 before the learned Single Judge of the High Court. On 22.02.2001 while admitting the writ petition, the learned Single Judge granted interim suspension of the order of the Labour Court. Subsequently, learned Single Judge modified the said interim order granting interim stay subject to the condition of the management complying with Section 17-B of the Industrial Disputes Act. 2.1 It is the case on behalf of the workman that thereafter he reported at Jharsuguda but he was not permitted to join on the ground that no instructions were received from the head office. Therefore, the workman filed an application under Section 33(C)(2) of the Industrial Disputes Act, 1947 (for short ID Act) before the Labour Court for recovery of wages from 01.01.1998 to 30.04.2005. The said application under Section 33(C)(2) of the ID Act came to be dismissed by the Labour Court on the ground that the workman did not go to Jharsuguda to join duty. Aggrieved by the same, the workman filed W.P. No. 5271/2009. Both the writ petitions, one, filed by the management against the judgment and award passed by the Labour Court and another, filed by the workman challenging the order passed by the Labour Court dismissing the application under Section 33(C)(2) were heard together. Before the learned Single Judge for the first time the management raised the issue with respect to territorial jurisdiction of the Labour Court. The learned Single Judge dismissed the writ petition preferred by the management by observing that the management shall not be permitted to raise the issue with respect to territorial jurisdiction for the first time before the High Court. At the same time, without any further discussion on merits on the order passed by the Labour Court rejecting the application under Section 33(C)(2) of the ID Act, the learned Single Judge allowed Writ Petition No. 5271/2009 preferred by the workman and set aside the order of the Labour Court rejecting the application under Section 33(C)(2) of the ID Act – M.P. No. 43/2005 dated 16.12.2008. The learned Single Judge observed and held that the workman is entitled for all the benefits in pursuance of the order of the Tribunal in I.D. No. 219 of 1998 with all consequential benefits. 2.2 Feeling aggrieved and dissatisfied with the common judgment and order passed by the learned Single Judge of the High Court in Writ Petition Nos. 2955/2001 and 5271/2009, the management preferred writ appeals before the Division Bench of the High Court. By the common impugned judgment and order, the Division Bench of the High Court has dismissed the appeals as not maintainable by observing and holding that the writ petitions were under Article 227 of the Constitution of India and therefore, the writ appeals before the Division Bench of the High Court would not be maintainable. Hence, the present appeals. 3. We have heard Mr. Siddhartha Dave, learned Senior Advocate, appearing on behalf of the appellant(s) and Mr. K. Parameshwar, learned Advocate, appearing on behalf of the respondent. 4. From the judgment and order passed by the learned Single Judge, it appears that what was challenged before the learned Single Judge was the order passed by the Labour Court rejecting the application under Section 33(C)(2) of the Industrial Disputes Act, 1947 preferred by the workman as well as the original award passed by the Labour Court. Learned Single Judge passed the common judgment and order dismissing the writ petition preferred by the Management in which the Management challenged the original judgment and award passed by the Labour Court and allowed the writ petition preferred by the workman rejecting his Section 33(C)(2) application. 4.1 So far as challenge to the award passed by the Labour Court by the Management is concerned, from the judgment and order passed by the learned Single Judge, it appears that there was only one submission made with respect to territorial jurisdiction and the learned Single Judge negatived the same. Therefore, so far as the order passed by the learned Single Judge dismissing the writ petition preferred by the Management against the original judgment and award by the Labour Court is concerned, the same does not warrant any interference. 4.2 However, at the same time, while allowing the writ petition preferred by the workman challenging the dismissal of application under Section 33(C)(2), from the order passed by the learned Single Judge it appears that there is no discussion at all on the order passed by the Labour Court rejecting the 33(C)(2) application and without any discussion and/or recording any specific findings on the merits of the order passed by the Labour Court rejecting the 33(C)(2) application, the writ petition preferred by the workman has been allowed. The learned Single Judge ought to have considered the writ petition preferred by the workman on merits and ought to have given some findings on the order passed by the Labour Court rejecting the 33(C) (2) application.
### Response:
1
|
1,057 | Sinha Govindji Vs. Deputy Chief Controller Ofimports and Exports and Others | made on August 3, 1960. The argument on behalf of the respondents is that the provisions of cl. 10 of the Imports (Control) Order, 1955, have been sufficiently complied with by reason of what was stated in the letter of July 2, 1960.6. On a careful consideration of the facts and circumstances as stated in the affidavits of the parties we have come to the conclusion that the petitioner has had no reasonable opportunity of being heard before the cancellation orders were made on August 3, 1960. The cancellation orders are, therefore, bad and must be quashed. Our reasons are the following.It is not disputed that the notice dated May 27, 1960, did not state any ground for the proposed cancellation; it merely referred to cl. 9 without stating on which of the four grounds mentioned therein it was proposed to take action. Naturally, the petitioner stated in its letter dated May 30, 1960, that without knowing on what ground the proposed cancellation was to be made, the petitioner firm was not in a position to show cause. So far there is no dispute between the parties, and it is not seriously urged by the respondents that if the notice stood by itself, it could be held to have given the petitioner a reasonable opportunity of being heard within the meaning of cl. 10. The respondents, however, rely on the letter dated July 2, 1960, in support of their contention that the petitioner has had a reasonable opportunity of showing cause against the cancellation of the two licences.7. On behalf of the petitioner it has been submitted, not without justification, that the letter dated July 2, 1960, related to a different matter, viz., the suspension of the grant of further licences under cl. 8 for which also a reasonable opportunity to be heard had to be given to the petitioner under cl. 10. In its operative part the letter stated: "you are called upon to show cause, within 15 days from the date of this letter, as to why further issue of licences to you should not be suspended under cl. 8". It, therefore, related to proposed action under cl. 8. The respondents, have, however, pointed out that the subject matter of the letter as indicated therein referred to the notices dated May 27, 1960, for cancellation of the licences and it also referred to the earlier, correspondence on the same subject, viz., the petitioners letters dated May 21, 1960, and May 30, 1960; therefore, the, contention is that the petitioner must Know as a result of the reference to the subject-matter and earlier correspondence that the grounds given in the letter related to proposed action both under cl. 8 and cl. 9, even though the operative portion related to cl. 8 only. It is true that the contents of the letter dated July 2, 1960, should be considered from the point of view of substance rather than that of technical rules of construction of statutory instruments. So considered, it is difficult to hold that the letter asked the petitioner to show cause against cancellation of its licences, parti- cularly in the light of the contents of the subsequent letters of the Department which would be referred to presently. Even if we assume that it did so, what is the position? Within 10 days of the receipt of the letter (which was received by the petitioner on July 5, 1960) the petitioners solicitor asked for a copy of the joint investigation proceeding and the report submitted as a result thereof The letter also asked for other relevant documents in order to enable the petitioner to show cause. It said that the petitioner would show cause as soon as the relevant documents were received and it also said that 6. personal hearing would be asked for and prayed that in the meantime no further action should be taken. No reply was given by the respondents to the aforesaid letter of the petitioners solicitor till August 6, 1960, that is, three days after the cancellation orders had been made. The petitioner was not given a copy of the report of the investigation till as much later date, nor was any in- formation given to the petitioner that the copy would not be available and the petitioner must show cause at once. As a matter of fact the petitioner was told nothing in reply to the letter dated July 15, 1960, till three days after the cancellation orders had been made. the cancellation orders blandly stated that no cause had been shown, when in fact the petitioner had specifically asked for an opportunity to show cause. By their letter dated August 6, 1960, the respondents said that the matter would be considered on receipt of a letter of authority from the solicitor in proper form and on stamped paper, without stating that in the meantime cancellation order, had been made. without waiting for any explanation. on August 10, 1960, the solicitor submitted a written authority, saying that it was unnecessary to (, all for it arid that the two licences had been cancelled arbitrarily and without giving the petitioner an opportunity of being heard. The correspondence, then continued with regard to the proposed action under cl. 8 and the petitioner challenged the correctness of the report of the joint investigation proceeding on many essential particulars including the alleged absence of machinery arid equipment. It, is not necessary to enter into details of that correspondence, because the proposed action under cl. 8 is not the subject-matter of the present proceeding. It is enough to state that from what happened after the receipt of the letter dated July 2, 1960, it is abundantly clear that the petitioner has bad no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made on August 3, 1960. There was, in our opinion, a clear violation of the requirement of cl. 10, which embodies the principles of natural justice. | 1[ds]On a careful consideration of the facts and circumstances as stated in the affidavits of the parties we have come to the conclusion that the petitioner has had no reasonable opportunity of being heard before the cancellation orders were made on August 3, 1960. The cancellation orders are, therefore, bad and must be quashed. Our reasons are the following.It is not disputed that the notice dated May 27, 1960, did not state any ground for the proposed cancellation; it merely referred to cl. 9 without stating on which of the four grounds mentioned therein it was proposed to take action. Naturally, the petitioner stated in its letter dated May 30, 1960, that without knowing on what ground the proposed cancellation was to be made, the petitioner firm was not in a position to show cause. So far there is no dispute between the parties, and it is not seriously urged by the respondents that if the notice stood by itself, it could be held to have given the petitioner a reasonable opportunity of being heard within the meaning of cl.is true that the contents of the letter dated July 2, 1960, should be considered from the point of view of substance rather than that of technical rules of construction of statutory instruments. So considered, it is difficult to hold that the letter asked the petitioner to show cause against cancellation of its licences, parti- cularly in the light of the contents of the subsequent letters of the Department which would be referred to presently. Even if we assume that it did so, what is the position? Within 10 days of the receipt of the letter (which was received by the petitioner on July 5, 1960) the petitioners solicitor asked for a copy of the joint investigation proceeding and the report submitted as a result thereof The letter also asked for other relevant documents in order to enable the petitioner to show cause. It said that the petitioner would show cause as soon as the relevant documents were received and it also said that 6. personal hearing would be asked for and prayed that in the meantime no further action should be taken. No reply was given by the respondents to the aforesaid letter of the petitioners solicitor till August 6, 1960, that is, three days after the cancellation orders had been made. The petitioner was not given a copy of the report of the investigation till as much later date, nor was any in- formation given to the petitioner that the copy would not be available and the petitioner must show cause at once. As a matter of fact the petitioner was told nothing in reply to the letter dated July 15, 1960, till three days after the cancellation orders had been made. the cancellation orders blandly stated that no cause had been shown, when in fact the petitioner had specifically asked for an opportunity to show cause. By their letter dated August 6, 1960, the respondents said that the matter would be considered on receipt of a letter of authority from the solicitor in proper form and on stamped paper, without stating that in the meantime cancellation order, had been made. without waiting for any explanation. on August 10, 1960, the solicitor submitted a written authority, saying that it was unnecessary to (, all for it arid that the two licences had been cancelled arbitrarily and without giving the petitioner an opportunity of being heard. The correspondence, then continued with regard to the proposed action under cl. 8 and the petitioner challenged the correctness of the report of the joint investigation proceeding on many essential particulars including the alleged absence of machinery arid equipment. It, is not necessary to enter into details of that correspondence, because the proposed action under cl. 8 is not the subject-matter of the present proceeding. It is enough to state that from what happened after the receipt of the letter dated July 2, 1960, it is abundantly clear that the petitioner has bad no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made on August 3, 1960. There was, in our opinion, a clear violation of the requirement of cl. 10, which embodies the principles of natural justice. | 1 | 3,010 | ### 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:
made on August 3, 1960. The argument on behalf of the respondents is that the provisions of cl. 10 of the Imports (Control) Order, 1955, have been sufficiently complied with by reason of what was stated in the letter of July 2, 1960.6. On a careful consideration of the facts and circumstances as stated in the affidavits of the parties we have come to the conclusion that the petitioner has had no reasonable opportunity of being heard before the cancellation orders were made on August 3, 1960. The cancellation orders are, therefore, bad and must be quashed. Our reasons are the following.It is not disputed that the notice dated May 27, 1960, did not state any ground for the proposed cancellation; it merely referred to cl. 9 without stating on which of the four grounds mentioned therein it was proposed to take action. Naturally, the petitioner stated in its letter dated May 30, 1960, that without knowing on what ground the proposed cancellation was to be made, the petitioner firm was not in a position to show cause. So far there is no dispute between the parties, and it is not seriously urged by the respondents that if the notice stood by itself, it could be held to have given the petitioner a reasonable opportunity of being heard within the meaning of cl. 10. The respondents, however, rely on the letter dated July 2, 1960, in support of their contention that the petitioner has had a reasonable opportunity of showing cause against the cancellation of the two licences.7. On behalf of the petitioner it has been submitted, not without justification, that the letter dated July 2, 1960, related to a different matter, viz., the suspension of the grant of further licences under cl. 8 for which also a reasonable opportunity to be heard had to be given to the petitioner under cl. 10. In its operative part the letter stated: "you are called upon to show cause, within 15 days from the date of this letter, as to why further issue of licences to you should not be suspended under cl. 8". It, therefore, related to proposed action under cl. 8. The respondents, have, however, pointed out that the subject matter of the letter as indicated therein referred to the notices dated May 27, 1960, for cancellation of the licences and it also referred to the earlier, correspondence on the same subject, viz., the petitioners letters dated May 21, 1960, and May 30, 1960; therefore, the, contention is that the petitioner must Know as a result of the reference to the subject-matter and earlier correspondence that the grounds given in the letter related to proposed action both under cl. 8 and cl. 9, even though the operative portion related to cl. 8 only. It is true that the contents of the letter dated July 2, 1960, should be considered from the point of view of substance rather than that of technical rules of construction of statutory instruments. So considered, it is difficult to hold that the letter asked the petitioner to show cause against cancellation of its licences, parti- cularly in the light of the contents of the subsequent letters of the Department which would be referred to presently. Even if we assume that it did so, what is the position? Within 10 days of the receipt of the letter (which was received by the petitioner on July 5, 1960) the petitioners solicitor asked for a copy of the joint investigation proceeding and the report submitted as a result thereof The letter also asked for other relevant documents in order to enable the petitioner to show cause. It said that the petitioner would show cause as soon as the relevant documents were received and it also said that 6. personal hearing would be asked for and prayed that in the meantime no further action should be taken. No reply was given by the respondents to the aforesaid letter of the petitioners solicitor till August 6, 1960, that is, three days after the cancellation orders had been made. The petitioner was not given a copy of the report of the investigation till as much later date, nor was any in- formation given to the petitioner that the copy would not be available and the petitioner must show cause at once. As a matter of fact the petitioner was told nothing in reply to the letter dated July 15, 1960, till three days after the cancellation orders had been made. the cancellation orders blandly stated that no cause had been shown, when in fact the petitioner had specifically asked for an opportunity to show cause. By their letter dated August 6, 1960, the respondents said that the matter would be considered on receipt of a letter of authority from the solicitor in proper form and on stamped paper, without stating that in the meantime cancellation order, had been made. without waiting for any explanation. on August 10, 1960, the solicitor submitted a written authority, saying that it was unnecessary to (, all for it arid that the two licences had been cancelled arbitrarily and without giving the petitioner an opportunity of being heard. The correspondence, then continued with regard to the proposed action under cl. 8 and the petitioner challenged the correctness of the report of the joint investigation proceeding on many essential particulars including the alleged absence of machinery arid equipment. It, is not necessary to enter into details of that correspondence, because the proposed action under cl. 8 is not the subject-matter of the present proceeding. It is enough to state that from what happened after the receipt of the letter dated July 2, 1960, it is abundantly clear that the petitioner has bad no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made on August 3, 1960. There was, in our opinion, a clear violation of the requirement of cl. 10, which embodies the principles of natural justice.
### Response:
1
|
1,058 | D. N. Sanghavi & Sons Vs. Ambalal Tribhuwan Das | 13 (3) (vi) (c) of the C. P. and Berar Letting of Houses and Rent Control Order, 1947. The Nagpur High Court confined itself to that single phrase and did not refer to the object and setting of the Order. In our case the conditions of Section 12 (1) (f), as construed by us, are apparently different from those of clause 13 (3) (vi) (c) of the order. So it is not helpful in this case.14. In Tansukhdas Chhaganlal v. Smt. Shambai, AIR 1954 Nag 160 the Nagpur High Court has held that where a tenant carrying on business in the demised shop converts the business into a partnership business and allows the latter business to be carried on in the demised premises, it would amount to sub-letting because the partnership "was clearly a personality in law distinct from that of the petitioner himself". There also, the High Court was concerned with clause 18 of the aforesaid Order. This statement of law does not appear to be universally true. However, as pointed out earlier, in respect of Rajniklal AIR 1952 Nag 312 (supra) it is sufficient for us to say that this case also is not helpful in this appeal.15. Commr. of Income-tax, West Bengal v. A. W. Figgies and Co., 1954 SCR 171 = (AIR 1953 SC 455 ) and Dulichand Lakshminarayan v. Commr. of Income-tax, Nagpur, 1956 SCR 154 = (AIR 1956 SC 354 ) are concerned with the legal character of a firm in the Income-tax Act. It is held that a firm is a distinct entity different from its partners for purposes of assessment. These decisions are based on particular provisions of that Act which are radically different from the provisions of the Act. So these cases are also not helpful in deciding the present appeal.16. Karsandas Ramji v. Karsanji Kalyanji, AIR 1953 Sau 113 and Gundalapalli Rangamannar Chetty v. Desu Rangiah, AIR 1954 Mad 182 discuss the very question which fell for consideration in Tansukhdas Chhaganlal AIR 1954 Nag 160 (supra). It was held on the facts of these cases that the tenant could not be held to have sub-let the rented premises to the partnership firm because they retained possession over the premises. These cases thus apply the test of occupation by the tenant in finding out whether he has or has not sub-let. These are all the relevant Indian cases cited before us. Sri Patel has also relied on three English cases: Clift v. Taylor, (1948) 2 All ER 113; Tunstall v. Steigmann, (1962) 2 All ER 417 and Gian Singh and Co. v. Devraj Nahar, (1965) 1 All ER 768. Clift takes the same view as Rajniklal AIR 1952 Nag 312 (supra). The decision turned on the meaning of the expression "required the premises for his own occupation" in Section 5 (3) (b) (i) of the Landlord and Tenant Act, 1927. There the landlord carried on a business in a part of the building in dispute; in another part of it the tenant carried on her business. On the eve of the expiry of her lease, she applied for a new lease. Her application was opposed by the landlord on the ground, inter alia, that he required the premises for his own occupation. The facts found were that he had converted his own business into a partnership business. There were six partners including himself. The partnership business had extended considerably so that there was scarcity of accommodation. It appeared that the landlord needed the demised premises for the purpose of his partnership business. So the issue was whether he needed the premises "for his own occupation". The finding was:"(T) he firm and he himself, as its senior partner, had great need for less cramped head office premises, and, in particular, for the free and full use of the ground floor on street level as essential to convenience of office work, for clients, and for display of notices etc., and indeed, it was necessary for the prosperity of the greatly enlarged and still growing business with its ramifications into many allied or compatible departments or activities."It is evident from this finding that the landlord was a managing partner and that he himself along with the firm was to occupy the demised premises after getting possession. This decision, far from helping Sri Patel, helps the appellants in view of the construction placed by us on clause (f) of Section 12 (1). Tunstall (supra) deals with an entirely different set of facts. There the landlord was carrying on business. She gave notice to the tenant that she wanted the rented shop for her own business. The notice was given under the Landlord and Tenant Act, 1954. In the meantime she transferred her business to an incorporated company. The relevant words of Section 31 (g) of that Act are: "to occupy the holding for the purpose ..... of the business to be carried on by the landlord." It was held that the business of an incorporated company was not the business of the landlord, the company being a distinct legal person different from the landlord. Gian Singh (1965) 1 All ER 768 (supra) was concerned with the construction of a particular clause in a covenant forbidding the tenant from assigning his tenancy to a third person. It was claimed by the landlord that the tenant has assigned the premises to a partnership firm of which he was a partner. On the facts of the case, it was held that there was no assignment. We fail to appreciate how these cases help Sri Patel.17. In some of the cases cited by Sri Patel, own has been interpreted virtually as otiose. Nevertheless what it means in the Act would depend on its own context, for a word may take a colour from its context.18. In view of our decision against the respondent on the basis of the construction of Section 12 (1) (f), it is not necessary for us to decide several other points raised by Sri Phadke. | 1[ds]2. It is evident from this passage that the High Court, like the appeal court, has overlooked the words of Section 12 (1) (f) in arriving at its conclusion. The High Court considered that it is an elementary proposition of law that a partnership business is the business of cach and every partner so that it will be "his business". It seems that the High Court was misled by the apparent meaning of this phrase so that the necessity of examining the scheme of the Act and the setting of clause (f) of Section 12 (1) to discover its real meaning was not felt at all. But this is the first thing on which the High Court should have fixed attention. After all, it is a matter of statutory construction. And in such a case all attempts at construction should converge on the statute at hand, lest the reasoning should become abstract and artificial, having no contact with reality. The High Court has sought support from a decision of the erstwhile Nagpur Highreview of these provisions would show that the Act is more strict with respect to the eviction of a tenant from a non-residential accommodation than from a residential accommodation. In the case of a residential accommodation, Section 12 (1) (e) provides for the eviction of a tenant where it is needed for the residence of the landlord or for any member of his family. But he cannot sue for eviction of a tenant from a non-residential accommodation where he needs it for continuing, or starting his major married daughters business. Nor he can evict a tenant from such accommodation for continuing or starting his brothers business. Thus, while cl. (e) of Section 12 (1) is more hospitable to the landlord, clause (f) thereof is more protective of the tenant. Sub-sections (4), (5) (6) of Section 12 also point to this contrast. While the tenant evicted from a residential accommodation gets a respite of 14 months, the tenant evicted from a non-residential accommodation gets not only the said respite but also the prescribed compensation. In many cases the burden of compensation may act as a deterrent to eviction. Having regard to the rigour of clause (f) of Section 12 (1) we think that the phrase "his business" should not receive a wide construction as to the class of persons who may be included in the possessive pronoun his in the phrase, for it would be against legislative policy.The respondent has stated in his evidence that he and his two brothers are carrying on a partnership business in a rented shop in Siyaganj. He has further said that he needs the suit accommodation for that purpose. The appeal court has believed this evidence and has recorded the finding that the respondent bona fide requires the accommodation for his partnership business. But his finding does not fulfill the conditions of cl. (f) of Section 12 (1) as construed by us. Unfortunately for him, the respondent did not lead any evidence to show that the accommodation was needed directly and substantially for his occupation by way of business. He filed the registration certificate showing that the partnership was registered with the Registrar of Firms. The certificate will only prove as to who are the partners of the firm, nothing more. The respondent did not file the deed of partnership. It would have disclosed whether the respondent is a mere sleeping partner or a partner who is entitled to manage the business either solely or with other partners, or that they are the sole managing partners. In his examination he has said that he was a partner in the firm. He has also said : "There is no proper accommodation for carrying on business in Indore by the members of his family". In cross-examination he has said, "In the members of my family there are two of my brothers Nand Kishore and Mani Lal, their wives and children and my mother are included. For our residence and running the shop we need the disputed shop." No doubt he has stated that he needs the suit accommodation for his residence also, but the lower courts did not examine the need for residence. Before the appeal court counsel for the parties had stated that the suit for eviction of the tenant should be disposed of only on the basis of Section 12 (1) (f). The respondent thus abandoned his case based on Section 12 (1) (e) which deals with residential accommodation. So we are concerned with his need for business accommodation. The passage in his statement, earlier reproduced would seem to suggest that his notion of his business is inclusive of his brothers business in which he may have no concern at all. So the possibility of his brothers separate business being set up in the suit accommodation is not ruled out. However, we do not ground our judgment on this statement. In his evidence he has said; "We, the three brothers and father are the partners in the shop. There is no person from outside. Before the partnership my father used to run the shop. (The father died during pendency of the suit)." He also said: "We deal in bidi, cigarettes, matches, tobacco and soap. We also want to have the same business in the disputed shop". In neither of these two passages nor anywhere else in the evidence he has stated that on the terms of partnership he is entitled to manage the partnership business or even that he would also occupy the suit accommodation along with his partners on obtaining possession from the appellants. He has also not said that the other partners have agreed to shift the business.The Act professes to control letting and rent of accommodation and the eviction of tenants therefrom. The Act restricts the power of the landlord to let and toat will.It also restricts his power to eject the tenant at will. Thus the direct and immediate object of the Act is to ensure occupation of accommodation by them who are in need of it. Broadly speaking, a construction which fulfills this purpose should be preferred to the alternative construction which frustrates it.On this construction of cl. (f) of Section 12 (1), it is necessary for the respondent to prove that the accommodation is needed directly and substantially for his occupation for the purpose of continuing or starting his business.If the deed of partnership has excluded him expressly or impliedly from the management of firms business and has made him a sleeping partner, it cannot be held that the accommodation is needed directly and substantially for his occupation by way of business. Nor he has power to shift the business. To sum up, for the reasons already given, his suit should fail.In some of the cases cited by Sri Patel, own has been interpreted virtually as otiose. Nevertheless what it means in the Act would depend on its own context, for a word may take a colour from its context.18. In view of our decision against the respondent on the basis of the construction of Section 12 (1) (f), it is not necessary for us to decide several other points raised by Sri Phadke. | 1 | 4,708 | ### 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:
13 (3) (vi) (c) of the C. P. and Berar Letting of Houses and Rent Control Order, 1947. The Nagpur High Court confined itself to that single phrase and did not refer to the object and setting of the Order. In our case the conditions of Section 12 (1) (f), as construed by us, are apparently different from those of clause 13 (3) (vi) (c) of the order. So it is not helpful in this case.14. In Tansukhdas Chhaganlal v. Smt. Shambai, AIR 1954 Nag 160 the Nagpur High Court has held that where a tenant carrying on business in the demised shop converts the business into a partnership business and allows the latter business to be carried on in the demised premises, it would amount to sub-letting because the partnership "was clearly a personality in law distinct from that of the petitioner himself". There also, the High Court was concerned with clause 18 of the aforesaid Order. This statement of law does not appear to be universally true. However, as pointed out earlier, in respect of Rajniklal AIR 1952 Nag 312 (supra) it is sufficient for us to say that this case also is not helpful in this appeal.15. Commr. of Income-tax, West Bengal v. A. W. Figgies and Co., 1954 SCR 171 = (AIR 1953 SC 455 ) and Dulichand Lakshminarayan v. Commr. of Income-tax, Nagpur, 1956 SCR 154 = (AIR 1956 SC 354 ) are concerned with the legal character of a firm in the Income-tax Act. It is held that a firm is a distinct entity different from its partners for purposes of assessment. These decisions are based on particular provisions of that Act which are radically different from the provisions of the Act. So these cases are also not helpful in deciding the present appeal.16. Karsandas Ramji v. Karsanji Kalyanji, AIR 1953 Sau 113 and Gundalapalli Rangamannar Chetty v. Desu Rangiah, AIR 1954 Mad 182 discuss the very question which fell for consideration in Tansukhdas Chhaganlal AIR 1954 Nag 160 (supra). It was held on the facts of these cases that the tenant could not be held to have sub-let the rented premises to the partnership firm because they retained possession over the premises. These cases thus apply the test of occupation by the tenant in finding out whether he has or has not sub-let. These are all the relevant Indian cases cited before us. Sri Patel has also relied on three English cases: Clift v. Taylor, (1948) 2 All ER 113; Tunstall v. Steigmann, (1962) 2 All ER 417 and Gian Singh and Co. v. Devraj Nahar, (1965) 1 All ER 768. Clift takes the same view as Rajniklal AIR 1952 Nag 312 (supra). The decision turned on the meaning of the expression "required the premises for his own occupation" in Section 5 (3) (b) (i) of the Landlord and Tenant Act, 1927. There the landlord carried on a business in a part of the building in dispute; in another part of it the tenant carried on her business. On the eve of the expiry of her lease, she applied for a new lease. Her application was opposed by the landlord on the ground, inter alia, that he required the premises for his own occupation. The facts found were that he had converted his own business into a partnership business. There were six partners including himself. The partnership business had extended considerably so that there was scarcity of accommodation. It appeared that the landlord needed the demised premises for the purpose of his partnership business. So the issue was whether he needed the premises "for his own occupation". The finding was:"(T) he firm and he himself, as its senior partner, had great need for less cramped head office premises, and, in particular, for the free and full use of the ground floor on street level as essential to convenience of office work, for clients, and for display of notices etc., and indeed, it was necessary for the prosperity of the greatly enlarged and still growing business with its ramifications into many allied or compatible departments or activities."It is evident from this finding that the landlord was a managing partner and that he himself along with the firm was to occupy the demised premises after getting possession. This decision, far from helping Sri Patel, helps the appellants in view of the construction placed by us on clause (f) of Section 12 (1). Tunstall (supra) deals with an entirely different set of facts. There the landlord was carrying on business. She gave notice to the tenant that she wanted the rented shop for her own business. The notice was given under the Landlord and Tenant Act, 1954. In the meantime she transferred her business to an incorporated company. The relevant words of Section 31 (g) of that Act are: "to occupy the holding for the purpose ..... of the business to be carried on by the landlord." It was held that the business of an incorporated company was not the business of the landlord, the company being a distinct legal person different from the landlord. Gian Singh (1965) 1 All ER 768 (supra) was concerned with the construction of a particular clause in a covenant forbidding the tenant from assigning his tenancy to a third person. It was claimed by the landlord that the tenant has assigned the premises to a partnership firm of which he was a partner. On the facts of the case, it was held that there was no assignment. We fail to appreciate how these cases help Sri Patel.17. In some of the cases cited by Sri Patel, own has been interpreted virtually as otiose. Nevertheless what it means in the Act would depend on its own context, for a word may take a colour from its context.18. In view of our decision against the respondent on the basis of the construction of Section 12 (1) (f), it is not necessary for us to decide several other points raised by Sri Phadke.
### Response:
1
|
1,059 | M/S. Associated Cement Companies Ltd Vs. Comnr. Of Customs | not be applicable. In Vazir Sultan and Wallace Flour Mills cases (supra), this Court considered the definition of "exciable goods" in Section 2(d) of the Central Excise Act, 1944 which was as follows : "Excisable goods means goods specified in the [the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt." 80. Under the Customs Act, there are two definitions which are relevant. Section 2(22) defines "goods" as follows : "Goods" includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggages; (d) currency and negotiable instruments; and (e) any other kind of movable property." In addition thereto, Section 2(14) define "dutiable goods" as follows : "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid." 81. Under the Central Excise Act, 1944 in definition of words "excisable goods" under Section 2(d), the very specification or inclusion of goods in the First and Second Schedule of the Central Excise Tariff Act would make them excisable goods subject to duty. Under the Customs Act, the provisions seem to be somewhat different. While by virtue of Section 2(22) all kinds of moveable property would be `goods but it is only those which would be regarded as `dutiable goods under Section 2(14) which are chargeable to duty and on which duty has not been paid. The expressions "chargeable to duty on which duty has not been paid" indicates that goods on which duty has been paid or on which no duty is levaiable, and, therefore no duty is payable, will not be regarded as `dutiable goods. It is only if payment of duty is outstanding or leviable that goods will be regarded as dutiable goods. 82. Section 12 of Customs Act provides that the duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. When the Customs Tariff Act itself provides that the import of drawings and designs under heading No. 49.06 is "free", it must follow that these drawings and designs, though goods, were not chargeable to duty. In view of the difference in the language of the Excise and Customs Acts, the decisions in the cases of Vazir Sultan and Wallace Flour Mills (supra) may not be very apposite and if no customs duty is chargeable either by reason of tariff not providing for it or because of the exemption notification, those goods will not be regarded as dutiable goods "on which duty has not been paid". It is sufficient in the present case to observe that the drawings and designs which were imported by the appellant were correctly classifiable under heading No. 49.06 and the tariff itself providing tha the import of the same is free, the said drawings and designs were not dutiable articles and, therefore, no customs duty was leviable thereon even as a part of the passenger baggage. On this short ground alone the appeal of Vidoecon has to be allowed. C.A. No. 1493 of 2000. [M/s H&K Rolling Mill Engineers Pvt. Ltd. v. The Commissioner of Customs] 83. The appellant is a joint venture company. Sixty per cent of its shareholders are Indians while forty per cent of the shares are held by H & K, Germany. The appellant supplies technology to Bhilai Steel Plant and it is required to pay to the German company licence fee of DM 2,40,000 and engineering fee of DM 60,000. 84. The appellant prepared designs and drawings which were sent to H & K, Germany for the limited purpose of getting it checked and approved. It is stated that the appellant received a fax message from the Germony company approving the designs and drawings. Copy of the designs and drawings which had been prepared and sent by the appellant came back to India through courier containing the stamp and approval of the German company. Like in the case of M/s. Leela Ventures income tax was deducted at source for the payments made to the German company after permission of the Reserve Bank of India had been obtained. 85. In the show cause notice which was issued it was proposed to regard the drawings which had come through the courier at DM 60,000 equivalent to Rs. 11,03,800/- as being subject to levy of duty. In the show cause notice it was stated that these technical drawings were supplied by the German Company and being imported through courier services were classifiable under heading No. 98.03 and duty and penalty was payable in respect thereof. 86. Unlike other case, we find that these drawings in respect of which customs duty had been levied were not something which had originated from Germany. These drawings were prepared by the Indian company of which the German Company was a shareholder. These drawings were no doubt sent to Germany for approval but the agreement between the parties does not show that the payment of DM 60,000 was directly relatable or attributable to the approval and despatch of the said drawings to India. Under the agreement between the parties apart from the licence fee payable by the Indian company, for the use of the name of the German Company and engineering fee, money was payable in terms of the agreement. As we have already observed there is nothing to show hat this amount of DM 60,000 was relatable only to the approval of the said designs and drawings. 87. Be that as it may the value of these drawings which belong to the Indian company were merely approved by the Germony company could only be nominal and under no circumstances the said value could be regarded as DM 60,000. The nominal value disclosed by the courier, on the facts and circumstances of this case, could not, therefore, be said to be incorrect. The order passed against the appellant levying the customs duty and penalty is, therefore, to be set aside. Ordered accordingly. Conclusion : | 1[ds]48. The above view, in our view, appears to be logical and also in consonance with the Customs Act. Similarly in (3d Cir 1991) it was contended before the Court in United States that software referred to in the agreement between the parties was a "product" and not a "good" but intellectual property outside the ambit of Uniform Commercial Code. In the said Code, goods were defined as "all things (including specially manufactured goods) which are moveable at the time of the identification for sale." Holding that computer software was a "good" the Court held as follows : "Computer programs are the product of an intellectual process, but once implanted in a medium are widely distributed to computer owners. An analogy can be drawn to a compact disc recording of an orchestral rendition. The music is produced by the artistry of musicians and in itself is not a "good", but when transferred to a laser-readable disc becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but, when transcribed as a book, it becomes a good. That a computer program may be copyrightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the program is tangible, moveable and available in the marketplace. The fact that some programs may be tailored for specific purposes need not alter their status as "goods" becomes the Code definition includes "specially manufactured goods." 49. We are in agreement with the aforesaid observations and hold that the value of the goods imported would depend upon the quality of the same and would be represented by the transaction value in respect of the goods imported. 50. It would not be correct, as was done in Leela Ventures case, to take the entire contract value as being the value of the imported goods. What is the transaction value in respect thereof has to be ascertained. In most of the other cases this has been done by adopting about one-third of the contract value as being the transaction value of the imported goods for the purpose of levy of customs duty. 51. In Leela Ventures case the Commissioner must re-determie the transaction value of the drawings etc. imported keeping in view the terms of the agreements and then impose the levy. Re : Limitation : 52. The next submission on behalf of the appellants was that in the case of short levy or non-levy of duty the normal period for issuing a notice seeking to realise the difference in the duty levied and impossible is that of six months. This period is extendable to five years only if the proviso to Section 28(1) can be validly invoked. It was the case of the appellants that there was never an intention on their part of evade duty. Agreements entered into with foreign collaborators had been disclosed to the Government of India who had approved the remittances as fees for technical services rendered. Payment had been made as directed by the Reserve Bank of India by resorting to Form A-2 and deducting tax at source on the remittances so made. Service tax which was payable was also deposited and this clearly shows that the appellants bonafide believed that the value of the drawings and other technical material imported was only nominal. 53. While relying on various decisions of this Court, it was submitted that the proviso to Section 28(1) of the Customs Act can only apply if there is a positive inaction or deliberate attempt to mislead the revenue. On the facts of the present case, it was submitted that none of the ingredients of the proviso would enable the enlargement of the limitation from six months to five years was present. Our attention was drawn to the case of Collector of Central Excise, Hyderabad v. M/s Champhar Drugs and Liniments, Hyderabad, 1989(2) SCC 127, Cosmic Dye Chemical v. Collector of Central Excise, Bombay, 1995(6) SCC 117, M/s Padmini Products v. Collector of Central Excise, Bangalore, 1989(4) SCC 275, Tamil Nadu Housing Board v. Collector of Central Excise, Madras and another, 1995 Supp(1) SCC 50 and Collector of Central Excise v. H.M.M. Limited, 1995(76) ELT 497. In all these cases the Court was concerned with the applicability of the proviso to Section 11-A of the Central Excise Act which, like in the case of Customs Act, contemplated the increase in period of limitation for issuing a show-case notice in the case of non-levy or short-levy to five years from a normal period of six months.We find force in the contention of the appellant. Heading No. 98.03 of Chapter 98 of the Schedule in the Tariff Act imposes a prescribed duty of 150 per cent on `dutiable articles imported by a passenger or a member of a crew in his baggage. What is, therefore, to be seen is whether the drawings and designs were dutiable articles. Heading No. 49.06 under Chapter 49 of the Customs Tariff for the year 1992-93 provides as follows : "Plans and drawings for architectural, engineering, industrial, commercial, topographical or similar purpose, being originals drawn by hand; hand-written texts; photographic reproductions on sensitized paper and carbon copies of the foregoing." The rate of duty specified therein Column (4) was "free". According to Section 78 of the Customs Act, the rate of the duty and tariff value applicable to baggage shall be the rate and valuation in force on the date on which a declaration is made for clearing the baggage. It was the contention of the learned counsel for the appellant that as article in question would fall under heading No. 49.06 they were free of duty. Therefore, they could not be regarded as dutiable articles and its value could not be included in the baggage of the passenger for the purpose of levy of customs duty. 78. While dealing with the provisions of the Excise Act, this Court in Collector of Central Excise, Hyderabad v. Vazir Sultan Tobacoo Co. Ltd., 1996(83) ELT 3 (SC) referring to an earlier decision in the case of Wallace Flour Mills Company v. Collector of Central Excise, 1989(44) ELT 598 had observed that if by virtue of an exemption notification the rate of duty was reduced to nil, the goods specified in the Tariff Act would still be regarded as excisable goods on which nil rate of duty was payable. 79. It appears to us that the aforesaid decisions, which were sought to be invoked by the respondent in an effort to submit that the drawings and designs, which came as a part of passenger baggage were dutiable goods, would not be applicable. In Vazir Sultan and Wallace Flour Mills cases (supra), this Court considered the definition of "exciable goods" in Section 2(d) ofthe Central Excise Act, 1944 which was as follows : "Excisable goods means goods specified in the [the First Schedule and the Second Schedule] tothe Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt." 80. Under the Customs Act, there are two definitions which are relevant. Section 2(22) defines "goods" as follows : "Goods" includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggages; (d) currency and negotiable instruments; and (e) any other kind of movable property." In addition thereto, Section 2(14) define "dutiable goods" as follows : "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid." 81. Underthe Central Excise Act, 1944 in definition of words "excisable goods" under Section 2(d), the very specification or inclusion of goods in the First and Second Schedule of the Central Excise Tariff Act would make them excisable goods subject to duty. Under the Customs Act, the provisions seem to be somewhat different. While by virtue of Section 2(22) all kinds of moveable property would be `goods but it is only those which would be regarded as `dutiable goods under Section 2(14) which are chargeable to duty and on which duty has not been paid. The expressions "chargeable to duty on which duty has not been paid" indicates that goods on which duty has been paid or on which no duty is levaiable, and, therefore no duty is payable, will not be regarded as `dutiable goods. It is only if payment of duty is outstanding or leviable that goods will be regarded as dutiable goods. 82. Section 12 of Customs Act provides that the duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. When the Customs Tariff Act itself provides that the import of drawings and designs under heading No. 49.06 is "free", it must follow that these drawings and designs, though goods, were not chargeable to duty. In view of the difference in the language of the Excise and Customs Acts, the decisions in the cases of Vazir Sultan and Wallace Flour Mills (supra) may not be very apposite and if no customs duty is chargeable either by reason of tariff not providing for it or because of the exemption notification, those goods will not be regarded as dutiable goods "on which duty has not been paid". It is sufficient in the present case to observe that the drawings and designs which were imported by the appellant were correctly classifiable under heading No. 49.06 and the tariff itself providing tha the import of the same is free, the said drawings and designs were not dutiable articles and, therefore, no customs duty was leviable thereon even as a part of the passenger baggage. On this short ground alone the appeal of Vidoecon has to be allowed. C.A. No. 1493 of 2000. [M/s H&K Rolling Mill Engineers Pvt. Ltd. v. The Commissioner of Customs] 83. The appellant is a joint venture company. Sixty per cent of its shareholders are Indians while forty per cent of the shares are held by H & K, Germany. The appellant supplies technology to Bhilai Steel Plant and it is required to pay to the German company licence fee of DM 2,40,000 and engineering fee of DM 60,000. 84. The appellant prepared designs and drawings which were sent to H & K, Germany for the limited purpose of getting it checked and approved. It is stated that the appellant received a fax message from the Germony company approving the designs and drawings. Copy of the designs and drawings which had been prepared and sent by the appellant came back to India through courier containing the stamp and approval of the German company. Like in the case of M/s. Leela Ventures income tax was deducted at source for the payments made to the German company after permission of the Reserve Bank of India had been obtained. 85. In the show cause notice which was issued it was proposed to regard the drawings which had come through the courier at DM 60,000 equivalent to Rs. 11,03,800/- as being subject to levy of duty. In the show cause notice it was stated that these technical drawings were supplied by the German Company and being imported through courier services were classifiable under heading No. 98.03 and duty and penalty was payable in respect thereof. 86. Unlike other case, we find that these drawings in respect of which customs duty had been levied were not something which had originated from Germany. These drawings were prepared by the Indian company of which the German Company was a shareholder. These drawings were no doubt sent to Germany for approval but the agreement between the parties does not show that the payment of DM 60,000 was directly relatable or attributable to the approval and despatch of the said drawings to India. Under the agreement between the parties apart from the licence fee payable by the Indian company, for the use of the name of the German Company and engineering fee, money was payable in terms of the agreement. As we have already observed there is nothing to show hat this amount of DM 60,000 was relatable only to the approval of the said designs and drawings. 87. Be that as it may the value of these drawings which belong to the Indian company were merely approved by the Germony company could only be nominal and under no circumstances the said value could be regarded as DM 60,000. The nominal value disclosed by the courier, on the facts and circumstances of this case, could not, therefore, be said to be incorrect. | 1 | 16,169 | ### 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:
not be applicable. In Vazir Sultan and Wallace Flour Mills cases (supra), this Court considered the definition of "exciable goods" in Section 2(d) of the Central Excise Act, 1944 which was as follows : "Excisable goods means goods specified in the [the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt." 80. Under the Customs Act, there are two definitions which are relevant. Section 2(22) defines "goods" as follows : "Goods" includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggages; (d) currency and negotiable instruments; and (e) any other kind of movable property." In addition thereto, Section 2(14) define "dutiable goods" as follows : "dutiable goods" means any goods which are chargeable to duty and on which duty has not been paid." 81. Under the Central Excise Act, 1944 in definition of words "excisable goods" under Section 2(d), the very specification or inclusion of goods in the First and Second Schedule of the Central Excise Tariff Act would make them excisable goods subject to duty. Under the Customs Act, the provisions seem to be somewhat different. While by virtue of Section 2(22) all kinds of moveable property would be `goods but it is only those which would be regarded as `dutiable goods under Section 2(14) which are chargeable to duty and on which duty has not been paid. The expressions "chargeable to duty on which duty has not been paid" indicates that goods on which duty has been paid or on which no duty is levaiable, and, therefore no duty is payable, will not be regarded as `dutiable goods. It is only if payment of duty is outstanding or leviable that goods will be regarded as dutiable goods. 82. Section 12 of Customs Act provides that the duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act. When the Customs Tariff Act itself provides that the import of drawings and designs under heading No. 49.06 is "free", it must follow that these drawings and designs, though goods, were not chargeable to duty. In view of the difference in the language of the Excise and Customs Acts, the decisions in the cases of Vazir Sultan and Wallace Flour Mills (supra) may not be very apposite and if no customs duty is chargeable either by reason of tariff not providing for it or because of the exemption notification, those goods will not be regarded as dutiable goods "on which duty has not been paid". It is sufficient in the present case to observe that the drawings and designs which were imported by the appellant were correctly classifiable under heading No. 49.06 and the tariff itself providing tha the import of the same is free, the said drawings and designs were not dutiable articles and, therefore, no customs duty was leviable thereon even as a part of the passenger baggage. On this short ground alone the appeal of Vidoecon has to be allowed. C.A. No. 1493 of 2000. [M/s H&K Rolling Mill Engineers Pvt. Ltd. v. The Commissioner of Customs] 83. The appellant is a joint venture company. Sixty per cent of its shareholders are Indians while forty per cent of the shares are held by H & K, Germany. The appellant supplies technology to Bhilai Steel Plant and it is required to pay to the German company licence fee of DM 2,40,000 and engineering fee of DM 60,000. 84. The appellant prepared designs and drawings which were sent to H & K, Germany for the limited purpose of getting it checked and approved. It is stated that the appellant received a fax message from the Germony company approving the designs and drawings. Copy of the designs and drawings which had been prepared and sent by the appellant came back to India through courier containing the stamp and approval of the German company. Like in the case of M/s. Leela Ventures income tax was deducted at source for the payments made to the German company after permission of the Reserve Bank of India had been obtained. 85. In the show cause notice which was issued it was proposed to regard the drawings which had come through the courier at DM 60,000 equivalent to Rs. 11,03,800/- as being subject to levy of duty. In the show cause notice it was stated that these technical drawings were supplied by the German Company and being imported through courier services were classifiable under heading No. 98.03 and duty and penalty was payable in respect thereof. 86. Unlike other case, we find that these drawings in respect of which customs duty had been levied were not something which had originated from Germany. These drawings were prepared by the Indian company of which the German Company was a shareholder. These drawings were no doubt sent to Germany for approval but the agreement between the parties does not show that the payment of DM 60,000 was directly relatable or attributable to the approval and despatch of the said drawings to India. Under the agreement between the parties apart from the licence fee payable by the Indian company, for the use of the name of the German Company and engineering fee, money was payable in terms of the agreement. As we have already observed there is nothing to show hat this amount of DM 60,000 was relatable only to the approval of the said designs and drawings. 87. Be that as it may the value of these drawings which belong to the Indian company were merely approved by the Germony company could only be nominal and under no circumstances the said value could be regarded as DM 60,000. The nominal value disclosed by the courier, on the facts and circumstances of this case, could not, therefore, be said to be incorrect. The order passed against the appellant levying the customs duty and penalty is, therefore, to be set aside. Ordered accordingly. Conclusion :
### Response:
1
|
1,060 | HAMID ALI KHAN (D) THROUGH LRS. & ANR Vs. STATE OF U.P. & ORS | these survey were sold for residential house. Being contiguous with the scheme area, these lands were projected as required on preparing an amended proposal. However, in the communication dated 06.10.2006 issued by the third respondent he refers to requirement of clean environment and therefore a cattle market of the animals in the housing area may not be proper. The same position is again reiterated as already noted in communication dated 10.10.2000 as well. The appellants had given a representation on 08.12.2006 to the Chief Secretary praying that the property may not be taken for the residential/commercial scheme. Therein, it is inter alia stated that the cattle market is located at one corner of the acquired land of 52.361 hectares. The appellants state about their readiness to construct a separate boundary wall. It is stated to be their only source of income. 35. It is to be noticed that the declaration under section 6 was issued only on the eve of expiry of one year from 11.4.2008. The urgency indicated in the file is to tide over the bar of issuance of declaration under section 6 beyond one year from 11.4.2008 the date on which notification under 4/17 was issued. There is no indication in the file about the urgency for issuing the declaration immediately after the notification under Section 4. In other words, the file does not reveal any urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause. 36. We are at a loss as to what was the material which was relevant to a decision under section 17(4) of the Act. In this regard we may notice the following: Notification was issued under section 17(4) in October 2004 regard to 52 and odd hectares of land. The Section 6 declaration is made only in October 2005. The survey numbers in question in this case according to the respondent is located in the middle. However, it is not acquired on the basis that the said land was being used as cattle market (see communication dated 29.3.2006). The appellants have a definite case that possession itself was taken despite the availability of power to take possession immediately, only on 6.1.2006. The proposal to take the further land was taken in March, 2006 if not earlier. The reason given for acquiring the land is alleged construction of shops by the appellants and the contiguity of the land covered by the land earlier acquired with the land in question. On the other hand, the third respondent refers further to the need for clean environment which is in contradiction to the communication dated 29.3.2006. 37. What is relevant for the purpose of this case is to find the following: (1) Whether there were relevant material before ethe Government to invoke power under section 17(4)? (2) Lastly, whether the government applied its mind? 38. We have noticed the material which consists of the communications addressed to the second respondent and the communications by the third respondent. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. We have already noted the fact that declaration under section 6 came to be issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. More importantly, we have noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier. This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005. 39. The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing. 40. We would therefore think that in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified. 41. We may notice another aspect. This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. We have also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area. | 1[ds]10. In Narayan Govind Gavate and Others v. State of Maharashtra and Others (1977) 1 SCC 133 , a Bench of 3 learned Judges was dealing with a notification issued under Section 17(4). The public purpose recited in the notification was development and utilisation of the land as a residential and industrial area. The lands were described as waste and arable land and urgency provision was invoked resulting in the notification being issued. This court inter alia held:10. It is true that, in such cases, the formation of an opinion is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than courts could ordinarily on such matters. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which courts do impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the courts should not and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.24. Coming back to the cases before us, we find that the High Court had correctly stated the grounds on which even a subjective opinion as to the existence of the need to take action under Section 17(4) of the Act can be challenged on certain limited grounds. But, as soon as we speak of a challenge we have to bear in mind the general burdens laid down by Sections 101 and 102 of the Evidence Act. It is for the petitioner to substantiate the grounds of his challenge. This means that the petitioner has to either lead evidence or show that some evidence has come from the side of the respondents to indicate that his challenge to a notification or order is made good. If he does not succeed in discharging that duty his petition will fail.30. In the cases before us, if the total evidence from whichever side any of it may have come, was insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed. On the other hand, if, in addition to the bare assertions made by the petitioners, that the urgency contemplated by Section 17(4) did not exist, there were other facts and circumstances, including the failure of the State to indicate facts and circumstances which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus.40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. This, in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under Section 5-A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under Section 5-A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under Section 5-A of the Act.42. All schemes relating to development of industrial and residential areas must be urgent in the context of the countrys need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquiries under Section 5-A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination of the enquiry under Section 5-A of the Act. The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under Section 5-A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under Section 5-A of the Act. It is certainly a ease in which the recital was at least defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5-A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances, although it also appears to us that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under Sections 101 and 102 of the Evidence Act had been displaced by the failure of the State to discharge its duty under Section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burden under Sections 101 and 102 of the Evidence Act.11. In Pista Devi (supra), a Bench of two learned Judges came to consider the case involving dispensing with the enquiry under Section 5A of the Act. The court noted the case related to Meerut city located in a densely populated part of the Uttar Pradesh which was found to be growing very fast. The problem of town planning and urban development had to be tackled. The Collector on the basis of proposal sent to him by the Meerut Development Authority wrote letter dated 13.12.1979 to the Commissioner and Secretary, Housing and Urban Development, Uttar Pradesh regarding acquisition of approximately 412 acres for a Housing Scheme. There was an acute shortage of houses, it was found. The collector gave the requisite certificate. The Government published a notification under section 4(1) of the Act and also dispensed with the enquiry under Section 5A which was published on 12th July, 1980. This was followed up by the declaration under Section 6 on 1.5.1981. The possession came to be taken and handed over to the Meerut Development Authority in July, 1982. It is in these circumstances that the notification under Section 17 of the Act was challenged. This Court distinguished Narayan Govind Gavate (supra) in the following words:..The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5-A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate v. State of Maharashtra [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 : AIR 1977 SC 183 : (1977) 1 SCR 763 ] related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under Section 5-A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not appear to demand such emergent action as to eliminate summary inquiries under Section 5-A of the Act....7.…In a case of this nature where a large extent of land is being acquired for planned development of the urban area it would not be proper to leave the small portions over which some super-structures have been constructed out of the development scheme. In such a situation where there is real urgency it would be difficult to apply Section 5-A of the Act in the case of few bits of land on which some structures are standing and to exempt the rest of the property from its application. Whether the land in question is waste or arable land has to be judged by looking at the general nature and condition of the land…13. In Chameli Singh case (supra), a bench of 3 learned Judges again considered the question. The notification under Section 4 was dated 23.07.1983 and the declaration under section 6 was also published on the strength of notification under Section 17(4). Regarding the challenge to the notification under Section 17(4) this Court inter alia held as follows:3..When the Government forms an opinion that it is necessary to require immediate possession of the land for building houses for the Dalits, it forms the opinion of urgency to take immediate possession for the said purpose. Accordingly it is entitled to direct dispensing with the inquiry under Section 5-A and publish the declaration under Section 6 after the date of the publication of Section 4(1) notification.4. It is settled law that the opinion of urgency formed by the appropriate Government to take immediate possession, is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fides or colourable exercise of power. Article 25(1) of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for the health and well- being of himself and his family including food, clothing, housing, medical care and necessary social services.15. The question, therefore, is whether invocation of urgency clause under Section 17(4) dispensing with inquiry under Section 5-A is arbitrary or is unwarranted for providing housing construction for the poor. In Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC 285] (SCC at p. 290), a Constitution Bench of this Court had upheld the exercise of the power by the State under Section 17(4) dispensing with the inquiry under Section 5-A for the planned development of Delhi. In Pista Devi case [(1986) 4 SCC 251] this Court while considering the legality of the exercise of the power under Section 17(4) exercised by the State Government dispensing with the inquiry under Section 5-A for acquiring housing accommodation for planned development of Meerut, had held that providing housing accommodation is national urgency of which court should take judicial notice. The pre- notification and post-notification delay caused by the officer concerned does not create a cause to hold that there is no urgency. Housing conditions of Dalits all over the country continue to be miserable even till date and is a fact of which courts are bound to take judicial notice. The ratio of Deepak Pahwa case [(1984) 4 SCC 308 : (1985) 1 SCR 588 ] was followed. In that case a three-Judge Bench of this Court had upheld the notification issued under Section 17(4), even though lapse of time of 8 years had occurred due to inter- departmental discussions before receiving the notification. That itself was considered to be a ground to invoke urgency clause. It was further held that delay on the part of the lethargic officials to take further action in the matter of acquisition was not sufficient to nullify the urgency which existed at the time of the issuance of the notification and to hold that there was never any urgency. In Jage Ram v. State of Haryana [(1971) 1 SCC 671] this Court upheld the exercise of the power of urgency under Section 17(4) and had held that the lethargy on the part of the officers at an early stage was not relevant to decide whether on the day of the notification there was urgency or not. Conclusion of the Government that there was urgency, though not conclusive, is entitled to create weight. In Deepak Pahwa case [(1984) 4 SCC 308 : (1985) 1 SCR 588 ] this Court had held that very often persons interested in the land proposed to be acquired may make representations to the authorities concerned against the proposed writ petition that is bound to result in multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often delay makes the problem more and more acute and increases urgency of the necessity for acquisition. In Rajasthan Housing Board v. Shri Kishan [(1993) 2 SCC 84] (SCC at p. 91), this Court had held that it must be remembered that the satisfaction under Section 17(4) is a subjective one and that so long as there is material upon which Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. In State of U.P. v. Keshav Prasad Singh [(1995) 5 SCC 587] (SCC at p. 590), this Court had held that the Government was entitled to exercise the power under Section 17(4) invoking urgency clause and to dispense with inquiry under Section 5- A when the urgency was noticed on the facts available on record. In Narayan Govind Gavate case [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 : (1997) 1 SCR 763] a three-Judge Bench of this Court had held that Section 17(4) cannot be read in isolation from Section 4(1) and Section 5-A of the Act. Although 30 days from the notification under Section 4(1) are given for filing objections under Section 5-A, inquiry thereunder unduly gets prolonged. It is difficult to see why the summary inquiry could not be completed quite expeditiously. Nonetheless, this Court held the existence of prima facie public purpose such as the one present in those cases before the Court could not be successfully challenged at all by the objectors. It further held that it was open to the authority to take summary inquiry under Section 5-A and to complete inquiry very expeditiously. It was emphasised that: (SCC p. 148, para 38)… The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5- A which has to be considered.14. This Court proceeded to consider the decisions in Gavate, Pista Devi and Rajasthan Housing Board. As far as Gavate was concerned, this Court pronounced as follows:16. It would thus be seen that this Court emphasised the holding of an inquiry on the facts peculiar to that case. Very often the officials, due to apathy in implementation of the policy and programmes of the Government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5-A inquiry.17. It is true that there was pre- notification and post-notification delay on the part of the officers to finalise and publish the notification. But those facts were present before the Government when it invoked urgency clause and dispensed with inquiry under Section 5-A. As held by this Court, the delay by itself accelerates the urgency: Larger the delay, greater be the urgency. So long as the unhygienic conditions and deplorable housing needs of Dalits, Tribes and the poor are not solved or fulfilled, the urgency continues to subsist. When the Government on the basis of the material, constitutional and international obligation, formed its opinion of urgency, the court, not being an appellate forum, would not disturb the finding unless the court conclusively finds the exercise of the power mala fide. Providing house sites to the Dalits, Tribes and the poor itself is a national problem and a constitutional obligation. So long as the problem is not solved and the need is not fulfilled, the urgency continues to subsist. The State is expending money to relieve the deplorable housing condition in which they live by providing decent housing accommodation with better sanitary conditions. The lethargy on the part of the officers for pre and post-notification delay would not render the exercise of the power to invoke urgency clause invalid on that account.18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individuals right of an owner must yield place to the larger public purpose.18. In Anand Singh case (supra), a Bench of two learned Judges dealt with an acquisition for a residential colony for the Gorakhpur Development Authority. The notification was issued under Section 4 in 2003 and 2004. By the said notifications power was invoked under Section 17 (4), and the declaration also came to be issued under Section 6 on 28.12.2004. The contention of the Gorakhpur Development Authority was that many steps were taken in developing the land acquired in as much as water, land, electric lines, sewerage line, drainage etc. were laid and roads constructed out of the total outlay of merely Rs. 8 to 9 crores. An amount of excess of Rs. 5 crores were already spent and 60 per cent of the work was completed. The Court referred to Gavate, Pista Devi, Rajasthan Housing Boards, Chameli Singh and Om Prakash (supra) and held as follows: -41. The power of eminent domain, being inherent in the Government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though the right to property is no longer a fundamental right but Article 300-A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5-A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5-A confers an important right in favour of a person whose land is sought to be acquired.42. When the Government proceeds for compulsory acquisition of a particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5-A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose, etc. Moreover, the right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice.43. The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A.44. A repetition of the statutory phrase in the notification that the State Government is satisfied that the land specified in the notification is urgently needed and the provision contained in Section 5-A shall not apply, though may initially raise a presumption in favour of the Government that prerequisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power under Section 17, the Government must produce appropriate material before the Court that the opinion for dispensing with the enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it.46. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners/persons interested may not be considered. In many cases, on general assumption likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realising that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously.19. Thereafter, the court noticed the conflict between Gavate and Pista devi (supra) and held as follows: -47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed a few decisions of this Court. There is a conflict of view in the two decisions of this Court viz. Narayan Govind Gavate [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 ] and Pista Devi [(1986) 4 SCC 251] . In Om Prakash [(1998) 6 SCC 1] this Court held that the decision in Pista Devi [(1986) 4 SCC 251] must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate [(1977) 1 SCC 133 : 1977 SCC (Cri) 49 ] . We agree.48. As regards the issue whether pre- notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A.49. In a country as big as ours, a roof over the head is a distant dream for a large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in a developing nation. The question is as to whether in all cases of planned development of the city or for the development of residential area, the power of urgency may be invoked by the Government and even where such power is invoked, should the enquiry contemplated under Section 5-A be dispensed with invariably. We do not think so. Whether planned development of city or development of residential area cannot brook delay of a few months to complete the enquiry under Section 5-A? In our opinion, ordinarily it can. The Government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz. planned development of city or for development of residential area in exceptional situation.51. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5-A by the Government in a routine manner for the planned development of city or development of residential area and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained.20. The court in the said case permitted the appellants to represent to the states authority under Section 48 of the Act for release of their land.23. It is true again that the decisions in this Court appear to convey conflicting signals. However, there is a certain element of consensus on fundamental principles. The dichotomy essentially has to be resolved by carefully attending to the facts of each case. The decision of a Bench of three Judges in Gavate (supra) enunciates the principles relating to the manner in which a challenge to a notification under Section 17(4) must be approached in the matter of discharging the burden of proof. When a challenge is made to the invocation of power under Section 17 (4) the writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the state must be laid before the court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17 (4) must be established in the wake of a challenge. The true concept unravelled by this Court in Gavate (supra) is the total evidence theory. In other words, on an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power under Section 17 (4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.27. A perusal of the files made available would reveal that on 14.1.2008, there is reference to the clarification by the Vice chairman as to the justification for acquiring of 2.692 hectares for the development of residential and commercial scheme and from the planning point of view. Thereafter referring to letter 8.2.2008 from the Vice chairman of the second respondent it is found that the land is situated in the middle of land acquired earlier and that the Vice chairman has requested that notification be issued at the earliest. The matter was put up before the Minister for issuance of the notification under section 4(1)/17 for acquiring the land. This is dated 19.2.2008. On 2.3.2008, the Special Secretary found that there was some request seeking exemption of the some land sought to be acquired which was examined by the Government in the enclosed file 2033LA/2006. The proposal for exemption was not allowed. The Principal Secretary (Planning) had referred to the rejection of application for exemption and therefore the matter was put up for notification under section 4(1)/17. On the very same day, the signature of the Minister was obtained. From this we are to infer that the Minister approved the proposal for issue of notification and it was issued thereafter on 11.4.2008.29. A perusal of the file notings would reveal that on 24.3.2009 it was noticed that as per the rules the notification under section 6/17 had to be issued before 11.4.2009 in view of the notification issued under 4(1)/17(4) on 11.4.2008. There is reference to Rs.37,76,711/- having been deposited by the second respondent constituting unnecessary expenditure, if the acquisition lapsed. On the said basis it was stated in view of the unavoidable situation of issuing the section 6/17 notification before 11.4.2009 it was proposed to issue the notification. Thereafter, it was found that in view of the elections being underway and enforcement of the election code, permission of the officer had to be obtained. The approval /signature of the Principal Secretary had to be obtained for issuing the Section 6/17 declaration. It is thereupon that the notification under Section 6 came to be issued on 9.4.2009.30. On the basis of the declaration, the possession of the land according to the second respondent was taken over on 27.7.2009 and the name of the second respondent was entered in the revenue record.32. A short counter affidavit was filed by the second respondent. There is no specific denial of the case set up by the appellants in paragraph 23, 24 and 27. If that be so on the unrebutted allegations an inference could be drawn that the case set up by the respondents that the properties in question were situated in the middle of the scheme area is incorrect.33. We must notice certain salient features. Perusal of the impugned notification under section 17(4) and even Section 6 declaration shows that the land in question is recited as being required for the public purpose of the Bulandshehar-Khurja Development Authority or for the Kalindi Kunj residential/ commercial (supplementary). It is further recited that as the Governor was convinced about the great necessity of the land and the provision of section 17 (1) of the Act being applicable and in view of the necessity, inquiry under section 5A was not applied on the basis that possibility of delay may be abandoned. It is further stated that land is required for Kalindi Kunj residential/commercial scheme. A perusal of the revised lay out plan inter alia would show that the scheme was a residential cum commercial scheme. It was to consist of park, community facilities such health, post office, social and cultural centre and educational centre. The land which was reserved for the residential area is shown as constituting 38.57% of the area of the scheme. The commercial part of the Scheme was to consist of 4.9% of the total area of the scheme. We make this observation to record our finding that the scheme is not a pure residential scheme. Secondly, the only case which the respondents have further is that under a scheme 5% of the plots are reserved for the landless. Therefore, this fact may stand out in sharp contrast with the scheme which fell for consideration before this Court in Chameli Singh (supra) wherein the power under section 17(4) was invoked for land for building houses for the dalits. Initially, the land in question, was not proposed to be acquired. The total land which was proposed to be acquired was fixed at 52 and odd hectares.34. A perusal of the communication dated 29.3.2006 from the second respondent Authority reveals that according to it, survey nos. 880 and 893 were being used for keeping a cattle market and therefore the lands were not required. It is further found that in the survey 13 shops were constructed and the land in these survey were sold for residential house. Being contiguous with the scheme area, these lands were projected as required on preparing an amended proposal. However, in the communication dated 06.10.2006 issued by the third respondent he refers to requirement of clean environment and therefore a cattle market of the animals in the housing area may not be proper. The same position is again reiterated as already noted in communication dated 10.10.2000 as well. The appellants had given a representation on 08.12.2006 to the Chief Secretary praying that the property may not be taken for the residential/commercial scheme. Therein, it is inter alia stated that the cattle market is located at one corner of the acquired land of 52.361 hectares. The appellants state about their readiness to construct a separate boundary wall. It is stated to be their only source of income.35. It is to be noticed that the declaration under section 6 was issued only on the eve of expiry of one year from 11.4.2008. The urgency indicated in the file is to tide over the bar of issuance of declaration under section 6 beyond one year from 11.4.2008 the date on which notification under 4/17 was issued. There is no indication in the file about the urgency for issuing the declaration immediately after the notification under Section 4. In other words, the file does not reveal any urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause.36. We are at a loss as to what was the material which was relevant to a decision under section 17(4) of the Act. In this regard we may notice the following:Notification was issued under section 17(4) in October 2004 regard to 52 and odd hectares of land. The Section 6 declaration is made only in October 2005. The survey numbers in question in this case according to the respondent is located in the middle. However, it is not acquired on the basis that the said land was being used as cattle market (see communication dated 29.3.2006). The appellants have a definite case that possession itself was taken despite the availability of power to take possession immediately, only on 6.1.2006. The proposal to take the further land was taken in March, 2006 if not earlier. The reason given for acquiring the land is alleged construction of shops by the appellants and the contiguity of the land covered by the land earlier acquired with the land in question. On the other hand, the third respondent refers further to the need for clean environment which is in contradiction to the communication dated 29.3.2006.38. We have noticed the material which consists of the communications addressed to the second respondent and the communications by the third respondent. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. We have already noted the fact that declaration under section 6 came to be issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. More importantly, we have noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier. This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005.39. The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing.40. We would therefore think that in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified.41. We may notice another aspect. This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. We have also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area. | 1 | 14,091 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
these survey were sold for residential house. Being contiguous with the scheme area, these lands were projected as required on preparing an amended proposal. However, in the communication dated 06.10.2006 issued by the third respondent he refers to requirement of clean environment and therefore a cattle market of the animals in the housing area may not be proper. The same position is again reiterated as already noted in communication dated 10.10.2000 as well. The appellants had given a representation on 08.12.2006 to the Chief Secretary praying that the property may not be taken for the residential/commercial scheme. Therein, it is inter alia stated that the cattle market is located at one corner of the acquired land of 52.361 hectares. The appellants state about their readiness to construct a separate boundary wall. It is stated to be their only source of income. 35. It is to be noticed that the declaration under section 6 was issued only on the eve of expiry of one year from 11.4.2008. The urgency indicated in the file is to tide over the bar of issuance of declaration under section 6 beyond one year from 11.4.2008 the date on which notification under 4/17 was issued. There is no indication in the file about the urgency for issuing the declaration immediately after the notification under Section 4. In other words, the file does not reveal any urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause. 36. We are at a loss as to what was the material which was relevant to a decision under section 17(4) of the Act. In this regard we may notice the following: Notification was issued under section 17(4) in October 2004 regard to 52 and odd hectares of land. The Section 6 declaration is made only in October 2005. The survey numbers in question in this case according to the respondent is located in the middle. However, it is not acquired on the basis that the said land was being used as cattle market (see communication dated 29.3.2006). The appellants have a definite case that possession itself was taken despite the availability of power to take possession immediately, only on 6.1.2006. The proposal to take the further land was taken in March, 2006 if not earlier. The reason given for acquiring the land is alleged construction of shops by the appellants and the contiguity of the land covered by the land earlier acquired with the land in question. On the other hand, the third respondent refers further to the need for clean environment which is in contradiction to the communication dated 29.3.2006. 37. What is relevant for the purpose of this case is to find the following: (1) Whether there were relevant material before ethe Government to invoke power under section 17(4)? (2) Lastly, whether the government applied its mind? 38. We have noticed the material which consists of the communications addressed to the second respondent and the communications by the third respondent. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. We have already noted the fact that declaration under section 6 came to be issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. More importantly, we have noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier. This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005. 39. The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing. 40. We would therefore think that in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified. 41. We may notice another aspect. This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. We have also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area.
### Response:
1
|
1,061 | Ram Singh Vs. Sonia | for a motive which evinces total depravity and meanness. For instance when (a) hired assassin commits murder for the sake of money or reward or (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murdered is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. III. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances etc., which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning and what are known as dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. 37. In the said case, the Court further observed that in this background the guidelines indicated in the case of Bachan Singh (supra) will have to be culled out and applied to the facts of each individual case and where the question of imposing death sentence arises, the following proposition emerge from the case of Bachan Singh (supra):- (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 38. The Court thereafter observed that in order to apply these guidelines the following questions may be answered:- (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 39. Ultimately, in the said case of Machhi Singh (supra), the Court observed that if upon an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.40. In the light of the law already laid down by this Court referred to above, now this Court is called upon to consider whether the present case would come within the realm of the rarest of the rare or not.41. The instant case is one wherein accused Sonia, along with accused Sanjiv [her husband] has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days, 2-1/2 years and 4 years, but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts we are of the view that there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of rarest of rare cases and the High Court was not justified in commuting death sentence into life imprisonment. | 0[ds]14. Whether one is or is not in police custody could be discerned from the facts and circumstances obtaining in each case. Insofar as the case at hand is concerned, the police party reached the place of occurrence within 10 minutes of lodgment of the FIR and PW.25, being aware of the fact thathad consumed poison and under instructions, seeinglying in front of the porch, removed her to the hospital. PW.52 having opined thatwas unfit at the time of her admission in the hospital to give any statement, PW.62 and PW.32 also having stated in their evidence that none else, except them, was present in the room in which the statement ofwas recorded and in the absence of any evidence to show that from the moment of her admission to and discharge from the hospital the police personnel were either present in the room whereinwas kept for treatment or even in the vicinity of the hospital or they made frequent visits to the hospital, it cannot be said that themovements were restricted or she was kept in some sort of direct or indirect police surveillance and that she was in police custody for the purpose of Section 26 of the Evidence Act. Therefore, in our view, Paramhansa [supra] is of no help insofar asis concerned. Turning now to the next submission of learned counsel appearing on behalf of the accused as to the judicial confession [Ext.187] made bybefore PW.62, it would be useful to refer to relevant provisions in the Criminal Procedure Code that deal with the recording of a judicial confession by a judicial magistrate and see whether the judicial confession recorded by PW.62 ofis according to the procedure prescribed by these provisions or whether any violation thereof has been made by the magistrate while recording it. The relevant Sections in the Cr.P.C. are Sections 164, 281 and 463.In the case on hand, the application that was made to PW.62 was for recording a dying declaration aswas suspected to have consumed poison. Learned counsel appearing on behalf of the accused submits that as there was no danger to the life ofthere was no reason for the prosecution to call PW.62 for recording dying declaration ofWe have perused the Indoor Charts of Janta Hospital, [Exts. 192 and 193] which clearly depict that hers was a case of suspected poison. We have also been taken through the evidence of Dr. Jagdish Sethi, PW.52, who, in his testimony, has also stated thatwas admitted to the Janta Hospital in the morning of 24th August as a suspected case of poison and, therefore, she was declared to be unfit to make any statement. In our view, the prosecution rightly sent for PW.62 for recording dying declaration ofBefore adverting to the three decisions relied upon by the learned counsel for the accused, we shall first analyse the judicial confession (Ext.187) recorded by PW 62 and see whether it has been recorded according to the procedure prescribed by Section 164. On 24th August, 2001, upon receipt of an application moved by Superintendent of Police for recording dying declaration ofby a magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hisar, who, in turn, marked the said application to Pardeep Kumar, PW.62. On its presentation to PW.62 by DSP Man Singh at 10 p.m. the same day, both PW.62 and DSP Man Singh left for the Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW.62 first sought opinion of Dr. Anant Ram (PW 32) as to the fitness ofto make the statement. As in the opinion of PW 32,was fit to make the statement, PW.62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put tothat PW.62 warnedthat she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence. In spite of this warning,volunteered to make the statement and only thereafter the statement was recorded by PW.62. In the certificate that was appended to the said confessional statement PW.62 has very categorically stated that he had explained tothat she was not bound to make a confession and that if she did so, any confession she would make might be used as evidence against her and that he believed that the confession was voluntarily made. He further stated that he read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It has been further stated by PW.62 in his evidence that at the time of recording of the confession it was he and PW 32, who were present in the room and there was neither any police officer nor anybody else within the hearing or sight when the statement was recorded. It also appears from the evidence of PW.62 that it took abouthours for him to record the statement ofwhich runs into 5 pages, which he started at 10.53 p.m. and ended at 1.28 a.m. which goes to show thattook her time before replying to the questions put. PW.62 has also stated that she had given the statement after taking due time after understanding each aspect. It also appears that he was satisfied that she was not under any pressure from any corner. Therefore, it is evident from the certificate appended to the confessional statement by PW.62 that the confessional statement was made by the accused voluntarily. Of course, he failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement, but PW.62 having stated in his evidence before the Court that he had asked the accused orally whethershe was under any pressure, threat or fear and he was satisfied thatwas not under any pressure from any corner, that in the room in which the said confessional statement was recorded it was only he and PW.32 who were present and none else and that no police officer was available even within the precincts of the hospital, the saiddefect, in our view, is cured by Section 463 as the mandatory requirement provided under Section 164(2), namely, explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW.62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession [Ext. 187] having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence.18. We now advert to the decisions relied upon by the learned counsel appearing on behalf of the accused. In the case of Nazir Ahmad [supra] the accused, who was charged with dacoity and murder, was convicted on the strength of a confession said to have been made by him to a Magistrate of the class entitled to proceed under the provisions of Section 164 relating to the recording of confession. The confession was not recorded according to the procedure and the record of the confession was not available as evidence either. The Magistrate, however, appeared as a witness and gave oral evidence about the making of the confession. He stated that he made rough notes of what he was told, got a memorandum typed from the typist on the basis of the rough notes and thereafter destroyed the rough notes. The said memorandum, signed by him contained only the substance but not all of the matter to which he spoke orally. The recording Magistrate in the said memorandum just above his signature appended a certificate somewhat to the same effect as that prescribed in section 164 and, in particular, stating that the Magistrate believed that the statements were voluntarily made. As there was no record in existence at the material time, there was nothing to be shown or to be read to the accused and nothing he could sign or refused to sign. The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible. The Magistrate offered no explanation as to why he acted as he did instead of following the procedure required by Section 164. When questioned by the Sessions Judge, the response of the accused was a direct and simple denial that he had ever made any confession. The Judicial Committee, considering the abject disregard by the Magistrate of the provisions contained in Section 164 of the Code, observed that "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all". Nazir [supra] is a case where recording Magistrate did not at all follow the procedure prescribed by Section 164 of the Code as a result of which, he violated the provisions thereof whereas in the case on hand the omission that has been made by the magistrate is his failure to record the question that he asked to the accused whether she was under any pressure, threat or fear to make a confession in the confessional statement and the answer given byIn his evidence before the Court, PW.62 stated that he askedwhether she was under any pressure, threat or fear and after he was satisfied that she was not under any pressure from any corner, he recorded in the memorandum that was appended to the confessional statement ofthat he believed that the confession was voluntarily made. In our view, Nazir [supra] has no application to the facts of the present case as the failure of PW.62 to record the question put and the answer given in the confessional statement has not caused prejudice to the accused in her defence and is a defect that is curable under Section 463. In the case of Preetam [supra] the accused was arrested on 17.6.1973 and when produced before the Magistrate on the following day he was sent to police custody, where he remained until 22.6.1973 and, thereafter he was sent to judicial custody. Upon being produced before a Magistrate on 25.6.1973 for recording his confession, he was given two hours time to reflect. After cautioning the accused that he was not bound to make a confession and that if he did so, it might be used against him, the Magistrate went on to record his confession. Failure of the recording Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under(4) was termed by this Court as flagrant violation of the provisions of Section 164(2) and in utter disregard of the mandatory requirements of the said section. Preetam (supra) is a case where the accused remained in police custody for six days immediately before the recording of his confession by the Magistrate and, therefore, could be said to have been pressurized, tortured and harassed by the police. In such a situation, omission on the part of the recording Magistrate to put a question to the accused to satisfy himself that the confession was being made voluntarily can be said to be flagrant violation of law. However, in the case on hand,was removed by the police from the place of occurrence to the hospital in the morning of 24th August, 2001 where she remained until her arrest by the police in the evening of 26th August, 2001. It was at 10.58 p.m. on 24th August, 2001, i.e., during her hospitalization, that PW 62 recorded her confessional statement after cautioning her that she was not bound to make any confession and that if she did so, it might be used as evidence against her. PW 62 in his evidence has stated that it was only after administering the above caution and satisfying himself thatwas making the statement voluntarily that he proceeded on to record her confession. It also appears from his evidence that no police official was present either in the room in which he recorded the confessional statement ofor in the hospital. Therefore, in the absence of any evidence to show that she was under direct or indirect vigil of the police authorities during her hospitalization and she having already confessed the crime in her Suicide Note, the omission on the part of the recording Magistrate to record the question and the answer given in the confessional statement cannot be said to be flagrant violation of law, especially in view of the fact that the recording Magistrate has stated in his evidence that he orally askedif she was under any pressure, threat or fear and it was only after satisfying himself that she was not under any pressure from any corner that he recorded her confessional statement. In the certificate that was appended to the confessional statement as well, PW 62 has stated that he believed that confession thatmade was voluntary. In our view, the defect committed being curable under Section 463 has not injured the accused in her defence on the merits and that she duly made the statement.19. Similarly, in the case of Tulsi Singh [supra], also relied upon by the learned counsel for the accused, the recording Magistrate did not explain to the accused that he was not bound to make a confession and that if he did so, it might be used against him, nor did he put any question to him to satisfy that the confession was being voluntarily made although, an endorsement to this effect was made by him in the certificate that was appended to the confessional statement. This court, while setting aside the conviction and sentence recorded against the accused under Section 302 IPC, held that the special court was not at all justified in entertaining the confession as a voluntary one, observing that mere endorsement would not fulfill the requirements of(4) of Section 164. This case too has no application at all to the facts of the present case for two reasons firstly, in this case too the appellant remained in police custody for a week and secondly, it is a case in which the recording Magistrate neither explained to the accused that he was not bound to make a confession and if he did so, it might be used against him nor satisfied himself upon questioning the accused that the confession was being voluntarily made. In the case on hand, PW 62 in his evidence has stated that he did ask the accused the question whether she was under any pressure, threat or fear and only after satisfying himself that she was not under any, that he proceeded on to record her confessional statement. Therefore, in view of our above discussion, the three decisions relied upon by the learned counsel for the accused in the cases of Nazir (supra), Preetam (supra) and Tulsi (supra) are of no help to the accused.The three unusual features noticed by the Bench in Babu Singh [Supra] impelled the learned Judges to exclude from consideration the confessional statement made before the magistrate by the accused after having observed that the confession was admissible in evidence. As the charge of murder was founded exclusively on the confession, both the accused persons were acquitted of the charge under Section 302/34 IPC. In our view, the factual matrix in Babu Singh [supra] was distinct from the one with which we are dealing. In Babu Singh, both the accused remained in police custody for a long time and even after the substantial portion of the investigation was over. If one were or held to be in police custody, question of pressure, threat or fear would arise. We have already held that in the facts and circumstances of the present case,cannot be said to be in police custody during her hospitalization and, therefore, question of her being pressurized, threatened or put under any kind of fear does not arise. In the case of State of U.P. v. Singhara Singh & Ors., AIR 1964 SC 358 , aBench of this Court observed that if the confession is not recorded in proper form as prescribed by Section 164 read with Section 281, it is a mere irregularity which is curable by Section 463 on taking evidence that the statement was recorded duly and has not injured the accused in defence on merits.In the light of the above discussion, we are of the view that Ext.187 is admissible, having been recorded according to the procedure prescribed under law and the same is voluntary and truthful. Turning now to the medical evidence, Dr. Sanjay Sheoran [PW.1], Dr. R.S. Dalal, [PW.2], and Dr. Arun Gupta [PW.15], who conducted the autopsy on the dead bodies of the deceased, have opined that the injuries found on the persons of the deceased were ante mortem in nature, were sufficient to cause death in ordinary course of nature and that injuries could be caused with the iron rod. We have already referred to the testimony of PW 57 wherein he stated that he had seenremoving the iron rod from the store room at the place of occurrence on the night of 23rd August, 2001 which iron rod was recovered from the bed ofat the place of occurrence by the prosecution. The medical evidence that injuries could be caused with the iron rod, the statement of PW.57 that he had seenremoving the iron rod from the store room at the place of occurrence and its recovery from the bed ofleave no scope for any doubt about the veracity of the prosecution case as againstFinding of bloodstains on the salwar ofand its matching with the blood group of deceased Sunil and Lokesh further strengthens the case of the prosecution. Insofar as other submissions made by learned counsel appearing on behalf of the accused quaof FIR, tampering of Exts. 193 and 194 andof finger prints are concerned, we need hardly add anything to the exhaustive discussion in the elaborate judgments rendered by the trial court and the High Court while dealing with identical submissions.24. As a result of our above discussion, we hold that the case againsthas been proved by the prosecution beyond reasonable doubt and, therefore, order of conviction ofpassed by the trial court and upheld by the High Court is unassailable. We now proceed to consider the case of Sanjivwhose case revolves around the circumstantial evidence, apart fromconfessions made by him to Sunder Singh, PW 48 and Dr. Rajni Gandhi, PW.17, the result of the polygraph test and the recoveries made at his instance. Insofar as circumstantial evidence as againstis concerned, the courts below have very elaborately discussed the material produced by the prosecution while accepting each of the circumstances. In the normal course, there would have been no need for us to go into these circumstances as elaborately as was done by the two courts below in an appeal filed under Article 136 of the Constitution of India, especially when the finding qua conviction is concurrent. However, taking into consideration that the accused were awarded death sentence by the trial court, which has been converted into life imprisonment by the High Court, and that the case in hand is one of circumstantial evidence, we think it appropriate and in the interest of justice to reappreciate the evidence. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. In the light of the above principle, which principle has been reiterated in a series of pronouncements of this Court, we proceed to ascertain whether the prosecution has been able to establish a chain of circumstances so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.Examined in the light of the enunciation of law as above, we are of the view that the testimony of PW.48 as regards the confession made byis such as to inspire confidence in our minds. Indisputably,confession was made byto PW.48 prior to his arrest by the police and, therefore, question of it being made under any inducement, threat or promise does not arise. Moreover, there was absolutely no reason for PW 48 to unnecessarily implicate the accused, as he had no animus against him. In view of our above discussion, we see no reason to disbelieve the evidence of PW.48 and hold thatal confession which is voluntary and truthful.Insofar as motive qua the crime committed is concerned, it is clearly borne out from the factual matrix of the case on hand that both the accused had an eye on the property of deceased, Relu Ram, which was in crores and in order to gain full control over the property and to deprive deceased Relu Ram from giving it to anybody else, both the accused persons have eliminated his whole family. We have been taken through theconfession made byto PW. 48 wherein he has indicated that as deceased Relu Ram was not parting with the share ofin the property, bothtogether have done to death his whole family. Therefore, the motive qua the crime committed stands proved in the present case.was arrested on 19th September, 2001 and on 24th and 25th September when he was taken for the LDT he was in police custody and it was at that point of time he madeconfession to PW.17 at which point of time police personnel went away from the scene temporarily. Therefore, in the light of the decision rendered in Kishore Chand [supra], we are of the opinion thatconfession made byto PW.17 is hit by Section 26 of the Evidence Act, it having been made bywhile in police custody and, consequently, cannot be admitted into evidence and, therefore, has to be eschewed from consideration. However, even the exclusion ofconfession made bybefore PW.17 would be of no help to this accused as we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubts againston the basis of circumstantial evidence enumerated above as well asconfession made bybefore PW.48.34. Insofar as the Polygraph [Lie Detection] Test which was conducted onis concerned, Mr. Sushil Kumar submits that since polygraph evidence is not subject of expert evidence as per Sec. 45 of Evidence Act being a science in mystique, it could at best be used as an aid to investigation and not as an evidence. In support of his submission, he has relied on Romeo Phillion and Her Majesty The Queen, (1978) 1 SCR 18 and R. v. Beland, (1987) 2 SCR 398 , which are decisions rendered by the Canadian Supreme Court, and on Mallard v. Queen, 2003 WASCA 296, a decision of the Australian Supreme Court. Mr. Tulsi, on the other hand, submits that the result of Polygraph Test can be used against the accused. As there are other materials sufficient for upholding conviction ofwe refrain ourselves from going into the question of admissibility or otherwise of the result of Polygraph Test in the present case.35. Having held that bothare guilty of murder of deceased Relu Ram and his family and that their conviction under Section 302 read with Section 34 and Sectionand other provisions inflicted upon them by both the courts below does not call for any interference by this Court, we now proceed to decide whether the instant case is one of rarest of rare cases warranting death sentence, as has been held by the trial court to be one, or the one in which sentence of life imprisonment would be appropriate, as has been held by the High Court while commuting the sentence of death to life imprisonment. Learned counsel appearing on behalf of the accused submitted that the present case cannot be said to be rarest of the rare one so as to justify imposition of extreme penalty of death. This question has been examined by this Court times without number. In the case of Bachan Singh v. State of Punjab, [1980] 2 SCC 684 , before a Constitution Bench of this Court validity of the provision for death penalty was challenged on the ground that the same was violative of Articles 19 and 21 of the Constitution and while repelling the contention, the Court laid down the scope of exercise of power to award death sentence and the meaning of the expression `rarest of the rare so as to justify extreme penalty of death and considered that Clauses (1) and (2) of Article 6 of the International Covenant on Civil and Political Rights to which India has acceded in 1979 do not abolish or prohibit the imposition of death penalty in all circumstances. All that they required is that, firstly, death penalty shall not be arbitrarily inflicted; secondly, it shall be imposed only for most serious crimes in accordance with a law, which shall not be an ex post facto legislation. The Penal Code prescribes death penalty as an alternative punishment only for heinous crimes, which are not more than seven in number. Section 354(3) of the Criminal Procedure Code, 1973 in keeping with the spirit of the International Covenant, has further restricted the area of death penalty. Now according to this changed legislative policy, which is patent on the face of Section 354(3), the normal punishment for murder and six other capital offences under the Penal Code, is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. Judges should never be bloodthirsty. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.Ultimately, in the said case of Machhi Singh (supra), the Court observed that if upon an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.40. In the light of the law already laid down by this Court referred to above, now this Court is called upon to consider whether the present case would come within the realm of the rarest of the rare or not.41. The instant case is one wherein accused Sonia, along with accused Sanjiv [her husband] has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days,years and 4 years, but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims side indicates theand premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts we are of the view that there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of rarest of rare cases and the High Court was not justified in commuting death sentence into life imprisonment. | 0 | 15,049 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
for a motive which evinces total depravity and meanness. For instance when (a) hired assassin commits murder for the sake of money or reward or (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murdered is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. III. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances etc., which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of bride burning and what are known as dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. V. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons. 37. In the said case, the Court further observed that in this background the guidelines indicated in the case of Bachan Singh (supra) will have to be culled out and applied to the facts of each individual case and where the question of imposing death sentence arises, the following proposition emerge from the case of Bachan Singh (supra):- (i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 38. The Court thereafter observed that in order to apply these guidelines the following questions may be answered:- (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 39. Ultimately, in the said case of Machhi Singh (supra), the Court observed that if upon an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.40. In the light of the law already laid down by this Court referred to above, now this Court is called upon to consider whether the present case would come within the realm of the rarest of the rare or not.41. The instant case is one wherein accused Sonia, along with accused Sanjiv [her husband] has not only put an end to the lives of her step brother and his whole family, which included three tiny tots of 45 days, 2-1/2 years and 4 years, but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mind set which can be amenable for any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts we are of the view that there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of rarest of rare cases and the High Court was not justified in commuting death sentence into life imprisonment.
### Response:
0
|
1,062 | Abdul Hamid Vs. VII Additional Dist. and Sessions Judge, Kanpur and Others | BHAGWATI, J. 1. This appeal arises out of an application for release of premises made by respondents Nos. 4 to 6 under Section 21 (1) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972. The application was made against one Ahmad Hasan who was admittedly the tenant in respect of the premises. Ahmed Hasan died on 20th February, 1974 and one Mohammad Ayub was substituted as the legal representative of Ahmed Hasan by an order made by the Prescribed Authority on 19th March. 1974. Within six days thereafter a compromise was arrived at between Mohammad Ayud and respondents Nos. 4 to 6 for release of the premises in favour of respondents Nos. 4 to 6 and the compromise was verified by the Prescribed Authority. But before an order could be passed by the Prescribed Authority in terms of the compromise. objections were filed by the appellant against the compromise on 25th March 1974 on the ground that the appellant and not Mohammad Ayub was the legal representative of Ahmed Hasan and also claiming that proceedings for perjury be taken against Mohammad Ayub. While these objections were pending, an application dated 30th September. 1974 was purported to be made on behalf of the appellant praying that the objections filed by him on 25th March, 1974 be withdrawn. The case of the appellant was that Shri A. S. Bajpai who filed this application on his behalf, had no. authority to do so and the Prescribed Authority was, therefore, not entitled to act on this application. The Prescribed Authority however, proceeded to act on this application and passed release order in favour of respondents Nos. 4 to 6 in terms of the compromise, on the basis that the objections filed by the appellant on 25th March, 1974 were withdrawn by his subsequent application dated 30th September, 1974. The appellant preferred an appeal against the order of release before the District Judge but the appeal was dismissed. The order passed by the District Judge was then challenged by the appellant by filing a Writ Petition in the High Court but the Writ Petition was also unsuccessful and hence the appellant preferred the present appeal before us by special leave obtained from this Court. 2. It is not necessary to go into the various questions which arise in this appeal and which raise highly controversial issue of fact, because it has been agreed between the parties-and we must state that the attitude taken by respondents Nos. 4 to 6 is very fair and just - that the order of release passed by the Prescribed Authority should be set aside and the matter should go back to the Prescribed Authority for the purpose of determining, on the objections of the appellant dated 25th March, 1974 as to who is the heir of Ahmed Hasan, Mohammed Ayub or the appellant and if Mohammed Ayub is found to be the heir of Ahmed Hasan, the Prescribed Authority should be at liberty to pass an order of release in favour of respondents Nos. 4 to 6 on the basis of the compromise arrived at between them and Mohammed Ayub, but if it is found that the appellant and not Mohammed Ayub is the heir of Ahmed Hasan, then the appellant should be impleaded as legal representative of Ahmed Hasan and, if necessary, the abatement should be set aside and the Prescribed Authority should then proceed immediately to dispose of the release application. | 1[ds]2. It is not necessary to go into the various questions which arise in this appeal and which raise highly controversial issue of fact, because it has been agreed between thed we must state that the attitude taken by respondents Nos. 4 to 6 is very fair and justthat the order of release passed by the Prescribed Authority should be set aside and the matter should go back to the Prescribed Authority for the purpose of determining, on the objections of the appellant dated 25th March, 1974 as to who is the heir of Ahmed Hasan, Mohammed Ayub or the appellant and if Mohammed Ayub is found to be the heir of Ahmed Hasan, the Prescribed Authority should be at liberty to pass an order of release in favour of respondents Nos. 4 to 6 on the basis of the compromise arrived at between them and Mohammed Ayub, but if it is found that the appellant and not Mohammed Ayub is the heir of Ahmed Hasan, then the appellant should be impleaded as legal representative of Ahmed Hasan and, if necessary, the abatement should be set aside and the Prescribed Authority should then proceed immediately to dispose of the release application. | 1 | 628 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
BHAGWATI, J. 1. This appeal arises out of an application for release of premises made by respondents Nos. 4 to 6 under Section 21 (1) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 13 of 1972. The application was made against one Ahmad Hasan who was admittedly the tenant in respect of the premises. Ahmed Hasan died on 20th February, 1974 and one Mohammad Ayub was substituted as the legal representative of Ahmed Hasan by an order made by the Prescribed Authority on 19th March. 1974. Within six days thereafter a compromise was arrived at between Mohammad Ayud and respondents Nos. 4 to 6 for release of the premises in favour of respondents Nos. 4 to 6 and the compromise was verified by the Prescribed Authority. But before an order could be passed by the Prescribed Authority in terms of the compromise. objections were filed by the appellant against the compromise on 25th March 1974 on the ground that the appellant and not Mohammad Ayub was the legal representative of Ahmed Hasan and also claiming that proceedings for perjury be taken against Mohammad Ayub. While these objections were pending, an application dated 30th September. 1974 was purported to be made on behalf of the appellant praying that the objections filed by him on 25th March, 1974 be withdrawn. The case of the appellant was that Shri A. S. Bajpai who filed this application on his behalf, had no. authority to do so and the Prescribed Authority was, therefore, not entitled to act on this application. The Prescribed Authority however, proceeded to act on this application and passed release order in favour of respondents Nos. 4 to 6 in terms of the compromise, on the basis that the objections filed by the appellant on 25th March, 1974 were withdrawn by his subsequent application dated 30th September, 1974. The appellant preferred an appeal against the order of release before the District Judge but the appeal was dismissed. The order passed by the District Judge was then challenged by the appellant by filing a Writ Petition in the High Court but the Writ Petition was also unsuccessful and hence the appellant preferred the present appeal before us by special leave obtained from this Court. 2. It is not necessary to go into the various questions which arise in this appeal and which raise highly controversial issue of fact, because it has been agreed between the parties-and we must state that the attitude taken by respondents Nos. 4 to 6 is very fair and just - that the order of release passed by the Prescribed Authority should be set aside and the matter should go back to the Prescribed Authority for the purpose of determining, on the objections of the appellant dated 25th March, 1974 as to who is the heir of Ahmed Hasan, Mohammed Ayub or the appellant and if Mohammed Ayub is found to be the heir of Ahmed Hasan, the Prescribed Authority should be at liberty to pass an order of release in favour of respondents Nos. 4 to 6 on the basis of the compromise arrived at between them and Mohammed Ayub, but if it is found that the appellant and not Mohammed Ayub is the heir of Ahmed Hasan, then the appellant should be impleaded as legal representative of Ahmed Hasan and, if necessary, the abatement should be set aside and the Prescribed Authority should then proceed immediately to dispose of the release application.
### Response:
1
|
1,063 | BANSIDHAR SHARMA (SINCE DECEASED) REPRESENTED BY HIS LEGAL REPRESENTATIVE Vs. THE STATE OF RAJASTHAN | appeal is dismissed, but in the circumstances without costs. 16. It has been further considered by other coordinate Bench of this Court in the recent past in Murti Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh & Ors. 2 as under:- 2 2019(3) SCC 707 Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed. 17. It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them. 18. Indisputedly, in the instant case, there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. On the contrary, the suit filed at the instance of the appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of the first appeal by the Single Judge of the High Court and special leave petition filed before this Court also came to be dismissed. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20 th April, 2018 directing the appellant to hand over possession of the subject property to the respondents- defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders . 19. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17 th May, 2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property. 20. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21 st August, 2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending S.B. Civil First Appeal No. 86/1979 which finally came to be dismissed vide judgment dated 20 th April, 2018. 21. The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents- defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC. 22. Before parting with the order, taking note of the fact that the proceedings were initiated at the instance of the appellant-plaintiff way back in the year 1961 and almost 59 years have rolled by now, to give a quietus to the litigation and also the fact that the appellant had failed at all the stages, having no authority to hold possession of the subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of the subject property to the respondents-defendants in compliance of the judgment of the High Court dated 20 th April, 2018 followed with order dated 21 st August, 2019 positively within a period of eight weeks from today failing which this Court will take serious note of the matter and proceedings may be instituted against the appellant- plaintiff for deliberate defiance of the order of this Court. | 0[ds]17. It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them18. Indisputedly, in the instant case, there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. On the contrary, the suit filed at the instance of the appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of the first appeal by the Single Judge of the High Court and special leave petition filed before this Court also came to be dismissed. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20 th April, 2018 directing the appellant to hand over possession of the subject property to the respondents- defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders19. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17 th May, 2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property20. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21 st August, 2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending S.B. Civil First Appeal No. 86/1979 which finally came to be dismissed vide judgment dated 20 th April, 201821. The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents- defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC22. Before parting with the order, taking note of the fact that the proceedings were initiated at the instance of the appellant-plaintiff way back in the year 1961 and almost 59 years have rolled by now, to give a quietus to the litigation and also the fact that the appellant had failed at all the stages, having no authority to hold possession of the subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of the subject property to the respondents-defendants in compliance of the judgment of the High Court dated 20 th April, 2018 followed with order dated 21 st August, 2019 positively within a period of eight weeks from today failing which this Court will take serious note of the matter and proceedings may be instituted against the appellant- plaintiff for deliberate defiance of the order of this Court. | 0 | 3,576 | ### 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:
appeal is dismissed, but in the circumstances without costs. 16. It has been further considered by other coordinate Bench of this Court in the recent past in Murti Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh & Ors. 2 as under:- 2 2019(3) SCC 707 Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed. 17. It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them. 18. Indisputedly, in the instant case, there was no decree or order of the trial Court by virtue of which the appellant was given possession of the subject property. On the contrary, the suit filed at the instance of the appellant-plaintiff came to be dismissed with costs and that came to be confirmed on dismissal of the first appeal by the Single Judge of the High Court and special leave petition filed before this Court also came to be dismissed. The possession was handed over to the appellant of the subject property under the interim order passed by the High Court pending first appeal of which a reference has been made and after the appeal came to be dismissed, its logical consequence was noticed by the High Court in its judgment dated 20 th April, 2018 directing the appellant to hand over possession of the subject property to the respondents- defendants obviously for the reason that on dismissal of the first appeal preferred by the appellant, he was under an obligation to restore back peaceful possession to the respondents on vacation of the interim orders . 19. In the present facts and circumstances, the respondents have not committed any error in taking decision to call upon the appellant for handing over possession of the subject property at least after the special leave petition filed at the instance of the appellant came to be dismissed under order dated 17 th May, 2018 and in sequel thereto, there was no other remedy left with the respondents than to file an application under Section 151 CPC before the High Court for restoration of possession of the subject property. 20. After we have heard the parties, find no error being committed by the High Court in passing of the order dated 21 st August, 2019 directing the appellant to hand over possession of the subject property in question which was handed over to the appellant under the interim orders passed by the High Court pending S.B. Civil First Appeal No. 86/1979 which finally came to be dismissed vide judgment dated 20 th April, 2018. 21. The submission of the learned counsel for the appellant that execution application under Section 144 CPC would lie only before the Court of first instance, which in the instant case is Additional District and Session Judge, No. 1, Jaipur City and not the High Court and the impugned judgment is without jurisdiction, is without substance for the reason that there was no decree or order of the trial Court which is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. Indisputedly, the possession was handed over to the appellant-plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondents- defendants. In the given circumstances, the provisions of Section 144 CPC, in our view, are not attracted as there being no variation or reversal of a decree or order as contemplated by Section 144 CPC. 22. Before parting with the order, taking note of the fact that the proceedings were initiated at the instance of the appellant-plaintiff way back in the year 1961 and almost 59 years have rolled by now, to give a quietus to the litigation and also the fact that the appellant had failed at all the stages, having no authority to hold possession of the subject property, we, therefore, consider it appropriate to direct the appellant to hand over peaceful possession of the subject property to the respondents-defendants in compliance of the judgment of the High Court dated 20 th April, 2018 followed with order dated 21 st August, 2019 positively within a period of eight weeks from today failing which this Court will take serious note of the matter and proceedings may be instituted against the appellant- plaintiff for deliberate defiance of the order of this Court.
### Response:
0
|
1,064 | B.V. Patankar & Others Vs. C.G. Sastry | the House Rent Control Order of 1948 stood repealed must be repelled as unsound and cannot be sustained, because it was an existing law which was saved by Art. 372 of the Constitution and remained unaffected by Art. 254. The Punjab High Court in Tilakram Rambaksh v. Bank of Patiala, AIR 1959 Punj 440 at p. 447 discussing the effect of Part B States (Laws) Act on the application of the Transfer of Property Act to Pepsu said:"All that Central Act III of 1951 has done is to make it possible for Part B States to extend the Act to any part of territory by notification. Actually, however this was never done by Pepsu or Punjab and the Transfer of Property Act is not as such in force there. It is unnecessary in the circumstances to examine the argument further". Although the question of repugnancy was raised in the High Court at the time of the hearing of the appeal, the true effect of S. 3 of the Part B States (Laws) Act was not brought to the notice of the learned Judges nor was the Notification placed before them, but it was discussed by the High Court in its order refusing certificate under Art. 133(1) of the Constitution. The argument of repugnancy, therefore, is wholly inefficacious in this appeal. 8. The in applicability of S. 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the Court became functus office is a matter relating to execution, satisfaction and discharge of the decree. It was held by this Court in Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 at p. 91 that :"When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under S. 47, and not in a separate suit". See also J. Marret v. Mahomed Khaleel Shirazi and Sons, AIR 1930 PC 86 where the facts were that an order was made by the Executing Court directing contrary to the terms of the decree the payment of a certain found to the decree holder. The Madras High Court in Mahomed Sikri Sahib v. Madhava Kurup, AIR 1949 Mad 809 held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of decree was prohibited and passed an ejectment decree against a tenant, the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree, could be set aside under S. 151 of the Code of Civil Procedure. The prohibition is equally puissant in the present case and S. 47 read with S. 151 would be equally effective to sustain the order of redelivery made in favour of the respondent. 9. The applicability of res judicata and defences of waiver and estoppel were also raised by the appellants. The contention of res judicata was based on the plea taken by the respondent in his written statement, dated March 11, 1946, where he pleaded that the civil Court had no jurisdiction to order eviction because of the House Rent Control Order, 1945, to which the reply of the appellants was that considering the nature of the suit and the consequential remedy that they were seeking the plea of jurisdiction of the Court was not open to the respondent. Thereupon the trial Court raised a new issue "whether this court has jurisdiction to try the suit, in view of the House Rent Control Order" which was decided against the respondent and a decree in favour of the appellants was passed on August 23, 1945. This judgment formed the basis of the argument before us that the plea of inexecutability of the decree could not be raised because it was barred on the principle of res judicata. The plea of res judicata is not available to the appellants as the prohibition on account of the House Rent Control Order was not against the passing of the decree but against its execution and therefore the objection to the executability could only be taken at the time of the execution of the decree which in the instant case could not be done because the order for delivery by the Executing Court was passed without notice to the respondent. We must, therefore, repel the contention based on the ground of res judicata. 10. The argument of waiver and estoppel is also devoid of force. This plea was based on a letter which the respondents lawyer sent in replay to the respondent asking to make arrangements to put the appellants in possession. The former replied there to that his client was making arrangements and as soon as he could do so, he would hand over possession to the appellants. This is slender basis for the sustainability of the plea of waiver and estoppel. There is no conduct on the part of the respondent which has induced the appellants to charge their position or has in any way affected their rights and the plea of non-executability which has been taken is based on statute and against statute there cannot be an estoppel. This ground taken by the appellants is equally unsound and must be rejected. 11. The contention raised that ignoring Ss. 9(1) and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction. In the present case the two sections mentioned above were a restriction on the power of the court to execute the decree and therefore this argument must also be rejected. 1 | 0[ds]To test the force of this argument it is necessary to examine the provisions of Part B States (Laws) Act and how and when as a consequence of it the Transfer of Property Act became effective and operative in the State of Mysore. Section 3 of that Act deals with the extension and amendment of certain Acts and Ordinances. The Acts and the Ordinances specified in the Schedule were amended and became applicable as specified and as a consequence the fourth paragraph of S. 1 for the words "Bombay, Punjab or Delhi" the words "that the said States" were substituted. Therefore the effect of the Part B State (Laws) Act merely was that qua the Transfer of Property Act, the State of Mysore was placed on the same footing as the States of Bombay, Punjab or Delhi It was by virtue of a Notification No. 2676-Cts. 46-51-5 dated September 12, 1951, that the Transfer of Property Act was extended to the State of Mysore as from October 1, 1951. Consequently the laws of the State applying to leases which would include the Mysore House Rent Control Order of 1948 continued to be in force and applicable to cases that were pending till it was repealed by the Mysore Rent Control Act of 1951 which received the Presidents assent on August 16, 1951. The argument, therefore, that as from April 1, 1951, as a result of repugnancy the House Rent Control Order of 1948 stood repealed must be repelled as unsound and cannot be sustained, because it was an existing law which was saved by Art. 372 of the Constitution and remained unaffected by Art. 251. The contention raised that ignoring Ss. 9(1) and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction. In the present case the two sections mentioned above were a restriction on the power of the court to execute the decree and therefore this argument must also be rejected. | 0 | 2,620 | ### 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:
the House Rent Control Order of 1948 stood repealed must be repelled as unsound and cannot be sustained, because it was an existing law which was saved by Art. 372 of the Constitution and remained unaffected by Art. 254. The Punjab High Court in Tilakram Rambaksh v. Bank of Patiala, AIR 1959 Punj 440 at p. 447 discussing the effect of Part B States (Laws) Act on the application of the Transfer of Property Act to Pepsu said:"All that Central Act III of 1951 has done is to make it possible for Part B States to extend the Act to any part of territory by notification. Actually, however this was never done by Pepsu or Punjab and the Transfer of Property Act is not as such in force there. It is unnecessary in the circumstances to examine the argument further". Although the question of repugnancy was raised in the High Court at the time of the hearing of the appeal, the true effect of S. 3 of the Part B States (Laws) Act was not brought to the notice of the learned Judges nor was the Notification placed before them, but it was discussed by the High Court in its order refusing certificate under Art. 133(1) of the Constitution. The argument of repugnancy, therefore, is wholly inefficacious in this appeal. 8. The in applicability of S. 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore the Court became functus office is a matter relating to execution, satisfaction and discharge of the decree. It was held by this Court in Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 at p. 91 that :"When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under S. 47, and not in a separate suit". See also J. Marret v. Mahomed Khaleel Shirazi and Sons, AIR 1930 PC 86 where the facts were that an order was made by the Executing Court directing contrary to the terms of the decree the payment of a certain found to the decree holder. The Madras High Court in Mahomed Sikri Sahib v. Madhava Kurup, AIR 1949 Mad 809 held that where the Executing Court was not aware of the amendment of the Rent Restriction Act by which the execution of decree was prohibited and passed an ejectment decree against a tenant, the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree, could be set aside under S. 151 of the Code of Civil Procedure. The prohibition is equally puissant in the present case and S. 47 read with S. 151 would be equally effective to sustain the order of redelivery made in favour of the respondent. 9. The applicability of res judicata and defences of waiver and estoppel were also raised by the appellants. The contention of res judicata was based on the plea taken by the respondent in his written statement, dated March 11, 1946, where he pleaded that the civil Court had no jurisdiction to order eviction because of the House Rent Control Order, 1945, to which the reply of the appellants was that considering the nature of the suit and the consequential remedy that they were seeking the plea of jurisdiction of the Court was not open to the respondent. Thereupon the trial Court raised a new issue "whether this court has jurisdiction to try the suit, in view of the House Rent Control Order" which was decided against the respondent and a decree in favour of the appellants was passed on August 23, 1945. This judgment formed the basis of the argument before us that the plea of inexecutability of the decree could not be raised because it was barred on the principle of res judicata. The plea of res judicata is not available to the appellants as the prohibition on account of the House Rent Control Order was not against the passing of the decree but against its execution and therefore the objection to the executability could only be taken at the time of the execution of the decree which in the instant case could not be done because the order for delivery by the Executing Court was passed without notice to the respondent. We must, therefore, repel the contention based on the ground of res judicata. 10. The argument of waiver and estoppel is also devoid of force. This plea was based on a letter which the respondents lawyer sent in replay to the respondent asking to make arrangements to put the appellants in possession. The former replied there to that his client was making arrangements and as soon as he could do so, he would hand over possession to the appellants. This is slender basis for the sustainability of the plea of waiver and estoppel. There is no conduct on the part of the respondent which has induced the appellants to charge their position or has in any way affected their rights and the plea of non-executability which has been taken is based on statute and against statute there cannot be an estoppel. This ground taken by the appellants is equally unsound and must be rejected. 11. The contention raised that ignoring Ss. 9(1) and 16 of the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does not appear to be sound because those sections are a fetter on the executability of the decree and not merely an error in the exercise of the jurisdiction. In the present case the two sections mentioned above were a restriction on the power of the court to execute the decree and therefore this argument must also be rejected. 1
### Response:
0
|
1,065 | UNION OF INDIA & ORS Vs. GOPALDAS BHAGWAN DAS & ORS | who appeared on behalf of the State, was not directly answered in Kulsum R. Nadiadwalas case inasmuch as, according to the Division Bench of this Court in Kulsum R. Nadiadwalas case, a mandatory condition of a section 4 notification not being adhered to, would amount to there being no acquisition at all in the eye of law. On this ground, he defended the impugned judgment passed by the Bombay High Court. 8. Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwalas case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwalas case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwalas case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandeys contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Courts judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwalas case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed. 9. Adverting to some of the other submissions made by Ms.Pandey, first and foremost, in Kulsum R. Nadiadwalas case, the High Court dismissed the writ petition filed therein on the ground of there being a 12 years delay in filing the writ petition, and not on the ground that there was a one year delay as the Award in this case was passed only in 1986. Secondly, the factum of notices actually being served in this case, as opposed to notices not being individually served in Kulsum R. Nadiadwalas case, apart from making no difference to mandatory conditions that have to be followed, as held in Kulsum R. Nadiadwala, has been repelled by the judgment under appeal as follows: 11. Nevertheless, we are dealing with the contentions raised by the First Respondent. Perusal of the Writ Petition and in particular Clause (h) of Paragraph 4 thereof shows that a specific contention has been raised by the Petitioners that neither the Petitioners nor their predecessors were served with any notice and were not offered any opportunity of raising objections to the Notification under Subsection (1) of Section 4 of the said Act. …………………………………………………………………………………………………………………….. ………………………………………………………………………………………………………………………. Affidavit of Shri Manoj Shankarrao Gohad, the Special Land Acquisition Officer (4) is completely silent as far as this factual and legal challenge in this Petition is concerned. …………………………………………………………………………………………………………………………. …………………………………………………………………………………………………………………………. 10. Insofar as the per incuriam point is concerned, this can be disposed of by stating that even though newspaper publication of the section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwalas case did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of section 4. 11. So far as the Indore Development Authoritys case (supra) is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 12. This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case. 13. Given the fact that this is a Defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwalas case in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts. 14. As to the argument that no declaration that the entire section 4 notification is quashed inasmuch as the claim of the appellants in Kulsum R. Nadiadwalas case was restricted only to 50 per cent of the lands in question, it is important to make a distinction between a declaration of law which would bind other future cases under Article 141 of the Constitution of India and an order made in the facts of the case which may equally be made to do substantial justice on the facts of a given case, sometimes under Article 142. 15. On a reading of paragraph 16 of Kulsum R. Nadiadwalas judgment, it is important to note that though the appellants claim was restricted to only 50 per cent of the land in question, so far as the other 50 per cent is concerned, the judgment itself makes a reference to the fact that the appellants are legal heirs of one deceased Ismail Nadiadwala and that there was another claimant whose name was Ibrahim Nadiadwala to whom, presumably, 50 per cent of the property went. Since only Ismail Nadiadwalas heirs were prosecuting the appeal, this direction appears to have been made. | 0[ds]8. Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwalas case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwalas case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwalas case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandeys contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Courts judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwalas case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed9. Adverting to some of the other submissions made by Ms.Pandey, first and foremost, in Kulsum R. Nadiadwalas case, the High Court dismissed the writ petition filed therein on the ground of there being a 12 years delay in filing the writ petition, and not on the ground that there was a one year delay as the Award in this case was passed only in 1986. Secondly, the factum of notices actually being served in this case, as opposed to notices not being individually served in Kulsum R. Nadiadwalas case, apart from making no difference to mandatory conditions that have to be followed, as held in Kulsum R. Nadiadwala, has been repelled by the judgment under appeal as follows:10. Insofar as the per incuriam point is concerned, this can be disposed of by stating that even though newspaper publication of the section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwalas case did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of section 411. So far as the Indore Development Authoritys case (supra) is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 201312. This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case13. Given the fact that this is a Defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwalas case in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts15. On a reading of paragraph 16 of Kulsum R. Nadiadwalas judgment, it is important to note that though the appellants claim was restricted to only 50 per cent of the land in question, so far as the other 50 per cent is concerned, the judgment itself makes a reference to the fact that the appellants are legal heirs of one deceased Ismail Nadiadwala and that there was another claimant whose name was Ibrahim Nadiadwala to whom, presumably, 50 per cent of the property went. Since only Ismail Nadiadwalas heirs were prosecuting the appeal, this direction appears to have been made. | 0 | 3,059 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
who appeared on behalf of the State, was not directly answered in Kulsum R. Nadiadwalas case inasmuch as, according to the Division Bench of this Court in Kulsum R. Nadiadwalas case, a mandatory condition of a section 4 notification not being adhered to, would amount to there being no acquisition at all in the eye of law. On this ground, he defended the impugned judgment passed by the Bombay High Court. 8. Though this Court has, by its order dated 27.03.2018, referred this case to a larger Bench in view of the decision in Kulsum R. Nadiadwalas case that delay and laches have to be ignored, we are of the view that on the facts of this case, we need not answer this question. This is for the reason that the section 4 notification that was struck down in Kulsum R. Nadiadwalas case is the very notification in the facts of this case. We may also note that in paragraph 13 of the Kulsum R. Nadiadwalas case set out hereinabove, this Court quashed the entire acquisition proceedings stating that they be declared as null and void. We are unable to agree with Ms.Pandeys contention that the Section 4 notification not only deals with various other lands in Village Malad but also deals with a land in a different village altogether viz., Village Wadhawan, and that this Courts judgment did not go to the extent of declaring the acquisition bad so far as village Wadhawan is concerned. So far as village Malad is concerned, where the land in Kulsum R. Nadiadwalas case was land that was adjacent to the present land, the very section 4 notification has been struck down and declared null and void, and this being the case, it would not be in the interest of justice to allow the present appeal in favour of the Union of India, as this would amount to a discrimination between two persons who are otherwise similarly placed. 9. Adverting to some of the other submissions made by Ms.Pandey, first and foremost, in Kulsum R. Nadiadwalas case, the High Court dismissed the writ petition filed therein on the ground of there being a 12 years delay in filing the writ petition, and not on the ground that there was a one year delay as the Award in this case was passed only in 1986. Secondly, the factum of notices actually being served in this case, as opposed to notices not being individually served in Kulsum R. Nadiadwalas case, apart from making no difference to mandatory conditions that have to be followed, as held in Kulsum R. Nadiadwala, has been repelled by the judgment under appeal as follows: 11. Nevertheless, we are dealing with the contentions raised by the First Respondent. Perusal of the Writ Petition and in particular Clause (h) of Paragraph 4 thereof shows that a specific contention has been raised by the Petitioners that neither the Petitioners nor their predecessors were served with any notice and were not offered any opportunity of raising objections to the Notification under Subsection (1) of Section 4 of the said Act. …………………………………………………………………………………………………………………….. ………………………………………………………………………………………………………………………. Affidavit of Shri Manoj Shankarrao Gohad, the Special Land Acquisition Officer (4) is completely silent as far as this factual and legal challenge in this Petition is concerned. …………………………………………………………………………………………………………………………. …………………………………………………………………………………………………………………………. 10. Insofar as the per incuriam point is concerned, this can be disposed of by stating that even though newspaper publication of the section 4 notification came in by amendment for the first time in 1984, the requirement of public notice where the land is situate in addition to publication in the Official Gazette, was always there from the inception. Kulsum R. Nadiadwalas case did not deal with newspaper publication at all. It only dealt with the requirement of publication in the Official Gazette and public notices of the substance of the notification being given in the locality in which the lands are acquired, both of which were held to be cumulative and mandatory requirements of section 4. 11. So far as the Indore Development Authoritys case (supra) is concerned, the Constitution Bench is seized of several questions, all of which pertain to the construction of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 12. This being the case, and regard being had to what we have stated hereinabove, it is wholly unnecessary for us to adjourn this case in order to await the judgment of the Constitution Bench in this case. 13. Given the fact that this is a Defence project in which possession has been with the Union since 1942, the same facts would obtain as in Kulsum R. Nadiadwalas case in which relief has been granted to Kulsum R. Nadiadwala. This case, therefore, cannot lead to a different conclusion on similar facts. 14. As to the argument that no declaration that the entire section 4 notification is quashed inasmuch as the claim of the appellants in Kulsum R. Nadiadwalas case was restricted only to 50 per cent of the lands in question, it is important to make a distinction between a declaration of law which would bind other future cases under Article 141 of the Constitution of India and an order made in the facts of the case which may equally be made to do substantial justice on the facts of a given case, sometimes under Article 142. 15. On a reading of paragraph 16 of Kulsum R. Nadiadwalas judgment, it is important to note that though the appellants claim was restricted to only 50 per cent of the land in question, so far as the other 50 per cent is concerned, the judgment itself makes a reference to the fact that the appellants are legal heirs of one deceased Ismail Nadiadwala and that there was another claimant whose name was Ibrahim Nadiadwala to whom, presumably, 50 per cent of the property went. Since only Ismail Nadiadwalas heirs were prosecuting the appeal, this direction appears to have been made.
### Response:
0
|
1,066 | THE STATE OF ANDHRA PRADESH Vs. B. RANGA REDDY (D) BY L.R | on the judgment in Ashok Nagar Welfare Association is not relevant for the present case as question examined was the scope of interference in the Special Leave Petition. That was a case whether an ex parte decree granted in two suits by the trial court was set aside in appeal. The Special Leave Petition was directed against such order. This Court has rightly not interfered with the setting aside the ex parte judgment. Bhanu Kumar Jain is also a case delineating the remedies available to a defendant in the event of an ex parte decree granted. The said judgment is not applicable to the facts of the present case. 35) Another judgment referred to by Mr. Dave is Nirmala Bala Ghose. In the said case, the decree against deity had attained finality in two suits. It was held that it is not open to another defendant to challenge the decree insofar as it is against deities. The Court has held as under: 23. In this appeal, the two deities are also impleaded as party respondents. But the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the trial court. She is not seeking in this appeal to claim a mere exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the trial court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under Order 41 Rule 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 Rule 313, insofar as it is material, provides: The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. 36) We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it. 37) As per facts on record, Original Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the First Appellate Court. Therefore, such decree including the finding on Issue No. 1 has not attained finality as the Appellate Court is ceased of the entire controversy including the findings of fact on Issue No. 1. The defendants have a right to dispute such findings by filing cross-objections under Order XLI Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court under Order XLI Rule 33 of the Code. 38) The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11. | 1[ds]12) The High Court referred to various judgments in respect of applicability of the principle of res judicata, therefore, non-filing of the appeal by the State in the other two suits operates as res judicata. The High Court referred to a judgment of this Court in Sheodan Singh wherein, this Court held that once a decree passed in the suit attains finality, it cannot be disturbed indirectly by adjudicating the very same questions in another appeal. We find that the findings recorded by the High Court are patently erroneous for the reasons recorded hereinafter. Therefore, non-filing of the appeal by the State in the other two suits operates as res judicata in the third suitIn Sri Gangai Vinayagar Temple, the Court referred to judgment in Chitivalasa Jute Mills. However, we find that distinction drawn by learned counsel for the respondents is not tenable in law. Chitivalasa Jute Mills is a case where one suit was filed at Reva in Madhya Pradesh and another in Vishakhapatnam. The Court noticed that claim in one suit is a defense in another suit, therefore, the order was passed for transfer of a subsequent suit filed at Reva to Vishakhapatnam15) In the present case, evidence have been recorded only in one suit as all the three suits have been clubbed together. In view of the said fact, we find that merely the word consolidation has not been used by the learned trial court, therefore, it will not be a case of consolidation of suits but of separate trials15) In the present case, evidence have been recorded only in one suit as all the three suits have been clubbed together. In view of the said fact, we find that merely the word consolidation has not been used by the learned trial court, therefore, it will not be a case of consolidation of suits but of separate trials19) The present is a case where the decree is of dismissal of suit therefore, entirely in favour of the State and not executable. Though an issue has been decided against the State as falling within second and third situation delineated by this Court. This Court held that in the absence of cross appeals or cross objections, the First Appellate Court did not have the jurisdiction to modify the decree that is to grant decree for specific performance which was not granted by the trial court23) It may be noticed that separate decree is required to be preferred in each suit even though the suits are consolidated. The three- Judge Bench in Sri Gangai Vinayagar Temple has categorically held that where a common judgment has been delivered in cases in which consolidation orders have been passed, the filing of an appeal leads to the entire dispute becoming sub judice again. The aforesaid judgment arises out of the fact whether tenant has filed a suit to protect its possession during the lease period which was coming to an end on January 1, 1983, claiming injunction not specifically challenging the alienation by the trustees of a public trust. The trustees have filed two separate suits for claiming arrears of rent, one for claiming Rs. 268/- and another for Rs. 2600/24) The tenants suit and the suit for the recovery of Rs. 2600/- were dismissed. Only one appeal was preferred by the tenant against the decree passed in the suit for recovery of Rs. 268/-. In these circumstances, it was held that since the claim of the tenant in his suit was substantially in respect of the right of the trustees to alienate the property of the trust as alleged by the tenant, which is the issue in the other suits as well, therefore, the decree in the suit for injunction filed by the plaintiff would operate as res judicata. But in the present case, an appeal in the first and second suit is pending in which the appellant has right to support decree in terms of Order XLI Rules 22 and 33 of the CodeThe election of the appellant was challenged before the Election Tribunal on the ground that the appellant was holding an office of profit and, therefore, it is against the provisions of Section 7 of the Representation of the People Act, 1951. There was allegation that appellant had also committed corrupt practices. On the other hand, respondent filed a petition praying for the declaration that the election of the appellant was void and also claimed declaration that he was duly elected having polled more votes after appellant- elected candidate. The Election Tribunal found that the appellant was not holder of office of profit but held that he is guilty of corrupt practices. The election of the appellant was set aside but did not grant the declaration that the respondent was duly elected candidate. The appellant filed Election Appeal No. 7 of 1958 whereas the respondent filed Election Appeal No. 8 of 1958 in the High Court against the order of the Election Tribunal. The appeal filed by the appellant was dismissed holding that he was holding office of profit but has not indulged in corrupt practice whereas the appeal filed by the respondent was allowed by a common judgment declaring the respondent to be duly elected. The appellant filed appeal before this Court only against the order in Appeal No. 8 of 1958. All the grounds of the appeal relate to the finding of the High Court in Appeal No. 7 of 1958. In appeal before this Court, a preliminary objection was taken that no appeal was preferred by the appellant against the order of the High Court in Appeal No. 7 of 1958. The Court distinguished the earlier judgment in Narhari. It held that though Appeal Nos. 7 and 8 of 1958 arose out of one proceeding but subject matter of each appeal was different, therefore, the final judgment would operate as res judicata. The relevant findings read as under:14. It is true that both the Appeals Nos. 7 and 8 before the High Court arose out of one proceeding before the Election Tribunal. The subject-matter of each appeal was, however, different. The subject-matter of Appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of Respondent 1 to be declared as duly elected candidate……….. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7. It came to another decision in Appeal No. 8 with respect to the justification of the claim of Respondent 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that Respondent 2, as Ghatwal, was not a properly nominated candidate. We are therefore of opinion that so long as the order in the appellants appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect26) The said judgment has no applicability to the facts of the present case as the decree in Civil Suit No. 274 of 1983 or 276 of 1983 has not attained finality and the same are still subject matter of appeal before the First Appellate Court wherein, the findings recorded by the trial court can be set aside while maintaining ultimate decree of dismissal of the suit. In Badri Narayan Singh, the decision in an appeal became final, holding the appellant to be not duly elected candidate. The Appeal No. 8 of 1958 was in respect of declaration that the respondent shall be deemed to be elected candidate. Therefore, in the absence of finality of judgments, there cannot be any question of such finding binding in the third suit31) Mr. Dave vehemently argued that res judicata in terms of Section 11 of the Code is not about a decree but to a finding in the former suit. It is argued that the first suit and second suit are the former suits in which the findings were written against the State, therefore, such findings will operate res judicata. The said argument proceeds on the basis that the Court would mean the High Court and, therefore, finding in the first and second suit would bar the subsequent proceedings arising out of the third suit in appeal. We find that such an argument is not tenable. As mentioned above, that the decree of dismissal of the first and second suit has not attained finality which are under challenge by the plaintiffs and the defendants-State are entitled to dispute findings on Issue No. 1 even without filing cross objections or in terms of Order XLI Rule 33 of the Code that the decree of dismissal of suit on the grounds other than what weighed with the learned trial court. All the issues are open for consideration before the First Appellate Court32) Section 11 and Explanation I of the Code would be applicable in subsequent proceedings between the same parties or between the parties under whom they or any of them claimed under the same title. But the findings in the first and second suit will not operate as res judicata as such findings are subject matter of challenge in the appeals filed by the plaintiffs in their respective suits. All the three suits have been decided together and the three appeals pending against such judgment and decrees. Therefore, it cannot be said that the first and the second suit are the former suits as the decree passed therein has not attained finality. The findings recorded therein will not, therefore, operate as res judicata as the State is not obliged to challenge findings on Issue No.1 in the first and second suit even after the amendment of Order XLI Rule 22 of the Code34) The reliance of Mr. Dave on the judgment in Ashok Nagar Welfare Association is not relevant for the present case as question examined was the scope of interference in the Special Leave Petition. That was a case whether an ex parte decree granted in two suits by the trial court was set aside in appeal. The Special Leave Petition was directed against such order. This Court has rightly not interfered with the setting aside the ex parte judgment. Bhanu Kumar Jain is also a case delineating the remedies available to a defendant in the event of an ex parte decree granted. The said judgment is not applicable to the facts of the present case36) We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it37) As per facts on record, Original Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the First Appellate Court. Therefore, such decree including the finding on Issue No. 1 has not attained finality as the Appellate Court is ceased of the entire controversy including the findings of fact on Issue No. 1. The defendants have a right to dispute such findings by filing cross-objections under Order XLI Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court under Order XLI Rule 33 of the Code38) The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11. | 1 | 11,252 | ### 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:
on the judgment in Ashok Nagar Welfare Association is not relevant for the present case as question examined was the scope of interference in the Special Leave Petition. That was a case whether an ex parte decree granted in two suits by the trial court was set aside in appeal. The Special Leave Petition was directed against such order. This Court has rightly not interfered with the setting aside the ex parte judgment. Bhanu Kumar Jain is also a case delineating the remedies available to a defendant in the event of an ex parte decree granted. The said judgment is not applicable to the facts of the present case. 35) Another judgment referred to by Mr. Dave is Nirmala Bala Ghose. In the said case, the decree against deity had attained finality in two suits. It was held that it is not open to another defendant to challenge the decree insofar as it is against deities. The Court has held as under: 23. In this appeal, the two deities are also impleaded as party respondents. But the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the trial court. She is not seeking in this appeal to claim a mere exalted right under the deed for herself, which may require re-examination even incidentally of the correctness of the decision of the trial court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under Order 41 Rule 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 Rule 313, insofar as it is material, provides: The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. 36) We find that the High Court has failed to draw the distinction between the decree and a finding on an issue. It is the decree against which an appeal lies in terms of Section 96 of the Code. Decree in terms of Section 2(2) of the Code means formal expression of an adjudication conclusively determining the rights of the parties. The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it. 37) As per facts on record, Original Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The plaintiffs are in appeal in both the suits before the First Appellate Court. Therefore, such decree including the finding on Issue No. 1 has not attained finality as the Appellate Court is ceased of the entire controversy including the findings of fact on Issue No. 1. The defendants have a right to dispute such findings by filing cross-objections under Order XLI Rule 22 of the Code as amended in the year 1976 or even in the exercise of the powers conferred on the Appellate Court under Order XLI Rule 33 of the Code. 38) The decree is of dismissal of the suit, whereas, the reasons for passing such decree is judgment as defined in Section 2(9) of the Code. In terms of Section 11 read with Explanation I, the issue in a former suit will operate as res judicata only if such issue is raised in a subsequent suit. Since, the issue of title has not attained finality, therefore, it is not a former suit to which there can be any application of Section 11.
### Response:
1
|
1,067 | CHAIRMAN AND MANAGING DIRECTOR THE FERTILIZERS AND CHEMICALS TRANVANCORE LTD Vs. GENERAL SECRETARY FACT EMPLOYEES ASSOCIATION | Khadi & Village Industries Board vs. P. Kulothangan & Anr., (2004) 1 SCC 68. In this case also, this Court again examined the question as to whether the principle of res judicata including the principles of constructive res judicata applies to the industrial adjudication or not. Though this Court did not notice the law laid down in the case of R.C.Tiwari (supra), yet it took the same view, as is clear from Paras 10 and 11:"10. In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject-matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code are applicable1 including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain2 it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held: (SCC p. 808) It may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. 11. The principle of res judicata operates on the court. It is the courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust3 and Pujari Bai v. Madan Gopal4. The ?lesser relief? of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings.?27. The third case is Executive Engineer, ZP Engg. Divn. & Anr. vs. Digambara Rao & Ors., (2004) 8 SCC 262. In this case also, this Court placing reliance on the decision in Kulothangan (supra) reiterated the same view, earlier taken by this Court in the case of R.C. Tiwari (supra) with these words:?15………..It is now well settled that the general principle of res judicata applies to an industrial adjudication.?28. Now coming to the facts of this case, it is not in dispute that the issue in relation to reduction of age from 60 to 58 years was raised by the Trade Unions/Respondents in the first round of litigation by filing the original petitions (O.P. Nos.14598, 14599 & 14976/2003) in the Kerala High Court. These writ petitions were dismissed by the Single Judge on merits by order dated 12.08.2003. The respondents/Trade Unions then carried the issue in intra court appeals (No.1565, 1595, 2112 & 2113/2003) before the Division Bench. The appeal was dismissed by the Division Bench by order dated 18.12.2003. The Trade Unions/respondents then filed special leave to appeals in this Court and by order dated 23.04.2004, this Court dismissed the SLPs and affirmed the order of the Division Bench. 29. In our view, the effect of passing of these orders was that the issue in relation to reduction of age from 60 to 58 years including all incidental issues arising therefrom, attained finality because they were already decided on the merits between the parties to the Lis. 30. In our opinion, no judicial forum at the instance of any party to the Lis had jurisdiction to try these issues again on its merits. It was barred for being tried again by virtue of principles of res judicata contained in Section 11 of the Code, which has also application to the labour/industrial proceedings. 31. In our opinion, the State had, therefore, no jurisdiction to make a reference(s) to the Labour Court under Section 10 of the ID Act to re-examine the question of age reduction made by the appellant(PSU). A fortiori, the Labour Court had no jurisdiction to entertain the reference(s) to adjudicate the question(s) referred in the reference(s). 32. In view of the foregoing discussion, we are of the considered opinion that the High Court was not justified in setting aside the awards of the Labour Court, which had rightly held that it (Labour Court) had no jurisdiction to entertain the reference and nor it had the jurisdiction to answer it on merits. The High Court should have upheld the awards of the Labour Court. | 1[ds]22. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we are inclined to allow these appeals and while setting aside the impugned order restore the awards dated 02.07.2008 and 02.08.2008 of the Labour Court.In our considered view, the question, as to whether the principle of res judicata defined in Section 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ?the Code?) applies to the labour proceedings or not, remains no more res integra and stands answered by three decisions of this Court.Now coming to the facts of this case, it is not in dispute that the issue in relation to reduction of age from 60 to 58 years was raised by the Trade Unions/Respondents in the first round of litigation by filing the original petitions (O.P. Nos.14598, 14599 & 14976/2003) in the Kerala High Court. These writ petitions were dismissed by the Single Judge on merits by order dated 12.08.2003. The respondents/Trade Unions then carried the issue in intra court appeals (No.1565, 1595, 2112 & 2113/2003) before the Division Bench. The appeal was dismissed by the Division Bench by order dated 18.12.2003. The Trade Unions/respondents then filed special leave to appeals in this Court and by order dated 23.04.2004, this Court dismissed the SLPs and affirmed the order of the Division Bench.In our view, the effect of passing of these orders was that the issue in relation to reduction of age from 60 to 58 years including all incidental issues arising therefrom, attained finality because they were already decided on the merits between the parties to the Lis.In our opinion, no judicial forum at the instance of any party to the Lis had jurisdiction to try these issues again on its merits. It was barred for being tried again by virtue of principles of res judicata contained in Section 11 of the Code, which has also application to the labour/industrial proceedings.In our opinion, the State had, therefore, no jurisdiction to make a reference(s) to the Labour Court under Section 10 of the ID Act to re-examine the question of age reduction made by the appellant(PSU). A fortiori, the Labour Court had no jurisdiction to entertain the reference(s) to adjudicate the question(s) referred in the reference(s).In view of the foregoing discussion, we are of the considered opinion that the High Court was not justified in setting aside the awards of the Labour Court, which had rightly held that it (Labour Court) had no jurisdiction to entertain the reference and nor it had the jurisdiction to answer it on merits. The High Court should have upheld the awards of the Labour Court. | 1 | 3,360 | ### 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:
Khadi & Village Industries Board vs. P. Kulothangan & Anr., (2004) 1 SCC 68. In this case also, this Court again examined the question as to whether the principle of res judicata including the principles of constructive res judicata applies to the industrial adjudication or not. Though this Court did not notice the law laid down in the case of R.C.Tiwari (supra), yet it took the same view, as is clear from Paras 10 and 11:"10. In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject-matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code are applicable1 including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain2 it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held: (SCC p. 808) It may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. 11. The principle of res judicata operates on the court. It is the courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust3 and Pujari Bai v. Madan Gopal4. The ?lesser relief? of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings.?27. The third case is Executive Engineer, ZP Engg. Divn. & Anr. vs. Digambara Rao & Ors., (2004) 8 SCC 262. In this case also, this Court placing reliance on the decision in Kulothangan (supra) reiterated the same view, earlier taken by this Court in the case of R.C. Tiwari (supra) with these words:?15………..It is now well settled that the general principle of res judicata applies to an industrial adjudication.?28. Now coming to the facts of this case, it is not in dispute that the issue in relation to reduction of age from 60 to 58 years was raised by the Trade Unions/Respondents in the first round of litigation by filing the original petitions (O.P. Nos.14598, 14599 & 14976/2003) in the Kerala High Court. These writ petitions were dismissed by the Single Judge on merits by order dated 12.08.2003. The respondents/Trade Unions then carried the issue in intra court appeals (No.1565, 1595, 2112 & 2113/2003) before the Division Bench. The appeal was dismissed by the Division Bench by order dated 18.12.2003. The Trade Unions/respondents then filed special leave to appeals in this Court and by order dated 23.04.2004, this Court dismissed the SLPs and affirmed the order of the Division Bench. 29. In our view, the effect of passing of these orders was that the issue in relation to reduction of age from 60 to 58 years including all incidental issues arising therefrom, attained finality because they were already decided on the merits between the parties to the Lis. 30. In our opinion, no judicial forum at the instance of any party to the Lis had jurisdiction to try these issues again on its merits. It was barred for being tried again by virtue of principles of res judicata contained in Section 11 of the Code, which has also application to the labour/industrial proceedings. 31. In our opinion, the State had, therefore, no jurisdiction to make a reference(s) to the Labour Court under Section 10 of the ID Act to re-examine the question of age reduction made by the appellant(PSU). A fortiori, the Labour Court had no jurisdiction to entertain the reference(s) to adjudicate the question(s) referred in the reference(s). 32. In view of the foregoing discussion, we are of the considered opinion that the High Court was not justified in setting aside the awards of the Labour Court, which had rightly held that it (Labour Court) had no jurisdiction to entertain the reference and nor it had the jurisdiction to answer it on merits. The High Court should have upheld the awards of the Labour Court.
### Response:
1
|
1,068 | M/S. SAI BABA SALES PVT. LTD Vs. UNION OF INDIA & ORS | fourth building, 40 out of the 64 apartments have already been sold. In this context, it would be appropriate to advert to the submission of Ms. Aishwarya Bhati, the learned ASG who had clearly stated that at the relevant time, the competent authority to grant EC is the PCMC and not the SEIAA and therefore the internal works for the fourth constructed building, can be allowed to be completed. 19. Considering the above circumstances, the NGT rightly protected the already erected buildings and this protection in our view, should not be impacted by the earlier judgment of the NGT on 8.12.2017 in the OA No. 677/2016 whereby certain portions of the MoEFCCs 9.12.2016 notification were invalidated and direction was issued to the Ministry to revisit the said notification. Importantly, neither the NGTs invalidation order nor the subsequent clarifications by the State of Maharashtra, have suggested any adverse action against the pre-existing structures. As the expert body exclusively occupying the environmental field, the NGT has assessed the factual circumstances to consciously lean towards protecting the already constructed structures. Nothing more need be added on this aspect. It is also not necessary in this appeal to venture into the question of the retrospective implication of the invalidation of certain parts of the 2016 Notification for other project proponents, which may have gained their ECs in the interregnum. 20. In situations of this nature, the Doctrine of Legitimate Expectation is attracted. The principle of the rule of law as explained in De Smiths Judicial Review, such as, Regularity, Predictability and Certainty in Governments dealings with the Public, must operate in the present matter. The Project Proponent can legitimately expect a certain degree of stability in the manner in which environmental regime is set and how the applications are processed. The actions of the authorities are expected to adhere to the prevalent norms only, without the element of uncertainty for the executed project. 21. In the above context we may benefit by referring to the seminal case of Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629 : (1983) 2 WLR 735, where Lord Fraser speaking for the Privy Council, appositely observed thus, … when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. 22. This Court in Sethi Auto Service Station vs Delhi Development Authority & Ors (2009) 1 SCC 180 , speaking through Justice D.K. Jain, has cited other opinions and elucidated on the concept of legitimate expectation, in the following manner, 24. The House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) **** **** **** **** **** (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decisionmaker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn. (emphasis supplied) 23. The Doctrine of Legitimate Expectation is further explained in Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 where for a Three-Judge Bench of this Court Justice J.S. Verma observed thus: - The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. 24. The more compelling public interest might possibly diminish the degree of legitimate expectation for a party but a balance has to be found. In the present matter the appellant has acted on the EC and made substantial investments. They cannot be pushed to a precipice and be made to fall. Doing so would be inequitable particularly when, the appellant has scrupulously adhered to the applicable legal framework during the concerned period. Moreover, third-party interests have also cropped up in the interregnum. 25. A Project Proponent is not expected to anticipate the changes in EC regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending. | 1[ds]15. The picture which emerges from the above discussion is that when the Project Proponent initially wanted to apply for the EC it had obtained the requisite layout sanction for applying to the SEIAA. As such, it was operating well within the applicable procedure, prior to the amendment. After grant of such sanction, while the construction was underway, the amendment came about on 9.12.2016 whereby, the local authority such as the Municipal Corporation was made the competent authority to grant EC. In the changed circumstances, the Project Proponent necessarily had to apply to the PCMC as during the interregnum before the NGTs judgment on 8.12.2017, SEIAA was not the competent authority to consider application for EC. The Project Proponent was therefore, complying with the regime set out by the amended notification. It is apposite to note that the Committee appointed by the NGT, in its report dated 11.8.2020 had clearly indicated that when the Project Proponent had received the EC on 28.11.2017, the competent authority to issue the EC was the Environmental Cell of the PCMC. Thus, it is the discernible understanding as part of the NGTs own expert Committee that the Project Proponent had obtained the EC from the competent authority of the relevant time i.e. the PCMC. Interestingly, the constituted Committee also included a member of the SEIAA.16. Moreover, only after the earlier judgment of the NGT on 8.12.2017 in the OA No. 677/2016, the State of Maharashtra issued a clarification on 29.1.2018 directing that the Municipal authorities should not process pending applications. But neither the decision of the NGT nor of the Maharashtra Government categorically gave any guidance as to the implication on the EC obtained by the Project Proponent, on the strength of which, a substantial measure of construction was already made. It is also necessary to note that in the subsequent notification issued on 14.11.2018 and 15.11.2018 by the MoEFCC, the power to grant EC continued to vest in the local authority such as the PCMC, with the only change being that it is the municipality itself and not its Environmental Cell which is empowered to grant the EC. For the sake of completion, it may be recorded that the said notifications of the MoEFCC is stayed by the Delhi High Court on 26.11.2018 in the WP(C) No. 12517/2018.17. It is important to bear in mind that the Committee constituted by the NGT to report on the building project did not underscore any major deviation but instead found that the Project Proponent had made substantial compliance by obtaining the EC from the competent local authority. Moreover the OA, neither before the NGT or this Court, ever contended that appraisal done by the PCMCs Environmental Cell was defective or any different from one done by SEIAA. Both processes are also similarly structured. This may be the reason why the NGT in the impugned judgment itself protected the already made construction. However, the Project Proponent was restrained from making any further construction without obtaining clearance from the statutory EC and adhering to the environmental norms.18. The project of the appellant comprises six buildings of which three were constructed in full, and the super structure of the fourth building is completed and only the internal works remains to be done. In the fourth building, 40 out of the 64 apartments have already been sold. In this context, it would be appropriate to advert to the submission of Ms. Aishwarya Bhati, the learned ASG who had clearly stated that at the relevant time, the competent authority to grant EC is the PCMC and not the SEIAA and therefore the internal works for the fourth constructed building, can be allowed to be completed.19. Considering the above circumstances, the NGT rightly protected the already erected buildings and this protection in our view, should not be impacted by the earlier judgment of the NGT on 8.12.2017 in the OA No. 677/2016 whereby certain portions of the MoEFCCs 9.12.2016 notification were invalidated and direction was issued to the Ministry to revisit the said notification. Importantly, neither the NGTs invalidation order nor the subsequent clarifications by the State of Maharashtra, have suggested any adverse action against the pre-existing structures. As the expert body exclusively occupying the environmental field, the NGT has assessed the factual circumstances to consciously lean towards protecting the already constructed structures. Nothing more need be added on this aspect. It is also not necessary in this appeal to venture into the question of the retrospective implication of the invalidation of certain parts of the 2016 Notification for other project proponents, which may have gained their ECs in the interregnum.20. In situations of this nature, the Doctrine of Legitimate Expectation is attracted. The principle of the rule of law as explained in De Smiths Judicial Review, such as, Regularity, Predictability and Certainty in Governments dealings with the Public, must operate in the present matter. The Project Proponent can legitimately expect a certain degree of stability in the manner in which environmental regime is set and how the applications are processed. The actions of the authorities are expected to adhere to the prevalent norms only, without the element of uncertainty for the executed project.23. The Doctrine of Legitimate Expectation is further explained in Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 where for a Three-Judge Bench of this Court Justice J.S. Verma observed thus: -The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.24. The more compelling public interest might possibly diminish the degree of legitimate expectation for a party but a balance has to be found. In the present matter the appellant has acted on the EC and made substantial investments. They cannot be pushed to a precipice and be made to fall. Doing so would be inequitable particularly when, the appellant has scrupulously adhered to the applicable legal framework during the concerned period. Moreover, third-party interests have also cropped up in the interregnum.25. A Project Proponent is not expected to anticipate the changes in EC regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending. | 1 | 3,288 | ### 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:
fourth building, 40 out of the 64 apartments have already been sold. In this context, it would be appropriate to advert to the submission of Ms. Aishwarya Bhati, the learned ASG who had clearly stated that at the relevant time, the competent authority to grant EC is the PCMC and not the SEIAA and therefore the internal works for the fourth constructed building, can be allowed to be completed. 19. Considering the above circumstances, the NGT rightly protected the already erected buildings and this protection in our view, should not be impacted by the earlier judgment of the NGT on 8.12.2017 in the OA No. 677/2016 whereby certain portions of the MoEFCCs 9.12.2016 notification were invalidated and direction was issued to the Ministry to revisit the said notification. Importantly, neither the NGTs invalidation order nor the subsequent clarifications by the State of Maharashtra, have suggested any adverse action against the pre-existing structures. As the expert body exclusively occupying the environmental field, the NGT has assessed the factual circumstances to consciously lean towards protecting the already constructed structures. Nothing more need be added on this aspect. It is also not necessary in this appeal to venture into the question of the retrospective implication of the invalidation of certain parts of the 2016 Notification for other project proponents, which may have gained their ECs in the interregnum. 20. In situations of this nature, the Doctrine of Legitimate Expectation is attracted. The principle of the rule of law as explained in De Smiths Judicial Review, such as, Regularity, Predictability and Certainty in Governments dealings with the Public, must operate in the present matter. The Project Proponent can legitimately expect a certain degree of stability in the manner in which environmental regime is set and how the applications are processed. The actions of the authorities are expected to adhere to the prevalent norms only, without the element of uncertainty for the executed project. 21. In the above context we may benefit by referring to the seminal case of Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 AC 629 : (1983) 2 WLR 735, where Lord Fraser speaking for the Privy Council, appositely observed thus, … when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. 22. This Court in Sethi Auto Service Station vs Delhi Development Authority & Ors (2009) 1 SCC 180 , speaking through Justice D.K. Jain, has cited other opinions and elucidated on the concept of legitimate expectation, in the following manner, 24. The House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) **** **** **** **** **** (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decisionmaker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn. (emphasis supplied) 23. The Doctrine of Legitimate Expectation is further explained in Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 where for a Three-Judge Bench of this Court Justice J.S. Verma observed thus: - The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent. 24. The more compelling public interest might possibly diminish the degree of legitimate expectation for a party but a balance has to be found. In the present matter the appellant has acted on the EC and made substantial investments. They cannot be pushed to a precipice and be made to fall. Doing so would be inequitable particularly when, the appellant has scrupulously adhered to the applicable legal framework during the concerned period. Moreover, third-party interests have also cropped up in the interregnum. 25. A Project Proponent is not expected to anticipate the changes in EC regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.
### Response:
1
|
1,069 | Probhudas Morarjee Rajkotia & Ors Vs. Union Of India & Ors | respondents to grant to the petitioners import licences for the balance of Rs. 62,337 in accordance with the provisions of the Special Exports Promotion Scheme. Cause has been shown by the Attorney-General on behalf of the respondents to whom notice of rule was ordered to be given. 6. On behalf of the petitioners it was argued, in the first place, that the act of the respondents in declining to grant import licences for the balance of Rs. 62,337 was arbitrary and had unlawfully infringed the fundamental right of the petitioners to carry on their business. It is contended that under Cl. 5.4 of the Scheme the petitioners were entitled to import licences upto the "monetary extent mentioned in Annexure V. "It was conceded that the petitioners had no absolute right to the grant of a licence to the maximum amount prescribed and the Controller had the discretion to impose a restriction. It was submitted, however, that the discretion had to be exercised reasonably and not arbitrarily. The legal proposition for which the petitioners contend is undoubtedly correct. The Licensing Authority would normally issue an import licence upto the monetary extent prescribed but, having regard to the special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State, import licences for a smaller percentage may be granted to the exporters. It may be assumed that by the use of the expression "upto the monetary extent mentioned in Annexure V in Cl. 5.4., the authorities are not clothed with an arbitrary power to fix the percentage of the value of the goods exported for awarding an import licence. In the present case, however, the affidavit of the respondents indicates that the power has not been exercised in an arbitrary manner. In para 6 of the counter-affidavit the respondents said that complaints were made by the Ethiopian importer with regard to the quality and condition of machinery supplied by the petitioners. It appears that the Indian Embassy in Ethiopia got the machinery inspected and examined by a qualified engineer. The report of the engineer shows that the machinery being supplied by the petitioners was damaged, incomplete and defective. For the purpose of granting import licence the respondents have, therefore, not taken into account the total. F. O. B. value but imposed a suitable reduction in the import entitlement. The allegation of the respondents is supported by the report of the engineer which is Annexure III of the counter-affidavit. We accordingly reject the argument of the petitioners that the value of import entitlement was arbitrarily reduced by the Licensing Authority in this case. 7. It was next contended on behalf of the petitioners that Sri S. Than, Director (Foreign Trade) of the Ministry of Commerce had requested Sri N. C. Bhatt, the firms representative to grant a loan of Rs. 5,00,000 to T. A. I. D. L. to enable the latter to operate the machinery sold by the firm. It is alleged that the petitioners were not willing to advance the loan and it was for this reason that the respondents had not issued import licences to the firm for the balance of Rs. 62,887. The argument of the petitioners is that the refusal to advance a loan of Rs. 5,00,000 to T. A. I. D. L. was an extraneous and irrelevant circumstances and the conduct of the respondents in refusing to issue import licences for the balance of Rs. 62,337 was mala fide. The respondents have denied in the counter-affidavit that the refusal to grant the import licence for the balance of Rs. 62,337 was, in any way, connected with refusal of the petitioners to advance a loan of Rs. 5,00,000 to T. A. I. D. L. In para 16 of the counter-affidavit the respondents say that Sri Than was not directly concerned with the question of import entitlement. It is further stated that the request of Sri Than for the loan was made on January 29, 1965 but previous to that date the petitioners had already been granted import entitlement to the extent of Rs. 3,77,333 and the petitioners had imported scarce commodities like stainless steel against the grant of the import entitlement. We are, therefore, unable to accept the argument of the petitioners on this aspect of the case. 8. Lastly the argument was put forward by the petitioners that the failure of the respondents to grant licence for the balance of Rs. 62,337 is discriminatory and violates Art. 14 of the Constitution. In para 16 of the petition it is stated that "other Exporters and Importers covered by the said Schemes have been granted import licences and the failure of the respondents go grant the said licences to the firm is discriminatory and violates Art. 14 of the Constitution But it is not mentioned in the petition as to who were the persons who were similarly placed and who have been given import licences by the authorities. There is no specification of the persons who have been differentially treated. The plea of violation of equal protection of laws under Art. 14 of the Constitution has not been properly pleaded in this case. It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Art. 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from other but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made-See Ramchand Jagdish Chand v. Union of India, 1962-3 SCR 72 : (AIR 1963 SC 563 ).It is manifest in the present case that the petitioners have not furnished sufficient particulars to justify the plea of infringement of Art. 14 of the Constitution. We accordingly hold that the case of the petitioners on this point should be rejected. | 1[ds]The legal proposition for which the petitioners contend is undoubtedly correct. The Licensing Authority would normally issue an import licence upto the monetary extent prescribed but, having regard to the special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State, import licences for a smaller percentage may be granted to the exporters. It may be assumed that by the use of the expression "upto the monetary extent mentioned in Annexure V in Cl. 5.4., the authorities are not clothed with an arbitrary power to fix the percentage of the value of the goods exported for awarding an import licence. In the present case, however, the affidavit of the respondents indicates that the power has not been exercised in an arbitrary manner. In para 6 of the counter-affidavit the respondents said that complaints were made by the Ethiopian importer with regard to the quality and condition of machinery supplied by the petitioners. It appears that the Indian Embassy in Ethiopia got the machinery inspected and examined by a qualified engineer. The report of the engineer shows that the machinery being supplied by the petitioners was damaged, incomplete and defective. For the purpose of granting import licence the respondents have, therefore, not taken into account the total. F. O. B. value but imposed a suitable reduction in the import entitlement. The allegation of the respondents is supported by the report of the engineer which is Annexure III of the counter-affidavit. We accordingly reject the argument of the petitioners that the value of import entitlement was arbitrarily reduced by the Licensing Authority in this caseThe respondents have denied in the counter-affidavit that the refusal to grant the import licence for the balance of Rs. 62,337 was, in any way, connected with refusal of the petitioners to advance a loan of Rs. 5,00,000 to T. A. I. D. L. In para 16 of the counter-affidavit the respondents say that Sri Than was not directly concerned with the question of import entitlement. It is further stated that the request of Sri Than for the loan was made on January 29, 1965 but previous to that date the petitioners had already been granted import entitlement to the extent of Rs. 3,77,333 and the petitioners had imported scarce commodities like stainless steel against the grant of the import entitlement. We are, therefore, unable to accept the argument of the petitioners on this aspect of the caseBut it is not mentioned in the petition as to who were the persons who were similarly placed and who have been given import licences by the authorities. There is no specification of the persons who have been differentially treated. The plea of violation of equal protection of laws under Art. 14 of the Constitution has not been properly pleaded in this case. It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Art. 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from other but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made-See Ramchand Jagdish Chand v. Union of India, 1962-3 SCR 72 : (AIR 1963 SC 563 ).It is manifest in the present case that the petitioners have not furnished sufficient particulars to justify the plea of infringement of Art. 14 of the Constitution. We accordingly hold that the case of the petitioners on this point should be rejected | 1 | 2,181 | ### 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:
respondents to grant to the petitioners import licences for the balance of Rs. 62,337 in accordance with the provisions of the Special Exports Promotion Scheme. Cause has been shown by the Attorney-General on behalf of the respondents to whom notice of rule was ordered to be given. 6. On behalf of the petitioners it was argued, in the first place, that the act of the respondents in declining to grant import licences for the balance of Rs. 62,337 was arbitrary and had unlawfully infringed the fundamental right of the petitioners to carry on their business. It is contended that under Cl. 5.4 of the Scheme the petitioners were entitled to import licences upto the "monetary extent mentioned in Annexure V. "It was conceded that the petitioners had no absolute right to the grant of a licence to the maximum amount prescribed and the Controller had the discretion to impose a restriction. It was submitted, however, that the discretion had to be exercised reasonably and not arbitrarily. The legal proposition for which the petitioners contend is undoubtedly correct. The Licensing Authority would normally issue an import licence upto the monetary extent prescribed but, having regard to the special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State, import licences for a smaller percentage may be granted to the exporters. It may be assumed that by the use of the expression "upto the monetary extent mentioned in Annexure V in Cl. 5.4., the authorities are not clothed with an arbitrary power to fix the percentage of the value of the goods exported for awarding an import licence. In the present case, however, the affidavit of the respondents indicates that the power has not been exercised in an arbitrary manner. In para 6 of the counter-affidavit the respondents said that complaints were made by the Ethiopian importer with regard to the quality and condition of machinery supplied by the petitioners. It appears that the Indian Embassy in Ethiopia got the machinery inspected and examined by a qualified engineer. The report of the engineer shows that the machinery being supplied by the petitioners was damaged, incomplete and defective. For the purpose of granting import licence the respondents have, therefore, not taken into account the total. F. O. B. value but imposed a suitable reduction in the import entitlement. The allegation of the respondents is supported by the report of the engineer which is Annexure III of the counter-affidavit. We accordingly reject the argument of the petitioners that the value of import entitlement was arbitrarily reduced by the Licensing Authority in this case. 7. It was next contended on behalf of the petitioners that Sri S. Than, Director (Foreign Trade) of the Ministry of Commerce had requested Sri N. C. Bhatt, the firms representative to grant a loan of Rs. 5,00,000 to T. A. I. D. L. to enable the latter to operate the machinery sold by the firm. It is alleged that the petitioners were not willing to advance the loan and it was for this reason that the respondents had not issued import licences to the firm for the balance of Rs. 62,887. The argument of the petitioners is that the refusal to advance a loan of Rs. 5,00,000 to T. A. I. D. L. was an extraneous and irrelevant circumstances and the conduct of the respondents in refusing to issue import licences for the balance of Rs. 62,337 was mala fide. The respondents have denied in the counter-affidavit that the refusal to grant the import licence for the balance of Rs. 62,337 was, in any way, connected with refusal of the petitioners to advance a loan of Rs. 5,00,000 to T. A. I. D. L. In para 16 of the counter-affidavit the respondents say that Sri Than was not directly concerned with the question of import entitlement. It is further stated that the request of Sri Than for the loan was made on January 29, 1965 but previous to that date the petitioners had already been granted import entitlement to the extent of Rs. 3,77,333 and the petitioners had imported scarce commodities like stainless steel against the grant of the import entitlement. We are, therefore, unable to accept the argument of the petitioners on this aspect of the case. 8. Lastly the argument was put forward by the petitioners that the failure of the respondents to grant licence for the balance of Rs. 62,337 is discriminatory and violates Art. 14 of the Constitution. In para 16 of the petition it is stated that "other Exporters and Importers covered by the said Schemes have been granted import licences and the failure of the respondents go grant the said licences to the firm is discriminatory and violates Art. 14 of the Constitution But it is not mentioned in the petition as to who were the persons who were similarly placed and who have been given import licences by the authorities. There is no specification of the persons who have been differentially treated. The plea of violation of equal protection of laws under Art. 14 of the Constitution has not been properly pleaded in this case. It cannot be too strongly emphasized that to make out a case of denial of the equal protection of the laws under Art. 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from other but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made-See Ramchand Jagdish Chand v. Union of India, 1962-3 SCR 72 : (AIR 1963 SC 563 ).It is manifest in the present case that the petitioners have not furnished sufficient particulars to justify the plea of infringement of Art. 14 of the Constitution. We accordingly hold that the case of the petitioners on this point should be rejected.
### Response:
1
|
1,070 | Caltex (India) Ltd Vs. E. Fernandez | would be readily granted but that otherwise the application would be entirely rejected. The appellants who were acting bona fide in the interests of public security and safety as well as in the interests of the whole petroleum industry and the safety of life and property for which it was necessary to maintain discipline rigidly did not agree to a punishment less than dismissal in view of such gross and wilful misconduct as had been proved. The Industrial Tribunal in the result rejected the application of the appellants.3. The appellants preferred an appeal to the Labour Appellate Tribunal for having the said order of the Industrial Tribunal set aside and for grant to the appellants of permission to dismiss the first respondent from their employ. The Labour Appellate Tribunal by its decision dated the 1st April, 1953, set aside the said order of the Industrial Tribunal and granted such permission to the appellants. The Labour Appellate Tribunal was of opinion that there was a substantial question of law involved and that there had been a perverse exercise of jurisdiction by the Industrial Tribunal. It held that in a case of this kind where the offence was prima facie proved and there was not even an allegation of want of bona fides, unfair labour practice or victimization on the part of the appellants, much less any proof thereof, the Industrial Tribunal had no jurisdiction to refuse the permission sought for.4. The first respondent thereupon presented a petition to the High Court of judicature at Bombay, being Miscellaneous No. 167 of 1953, for issue of a writ of certiorari or any other appropriate writ or directions under Art.226 of the Constitution on the ground, inter alia, that the said decision of the Labour Appellate Tribunal was without jurisdiction inasmuch as the said appeal before the Labour Appellate Tribunal did not involve any substantial question of law.5. Mr. Justice Desai issued a rule nisi on 29th April, 1953 to show cause why the writ prayed for should not be issued. The said petition came on for hearing before the said learned judge who delivered a considered judgment on the 14th July, 1953, dismissing the said petition and discharging the said rule nisi. The first respondent then preferred an appeal in the High Court of Bombay being appeal No. 77 of 1953, on the ground inter alia, that the Industrial Tribunal hearing even an application under S.33 of the Industrial Disputes Act, was meant to function as an arbitrator with a wide and unfettered discretion and that in the circumstances, the learned judge, Mr. Justice Desai, had erred in holding that the first respondents contention that the discretion of the Industrial Tribunal under S.33 of the Act was unfettered raised a substantial question of law.6. The said appeal was heard by the Division Bench of the High Court of Bombay consisting of Chagla, C.J. and Shah, J., and the learned judges allowed the said appeal and issued a writ against the 2nd respondent, the Labour Appellate Tribunal of India, Bombay holding that the Labour Appellate Tribunal had no jurisdiction to entertain the appeal as it did not involve any substantial question of law. A petition filed by the appellants before the High Court for the grant of a certificate under Art.133(1)(c) of the Constitution was also dismissed with the result that the appellants applied for and obtained from this Court special leave to appeal under Art.136 of the Constitution.7. This appeal raises the identical question which has been the subject-matter of our decisions in Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union (1953 5 FJR 83), Automobile Products of India Ltd. v. Rukmaji Bala (1955 7 FJR 716) as also Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (195611 FJR 273).We have clearly laid down there that the Industrial Tribunal has no jurisdiction while entertaining an application under S.33 of the Industrial Disputes Act, 1947 to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workman. The only jurisdiction which the Industrial Tribunal has under S.33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or vicitmization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fide came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That being so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal and the decision of the Division Bench of the High Court at Bombay in exercise of its appellate jurisdiction holding that the Labour Appellate Tribunal had no jurisdiction to entertain such appeal was clearly wrong. | 1[ds]We have clearly laid down there that the Industrial Tribunal has no jurisdiction while entertaining an application under S.33 of the Industrial Disputes Act, 1947 to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive.The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workman. The only jurisdiction which the Industrial Tribunal has under S.33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or vicitmization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fide came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That being so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal and the decision of the Division Bench of the High Court at Bombay in exercise of its appellate jurisdiction holding that the Labour Appellate Tribunal had no jurisdiction to entertain such appeal was clearly wrong. | 1 | 1,581 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
would be readily granted but that otherwise the application would be entirely rejected. The appellants who were acting bona fide in the interests of public security and safety as well as in the interests of the whole petroleum industry and the safety of life and property for which it was necessary to maintain discipline rigidly did not agree to a punishment less than dismissal in view of such gross and wilful misconduct as had been proved. The Industrial Tribunal in the result rejected the application of the appellants.3. The appellants preferred an appeal to the Labour Appellate Tribunal for having the said order of the Industrial Tribunal set aside and for grant to the appellants of permission to dismiss the first respondent from their employ. The Labour Appellate Tribunal by its decision dated the 1st April, 1953, set aside the said order of the Industrial Tribunal and granted such permission to the appellants. The Labour Appellate Tribunal was of opinion that there was a substantial question of law involved and that there had been a perverse exercise of jurisdiction by the Industrial Tribunal. It held that in a case of this kind where the offence was prima facie proved and there was not even an allegation of want of bona fides, unfair labour practice or victimization on the part of the appellants, much less any proof thereof, the Industrial Tribunal had no jurisdiction to refuse the permission sought for.4. The first respondent thereupon presented a petition to the High Court of judicature at Bombay, being Miscellaneous No. 167 of 1953, for issue of a writ of certiorari or any other appropriate writ or directions under Art.226 of the Constitution on the ground, inter alia, that the said decision of the Labour Appellate Tribunal was without jurisdiction inasmuch as the said appeal before the Labour Appellate Tribunal did not involve any substantial question of law.5. Mr. Justice Desai issued a rule nisi on 29th April, 1953 to show cause why the writ prayed for should not be issued. The said petition came on for hearing before the said learned judge who delivered a considered judgment on the 14th July, 1953, dismissing the said petition and discharging the said rule nisi. The first respondent then preferred an appeal in the High Court of Bombay being appeal No. 77 of 1953, on the ground inter alia, that the Industrial Tribunal hearing even an application under S.33 of the Industrial Disputes Act, was meant to function as an arbitrator with a wide and unfettered discretion and that in the circumstances, the learned judge, Mr. Justice Desai, had erred in holding that the first respondents contention that the discretion of the Industrial Tribunal under S.33 of the Act was unfettered raised a substantial question of law.6. The said appeal was heard by the Division Bench of the High Court of Bombay consisting of Chagla, C.J. and Shah, J., and the learned judges allowed the said appeal and issued a writ against the 2nd respondent, the Labour Appellate Tribunal of India, Bombay holding that the Labour Appellate Tribunal had no jurisdiction to entertain the appeal as it did not involve any substantial question of law. A petition filed by the appellants before the High Court for the grant of a certificate under Art.133(1)(c) of the Constitution was also dismissed with the result that the appellants applied for and obtained from this Court special leave to appeal under Art.136 of the Constitution.7. This appeal raises the identical question which has been the subject-matter of our decisions in Atherton West & Co. Ltd. v. Suti Mill Mazdoor Union (1953 5 FJR 83), Automobile Products of India Ltd. v. Rukmaji Bala (1955 7 FJR 716) as also Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup (195611 FJR 273).We have clearly laid down there that the Industrial Tribunal has no jurisdiction while entertaining an application under S.33 of the Industrial Disputes Act, 1947 to consider whether the punishment sought to be meted out by the employer to the workman is harsh or excessive. The measure of punishment to be so meted out is within the sole discretion of the employer who is to judge for himself what is the punishment commensurate with the offence which has been proved against the workman. The only jurisdiction which the Industrial Tribunal has under S.33 is to determine whether a prima facie case for the meting out of such punishment has been made out by the employer and the employer is not actuated by any mala fides or unfair labour practice or vicitmization. Once the Industrial Tribunal came to the conclusion in the present case that the enquiry which was conducted by the appellants was fair and no principles of natural justice had been violated in the conduct of the enquiry and the appellants bona fide came to the conclusion that dismissal was the only punishment which should be meted out by them to the first respondent, the Industrial Tribunal had no power to substitute another punishment for the one which was sought to be meted out by the appellants to the first respondent nor to impose any conditions on the appellants before the requisite permission could be granted to them. The whole approach of the Industrial Tribunal was wrong, and in so far as the Industrial Tribunal had sought to impose on the appellants the conditions set out hereinabove before the requisite permission could be granted to them, the Industrial Tribunal was exercising a jurisdiction which was not vested in it by law and a substantial question of law in regard to the jurisdiction of the Industrial Tribunal did arise in the appeal which was filed by the appellants before the Labour Appellate Tribunal. That being so, the Labour Appellate Tribunal had jurisdiction to entertain the appeal and the decision of the Division Bench of the High Court at Bombay in exercise of its appellate jurisdiction holding that the Labour Appellate Tribunal had no jurisdiction to entertain such appeal was clearly wrong.
### Response:
1
|
1,071 | Chhabildas Tribhuvandas Shah and Others Vs. Commissioner of Income Tax, West Bengal | application on the ground that their conclusions in the order were essentially findings of fact and based on adequate and proper material on record and did not give rise to any question of lawThe assessee applied to the High Court, under section 66(2) of the Indian Income-tax Act, but the High Court, by its order dated October 3, 1961, dismissed the petition. This court, however, granted special leave to appeal and the appeal is now before us for disposal.4. Mr. B. Sen, the learned counsel for the appellant, urges before us that the Appellate Tribunal should have referred the question of law posed before it by the assessee. The question of law was in the following terms:"Whether the order of the Tribunal, that the proviso to section 13 was clearly applicable to the trading results in this case, and restoring the addition made by the Income-tax Officer to the extent of Rs. 70, 510 is an order made without due consideration of the evidence and relevant materials on record and after considering materials which are irrelevant to the enquiry or on materials partly relevant and partly irrelevant and upon conjectures, surmises and suspicions not supported by any evidence on record or partly upon inadmissible material and as such whether the Tribunal was wrong in restoring the addition and the addition should, therefore, be deleted from the assessment."5. He urged that the proviso to section 13 could not be applied in the circumstances of this case. He said that in substance only two grounds had been taken for applying the proviso, namely, (1) that the appellant maintained no stock register, and (2) that the profits of the year were low in comparison with the previous years. He stated that these circumstances can never, as a matter of law, attract the applicability of the proviso. In this connection, he placed reliance on the decision of the Lahore High Court in Pioneer Sports Ltd. v. Commissioner of Income-tax. In that case, the Lahore High Court held that the absence of a stock register and the lowness of the profits disclosed in comparison with the previous years were not adequate reasons for the Income-tax Officer to reject the total profits returned by the company. It observed that the "economic blizzard" which affected trade in the year under review (1930-31) and still prevailed would explain reduction in profits. However, the Lahore High Court in Ganga Ram Balmokand v. Commissioner of Income-tax dissented from this decision on the ground that "it proceeds on a wrong basis when it criticises adversely the reasons of the Income-tax Officer for rejecting the accounts." It observed that "whether the accounts are reliable or not is a question of fact, to be determined solely by the Income-tax Officer, and when he gives reasons for doing so, which are not apparently capricious or injudicial, it is not possible to disturb his finding merely on the ground that the material in support of those reasons is meagre or insufficient." The next case relied on by Mr. Sen is the decision of the Punjab High Court in Pandit Bros. v. Commissioner of Income-tax. The question of law referred to the High Court was "whether any addition may be made to the book version of business profits where no stock account is maintained, on the sole ground that tne net profits disclosed appear to be insufficient in relation to the total turnover." The High Court held that the mere fact that the profits are low is a mere warning to the Income-tax Officer to look into the accounts more carefully and see whether there is material to lead him to the conclusion that there is something false in the accounts. It further held that the fact that there is no stock register only cautions him against the paucity of return made by the assessee. It will be noticed that the Income-tax Officer, in this case, had not noticed any falling of the rate of profits disclosed in comparison with the previous years ; he had only noticed the lowness of profits. In our view this decision has no application to the facts of this case.6. What we have to see is whether the finding of the Appellate Tribunal that the income, profits and gains cannot properly be deduced from the method of accounting employed by the appellant is based on any material. The Appellate Tribunal has given two reasons for its conclusions. The first reason is that the appellant was doing business in the main on wholesaler basis and there should have been no difficulty in tallying quantities in respect of major items of trading account. This certainly is a relevant consideration. In the absence of such a tally, the next reason given is that the fall in the margin is all the more difficult to explain in view of the fact that the appellant also had a quota of imports worth about Rs. 8, 00, 000 which would have given them a handsome margin of profit. This again is a relevant fact and it is well-known that imported goods fetch a very handsome margin of profit. Accordingly, we hold that there is material in support of the impugned finding of the Appellate TribunalWe may point out that we are not concerned with the correctness of the conclusion and we are only concerned with the question whether there is any material in support of the finding of the Appellate Tribunal. In cases involving the applicability of the proviso to section 13, the question to be determined by the Income-tax Officer is a question of fact, namely, whether the income, profits and gains can or cannot be properly deduced from the method of accounting regularly adopted by the assessee. There is nothing special about this question of fact, and generally the only question of law that can possibly arise is whether there is any material for the finding. In our opinion the High Court was right in refusing to call for a statement of the case. | 0[ds]In our view this decision has no application to the facts of thisThe Appellate Tribunal has given two reasons for its conclusions. The first reason is that the appellant was doing business in the main on wholesaler basis and there should have been no difficulty in tallying quantities in respect of major items of trading account. This certainly is a relevant consideration. In the absence of such a tally, the next reason given is that the fall in the margin is all the more difficult to explain in view of the fact that the appellant also had a quota of imports worth about Rs. 8, 00, 000 which would have given them a handsome margin of profit. This again is a relevant fact and it isthat imported goods fetch a very handsome margin of profit. Accordingly, we hold that there is material in support of the impugned finding of the Appellate TribunalWe may point out that we are not concerned with the correctness of the conclusion and we are only concerned with the question whether there is any material in support of the finding of the Appellate Tribunal. In cases involving the applicability of the proviso to section 13, the question to be determined by theOfficer is a question of fact, namely, whether the income, profits and gains can or cannot be properly deduced from the method of accounting regularly adopted by the assessee. There is nothing special about this question of fact, and generally the only question of law that can possibly arise is whether there is any material for the finding. In our opinion the High Court was right in refusing to call for a statement of the case | 0 | 1,795 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
application on the ground that their conclusions in the order were essentially findings of fact and based on adequate and proper material on record and did not give rise to any question of lawThe assessee applied to the High Court, under section 66(2) of the Indian Income-tax Act, but the High Court, by its order dated October 3, 1961, dismissed the petition. This court, however, granted special leave to appeal and the appeal is now before us for disposal.4. Mr. B. Sen, the learned counsel for the appellant, urges before us that the Appellate Tribunal should have referred the question of law posed before it by the assessee. The question of law was in the following terms:"Whether the order of the Tribunal, that the proviso to section 13 was clearly applicable to the trading results in this case, and restoring the addition made by the Income-tax Officer to the extent of Rs. 70, 510 is an order made without due consideration of the evidence and relevant materials on record and after considering materials which are irrelevant to the enquiry or on materials partly relevant and partly irrelevant and upon conjectures, surmises and suspicions not supported by any evidence on record or partly upon inadmissible material and as such whether the Tribunal was wrong in restoring the addition and the addition should, therefore, be deleted from the assessment."5. He urged that the proviso to section 13 could not be applied in the circumstances of this case. He said that in substance only two grounds had been taken for applying the proviso, namely, (1) that the appellant maintained no stock register, and (2) that the profits of the year were low in comparison with the previous years. He stated that these circumstances can never, as a matter of law, attract the applicability of the proviso. In this connection, he placed reliance on the decision of the Lahore High Court in Pioneer Sports Ltd. v. Commissioner of Income-tax. In that case, the Lahore High Court held that the absence of a stock register and the lowness of the profits disclosed in comparison with the previous years were not adequate reasons for the Income-tax Officer to reject the total profits returned by the company. It observed that the "economic blizzard" which affected trade in the year under review (1930-31) and still prevailed would explain reduction in profits. However, the Lahore High Court in Ganga Ram Balmokand v. Commissioner of Income-tax dissented from this decision on the ground that "it proceeds on a wrong basis when it criticises adversely the reasons of the Income-tax Officer for rejecting the accounts." It observed that "whether the accounts are reliable or not is a question of fact, to be determined solely by the Income-tax Officer, and when he gives reasons for doing so, which are not apparently capricious or injudicial, it is not possible to disturb his finding merely on the ground that the material in support of those reasons is meagre or insufficient." The next case relied on by Mr. Sen is the decision of the Punjab High Court in Pandit Bros. v. Commissioner of Income-tax. The question of law referred to the High Court was "whether any addition may be made to the book version of business profits where no stock account is maintained, on the sole ground that tne net profits disclosed appear to be insufficient in relation to the total turnover." The High Court held that the mere fact that the profits are low is a mere warning to the Income-tax Officer to look into the accounts more carefully and see whether there is material to lead him to the conclusion that there is something false in the accounts. It further held that the fact that there is no stock register only cautions him against the paucity of return made by the assessee. It will be noticed that the Income-tax Officer, in this case, had not noticed any falling of the rate of profits disclosed in comparison with the previous years ; he had only noticed the lowness of profits. In our view this decision has no application to the facts of this case.6. What we have to see is whether the finding of the Appellate Tribunal that the income, profits and gains cannot properly be deduced from the method of accounting employed by the appellant is based on any material. The Appellate Tribunal has given two reasons for its conclusions. The first reason is that the appellant was doing business in the main on wholesaler basis and there should have been no difficulty in tallying quantities in respect of major items of trading account. This certainly is a relevant consideration. In the absence of such a tally, the next reason given is that the fall in the margin is all the more difficult to explain in view of the fact that the appellant also had a quota of imports worth about Rs. 8, 00, 000 which would have given them a handsome margin of profit. This again is a relevant fact and it is well-known that imported goods fetch a very handsome margin of profit. Accordingly, we hold that there is material in support of the impugned finding of the Appellate TribunalWe may point out that we are not concerned with the correctness of the conclusion and we are only concerned with the question whether there is any material in support of the finding of the Appellate Tribunal. In cases involving the applicability of the proviso to section 13, the question to be determined by the Income-tax Officer is a question of fact, namely, whether the income, profits and gains can or cannot be properly deduced from the method of accounting regularly adopted by the assessee. There is nothing special about this question of fact, and generally the only question of law that can possibly arise is whether there is any material for the finding. In our opinion the High Court was right in refusing to call for a statement of the case.
### Response:
0
|
1,072 | Forasol Vs. Oil & Natural Gas Commission (And Vice Versa) | the said award as binding and conclusive. As mentioned above, this omission on the part of the umpire could have been corrected by the Delhi High Court when it came to pronounce judgment according to the said award and pass the said decree in terms thereof. The decree passed in terms of the said award, however, does not specify either the rupee equivalent of the amount in French francs payable to Forasol or the rate of exchange at which the conversion of such amount into Indian rupees should be made. To that extent, the decree passed in terms of the said award by the Delhi High Court was not a proper decree. Both the parties have, however, accepted the said decree and have not challenged it on this ground in any proceedings. In any event, the aforesaid mistake in the said decree was one which could have been got corrected by an application for review or by an application under section 152 or, in any event under section 151, of the Code of Civil Procedure, 1908. The decree has now become final and binding upon the parties. Both the parties have accepted the said decree and the said decree cannot, therefore, be said to be invalid on the ground of the above omission to specify either the rupee equivalent of the French franc portion of the said award or the rate of exchange at which such French franc portion was to be converted into its rupee equivalent.For the reasons set out above, we hold that the learned single judge rightly took the date of the decree as the date of conversion. In his order on the said execution application, he has, however, given a direction that ONGC could satisfy the judgment debt by making payment in French francs or if they so preferred, by paying the equivalent sum in rupees at the rate of exchange prevailing on the date of the decree. He was in error in not qualifying this direction by making the option given to ONGC to make payment in French francs subject to the permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973. To this extent, the order passed by the learned single judge requires to be modified.35. Turning now to the appeal filed by ONGC, it was stated in the special leave petition filed by ONGC that it had two claims against Forasol, the first with respect to what was termed as " tax differential " and the second with respect to interest on the amounts payable by Forasol to ONGC. Both these claims were negatived by the learned single judge. It was expressly stated in paragraph 19 of the special leave petition of ONGC that except for the aforesaid two claims, the judgment and order of the Division Bench of the Delhi High Court should be affirmed.36. ONGCs claim for tax differential was based on article IV-1.2 of the said contract under which Forasol was to pay income-tax, surcharge on income-tax and all other taxes which might be assessed and levied by the income-tax authorities in India on the income of Forasol under the said contract as well as on the income of Forasols personnel for the work performed by them under the said contract. Under the proviso to the said article, if subsequent to the date of the said contract, the tax rates in India were changed so as to be higher than what they were at the date of the signing of the said contract, ONGC was to pay the difference to Forasol and if the tax rates became lower, Forasol was to pay the difference to ONGC. This proviso was not to be applicable in respect of the taxes payable by Forasol on the income of its personnel. The learned single judge has pointed out in his judgment that the claim in respect of tax differential did not survive inasmuch as by the said award, the amounts paid by ONGC as tax on behalf of Forasol were adjusted and given credit for. ONGC did not challenge this finding in the appeal filed by it in the Delhi High Court. None the less ONGC sought to reagitate this point in its special leave petition. At the hearing of this appeal, learned counsel for ONGC stated that he was not pressing this point. In the written submission filed on behalf of ONGC after the hearing of both these appeals was concluded, ONGC has however, once again sought to raise this point. The point having been not urged in the intra-court appeal in the Delhi High Court and also having been given up at the hearing of these appeals before this court, ONGC cannot be permitted subsequently to agitate this point in the written submissions filed on its behalf. In any event, in our opinion, the learned single judge was right in rejecting this claim of ONGC.So far as ONGCs claim for interest is concerned, it has been negatived both by the learned single judge and the Division Bench of the Delhi High Court. We find no substance in this claim. The relevant provision of the said award which deals with payment of interest is as follows :" Under the contract, there is no right to interest to either party except on French francs. If the amount paid by ONGC to the credit of Forasol in regard to income-tax and the several items of allowance and disallowance under this award are worked out and it is found that there is an amount payable to ONGC in French francs, that would carry interest, but if the amount is in rupees, then no interest could be allowed until the date of the award. "37. The amounts on which interest is claimed by ONGC were payable by Forasol in rupees and not in French francs. Therefore, by the express terms of the said award, there is no right in ONGC to claim any interest on these amounts and this claim for interest was rightly negatived.38. | 1[ds]In the type of cases we are concerned with here, just as the courts have power to make a decree for a sum of money expressed in a foreign currency subject to the limitations and conditions we have set out above, the arbitrators or umpire have the power to make an award for a sum of money expressed in a foreign currency. The arbitrators or umpire should, however, provide in the award for the rate of exchange at which the sum awarded in a foreign currency should be converted in the events mentioned above. This may be done by the arbitrators or umpire taking either the rate of exchange prevailing on the date of the award or the date nearest or most nearly preceding the date of the award or by directing that the rate of exchange at which conversion is to be made would be the date when the court pronounces judgment according to the award and passes the decree in terms thereof or the date nearest or most nearly preceding the date of the judgment as the court may determine. If the arbitrators or umpire omit to provide for the rate of conversion, this would not by itself be sufficient to invalidate the award. The court may either remit the award under section 16 of the Indian Arbitration Act, 1940, for the purpose of fixing the date of conversion or may do so itself taking the date of conversion as the date of its judgment or the date nearest or most nearly preceding it, following the procedure outlined above for the purpose of proof of the rate of exchange prevailing on such date. If, however, the person liable under such an award desires to make payment of the sum in foreign currency awarded by the arbitrators or umpire without the award being made a rule of the court, he would be at liberty to do so after obtaining the requisite permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973.In the case of the said award which had led to these appeals before us, the party entitled to receive the money--Forasol--was a foreign party. Under the said contract, the currency of account was a foreign currency and so was the currency of payment except for a portion thereof. Forasol was, therefore, entitled, on payment not being made to it by ONGC, to receive in French francs the amounts which become payable to it in that currency. The umpire was, therefore, justified in providing that the amounts payable under the said award to Forasol in French francs should be paid in French currency. The umpire has, however, neither provided that such payment would be subject to the permission of the foreign exchange authorities being obtained nor specified the conversion rate to be applied in the eventualities which we have set out above. That, however, does not make any difference because neither party has objected to the said award on this ground. On the contrary, both parties have accepted the said award as binding and conclusive. As mentioned above, this omission on the part of the umpire could have been corrected by the Delhi High Court when it came to pronounce judgment according to the said award and pass the said decree in terms thereof. The decree passed in terms of the said award, however, does not specify either the rupee equivalent of the amount in French francs payable to Forasol or the rate of exchange at which the conversion of such amount into Indian rupees should be made. To that extent, the decree passed in terms of the said award by the Delhi High Court was not a proper decree. Both the parties have, however, accepted the said decree and have not challenged it on this ground in any proceedings. In any event, the aforesaid mistake in the said decree was one which could have been got corrected by an application for review or by an application under section 152 or, in any event under section 151, of the Code of Civil Procedure, 1908. The decree has now become final and binding upon the parties. Both the parties have accepted the said decree and the said decree cannot, therefore, be said to be invalid on the ground of the above omission to specify either the rupee equivalent of the French franc portion of the said award or the rate of exchange at which such French franc portion was to be converted into its rupee equivalent.For the reasons set out above, we hold that the learned single judge rightly took the date of the decree as the date of conversion. In his order on the said execution application, he has, however, given a direction that ONGC could satisfy the judgment debt by making payment in French francs or if they so preferred, by paying the equivalent sum in rupees at the rate of exchange prevailing on the date of the decree. He was in error in not qualifying this direction by making the option given to ONGC to make payment in French francs subject to the permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973. To this extent, the order passed by the learned single judge requires to benow to the appeal filed by ONGC, it was stated in the special leave petition filed by ONGC that it had two claims against Forasol, the first with respect to what was termed as " tax differential " and the second with respect to interest on the amounts payable by Forasol to ONGC. Both these claims were negatived by the learned single judge. It was expressly stated in paragraph 19 of the special leave petition of ONGC that except for the aforesaid two claims, the judgment and order of the Division Bench of the Delhi High Court should beclaim for tax differential was based on article IV-1.2 of the said contract under which Forasol was to pay income-tax, surcharge on income-tax and all other taxes which might be assessed and levied by the income-tax authorities in India on the income of Forasol under the said contract as well as on the income of Forasols personnel for the work performed by them under the said contract. Under the proviso to the said article, if subsequent to the date of the said contract, the tax rates in India were changed so as to be higher than what they were at the date of the signing of the said contract, ONGC was to pay the difference to Forasol and if the tax rates became lower, Forasol was to pay the difference to ONGC. This proviso was not to be applicable in respect of the taxes payable by Forasol on the income of its personnel. The learned single judge has pointed out in his judgment that the claim in respect of tax differential did not survive inasmuch as by the said award, the amounts paid by ONGC as tax on behalf of Forasol were adjusted and given credit for. ONGC did not challenge this finding in the appeal filed by it in the Delhi High Court. None the less ONGC sought to reagitate this point in its special leave petition. At the hearing of this appeal, learned counsel for ONGC stated that he was not pressing this point. In the written submission filed on behalf of ONGC after the hearing of both these appeals was concluded, ONGC has however, once again sought to raise this point. The point having been not urged in the intra-court appeal in the Delhi High Court and also having been given up at the hearing of these appeals before this court, ONGC cannot be permitted subsequently to agitate this point in the written submissions filed on its behalf. In any event, in our opinion, the learned single judge was right in rejecting this claim of ONGC.So far as ONGCs claim for interest is concerned, it has been negatived both by the learned single judge and the Division Bench of the Delhi High Court. We find no substance in this claim. The relevant provision of the said award which deals with payment of interest is as followsUnder the contract, there is no right to interest to either party except on French francs. If the amount paid by ONGC to the credit of Forasol in regard to income-tax and the several items of allowance and disallowance under this award are worked out and it is found that there is an amount payable to ONGC in French francs, that would carry interest, but if the amount is in rupees, then no interest could be allowed until the date of the award.amounts on which interest is claimed by ONGC were payable by Forasol in rupees and not in French francs. Therefore, by the express terms of the said award, there is no right in ONGC to claim any interest on these amounts and this claim for interest was rightly negatived. | 1 | 29,442 | ### 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:
the said award as binding and conclusive. As mentioned above, this omission on the part of the umpire could have been corrected by the Delhi High Court when it came to pronounce judgment according to the said award and pass the said decree in terms thereof. The decree passed in terms of the said award, however, does not specify either the rupee equivalent of the amount in French francs payable to Forasol or the rate of exchange at which the conversion of such amount into Indian rupees should be made. To that extent, the decree passed in terms of the said award by the Delhi High Court was not a proper decree. Both the parties have, however, accepted the said decree and have not challenged it on this ground in any proceedings. In any event, the aforesaid mistake in the said decree was one which could have been got corrected by an application for review or by an application under section 152 or, in any event under section 151, of the Code of Civil Procedure, 1908. The decree has now become final and binding upon the parties. Both the parties have accepted the said decree and the said decree cannot, therefore, be said to be invalid on the ground of the above omission to specify either the rupee equivalent of the French franc portion of the said award or the rate of exchange at which such French franc portion was to be converted into its rupee equivalent.For the reasons set out above, we hold that the learned single judge rightly took the date of the decree as the date of conversion. In his order on the said execution application, he has, however, given a direction that ONGC could satisfy the judgment debt by making payment in French francs or if they so preferred, by paying the equivalent sum in rupees at the rate of exchange prevailing on the date of the decree. He was in error in not qualifying this direction by making the option given to ONGC to make payment in French francs subject to the permission of the concerned authorities under the Foreign Exchange Regulation Act, 1973. To this extent, the order passed by the learned single judge requires to be modified.35. Turning now to the appeal filed by ONGC, it was stated in the special leave petition filed by ONGC that it had two claims against Forasol, the first with respect to what was termed as " tax differential " and the second with respect to interest on the amounts payable by Forasol to ONGC. Both these claims were negatived by the learned single judge. It was expressly stated in paragraph 19 of the special leave petition of ONGC that except for the aforesaid two claims, the judgment and order of the Division Bench of the Delhi High Court should be affirmed.36. ONGCs claim for tax differential was based on article IV-1.2 of the said contract under which Forasol was to pay income-tax, surcharge on income-tax and all other taxes which might be assessed and levied by the income-tax authorities in India on the income of Forasol under the said contract as well as on the income of Forasols personnel for the work performed by them under the said contract. Under the proviso to the said article, if subsequent to the date of the said contract, the tax rates in India were changed so as to be higher than what they were at the date of the signing of the said contract, ONGC was to pay the difference to Forasol and if the tax rates became lower, Forasol was to pay the difference to ONGC. This proviso was not to be applicable in respect of the taxes payable by Forasol on the income of its personnel. The learned single judge has pointed out in his judgment that the claim in respect of tax differential did not survive inasmuch as by the said award, the amounts paid by ONGC as tax on behalf of Forasol were adjusted and given credit for. ONGC did not challenge this finding in the appeal filed by it in the Delhi High Court. None the less ONGC sought to reagitate this point in its special leave petition. At the hearing of this appeal, learned counsel for ONGC stated that he was not pressing this point. In the written submission filed on behalf of ONGC after the hearing of both these appeals was concluded, ONGC has however, once again sought to raise this point. The point having been not urged in the intra-court appeal in the Delhi High Court and also having been given up at the hearing of these appeals before this court, ONGC cannot be permitted subsequently to agitate this point in the written submissions filed on its behalf. In any event, in our opinion, the learned single judge was right in rejecting this claim of ONGC.So far as ONGCs claim for interest is concerned, it has been negatived both by the learned single judge and the Division Bench of the Delhi High Court. We find no substance in this claim. The relevant provision of the said award which deals with payment of interest is as follows :" Under the contract, there is no right to interest to either party except on French francs. If the amount paid by ONGC to the credit of Forasol in regard to income-tax and the several items of allowance and disallowance under this award are worked out and it is found that there is an amount payable to ONGC in French francs, that would carry interest, but if the amount is in rupees, then no interest could be allowed until the date of the award. "37. The amounts on which interest is claimed by ONGC were payable by Forasol in rupees and not in French francs. Therefore, by the express terms of the said award, there is no right in ONGC to claim any interest on these amounts and this claim for interest was rightly negatived.38.
### Response:
1
|
1,073 | Bank Of Bihar Ltd Vs. Damodar Prasad & Anr | only after having exhausted its remedies against defendant No. 1". The plaintiff filed an appeal challenging the legality and propriety of this direction. The High Court dismissed the appeal. The plaintiff has filed the present appeal after obtaining a certificate.2. The guarantee bond in favour of the plaintiff bank is dated June 15, 1951. The surety agreed to pay and satisfy the liabilities of the principal debtor upto Rs. 12000 and interest thereon two days after demand. The bond provided that the plaintiff would be at liberty to enforce and to recover upon the guarantee notwithstanding any other guarantee, security or remedy which the Bank might hold or be entitled to in respect of the amount secured.3. The demand for payment of the liability of the principal debtor was the only condition or the enforcement of the bond. That condition was fulfilled. Neither the principal debtor nor the surety discharged the admitted liability of the principal debtor in spite of demands. Under Section 128 of the Indian Contract Act, save as provided in the contract, the liability of the surety is coextensive with that of the principal debtor. The surety became thus liable to pay the entire amount. His liability was immediate. It was not deferred until the creditor exhausted his remedies against the principal debtor.4. Before payment the surety has no right to dictate terms to the creditor and ask him to pursue his remedies against the principal in the first instance. As Lord Eldon observed in Wright v. Simpson, (1802) 6 Ves Jun 714 at p. 734 = 31 ER 1272 at p. 1282: "But the surety is a guarantee; and it is his business to see whether the principal pays, and not that of creditor."In the absence of some special equity the surety has no right to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against the principal in some other proceedings.5. Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal.In Lachhman Joharimal v. Bapu Khandu, (1869) 6 Bom HCR 241, the judge of the Court of Small Causes, Ahmednagar, solicited the opinion of the Bombay High Court on the subject of the liability of sureties. The creditors having obtained decrees in two suits in the Court of Small Causes against the principals and sureties, presented applications for the imprisonment of the sureties before levying execution against the principals. The judge stated that the practice of his court had been to restrain a judgment-creditor from recovering from a surety until he had exhausted his remedy against the principal but in his view the surety should be liable to imprisonment while the principal was at large. Couch, C. J. and Melvill, J. agreed with this opinion and observed:-"The court is of opinion that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt."6. It is now suggested that under Order 20, Rule 11 (1) and Section 151 of the Code of Civil Procedure the Court passing the decree had the power to impose the condition that the judgment creditor would not be at liberty to enforce the decree against the surety until the creditor has exhausted his remedies against the principal. Order 20, R. 11 (1) provides that:"where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable."For making an order under Order 20, Rule 11 (1) the Court must give sufficient reasons. The direction postponing payment of the amount decreed must be clear and specific. The injunction upon the creditor not to proceed against the surety until the creditor has exhausted his remedies against the principal is of the vaguest character. It is not stated how and when the creditor would exhaust his remedies against the principal. Is the creditor to as for imprisonment of the principal? Is he bound to discover at his peril all the properties of the principal and sell them; and if he cannot, does he lose his remedy against the surety? Has he to file an insolvency petition against the principal? The Trial Court gave no reasons for this extra-ordinary direction. The Court rejected the prayer of the principal debtor for payment of the decretal amount in instalments as there was no evidence to show that he could not pay the decretal amount in one lump sum. It is therefore said that the principal was solvent.But the solvency of the principal is not a sufficient ground for restraining execution of the decree against the surety. It is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under Section 140 of the Indian Contract Act and he may then recover the amount from the principal.The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is a banking company.A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. The impugned direction cannot be justified under Order 20, Rule 11 (1). Assuming that apart from Order 20, R. 11 (1) the Court had the inherent power under Section 151 to direct postponement of execution of the decree, the ends of justice did not require such postponement. | 1[ds]6. It is now suggested that under Order 20, Rule 11 (1) and Section 151 of theCode of Civil Procedure the Court passing the decree had the power to impose the condition that the judgment creditor would not be at liberty to enforce the decree against the surety until the creditor has exhausted his remedies against the principal. Order 20, R. 11 (1) provides that"where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable."For making an order under Order 20, Rule 11 (1) the Court must give sufficient reasons. The direction postponing payment of the amount decreed must be clear and specific. The injunction upon the creditor not to proceed against the surety until the creditor has exhausted his remedies against the principal is of the vaguest character. It is not stated how and when the creditor would exhaust his remedies against the principal. Is the creditor to as for imprisonment of the principal? Is he bound to discover at his peril all the properties of the principal and sell them; and if he cannot, does he lose his remedy against the surety? Has he to file an insolvency petition against the principal? The Trial Court gave no reasons for this extra-ordinary direction. The Court rejected the prayer of the principal debtor for payment of the decretal amount in instalments as there was no evidence to show that he could not pay the decretal amount in one lump sum. It is therefore said that the principal was solvent.But the solvency of the principal is not a sufficient ground for restraining execution of the decree against the surety. It is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under Section 140 of the Indian Contract Act and he may then recover the amount from the principal.The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is a banking company.A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. The impugned direction cannot be justified under Order 20, Rule 11 (1). Assuming that apart from Order 20, R. 11 (1) the Court had the inherent power under Section 151 to direct postponement of execution of the decree, the ends of justice did not require such postponement. | 1 | 1,243 | ### Instruction:
Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner.
### Input:
only after having exhausted its remedies against defendant No. 1". The plaintiff filed an appeal challenging the legality and propriety of this direction. The High Court dismissed the appeal. The plaintiff has filed the present appeal after obtaining a certificate.2. The guarantee bond in favour of the plaintiff bank is dated June 15, 1951. The surety agreed to pay and satisfy the liabilities of the principal debtor upto Rs. 12000 and interest thereon two days after demand. The bond provided that the plaintiff would be at liberty to enforce and to recover upon the guarantee notwithstanding any other guarantee, security or remedy which the Bank might hold or be entitled to in respect of the amount secured.3. The demand for payment of the liability of the principal debtor was the only condition or the enforcement of the bond. That condition was fulfilled. Neither the principal debtor nor the surety discharged the admitted liability of the principal debtor in spite of demands. Under Section 128 of the Indian Contract Act, save as provided in the contract, the liability of the surety is coextensive with that of the principal debtor. The surety became thus liable to pay the entire amount. His liability was immediate. It was not deferred until the creditor exhausted his remedies against the principal debtor.4. Before payment the surety has no right to dictate terms to the creditor and ask him to pursue his remedies against the principal in the first instance. As Lord Eldon observed in Wright v. Simpson, (1802) 6 Ves Jun 714 at p. 734 = 31 ER 1272 at p. 1282: "But the surety is a guarantee; and it is his business to see whether the principal pays, and not that of creditor."In the absence of some special equity the surety has no right to restrain an action against him by the creditor on the ground that the principal is solvent or that the creditor may have relief against the principal in some other proceedings.5. Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal.In Lachhman Joharimal v. Bapu Khandu, (1869) 6 Bom HCR 241, the judge of the Court of Small Causes, Ahmednagar, solicited the opinion of the Bombay High Court on the subject of the liability of sureties. The creditors having obtained decrees in two suits in the Court of Small Causes against the principals and sureties, presented applications for the imprisonment of the sureties before levying execution against the principals. The judge stated that the practice of his court had been to restrain a judgment-creditor from recovering from a surety until he had exhausted his remedy against the principal but in his view the surety should be liable to imprisonment while the principal was at large. Couch, C. J. and Melvill, J. agreed with this opinion and observed:-"The court is of opinion that a creditor is not bound to exhaust his remedy against the principal debtor before suing the surety and that when a decree is obtained against a surety, it may be enforced in the same manner as a decree for any other debt."6. It is now suggested that under Order 20, Rule 11 (1) and Section 151 of the Code of Civil Procedure the Court passing the decree had the power to impose the condition that the judgment creditor would not be at liberty to enforce the decree against the surety until the creditor has exhausted his remedies against the principal. Order 20, R. 11 (1) provides that:"where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable."For making an order under Order 20, Rule 11 (1) the Court must give sufficient reasons. The direction postponing payment of the amount decreed must be clear and specific. The injunction upon the creditor not to proceed against the surety until the creditor has exhausted his remedies against the principal is of the vaguest character. It is not stated how and when the creditor would exhaust his remedies against the principal. Is the creditor to as for imprisonment of the principal? Is he bound to discover at his peril all the properties of the principal and sell them; and if he cannot, does he lose his remedy against the surety? Has he to file an insolvency petition against the principal? The Trial Court gave no reasons for this extra-ordinary direction. The Court rejected the prayer of the principal debtor for payment of the decretal amount in instalments as there was no evidence to show that he could not pay the decretal amount in one lump sum. It is therefore said that the principal was solvent.But the solvency of the principal is not a sufficient ground for restraining execution of the decree against the surety. It is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under Section 140 of the Indian Contract Act and he may then recover the amount from the principal.The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case the creditor is a banking company.A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. The impugned direction cannot be justified under Order 20, Rule 11 (1). Assuming that apart from Order 20, R. 11 (1) the Court had the inherent power under Section 151 to direct postponement of execution of the decree, the ends of justice did not require such postponement.
### Response:
1
|
1,074 | Ranjit Kumar Bose Vs. Anannya Chowdhury | it follows that arbitration agreements between parties whose rights are regulated by the Bombay Rent Act cannot be recognized by a court of law. This decision in Natraj Studios (P) Ltd. v. Navrang Studios & Anr. (supra) supports our conclusion that the arbitration agreement between the landlord and tenant has to give way to Section 6 of the Tenancy Act which confers exclusive jurisdiction on the Civil Judge, to decide a dispute between the landlord and the tenant with regard to recovery of possession of the tenanted premises in a suit filed by the landlord. 10. The High Court, however, has relied on three decisions of this Court to hold that it is for the arbitral tribunal to decide under Section 16 of the 1996 Act whether it has the jurisdiction to decide the dispute between the appellants and the respondents. We may distinguish those cases from the facts of the present case. 11. In Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums (supra), Hindustan Petroleum Corporation Ltd. stopped supply of petroleum products to the dealer and the dealer filed a civil suit in the Court of Civil Judge, Rewari, for a declaration that the order stopping supply of petroleum product was illegal and arbitrary. Hindustan Petroleum Corporation Ltd. filed a petition under Section 8 of the 1996 Act praying for referring the dispute pending before the Civil Court to the arbitrator as per Clause 40 of the Dealership Agreement. The Civil Judge dismissed the petition and Hindustan Petroleum Corporation Ltd. filed a revision before the High Court, but the High Court also dismissed the revision. Hindustan Petroleum Corporation Ltd. thereafter filed an appeal before this Court and this Court held that Section 8 of the 1996 Act in its clear terms mandates a judicial authority before whom an application is brought in a matter, which is the subject-matter of an arbitration agreement, to refer such parties to the arbitration. In this case, the arbitration agreement contained in Clause 40 of the Dealership Agreement was not hit by a statutory provision like the one in Section 6 of the Tenancy Act providing that the dispute shall be decided only by a Civil Judge in a suit notwithstanding a provision in the contract to the contrary. 12. In Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. (supra), the parties had entered into a memorandum of understanding in relation to the business of export and the memorandum of understanding contained an arbitration clause that in case of any dispute between the two parties, the same shall be referred to arbitration, by two arbitrators, nominated by each of the parties and the award of the arbitrators shall be binding on both the parties. Agri Gold Exims Ltd. filed a suit in the District Court at Vijayawada for recovery of an amount of Rs.36,14,887/- and for future interest on a sum of Rs.53,79,149/-. Sri Lakshmi Knits & Wovens filed an application under Section 8 of the 1996 Act for referring the dispute to the arbitral tribunal in terms of the arbitration agreement contained in the memorandum of understanding. This application, however, was dismissed by the District Court, but on revision the High Court reversed the order of the District Court and referred the parties to arbitration. Agri Gold Exims Ltd. carried an appeal to this Court and this Court reiterated that Section 8 of the 1996 Act is peremptory in nature and in a case where there exists an arbitration agreement, the Court is under obligation to refer the parties to arbitration in terms of the arbitration agreement, relying on Hindustan Petroleum Corporation Ltd. (supra). In this case again, there was no statutory bar to arbitration like the one in Section 6 of the Tenancy Act providing that the dispute can only be decided by the Civil Judge in a suit. 13. In Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. (supra), Magma Leasing Limited Public United Company (for short ‘Magma’) and Smt. Potluri Madhavilata (for short ‘hirer’) entered into an agreement of hire-purchase for the purchase of a motor vehicle whereunder the hirer was required to pay hire-purchase price in 46 instalments. When the instalments were not paid, Magma seized the vehicle and sent a notice to the hirer saying that the hire-purchase agreement has been terminated. The hirer then filed a suit against Magma in the Court of the Senior Civil Judge for recovery of possession of the vehicle and for restraining Magma from transferring the vehicle. Magma filed a petition before the Civil Judge under Section 8 of the 1996 Act praying that the dispute raised in the suit be referred to an arbitrator in terms of Clause 22 of the Hire-Purchase Agreement, which contained the arbitration agreement. This Court reiterated that Section 8 is in the form of legislative command to the court and once the prerequisite conditions are satisfied, the Court must refer the parties to arbitration. In this case again, there was no statutory bar to arbitration like Section 6 of the Tenancy Act providing that the dispute can only be decided by a Civil Judge. 14. The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit. | 1[ds]8. In this case, there is an arbitration agreement in clause 15 of the tenancy agreement, which provides that any dispute regarding the contents or construction of the tenancy agreement or dispute arising out of the tenancy agreement shall be settled by arbitration in accordance with the provisions of the 1996 Act. But the words ‘notwithstanding anything in anyin Section 6 of the Tenancy Act, will override the arbitration agreement in clause 15 of the tenancy agreement where a suit for recovery of possession of any premises has been filed by a landlord against the tenant. Such a suit filed by the landlord against the tenant for recovery of possession, therefore, cannot be referred under Section 8 of the 1996 Act to arbitration. In fact, sub-section (3) of Section 2 of the 1996 Act expressly provides that Part-I which relates towhere the place of arbitration is in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. Section 6 of the Tenancy Act is one such law which clearly bars arbitration in a dispute relating to recovery of possession of premises by the landlord from the tenant. Since the suit filed by the appellants was for eviction, it was a suit for recovery of possession and could not be referred to arbitration because of a statutory provision in Section 6 of the Tenancy Act.The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by thein a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expressionwill obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit. | 1 | 3,233 | ### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
it follows that arbitration agreements between parties whose rights are regulated by the Bombay Rent Act cannot be recognized by a court of law. This decision in Natraj Studios (P) Ltd. v. Navrang Studios & Anr. (supra) supports our conclusion that the arbitration agreement between the landlord and tenant has to give way to Section 6 of the Tenancy Act which confers exclusive jurisdiction on the Civil Judge, to decide a dispute between the landlord and the tenant with regard to recovery of possession of the tenanted premises in a suit filed by the landlord. 10. The High Court, however, has relied on three decisions of this Court to hold that it is for the arbitral tribunal to decide under Section 16 of the 1996 Act whether it has the jurisdiction to decide the dispute between the appellants and the respondents. We may distinguish those cases from the facts of the present case. 11. In Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums (supra), Hindustan Petroleum Corporation Ltd. stopped supply of petroleum products to the dealer and the dealer filed a civil suit in the Court of Civil Judge, Rewari, for a declaration that the order stopping supply of petroleum product was illegal and arbitrary. Hindustan Petroleum Corporation Ltd. filed a petition under Section 8 of the 1996 Act praying for referring the dispute pending before the Civil Court to the arbitrator as per Clause 40 of the Dealership Agreement. The Civil Judge dismissed the petition and Hindustan Petroleum Corporation Ltd. filed a revision before the High Court, but the High Court also dismissed the revision. Hindustan Petroleum Corporation Ltd. thereafter filed an appeal before this Court and this Court held that Section 8 of the 1996 Act in its clear terms mandates a judicial authority before whom an application is brought in a matter, which is the subject-matter of an arbitration agreement, to refer such parties to the arbitration. In this case, the arbitration agreement contained in Clause 40 of the Dealership Agreement was not hit by a statutory provision like the one in Section 6 of the Tenancy Act providing that the dispute shall be decided only by a Civil Judge in a suit notwithstanding a provision in the contract to the contrary. 12. In Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. (supra), the parties had entered into a memorandum of understanding in relation to the business of export and the memorandum of understanding contained an arbitration clause that in case of any dispute between the two parties, the same shall be referred to arbitration, by two arbitrators, nominated by each of the parties and the award of the arbitrators shall be binding on both the parties. Agri Gold Exims Ltd. filed a suit in the District Court at Vijayawada for recovery of an amount of Rs.36,14,887/- and for future interest on a sum of Rs.53,79,149/-. Sri Lakshmi Knits & Wovens filed an application under Section 8 of the 1996 Act for referring the dispute to the arbitral tribunal in terms of the arbitration agreement contained in the memorandum of understanding. This application, however, was dismissed by the District Court, but on revision the High Court reversed the order of the District Court and referred the parties to arbitration. Agri Gold Exims Ltd. carried an appeal to this Court and this Court reiterated that Section 8 of the 1996 Act is peremptory in nature and in a case where there exists an arbitration agreement, the Court is under obligation to refer the parties to arbitration in terms of the arbitration agreement, relying on Hindustan Petroleum Corporation Ltd. (supra). In this case again, there was no statutory bar to arbitration like the one in Section 6 of the Tenancy Act providing that the dispute can only be decided by the Civil Judge in a suit. 13. In Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. (supra), Magma Leasing Limited Public United Company (for short ‘Magma’) and Smt. Potluri Madhavilata (for short ‘hirer’) entered into an agreement of hire-purchase for the purchase of a motor vehicle whereunder the hirer was required to pay hire-purchase price in 46 instalments. When the instalments were not paid, Magma seized the vehicle and sent a notice to the hirer saying that the hire-purchase agreement has been terminated. The hirer then filed a suit against Magma in the Court of the Senior Civil Judge for recovery of possession of the vehicle and for restraining Magma from transferring the vehicle. Magma filed a petition before the Civil Judge under Section 8 of the 1996 Act praying that the dispute raised in the suit be referred to an arbitrator in terms of Clause 22 of the Hire-Purchase Agreement, which contained the arbitration agreement. This Court reiterated that Section 8 is in the form of legislative command to the court and once the prerequisite conditions are satisfied, the Court must refer the parties to arbitration. In this case again, there was no statutory bar to arbitration like Section 6 of the Tenancy Act providing that the dispute can only be decided by a Civil Judge. 14. The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit.
### Response:
1
|
1,075 | Hindustan Aeronautics Ltd Vs. The Workmen And Ors | instant case, which the Government alone was entitled to carry on to the exclusion of the private operators. The distinction so made is of no consequence and does not affect the ratio of the case in the least.We may also add that by amendments made in the definition of "appropriate Government" in Section 2 (a) (i) frorn time to time certain statutory corporations were incorporated in the definition to make the Central Government an appropriate Government in relation to the industry carried on by them. But no public company even if the shares were exclusively owned by the Government was attempted to be roped in the said definition.4. The other leg of the argument to challenge the competency of the West Bengal Government to make the reference is also fruitless.It may be assumed that the Barrackpore branch was under the control of the Bangalore division of the company. Yet it,was a separate branch engaged in an industry of repairs of aircrafts or the like at Barrackpore. For the purposes of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit. The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid. The facts of the case of M/s. Lipton Limited v. Their Employees, (1959) 2 Supp SCR 150 = (AIR 1959 SC 620 ) cited on behalf of the appellant are clearly distinguishable. The ratio of trial case was pressed into service in vain on behalf of the appellant.5. The first demand on behalf of the workmen as respects the education allowance of the children was chiefly based upon the educational facilities said to be available to the workmen of Bangalore. On behalf of the management it was pointed out that certain educational facilities were given to the employees living in the township of Bangalore but not in the city of Bangalore. The workmen working at Barrackpore had also been provided with certain educational facilities. We, however do not propose to go into the merits of the rival contentions. In our opinion the award directing the company to pay Rs. 12 per month to each employee to meet educational expenses of their children irrespective of the number of children a particular workman may have is beyond the scope of the issue referred for adjudication. The Tribunal while discussing this issue felt constrained to think that strictly speaking claim for allowance for the education of employees children could not form a subject matter of industrial dispute. Really it was a matter to be taken into consideration at the time of fixing their wages. In substance and in effect the directions given by the Tribunal is by way of revision of the pay structure of the Barrackpore employees. No such reference was either asked for or made. The Tribunal, therefore, had no jurisdiction to change the wage structure in the garb of allowing educational expenses for the employees children. We may add that on behalf of the appellant it was stated before us that the latest revised wage structure has taken the matter of education of the employees children into consideration, while, Mr. A. K. Sen, appearing for the workmen, did not accept it to be so. If necessary and advisable a proper industrial dispute may be raised in that regard in future but the award as it stands cannot be upheld.6. Apropos issue No. 4 it was stated on behalf of the appellant that all staff and not only the supervisory staff were getting Rs. 1.50 as lunch allowance under circumstances similar to the ones under which the employees belonging to the supervisory staff were getting Rupees 1.50 as lunch allowance. The award of the Tribunal, therefore, was unnecessary and superfluous in that regard. If that be so, the award may be a surplusage as it is conceded on behalf of the appellant that under the existing service conditions every employee eligible to get a lunch allowance was getting @ Rs. 1.50.7. The 10 workmen sought to be made permanent under issue No. 5 were casual workmen before 4-1-1967 within the meaning of clause (b) (d) of Standing Order I headed "Classification of workmen". They were appointed as temporary workmen within the meaning of clause (b) (d) of Standing Order I on and from 4-1-1967. The Tribunals direction to make them permanent on and from 4-1-1968 treating them as probationers appointed in permanent vacancies was not justified. The Tribunal did not go into the question as to whether more permanent workmen were necessary to be appointed in the canteen over and above the existing permanent strength to justify the making of the 10 workmen as permanent in the canteen where they were working. No direction of creation of new posts was given. On the evidence as adduced before the Tribunal and on the basis of the findings recorded by it, it is plain that the 10 workmen or any of them could be made permanent only against the permanent vacancies and not otherwise. On behalf of the appellant it was stated before us that all of them have been made permanent against such vacancies, while, on behalf of the workmen the assertion was that none of them has been made permanent so far. The management has no objection in absorbing the 10 workmen concerned in permanent vacancies as and when they occur if any of them has not been already absorbed. The workmen want nothing more than this. | 1[ds]. Desai made a futile and unsubstantial attempt to distinguish the case of Heavy Engineering Mazdoor Union, (AIR 1970 SC 82 Lab IC 212) on the ground that that was the case of a Government Company carrying on an industry where Private Sector Undertakings were alsooperating. It was not an industry, as in the instant case, which the Government alone was entitled to carry on to the exclusion of the private operators. The distinction so made is of no consequence and does not affect the ratio of the case in the least.We may also add that by amendments made in the definition of "appropriate Government" in Section 2 (a) (i) frorn time to time certain statutory corporations were incorporated in the definition to make the Central Government an appropriate Government in relation to the industry carried on by them. But no public company even if the shares were exclusively owned by the Government was attempted to be roped in the said definition.4. The other leg of the argument to challenge the competency of the West Bengal Government to make the reference is also fruitless.It may be assumed that the Barrackpore branch was under the control of the Bangalore division of the company. Yet it,was a separate branch engaged in an industry of repairs of aircrafts or the like at Barrackpore. For the purposes of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit. The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid. The facts of the case of M/s. Lipton Limited v. Their Employees, (1959) 2 Supp SCR 150 = (AIR 1959 SC 620 ) cited on behalf of the appellant are clearly distinguishable. The ratio of trial case was pressed into service in vain on behalf of the appellant.5. The first demand on behalf of the workmen as respects the education allowance of the children was chiefly based upon the educational facilities said to be available to the workmen ofhowever do not propose to go into the merits of the rival contentions. In our opinion the award directing the company to pay Rs. 12 per month to each employee to meet educational expenses of their children irrespective of the number of children a particular workman may have is beyond the scope of the issue referred for adjudication. The Tribunal while discussing this issue felt constrained to think that strictly speaking claim for allowance for the education of employees children could not form a subject matter of industrial dispute. Really it was a matter to be taken into consideration at the time of fixing their wages. In substance and in effect the directions given by the Tribunal is by way of revision of the pay structure of the Barrackpore employees. No such reference was either asked for or made. The Tribunal, therefore, had no jurisdiction to change the wage structure in the garb of allowing educational expenses for the employees children. We may add that on behalf of the appellant it was stated before us that the latest revised wage structure has taken the matter of education of the employees children into consideration, while, Mr. A. K. Sen, appearing for the workmen, did not accept it to be so. If necessary and advisable a proper industrial dispute may be raised in that regard in future but the award as it stands cannot be upheld.The 10 workmen sought to be made permanent under issue No. 5 were casual workmen before 4-1-1967 within the meaning of clause (b) (d) of Standing Order I headed "Classification of workmen". They were appointed as temporary workmen within the meaning of clause (b) (d) of Standing Order I on and from 4-1-1967. The Tribunals direction to make them permanent on and from 4-1-1968 treating them as probationers appointed in permanent vacancies was not justified. The Tribunal did not go into the question as to whether more permanent workmen were necessary to be appointed in the canteen over and above the existing permanent strength to justify the making of the 10 workmen as permanent in the canteen where they were working. No direction of creation of new posts was given. On the evidence as adduced before the Tribunal and on the basis of the findings recorded by it, it is plain that the 10 workmen or any of them could be made permanent only against the permanent vacancies and not otherwise. On behalf of the appellant it was stated before us that all of them have been made permanent against such vacancies, while, on behalf of the workmen the assertion was that none of them has been made permanent so far. The management has no objection in absorbing the 10 workmen concerned in permanent vacancies as and when they occur if any of them has not been already absorbed. The workmen want nothing more than this.Apropos issue No. 4 itwas stated on behalf of the appellant that all staff and not only the supervisory staff were getting Rs. 1.50 as lunch allowance under circumstances similar to the ones under which the employees belonging to the supervisory staff were getting Rupees 1.50 as lunch allowance. The award of the Tribunal, therefore, was unnecessary and superfluous in that regard. If that be so, the award may be a surplusage as it is conceded on behalf of the appellant that under the existing service conditions every employee eligible to get a lunch allowance was getting @ Rs. 1.50. | 1 | 2,078 | ### 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:
instant case, which the Government alone was entitled to carry on to the exclusion of the private operators. The distinction so made is of no consequence and does not affect the ratio of the case in the least.We may also add that by amendments made in the definition of "appropriate Government" in Section 2 (a) (i) frorn time to time certain statutory corporations were incorporated in the definition to make the Central Government an appropriate Government in relation to the industry carried on by them. But no public company even if the shares were exclusively owned by the Government was attempted to be roped in the said definition.4. The other leg of the argument to challenge the competency of the West Bengal Government to make the reference is also fruitless.It may be assumed that the Barrackpore branch was under the control of the Bangalore division of the company. Yet it,was a separate branch engaged in an industry of repairs of aircrafts or the like at Barrackpore. For the purposes of the Act and on the facts of this case the Barrackpore branch was an industry carried on by the company as a separate unit. The workers were receiving their pay packages at Barrackpore and were under the control of the officers of the company stationed there. If there was any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid. The facts of the case of M/s. Lipton Limited v. Their Employees, (1959) 2 Supp SCR 150 = (AIR 1959 SC 620 ) cited on behalf of the appellant are clearly distinguishable. The ratio of trial case was pressed into service in vain on behalf of the appellant.5. The first demand on behalf of the workmen as respects the education allowance of the children was chiefly based upon the educational facilities said to be available to the workmen of Bangalore. On behalf of the management it was pointed out that certain educational facilities were given to the employees living in the township of Bangalore but not in the city of Bangalore. The workmen working at Barrackpore had also been provided with certain educational facilities. We, however do not propose to go into the merits of the rival contentions. In our opinion the award directing the company to pay Rs. 12 per month to each employee to meet educational expenses of their children irrespective of the number of children a particular workman may have is beyond the scope of the issue referred for adjudication. The Tribunal while discussing this issue felt constrained to think that strictly speaking claim for allowance for the education of employees children could not form a subject matter of industrial dispute. Really it was a matter to be taken into consideration at the time of fixing their wages. In substance and in effect the directions given by the Tribunal is by way of revision of the pay structure of the Barrackpore employees. No such reference was either asked for or made. The Tribunal, therefore, had no jurisdiction to change the wage structure in the garb of allowing educational expenses for the employees children. We may add that on behalf of the appellant it was stated before us that the latest revised wage structure has taken the matter of education of the employees children into consideration, while, Mr. A. K. Sen, appearing for the workmen, did not accept it to be so. If necessary and advisable a proper industrial dispute may be raised in that regard in future but the award as it stands cannot be upheld.6. Apropos issue No. 4 it was stated on behalf of the appellant that all staff and not only the supervisory staff were getting Rs. 1.50 as lunch allowance under circumstances similar to the ones under which the employees belonging to the supervisory staff were getting Rupees 1.50 as lunch allowance. The award of the Tribunal, therefore, was unnecessary and superfluous in that regard. If that be so, the award may be a surplusage as it is conceded on behalf of the appellant that under the existing service conditions every employee eligible to get a lunch allowance was getting @ Rs. 1.50.7. The 10 workmen sought to be made permanent under issue No. 5 were casual workmen before 4-1-1967 within the meaning of clause (b) (d) of Standing Order I headed "Classification of workmen". They were appointed as temporary workmen within the meaning of clause (b) (d) of Standing Order I on and from 4-1-1967. The Tribunals direction to make them permanent on and from 4-1-1968 treating them as probationers appointed in permanent vacancies was not justified. The Tribunal did not go into the question as to whether more permanent workmen were necessary to be appointed in the canteen over and above the existing permanent strength to justify the making of the 10 workmen as permanent in the canteen where they were working. No direction of creation of new posts was given. On the evidence as adduced before the Tribunal and on the basis of the findings recorded by it, it is plain that the 10 workmen or any of them could be made permanent only against the permanent vacancies and not otherwise. On behalf of the appellant it was stated before us that all of them have been made permanent against such vacancies, while, on behalf of the workmen the assertion was that none of them has been made permanent so far. The management has no objection in absorbing the 10 workmen concerned in permanent vacancies as and when they occur if any of them has not been already absorbed. The workmen want nothing more than this.
### Response:
1
|
1,076 | Kylasa Sarabhiah, Bombay Cloth Shop,Secunderabad Vs. Commissioner Of Income-Tax, Andhra Pradesh | business carried on by all or any of them acting for all. A firm is strictly not a person, it is an association of persons, and an agreement by which a firm purports to enter into a partnership with an individual or another firm merely makes the partners of that firm individually partners of the larger partnership. The problem posed by such a partnership agreement is under the general law academic but the right to registration under S. 26-A being conditional upon specification of the individual shares of the partners, a deed of partnership between a firm and an individual, which specifies the collective share of the firm, without more cannot be registered. It has been held by this Court in Dulichand Laxminarayan v. Commr. of Income-tax Nagpur (1956) 29 ITR 535 : ((S) AIR 1956 SC 354 ), that a partnership constituted between an individual a joint Hindu family and three firms could not be registered under S. 26-A of the Act. In Dulichands case (195) 29 ITR 535 : ((S) AIR 1956 SC 354 ), the partnership deed was signed by five individuals, viz., the karta of the joint Hindu family, one partner each of the three firms and the individual. It was held that the partnership could not be admitted to registration, because a firm as such cannot enter into an agreement as partner with another firm or individual, and also because all the members of the three firms had not personally signed the application as required by R. 2 of the Income-tax Rules. 6. The application in the present case was rejected by the Tribunal, because in its view the benefits to which the minors were admitted and the shares of the major partners who were members of the Yarn Shop were not specified, and that the Yarn Shop was introduced as a partner in the firm. But the Tribunal, in our judgment, erred in holding that the benefits to which the minors were admitted and the shares of the major members of the Yarn Shop were not specified in the deed of partnership. It is clearly recited in the preamble that K. Rajeshwarao, K. Harnath Babu, K. Ramesh Babu and K. Shivakumar - the four minors - were admitted to the benefit of the partnership with equal shares in the profits falling to the share of the yarn Shop, and losses were to be shared in equal shares only by the major partner K Veeresalingam, K. Nagendrarao and K. Madhusudhanarao. The scheme of the deed, therefore, was that the Yarn Shop collectively had a share of 0-6-9 in the profits and was liable in the same proportion in the losses in the appellant firm. Out of this 0-6-9 share, seven persons who constituted the Yarn Shop were entitled to share the profits equally, whereas losses were to be shared by the three major members of the Yarn Shop equally. It is true that in the deed of partnership, the first partner is described as Kyalasa Sarabhaiah Yarn firm -- the Yarn Shop constituted under an instrument of partnership dated May 12, 1955 and in paragraphs 3 and 8 this Yarn Shop is also described as the first partner. But the substance of the agreement cannot be permitted to be overshadowed merely by the use of the collective description of some of the persons who agreed to be partners. The agreement was between K. Veeresalingam, K. Nagendrarao K. Madhusudhanarao, Mahendrakar Narayana Rao, Noone Vittayya, Pottipalli Chandrayya and Gande Ramayya to enter into a partnership with the covenant that the profits and losses shall be divided in the shares specified in the instrument. The partnership agreement was signed by the major partners; the application for registration was in conformity with the rules framed under the Act, the certificate regarding the distribution of the profits in the previous year was given the original instrument of partnership was produced and the instrument specified the individual shares of the partners. Merely because the deed of partnership set out in paragraph 8 the collective of the Yarn Shop, registration could not be refused, for in the preamble the division of the shares of profits and losses among the three members of the Yarn Shop and those admitted to the benefit of the partnership is clearly indicated. The word specify is used in S. 26-A and R. 2 as meaning, mentioning, describing or defining in detail; it does not mean expressly setting out in fractional or other shares. In the deed of partnership, the shares are clearly defined, though they are not worked out in precise fractions. Nor is it true to say that the Yarn Shop is introduced as a partner. The agreement is in truth between three major members out of those who constitute the Yarn Shop and four outsiders. Each of them has signed the application and the covenants of the partnership agreement bind the covenants of the partnership agreement bind the partners individually. Indication in the deed of partnership that three of them held qua the Yarn Shop a certain relation did not affect their status as partners of the appellant firm individually. 7. It was urged that in the deed Sated February 20, 1952, constituting the Yarn Shop, as amended by the deed dated May 12, 1955, no profit sharing ratio was mentioned. But we are not concerned with the registration of the Yarn Shop. We are unable to appropriate how a defect (even if there be one in the agreement constituting the Yarn firm) affects the right of the appellant firm to be registered. If the statutory conditions which qualify the appellants for registration are fulfilled, an arrangement between some of the partners of the appellants which binds them to distribute the profits under a stipulation which is not a part of the partnership agreement does not affect the right to claim registration of the partnership agreement. 8. The answer recorded by the High Court must, therefore, be discharged, and an affirmative answer must be recorded. | 1[ds]4. Registration of the firm may be obtained on an application to thex Officer on behalf of any firm, if the firm be lawfully constituted under an instrument of partnership which specifies, the individual shares of partners and thex Officer is satisfied that there is or was a genuine firm in existence as shown in the instrument. If the conditions are fulfilled, thex Officer has no power to reject the application. Undoubtedly, the application must strictly be in conformity with the Act and the Rules but in ascertaining whether the application is in conformity with the Rules, the deed of partnership must be reasonably construed5. Under the Indian Partnership act, 1932, Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. A firm is strictly not a person, it is an association of persons, and an agreement by which a firm purports to enter into a partnership with an individual or another firm merely makes the partners of that firm individually partners of the larger partnership. The problem posed by such a partnership agreement is under the general law academic but the right to registration under S.A being conditional upon specification of the individual shares of the partners, a deed of partnership between a firm and an individual, which specifies the collective share of the firm, without more cannot be registered. It has been held by this Court in Dulichand Laxminarayan v. Commr. ofx Nagpur (1956) 29 ITR 535 : ((S) AIR 1956 SC 354 ), that a partnership constituted between an individual a joint Hindu family and three firms could not be registered under S.A of the Act. In Dulichands case (195) 29 ITR 535 : ((S) AIR 1956 SC 354 ), the partnership deed was signed by five individuals, viz., the karta of the joint Hindu family, one partner each of the three firms and the individual. It was held that the partnership could not be admitted to registration, because a firm as such cannot enter into an agreement as partner with another firm or individual, and also because all the members of the three firms had not personally signed the application as required by R. 2 of the6. The application in the present case was rejected by the Tribunal, because in its view the benefits to which the minors were admitted and the shares of the major partners who were members of the Yarn Shop were not specified, and that the Yarn Shop was introduced as a partner in the firm. But the Tribunal, in our judgment, erred in holding that the benefits to which the minors were admitted and the shares of the major members of the Yarn Shop were not specified in the deed of partnership. It is clearly recited in the preamble that K. Rajeshwarao, K. Harnath Babu, K. Ramesh Babu and K. Shivakumarwere admitted to the benefit of the partnership with equal shares in the profits falling to the share of the yarn Shop, and losses were to be shared in equal shares only by the major partner K Veeresalingam, K. Nagendrarao and K. Madhusudhanarao. The scheme of the deed, therefore, was that the Yarn Shop collectively had a share of9 in the profits and was liable in the same proportion in the losses in the appellant firm. Out of this9 share, seven persons who constituted the Yarn Shop were entitled to share the profits equally, whereas losses were to be shared by the three major members of the Yarn Shop equally. It is true that in the deed of partnership, the first partner is described as Kyalasa Sarabhaiah Yarn firmthe Yarn Shop constituted under an instrument of partnership dated May 12, 1955 and in paragraphs 3 and 8 this Yarn Shop is also described as the first partner. But the substance of the agreement cannot be permitted to be overshadowed merely by the use of the collective description of some of the persons who agreed to be partners. The agreement was between K. Veeresalingam, K. Nagendrarao K. Madhusudhanarao, Mahendrakar Narayana Rao, Noone Vittayya, Pottipalli Chandrayya and Gande Ramayya to enter into a partnership with the covenant that the profits and losses shall be divided in the shares specified in the instrument. The partnership agreement was signed by the major partners; the application for registration was in conformity with the rules framed under the Act, the certificate regarding the distribution of the profits in the previous year was given the original instrument of partnership was produced and the instrument specified the individual shares of the partners. Merely because the deed of partnership set out in paragraph 8 the collective of the Yarn Shop, registration could not be refused, for in the preamble the division of the shares of profits and losses among the three members of the Yarn Shop and those admitted to the benefit of the partnership is clearly indicated. The word specify is used in S.A and R. 2 as meaning, mentioning, describing or defining in detail; it does not mean expressly setting out in fractional or other shares. In the deed of partnership, the shares are clearly defined, though they are not worked out in precise fractions. Nor is it true to say that the Yarn Shop is introduced as a partner. The agreement is in truth between three major members out of those who constitute the Yarn Shop and four outsiders. Each of them has signed the application and the covenants of the partnership agreement bind the covenants of the partnership agreement bind the partners individually. Indication in the deed of partnership that three of them held qua the Yarn Shop a certain relation did not affect their status as partners of the appellant firm individually7. It was urged that in the deed Sated February 20, 1952, constituting the Yarn Shop, as amended by the deed dated May 12, 1955, no profit sharing ratio was mentioned. But we are not concerned with the registration of the Yarn Shop. We are unable to appropriate how a defect (even if there be one in the agreement constituting the Yarn firm) affects the right of the appellant firm to be registered. If the statutory conditions which qualify the appellants for registration are fulfilled, an arrangement between some of the partners of the appellants which binds them to distribute the profits under a stipulation which is not a part of the partnership agreement does not affect the right to claim registration of the partnership agreement8. The answer recorded by the High Court must, therefore, be discharged, and an affirmative answer must be recorded. | 1 | 1,904 | ### 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:
business carried on by all or any of them acting for all. A firm is strictly not a person, it is an association of persons, and an agreement by which a firm purports to enter into a partnership with an individual or another firm merely makes the partners of that firm individually partners of the larger partnership. The problem posed by such a partnership agreement is under the general law academic but the right to registration under S. 26-A being conditional upon specification of the individual shares of the partners, a deed of partnership between a firm and an individual, which specifies the collective share of the firm, without more cannot be registered. It has been held by this Court in Dulichand Laxminarayan v. Commr. of Income-tax Nagpur (1956) 29 ITR 535 : ((S) AIR 1956 SC 354 ), that a partnership constituted between an individual a joint Hindu family and three firms could not be registered under S. 26-A of the Act. In Dulichands case (195) 29 ITR 535 : ((S) AIR 1956 SC 354 ), the partnership deed was signed by five individuals, viz., the karta of the joint Hindu family, one partner each of the three firms and the individual. It was held that the partnership could not be admitted to registration, because a firm as such cannot enter into an agreement as partner with another firm or individual, and also because all the members of the three firms had not personally signed the application as required by R. 2 of the Income-tax Rules. 6. The application in the present case was rejected by the Tribunal, because in its view the benefits to which the minors were admitted and the shares of the major partners who were members of the Yarn Shop were not specified, and that the Yarn Shop was introduced as a partner in the firm. But the Tribunal, in our judgment, erred in holding that the benefits to which the minors were admitted and the shares of the major members of the Yarn Shop were not specified in the deed of partnership. It is clearly recited in the preamble that K. Rajeshwarao, K. Harnath Babu, K. Ramesh Babu and K. Shivakumar - the four minors - were admitted to the benefit of the partnership with equal shares in the profits falling to the share of the yarn Shop, and losses were to be shared in equal shares only by the major partner K Veeresalingam, K. Nagendrarao and K. Madhusudhanarao. The scheme of the deed, therefore, was that the Yarn Shop collectively had a share of 0-6-9 in the profits and was liable in the same proportion in the losses in the appellant firm. Out of this 0-6-9 share, seven persons who constituted the Yarn Shop were entitled to share the profits equally, whereas losses were to be shared by the three major members of the Yarn Shop equally. It is true that in the deed of partnership, the first partner is described as Kyalasa Sarabhaiah Yarn firm -- the Yarn Shop constituted under an instrument of partnership dated May 12, 1955 and in paragraphs 3 and 8 this Yarn Shop is also described as the first partner. But the substance of the agreement cannot be permitted to be overshadowed merely by the use of the collective description of some of the persons who agreed to be partners. The agreement was between K. Veeresalingam, K. Nagendrarao K. Madhusudhanarao, Mahendrakar Narayana Rao, Noone Vittayya, Pottipalli Chandrayya and Gande Ramayya to enter into a partnership with the covenant that the profits and losses shall be divided in the shares specified in the instrument. The partnership agreement was signed by the major partners; the application for registration was in conformity with the rules framed under the Act, the certificate regarding the distribution of the profits in the previous year was given the original instrument of partnership was produced and the instrument specified the individual shares of the partners. Merely because the deed of partnership set out in paragraph 8 the collective of the Yarn Shop, registration could not be refused, for in the preamble the division of the shares of profits and losses among the three members of the Yarn Shop and those admitted to the benefit of the partnership is clearly indicated. The word specify is used in S. 26-A and R. 2 as meaning, mentioning, describing or defining in detail; it does not mean expressly setting out in fractional or other shares. In the deed of partnership, the shares are clearly defined, though they are not worked out in precise fractions. Nor is it true to say that the Yarn Shop is introduced as a partner. The agreement is in truth between three major members out of those who constitute the Yarn Shop and four outsiders. Each of them has signed the application and the covenants of the partnership agreement bind the covenants of the partnership agreement bind the partners individually. Indication in the deed of partnership that three of them held qua the Yarn Shop a certain relation did not affect their status as partners of the appellant firm individually. 7. It was urged that in the deed Sated February 20, 1952, constituting the Yarn Shop, as amended by the deed dated May 12, 1955, no profit sharing ratio was mentioned. But we are not concerned with the registration of the Yarn Shop. We are unable to appropriate how a defect (even if there be one in the agreement constituting the Yarn firm) affects the right of the appellant firm to be registered. If the statutory conditions which qualify the appellants for registration are fulfilled, an arrangement between some of the partners of the appellants which binds them to distribute the profits under a stipulation which is not a part of the partnership agreement does not affect the right to claim registration of the partnership agreement. 8. The answer recorded by the High Court must, therefore, be discharged, and an affirmative answer must be recorded.
### Response:
1
|
1,077 | Ashok Sadarangani & Another Vs. Union of India & Others | case and Manoj Sharmas case (supra) came to be considered, the Bench comprised of two Judges, was of the view that the said decisions required reconsideration and directed that the matter be placed before a larger Bench to consider the correctness of the said three decisions. Shri Jain urged that as the same issue which was involved in the present case was also the subject matter of the reference to a larger Bench, this Court should abstain from pronouncing judgment on the issue which was the subject matter in the said reference. Shri Jain urged that in the circumstances mentioned hereinabove, no relief could be given to the Petitioners on the writ petition and the same was liable to be dismissed. 17. Having carefully considered the facts and circumstances of the case, as also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the views that had been taken in Nikhil Merchants case or Manoj Sharmas case (supra) or the several decisions that have come thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions cited, indicates that continuance of a criminal proceeding after a compromise has been arrived at between the complainant and the accused, would amount to abuse of the process of court and an exercise in futility, since the trial could be prolonged and ultimately, may conclude in a decision which may be of any consequence to any of the other parties. Even in Sushil Suris case on which the learned Additional Solicitor General had relied, the learned Judges who decided the said case, took note of the decisions in various other cases, where it had been reiterated that the exercise of inherent powers would depend entirely on the facts and circumstances of each case. In other words, not that there is any restriction on the power or authority vested in the Supreme Court in exercising powers under Article 142 of the Constitution, but that in exercising such powers the Court has to be circumspect, and has to exercise such power sparingly in the facts of each case. Furthermore, the issue, which has been referred to a larger Bench in Gian Singhs case (supra) in relation to the decisions of this Court in B.S. Joshis case, Nikhil Merchants case, as also Manoj Sharmas case, deal with a situation which is different from that of the present case. While in the cases referred to hereinabove, the main question was whether offences which were not compoundable, under Section 320 Cr.P.C. could be quashed under Section 482 Cr.P.C., in Gian Singhs case the Court was of the view that a non-compoundable offence could not be compounded and that the Courts should not try to take over the function of the Parliament or executive. In fact, in none of the cases referred to in Gian Singhs case, did this Court permit compounding of non-compoundable offences. On the other hand, upon taking various factors into consideration, including the futility of continuing with the criminal proceedings, this Court ultimately quashed the same.18. In addition to the above, even with regard to the decision of this Court in Central Bureau of Investigation Vs. Ravi Shankar Prasad & Ors. [(2009) 6 SCC 351] , this Court observed that the High Court can exercise power under Section 482 Cr.P.C. to do real and substantial justice and to prevent abuse of the process of Court when exceptional circumstances warranted the exercise of such power. Once the circumstances in a given case were held to be such as to attract the provisions of Article 142 or Articles 32 and 226 of the Constitution, it would be open to the Supreme Court to exercise its extraordinary powers under Article 142 of the Constitution to quash the proceedings, the continuance whereof would only amount to abuse of the process of Court. In the instant case the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved.19. As was indicated in Harbhajan Singhs case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singhs case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field. 20. In the present case, the fact situation is different from that in Nikhil Merchants case (supra). While in Nikhil Merchants case the accused had misrepresented the financial status of the company in question in order to avail of credit facilities to an extent to which the company was not entitled, in the instant case, the allegation is that as part of a larger conspiracy, property acquired on lease from a person who had no title to the leased properties, was offered as collateral security for loans obtained. Apart from the above, the actual owner of the property has filed a criminal complaint against Shri Kersi V. Mehta who had held himself out as the Attorney of the owner and his family members. The ratio of the decisions in B.S. Joshis case and in Nikhil Merchants case or for that matter, even in Manoj Sharmas case, does not help the case of the writ petitioners. In Nikhil Merchants case, this Court had in the facts of the case observed that the dispute involved had overtures of a civil dispute with criminal facets. This is not so in the instant case, where the emphasis is more on the criminal intent of the Petitioners than on the civil aspect involving the dues of the Bank in respect of which a compromise was worked out. | 1[ds]17. Having carefully considered the facts and circumstances of the case, as also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the views that had been taken in Nikhil Merchants case or Manoj Sharmas case (supra) or the several decisions that have come thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions cited, indicates that continuance of a criminal proceeding after a compromise has been arrived at between the complainant and the accused, would amount to abuse of the process of court and an exercise in futility, since the trial could be prolonged and ultimately, may conclude in a decision which may be of any consequence to any of the other parties. Even in Sushil Suris case on which the learned Additional Solicitor General had relied, the learned Judges who decided the said case, took note of the decisions in various other cases, where it had been reiterated that the exercise of inherent powers would depend entirely on the facts and circumstances of each case. In other words, not that there is any restriction on the power or authority vested in the Supreme Court in exercising powers under Article 142 of the Constitution, but that in exercising such powers the Court has to be circumspect, and has to exercise such power sparingly in the facts of each case. Furthermore, the issue, which has been referred to a larger Bench in Gian Singhs case (supra) in relation to the decisions of this Court in B.S. Joshis case, Nikhil Merchants case, as also Manoj Sharmas case, deal with a situation which is different from that of the present case. While in the cases referred to hereinabove, the main question was whether offences which were not compoundable, under Section 320 Cr.P.C. could be quashed under Section 482 Cr.P.C., in Gian Singhs case the Court was of the view that a non-compoundable offence could not be compounded and that the Courts should not try to take over the function of the Parliament or executive. In fact, in none of the cases referred to in Gian Singhs case, did this Court permit compounding of non-compoundable offences. On the other hand, upon taking various factors into consideration, including the futility of continuing with the criminal proceedings, this Court ultimately quashed the same.18. In addition to the above, even with regard to the decision of this Court in Central Bureau of Investigation Vs. Ravi Shankar Prasad & Ors. [(2009) 6 SCC 351] , this Court observed that the High Court can exercise power under Section 482 Cr.P.C. to do real and substantial justice and to prevent abuse of the process of Court when exceptional circumstances warranted the exercise of such power. Once the circumstances in a given case were held to be such as to attract the provisions of Article 142 or Articles 32 and 226 of the Constitution, it would be open to the Supreme Court to exercise its extraordinary powers under Article 142 of the Constitution to quash the proceedings, the continuance whereof would only amount to abuse of the process of Court. In the instant case the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved.19. As was indicated in Harbhajan Singhs case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singhs case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field. | 1 | 3,956 | ### 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:
case and Manoj Sharmas case (supra) came to be considered, the Bench comprised of two Judges, was of the view that the said decisions required reconsideration and directed that the matter be placed before a larger Bench to consider the correctness of the said three decisions. Shri Jain urged that as the same issue which was involved in the present case was also the subject matter of the reference to a larger Bench, this Court should abstain from pronouncing judgment on the issue which was the subject matter in the said reference. Shri Jain urged that in the circumstances mentioned hereinabove, no relief could be given to the Petitioners on the writ petition and the same was liable to be dismissed. 17. Having carefully considered the facts and circumstances of the case, as also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the views that had been taken in Nikhil Merchants case or Manoj Sharmas case (supra) or the several decisions that have come thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions cited, indicates that continuance of a criminal proceeding after a compromise has been arrived at between the complainant and the accused, would amount to abuse of the process of court and an exercise in futility, since the trial could be prolonged and ultimately, may conclude in a decision which may be of any consequence to any of the other parties. Even in Sushil Suris case on which the learned Additional Solicitor General had relied, the learned Judges who decided the said case, took note of the decisions in various other cases, where it had been reiterated that the exercise of inherent powers would depend entirely on the facts and circumstances of each case. In other words, not that there is any restriction on the power or authority vested in the Supreme Court in exercising powers under Article 142 of the Constitution, but that in exercising such powers the Court has to be circumspect, and has to exercise such power sparingly in the facts of each case. Furthermore, the issue, which has been referred to a larger Bench in Gian Singhs case (supra) in relation to the decisions of this Court in B.S. Joshis case, Nikhil Merchants case, as also Manoj Sharmas case, deal with a situation which is different from that of the present case. While in the cases referred to hereinabove, the main question was whether offences which were not compoundable, under Section 320 Cr.P.C. could be quashed under Section 482 Cr.P.C., in Gian Singhs case the Court was of the view that a non-compoundable offence could not be compounded and that the Courts should not try to take over the function of the Parliament or executive. In fact, in none of the cases referred to in Gian Singhs case, did this Court permit compounding of non-compoundable offences. On the other hand, upon taking various factors into consideration, including the futility of continuing with the criminal proceedings, this Court ultimately quashed the same.18. In addition to the above, even with regard to the decision of this Court in Central Bureau of Investigation Vs. Ravi Shankar Prasad & Ors. [(2009) 6 SCC 351] , this Court observed that the High Court can exercise power under Section 482 Cr.P.C. to do real and substantial justice and to prevent abuse of the process of Court when exceptional circumstances warranted the exercise of such power. Once the circumstances in a given case were held to be such as to attract the provisions of Article 142 or Articles 32 and 226 of the Constitution, it would be open to the Supreme Court to exercise its extraordinary powers under Article 142 of the Constitution to quash the proceedings, the continuance whereof would only amount to abuse of the process of Court. In the instant case the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved.19. As was indicated in Harbhajan Singhs case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singhs case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field. 20. In the present case, the fact situation is different from that in Nikhil Merchants case (supra). While in Nikhil Merchants case the accused had misrepresented the financial status of the company in question in order to avail of credit facilities to an extent to which the company was not entitled, in the instant case, the allegation is that as part of a larger conspiracy, property acquired on lease from a person who had no title to the leased properties, was offered as collateral security for loans obtained. Apart from the above, the actual owner of the property has filed a criminal complaint against Shri Kersi V. Mehta who had held himself out as the Attorney of the owner and his family members. The ratio of the decisions in B.S. Joshis case and in Nikhil Merchants case or for that matter, even in Manoj Sharmas case, does not help the case of the writ petitioners. In Nikhil Merchants case, this Court had in the facts of the case observed that the dispute involved had overtures of a civil dispute with criminal facets. This is not so in the instant case, where the emphasis is more on the criminal intent of the Petitioners than on the civil aspect involving the dues of the Bank in respect of which a compromise was worked out.
### Response:
1
|
1,078 | The Newspapers Ltd Vs. The State Industrial Tribunal, U.P | award on the ground that no industrial dispute existed and that there was no material before the Government on the basis of which it could make a reference. It was held that the dispute as to single workman was not an industrial dispute. AIR 1951 Mad 616 (L) was followed in Manager, United Commercial Bank Ltd. v. Commissioner of Labour Madras ILR (1952) Mad 43: (AIR 1951 Mad 141 ) (M) which was a case under S. 41 of the Madras Shops and Establishments Act and the right of appeal given to an individual employee against the order of the employer dispensing with his services under S. 41(2) of Madras Shops and Establishments Act was challenged on the ground that it had been taken away by the Central Act. It was held that an individual worker had the right to appeal. Viswanatha Sastri, J. in his judgment referred with, approval to the distinction made between an individual dispute and an industrial dispute in Kandan Textile Ltd. v. Industrial Tribunal, Madras (L) (supra).31. The second view that such a dispute falls within the definition of the word industrial dispute is supported by a decision of a Full Bench of the Labour Appellate Tribunal - Swadeshi Cotton Mills Co. Ltd. v. Their Workmen 1953-1 Lab LJ 757 (N). There the question was mainly decided on the basis of S.33-A of the Central Act (introduced in 1950) which gives the right to an individual workman dismissed or dealt with contrary to S.33 of the Act during an industrial dispute to raise the matter before a tribunal. The introduction of S.33-A would not alter the construction to be placed on the phrase industrial dispute. On the contrary it supports the view that, an individual dispute is not comprised in that phrase. In view of what has been said above, we are of opinion that in so far as that case lays down that a dispute raised by an individual workman as to his personal grievance is within an industrial dispute, it cannot be said to have been correctly decided.32. The cases which support the third view are the following:33. J. Chowdhury v. M.C. Bannerjee 55 Cal WN 256 (O) was a case in which a lino operator was removed from service on the ground of his negligence and arrears of work. The matter was referred to the Industrial Tribunal under the Central Act. The Management moved the High Court under Art. 226 of the Constitution and S. 45 of the Specific Relief Act and it was held that the Tribunal had no jurisdiction to entertain the matter as on a perusal of the various sections of the Central Act including Ss. 10 and 18 the dispute of an individual workman was not covered by the term industrial dispute.34. In Bilash Chandra Mitra v. Balmer Lawrie and co., 57 CWN 169 : (AIR 1953 Cal 613 ) (P), a suit was brought for the recovery of arrears of wages on the basis of an award of an Industrial Tribunal and one of the issues raised was whether an individual dispute fell within industrial dispute. Following the judgment in 53 Cal WN 256 (O), Bose J. held that it did not.35. Another case in which this view was held is New India Assurance Co. Ltd. v. Central Government Industrial Tribunal Dhanbad ILR 32 Pat 181: (AIR 1953 Pat 321 ) (Q). There the Government, referred the question of dismissal of an employee of an Assurance Co. and it was not proved that his case was taken up by the employees association. The same view was adopted in Standard Vacuum Oil Co. v. Industrial Tribunal ILR (1952) Trav-Co. 432: (AIR 1952 Trav Co 249) (R).36. In Lakshmi Talkies, Madras v. Munuswami, 1955-2 Lab LJ 477 (Mad) (S), Balakrishna Ayyar J. held that an industrial dispute arises where a case of an individual workman is espoused by a union. The same view was taken in Lynus and Co. v. Hemanta Kumar Samanta, 1956-2 Lab LJ 89 (T).37.The view taken in these cases is in accord with the interpretation we have put on the expression Industrial dispute as defined in the U.P. Act or the Central Act. Taking into consideration the whole tenor of the Act and the decisions of this Court the decided cases to the extent that they take a contrary view, i.e., an individual dispute is comprised in an industrial dispute must unless there is something peculiar as to facts, be held to have been wrongly decided.38. In spite of the fact that the making of a reference by the Government under the, Industrial Disputes Act is the exercise of its administrative powers,that is not destructive of the rights of an aggrieved party to show that what was referred was not an industrial dispute at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a partys challenge. State of Madras v. C.P. Sarathy 1953 SCR 334 at p 347: (AIR 1953 SC 53 at p. 57) (U).39. It may also be noted that the notification issued by the U.P. Government on January 3, 1953 already quoted proceeds on the assumption that a dispute exists between the employer and his workmen. The points of dispute in the reference, however, comprise the wrongful termination of the service of only Tajammul Hussain, a lino operator. The words used in the first part of the notification show that the Government was labouring under the misapprehension that this dispute was between the employer on the one hand and his workman on the othor, which, in fact it was not.Tajammul Hussain could not be termed workmen (in the plural) nor could the U.P. Working Journalists Union be called his workmen nor is there any indication that the individual dispute had got transformed into an industrial dispute. The very basis, therefore, of the reference was bad and must be held to be so. | 1[ds]21. In our opinion therefore Rr. 4,5 and 15 of the Rules cannot be a valid foundation for sustaining the argument raised that an individual dispute was within the definition of industrial dispute. Ordinarily, an award of a tribunal binds or affects the rights of parties to the proceedings but awards of Industrial Tribunals have extended implications and may affect the rights of all workmen of a concern or undertaking and even the future entrants. This doctrine of representation which enlarges the meaning of parties in the U.P. and Central Acts is an essential idea associated with industrial disputes and supports collectiveness as opposed to individualism. See Latham, C.J., in Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLRview of what has been said above, we are of opinion that in so far as that case lays down that a dispute raised by an individual workman as to his personal grievance is within an industrial dispute, it cannot be said to have been correctlyview taken in these cases is in accord with the interpretation we have put on the expression Industrial dispute as defined in the U.P. Act or the Central Act. Taking into consideration the whole tenor of the Act and the decisions of this Court the decided cases to the extent that they take a contrary view, i.e., an individual dispute is comprised in an industrial dispute must unless there is something peculiar as to facts, be held to have been wrongly decided.38. In spite of the fact that the making of a reference by the Government under the, Industrial Disputes Act is the exercise of its administrative powers,that is not destructive of the rights of an aggrieved party to show that what was referred was not an industrial dispute at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a partys challenge. State of Madras v. C.P. Sarathy 1953 SCR 334 at p 347: (AIR 1953 SC 53 at p. 57) (U).39. It may also be noted that the notification issued by the U.P. Government on January 3, 1953 already quoted proceeds on the assumption that a dispute exists between the employer and his workmen. The points of dispute in the reference, however, comprise the wrongful termination of the service of only Tajammul Hussain, a lino operator. The words used in the first part of the notification show that the Government was labouring under the misapprehension that this dispute was between the employer on the one hand and his workman on the othor, which, in fact it was not.Tajammul Hussain could not be termed workmen (in the plural) nor could the U.P. Working Journalists Union be called his workmen nor is there any indication that the individual dispute had got transformed into an industrial dispute. The very basis, therefore, of the reference was bad and must be held to be so. | 1 | 5,378 | ### 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:
award on the ground that no industrial dispute existed and that there was no material before the Government on the basis of which it could make a reference. It was held that the dispute as to single workman was not an industrial dispute. AIR 1951 Mad 616 (L) was followed in Manager, United Commercial Bank Ltd. v. Commissioner of Labour Madras ILR (1952) Mad 43: (AIR 1951 Mad 141 ) (M) which was a case under S. 41 of the Madras Shops and Establishments Act and the right of appeal given to an individual employee against the order of the employer dispensing with his services under S. 41(2) of Madras Shops and Establishments Act was challenged on the ground that it had been taken away by the Central Act. It was held that an individual worker had the right to appeal. Viswanatha Sastri, J. in his judgment referred with, approval to the distinction made between an individual dispute and an industrial dispute in Kandan Textile Ltd. v. Industrial Tribunal, Madras (L) (supra).31. The second view that such a dispute falls within the definition of the word industrial dispute is supported by a decision of a Full Bench of the Labour Appellate Tribunal - Swadeshi Cotton Mills Co. Ltd. v. Their Workmen 1953-1 Lab LJ 757 (N). There the question was mainly decided on the basis of S.33-A of the Central Act (introduced in 1950) which gives the right to an individual workman dismissed or dealt with contrary to S.33 of the Act during an industrial dispute to raise the matter before a tribunal. The introduction of S.33-A would not alter the construction to be placed on the phrase industrial dispute. On the contrary it supports the view that, an individual dispute is not comprised in that phrase. In view of what has been said above, we are of opinion that in so far as that case lays down that a dispute raised by an individual workman as to his personal grievance is within an industrial dispute, it cannot be said to have been correctly decided.32. The cases which support the third view are the following:33. J. Chowdhury v. M.C. Bannerjee 55 Cal WN 256 (O) was a case in which a lino operator was removed from service on the ground of his negligence and arrears of work. The matter was referred to the Industrial Tribunal under the Central Act. The Management moved the High Court under Art. 226 of the Constitution and S. 45 of the Specific Relief Act and it was held that the Tribunal had no jurisdiction to entertain the matter as on a perusal of the various sections of the Central Act including Ss. 10 and 18 the dispute of an individual workman was not covered by the term industrial dispute.34. In Bilash Chandra Mitra v. Balmer Lawrie and co., 57 CWN 169 : (AIR 1953 Cal 613 ) (P), a suit was brought for the recovery of arrears of wages on the basis of an award of an Industrial Tribunal and one of the issues raised was whether an individual dispute fell within industrial dispute. Following the judgment in 53 Cal WN 256 (O), Bose J. held that it did not.35. Another case in which this view was held is New India Assurance Co. Ltd. v. Central Government Industrial Tribunal Dhanbad ILR 32 Pat 181: (AIR 1953 Pat 321 ) (Q). There the Government, referred the question of dismissal of an employee of an Assurance Co. and it was not proved that his case was taken up by the employees association. The same view was adopted in Standard Vacuum Oil Co. v. Industrial Tribunal ILR (1952) Trav-Co. 432: (AIR 1952 Trav Co 249) (R).36. In Lakshmi Talkies, Madras v. Munuswami, 1955-2 Lab LJ 477 (Mad) (S), Balakrishna Ayyar J. held that an industrial dispute arises where a case of an individual workman is espoused by a union. The same view was taken in Lynus and Co. v. Hemanta Kumar Samanta, 1956-2 Lab LJ 89 (T).37.The view taken in these cases is in accord with the interpretation we have put on the expression Industrial dispute as defined in the U.P. Act or the Central Act. Taking into consideration the whole tenor of the Act and the decisions of this Court the decided cases to the extent that they take a contrary view, i.e., an individual dispute is comprised in an industrial dispute must unless there is something peculiar as to facts, be held to have been wrongly decided.38. In spite of the fact that the making of a reference by the Government under the, Industrial Disputes Act is the exercise of its administrative powers,that is not destructive of the rights of an aggrieved party to show that what was referred was not an industrial dispute at all and therefore the jurisdiction of the Industrial Tribunal to make the award can be questioned, even though the factual existence of a dispute may not be subject to a partys challenge. State of Madras v. C.P. Sarathy 1953 SCR 334 at p 347: (AIR 1953 SC 53 at p. 57) (U).39. It may also be noted that the notification issued by the U.P. Government on January 3, 1953 already quoted proceeds on the assumption that a dispute exists between the employer and his workmen. The points of dispute in the reference, however, comprise the wrongful termination of the service of only Tajammul Hussain, a lino operator. The words used in the first part of the notification show that the Government was labouring under the misapprehension that this dispute was between the employer on the one hand and his workman on the othor, which, in fact it was not.Tajammul Hussain could not be termed workmen (in the plural) nor could the U.P. Working Journalists Union be called his workmen nor is there any indication that the individual dispute had got transformed into an industrial dispute. The very basis, therefore, of the reference was bad and must be held to be so.
### Response:
1
|
1,079 | Income Tax Officer, Bangalore Vs. M/S. Induflex Products (P) Ltd | where the export out of India is of goods or merchandise manufactured or processed by the assessee and of trading goods, the profits derived from such export shall,-(i) in respect of the goods or merchandise manufactured or processed by the assessee, be the amount which bears to the adjusted profits of the business, the same proportion as the adjusted export turnover in respect of such goods bears to the adjusted total turnover of the business carried on by the assessee; and(ii) in respect of trading goods, be the export turnover in respect of such trading goods as reduced by the direct and indirect costs attributable to export of such trading goods:Provided that the profits computed under clause (a) or clause (b) or clause (c) of this sub-section shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause (iii-a) (not being profit on sale of a licence acquired from any other person), and clauses (iii-b) and (iii-c) of Section 28, the same proportion as the export turnover bears to the total turnover of business carried on by the assessee.Explanation. For the purposes of this sub-section,(a) adjusted export turnover means the export turnover as reduced by the export turnover in respect of trading goods;(b) adjusted profits of the business means the profits of the business as reduced by the profits derived from the business of export out of India of trading goods as computed in the manner provided in clause (b) of sub-section (3);(c) adjusted total turnover means the total turnover of the business as reduced by the export turnover in respect of trading goods;(d) direct costs means costs directly attributable to the trading goods exported out of India including the purchase price of such goods;(e) indirect costs means costs, not being direct costs, allocated in the ratio of the export turnover in respect of trading goods to the total turnover;(f) trading goods means goods which are not manufactured or processed by the assessee." 4. The aforementioned provision was brought in the statute book for the purpose of providing incentive to export houses but the same would not mean that even if the assessee incurs a loss instead of profit, he would be entitled to the benefit thereof.5. From a perusal of the aforementioned provision, it is evident that the profits derived from the export of goods which would be subject-matter of exemption thereunder must be the profits out of the business carried on by the assessee. The expression "profits" used in the aforementioned provision connotes positive profit. It is a profit earned from the said business alone which can be the subject-matter of exemption. A fortiori if a profit is not earned, the question of claiming exemption would not arise. 6. The question came up recently before this Court in IPCA Laboratory Ltd. Vs. Dy. Commissioner of Income Tax, Mumbai [(2004) 12 SCC 742] . In that case, the taxable income before the deductions under Chapter VI-A came to Rs.4.39 crores. The Appellants therein, however, claimed various deductions in terms of Section 80HHC to the extent of Rs.3.78 crores. It was found that the sum of Rs.3.78 crores claimed for deduction was the profit for exports of self-manufactured goods. It was further found that from the exports of trading goods there was a loss of Rs.6.86 crores. The question which arose for consideration was as to whether the Appellants were entitled to deduction under Section 80HHC in respect of the sum of Rs.3.78 crores ignoring the loss of Rs.6.86 crores. This Court repelled the contention that even when the profits are to be reduced by the losses in cases where an export house has disclaimed its turnover in favour of a supporting manufacturer, the turnover of the exporter gets reduced to the extent disclaimed opining that in computing total income the entire turnover is taken into account even though there is a disclaimer. The Court further negatived the submission of the assesee that even loss is a negative profit. 7. IPCA Laboratory (supra) is an authority for the proposition that adjusted profit of business would be a profit as reduced by the profit derived from business of exports out of India of trading goods. It is no doubt true that the term profit implies positive profit which has to be arrived at after taking into consideration the profit earned from export of both self-manufactured goods and the trading goods and the profits and losses in both the trades have, thus, to be taken into consideration. In the event, if it is found that a loss has occurred, sub-section (3) of Section 8-HHC will have no application. 8. However, it does not appear from the records as to whether such an exercise was undertaken or not. The Appellants themselves in the list of dates averred that for the assessment year 1994-95, the Respondent had earned profit in its export business. 9. Yet again in the order dated 03.03.1999 passed under Section 263 of the Income Tax Act by the Commissioner of Income Tax, the contention of the assessee was noticed in the following terms: "The learned Counsel for the assessee who appeared on the appointed day, contended that, though the assessee figure earned export profit, it resulted in the negative figure owing to the provisions in Sec. 80 HHC(3), that, in such a situation, the profit should be taken at Nil and relief should be allowed having regard to the export incentives (viz., advance licences); that as section 80 HHC is benefit giving section it should be liberally construed; that the Appellate Tribunal in the case of A.M. Mossa vs. CIT ITAT Cochin Bench ITA No. 498/Coch/1995, support this view, and that the assessment order is not erroneous." 10. It may, therefore, be necessary, in our opinion, to consider this aspect of the matter as to whether the Appellant had shown any positive profit or not as such clear finding does not appear to have been arrived at by the High Court. | 1[ds]4. The aforementioned provision was brought in the statute book for the purpose of providing incentive to export houses but the same would not mean that even if the assessee incurs a loss instead of profit, he would be entitled to the benefit thereof.5. From a perusal of the aforementioned provision, it is evident that the profits derived from the export of goods which would be subject-matter of exemption thereunder must be the profits out of the business carried on by the assessee. The expression "profits" used in the aforementioned provision connotes positive profit. It is a profit earned from the said business alone which can be the subject-matter of exemption. A fortiori if a profit is not earned, the question of claiming exemption would not arise.IPCA Laboratory (supra) is an authority for the proposition that adjusted profit of business would be a profit as reduced by the profit derived from business of exports out of India of trading goods. It is no doubt true that the term profit implies positive profit which has to be arrived at after taking into consideration the profit earned from export of both self-manufactured goods and the trading goods and the profits and losses in both the trades have, thus, to be taken into consideration. In the event, if it is found that a loss has occurred, sub-section (3) of Section 8-HHC will have no application.Yet again in the order dated 03.03.1999 passed under Section 263 of the Income Tax Act by the Commissioner of Income Tax, the contention of the assessee was noticed in the followinglearned Counsel for the assessee who appeared on the appointed day, contended that, though the assessee figure earned export profit, it resulted in the negative figure owing to the provisions in Sec. 80 HHC(3), that, in such a situation, the profit should be taken at Nil and relief should be allowed having regard to the export incentives (viz., advance licences); that as section 80 HHC is benefit giving section it should be liberally construed; that the Appellate Tribunal in the case of A.M. Mossa vs. CIT ITAT Cochin Bench ITA No. 498/Coch/1995, support this view, and that the assessment order is not erroneous.It may, therefore, be necessary, in our opinion, to consider this aspect of the matter as to whether the Appellant had shown any positive profit or not as such clear finding does not appear to have been arrived at by the High Court. | 1 | 1,855 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
where the export out of India is of goods or merchandise manufactured or processed by the assessee and of trading goods, the profits derived from such export shall,-(i) in respect of the goods or merchandise manufactured or processed by the assessee, be the amount which bears to the adjusted profits of the business, the same proportion as the adjusted export turnover in respect of such goods bears to the adjusted total turnover of the business carried on by the assessee; and(ii) in respect of trading goods, be the export turnover in respect of such trading goods as reduced by the direct and indirect costs attributable to export of such trading goods:Provided that the profits computed under clause (a) or clause (b) or clause (c) of this sub-section shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause (iii-a) (not being profit on sale of a licence acquired from any other person), and clauses (iii-b) and (iii-c) of Section 28, the same proportion as the export turnover bears to the total turnover of business carried on by the assessee.Explanation. For the purposes of this sub-section,(a) adjusted export turnover means the export turnover as reduced by the export turnover in respect of trading goods;(b) adjusted profits of the business means the profits of the business as reduced by the profits derived from the business of export out of India of trading goods as computed in the manner provided in clause (b) of sub-section (3);(c) adjusted total turnover means the total turnover of the business as reduced by the export turnover in respect of trading goods;(d) direct costs means costs directly attributable to the trading goods exported out of India including the purchase price of such goods;(e) indirect costs means costs, not being direct costs, allocated in the ratio of the export turnover in respect of trading goods to the total turnover;(f) trading goods means goods which are not manufactured or processed by the assessee." 4. The aforementioned provision was brought in the statute book for the purpose of providing incentive to export houses but the same would not mean that even if the assessee incurs a loss instead of profit, he would be entitled to the benefit thereof.5. From a perusal of the aforementioned provision, it is evident that the profits derived from the export of goods which would be subject-matter of exemption thereunder must be the profits out of the business carried on by the assessee. The expression "profits" used in the aforementioned provision connotes positive profit. It is a profit earned from the said business alone which can be the subject-matter of exemption. A fortiori if a profit is not earned, the question of claiming exemption would not arise. 6. The question came up recently before this Court in IPCA Laboratory Ltd. Vs. Dy. Commissioner of Income Tax, Mumbai [(2004) 12 SCC 742] . In that case, the taxable income before the deductions under Chapter VI-A came to Rs.4.39 crores. The Appellants therein, however, claimed various deductions in terms of Section 80HHC to the extent of Rs.3.78 crores. It was found that the sum of Rs.3.78 crores claimed for deduction was the profit for exports of self-manufactured goods. It was further found that from the exports of trading goods there was a loss of Rs.6.86 crores. The question which arose for consideration was as to whether the Appellants were entitled to deduction under Section 80HHC in respect of the sum of Rs.3.78 crores ignoring the loss of Rs.6.86 crores. This Court repelled the contention that even when the profits are to be reduced by the losses in cases where an export house has disclaimed its turnover in favour of a supporting manufacturer, the turnover of the exporter gets reduced to the extent disclaimed opining that in computing total income the entire turnover is taken into account even though there is a disclaimer. The Court further negatived the submission of the assesee that even loss is a negative profit. 7. IPCA Laboratory (supra) is an authority for the proposition that adjusted profit of business would be a profit as reduced by the profit derived from business of exports out of India of trading goods. It is no doubt true that the term profit implies positive profit which has to be arrived at after taking into consideration the profit earned from export of both self-manufactured goods and the trading goods and the profits and losses in both the trades have, thus, to be taken into consideration. In the event, if it is found that a loss has occurred, sub-section (3) of Section 8-HHC will have no application. 8. However, it does not appear from the records as to whether such an exercise was undertaken or not. The Appellants themselves in the list of dates averred that for the assessment year 1994-95, the Respondent had earned profit in its export business. 9. Yet again in the order dated 03.03.1999 passed under Section 263 of the Income Tax Act by the Commissioner of Income Tax, the contention of the assessee was noticed in the following terms: "The learned Counsel for the assessee who appeared on the appointed day, contended that, though the assessee figure earned export profit, it resulted in the negative figure owing to the provisions in Sec. 80 HHC(3), that, in such a situation, the profit should be taken at Nil and relief should be allowed having regard to the export incentives (viz., advance licences); that as section 80 HHC is benefit giving section it should be liberally construed; that the Appellate Tribunal in the case of A.M. Mossa vs. CIT ITAT Cochin Bench ITA No. 498/Coch/1995, support this view, and that the assessment order is not erroneous." 10. It may, therefore, be necessary, in our opinion, to consider this aspect of the matter as to whether the Appellant had shown any positive profit or not as such clear finding does not appear to have been arrived at by the High Court.
### Response:
1
|
1,080 | Madhi Vs. Mahanbai & Others | 1. This appeal abates. The material facts are these. The two respondents as joint plaintiffs filed a suit for possession of the suit property. Their suit was decreed as prayed for. A joint decree in their favour was passed by the Trial Court. The appellant appealed against the decree. The first appellate court reversed the decree of the trail court and dismissed the suit. The two plaintiffs went up in appeal to the High Court. The High Court reversed the decree of the first appellate court and restored that of the Trial Court. Thereafter the appellant brought this appeal by special leave. During the pendency of the appeal in this court one of the plaintiffs who was a joint decree holder, as mentioned earlier, died some time in 1968 but the appellant failed to bring her legal representatives on record. We are informed that when this appeal came up for hearing before this court in December, 1970 the advocate for the respondents informed the counsel for the appellant about the death of one of the respondents. Yet the legal representatives of the deceased respondent have not been brought on record. Mr. K. Rajendra Chaudhri appearing for the appellant informs us that though he informed the local counsel as to the necessity of bringing on record the legal representatives of the deceased respondent, yet the appellant has not chosen to move in that matter. Under these circumstances we must hold that the appeal has abated. | 0[ds]During the pendency of the appeal in this court one of the plaintiffs who was a joint decree holder, as mentioned earlier, died some time in 1968 but the appellant failed to bring her legal representatives on record. We are informed that when this appeal came up for hearing before this court in December, 1970 the advocate for the respondents informed the counsel for the appellant about the death of one of the respondents. Yet the legal representatives of the deceased respondent have not been brought on record. Mr. K. Rajendra Chaudhri appearing for the appellant informs us that though he informed the local counsel as to the necessity of bringing on record the legal representatives of the deceased respondent, yet the appellant has not chosen to move in that matter. Under these circumstances we must hold that the appeal has abated. | 0 | 264 | ### 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:
1. This appeal abates. The material facts are these. The two respondents as joint plaintiffs filed a suit for possession of the suit property. Their suit was decreed as prayed for. A joint decree in their favour was passed by the Trial Court. The appellant appealed against the decree. The first appellate court reversed the decree of the trail court and dismissed the suit. The two plaintiffs went up in appeal to the High Court. The High Court reversed the decree of the first appellate court and restored that of the Trial Court. Thereafter the appellant brought this appeal by special leave. During the pendency of the appeal in this court one of the plaintiffs who was a joint decree holder, as mentioned earlier, died some time in 1968 but the appellant failed to bring her legal representatives on record. We are informed that when this appeal came up for hearing before this court in December, 1970 the advocate for the respondents informed the counsel for the appellant about the death of one of the respondents. Yet the legal representatives of the deceased respondent have not been brought on record. Mr. K. Rajendra Chaudhri appearing for the appellant informs us that though he informed the local counsel as to the necessity of bringing on record the legal representatives of the deceased respondent, yet the appellant has not chosen to move in that matter. Under these circumstances we must hold that the appeal has abated.
### Response:
0
|
1,081 | Shri Vijay Baburao Thakar & Others Vs. State of Maharashtra & Others | various roads within the Pimpri Pune and consequently many routes were common, as result of which the expenditure for these common routes which was incurred by PMT and PCMT were simultaneously incurred by both these undertakings. Both the transport undertakings were incurring financial deficit which in turn affected the transport service. The Corporators of both these undertakings and the public at large, therefore, had made a demand for a grant of coordinated separate undertaking. These demands were made by the public at large for more than 22 to 25 years and in view of this, various committees were constituted to look into the issue. Accordingly, several committees which consisted of experts in the field made a recommendations from time to time for the merger of the two transport undertakings. The recommendations made by all these Committees were unannious and all of them recommended of mergere of the two undertakings. Shri D.D. Sathe Commission submitted its report in 1979. The report of shri D.S. Kantikar, report of Shri K.J. Paranjpye commission (1995), report of Transport Manager 1997. The Bhurelal Committee appointed by the Honble Supreme Court. The Committee constituted by the Government under the Chairmanship of Additional Chief Secretary (Finance). All these Committees had recommended the merger of the two transport undertakings, for the purpose of overcoming financial difficulties and to avoid unnecessary competition between the two undertakings, to reduce the pollution (air and noise). The Additional Chief Secretary of Finance made a recommendation to the Government that the two transport undertakings should be merged by forming a new company under the Companies Act, 1956 and accordingly Draft Memorandum of Association was prepared. Both the Corporations passed a resolution showed their willingness for merger of their transport undertakings.7. On the above aforesaid background, which is not disputed by the Petitioners in both the Petitions the Government after taking into consideration all the factors and the proposals of the Commissioners granted approval to the two resolutions passed by the Pune Municipal Corporations for merging the two undertakings under the Indian Companies Act. In the said Government Resolution, the composition of the permanent Board of Director was also laid down. The composition of the Board of Diretor is as under:8. It was further decided by the Government that the share of the Corporation of the Company would be proportionate to the property and its undertaking and that the company shall hold the property acquired by both the undertakings. A further decision was taken that the procedure regarding the establishment and other administrative and financial aspect would be completed within six months from the date of the order. 9. Perusal of the aforesaid Government Resolution discloses that a policy decision has been taken by the Government after taking into consideration the resolutions, which were passed by the two Corporations and recommendations made by various Expert Committees from time to time. The decision has been taken in view of the demand made by the public from time to time and in public interest. The constitution of the Board of Directors of the company clearly discloses that all responsible and high ranking officers of the Government and the PMC and PCMC as also the Director of Central Institute of Road Transport and General Manager of both PMT and PCMC are included in the list of Board of Directors. Simultaneously three Corporators from the Pune Municipal Corporation and two Corporators from the Pimpri Chinchwad Municipal Corporations have also been included in the Board of Directors. The composition of the said Board of Directors, therefore, clearly allays the apprehension and fear expressed by the Petitioners about mismanagement and misappropriation on the formation of the alleged company under the Companies Act. Therefore, there is no substance in the submission made by the Learned Counsel appearing on behalf of the Petitioners that the Government erred in issuing the G.R. Dated 19th April, 2007. In any case, the said impugned Government Resolution is a policy decision, which has been taken by the Government on the recommendations of Expert Committees and persons who are experts in the field of transport and as such it is not possible for this Court to interfere with the policy decision taken by the Government. 10. The grievance of the Petitioners essentially is in respect of the formation of the new company under the Indian Companies Act. The Petitioners, therefore, are not opposing the merger of the two transport undertakings, but it is their contention that the merger ought to have been taken place under the Transport Corporation Act and not under Indian Companies Act. It is urged by the Counsels appearing on behalf of the Petitioners that the initial resolutions which were passed in the year 20052006, a recommendation was made that the two transport undertakings should be merged under the Road Transport Corporation Act and, therefore, the Government had erred in issuing the impugned Government Resolution dated 19th April, 2007 recommending merger under the Indian Companies Act. There is no substance in the said submission made by the Learned Counsel appearing on behalf of the Petitioners. Once a decision is taken to merge the two undertakings, the Government after taken into consideration the recommendation made by the two undertakings thought it fit and proper to form a new company under the Companies Act. The said decision, therefore, cannot be faulted and this Court cannot interfere in the policy decision taken by the Government while exercising its writ jurisdiction under Article 226 of the Constitution of India. 11. So far as grievance regarding disposal of the properties of the two undertakings is concerned, in the reply filed by the Respondents, it has been stated that that procedure which is laid down under BPMC Act for the disposal of assets shall be taken as prescribed under the said Act. The Company already has been established and has started functioning and in view of the statement made by the Respondents in their affidavit the submission of the learned Counsel for the Petitioners in this respect cannot be accepted. | 0[ds]6. In our view, the submissions made by the Learned Counsel appearing on behalf of the Petitioners cannot be accepted. It is an admitted position that both PMT and PCMT were separate transport undertakings. PMT which is a transport undertaking of Pune Municipal Corporation was started in March, 1950 and transport undertaking of Pimpri Chinchwad Municipal Corporation was started in 1974. The functions of both these undertakings was to provide public bus transport services within twin cities of Pune and Pimpri Chinchwad. It was noticed that both undertakings have bus routes on various roads within the Pimpri Pune and consequently many routes were common, as result of which the expenditure for these common routes which was incurred by PMT and PCMT were simultaneously incurred by both these undertakings.Perusal of the aforesaid Government Resolution discloses that a policy decision has been taken by the Government after taking into consideration the resolutions, which were passed by the two Corporations and recommendations made by various Expert Committees from time to time. The decision has been taken in view of the demand made by the public from time to time and in public interest. The constitution of the Board of Directors of the company clearly discloses that all responsible and high ranking officers of the Government and the PMC and PCMC as also the Director of Central Institute of Road Transport and General Manager of both PMT and PCMC are included in the list of Board of Directors. Simultaneously three Corporators from the Pune Municipal Corporation and two Corporators from the Pimpri Chinchwad Municipal Corporations have also been included in the Board of Directors.So far as grievance regarding disposal of the properties of the two undertakings is concerned, in the reply filed by the Respondents, it has been stated that that procedure which is laid down under BPMC Act for the disposal of assets shall be taken as prescribed under the said Act. The Company already has been established and has started functioning and in view of the statement made by the Respondents in their affidavit the submission of the learned Counsel for the Petitioners in this respect cannot be accepted. | 0 | 1,902 | ### Instruction:
Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition.
### Input:
various roads within the Pimpri Pune and consequently many routes were common, as result of which the expenditure for these common routes which was incurred by PMT and PCMT were simultaneously incurred by both these undertakings. Both the transport undertakings were incurring financial deficit which in turn affected the transport service. The Corporators of both these undertakings and the public at large, therefore, had made a demand for a grant of coordinated separate undertaking. These demands were made by the public at large for more than 22 to 25 years and in view of this, various committees were constituted to look into the issue. Accordingly, several committees which consisted of experts in the field made a recommendations from time to time for the merger of the two transport undertakings. The recommendations made by all these Committees were unannious and all of them recommended of mergere of the two undertakings. Shri D.D. Sathe Commission submitted its report in 1979. The report of shri D.S. Kantikar, report of Shri K.J. Paranjpye commission (1995), report of Transport Manager 1997. The Bhurelal Committee appointed by the Honble Supreme Court. The Committee constituted by the Government under the Chairmanship of Additional Chief Secretary (Finance). All these Committees had recommended the merger of the two transport undertakings, for the purpose of overcoming financial difficulties and to avoid unnecessary competition between the two undertakings, to reduce the pollution (air and noise). The Additional Chief Secretary of Finance made a recommendation to the Government that the two transport undertakings should be merged by forming a new company under the Companies Act, 1956 and accordingly Draft Memorandum of Association was prepared. Both the Corporations passed a resolution showed their willingness for merger of their transport undertakings.7. On the above aforesaid background, which is not disputed by the Petitioners in both the Petitions the Government after taking into consideration all the factors and the proposals of the Commissioners granted approval to the two resolutions passed by the Pune Municipal Corporations for merging the two undertakings under the Indian Companies Act. In the said Government Resolution, the composition of the permanent Board of Director was also laid down. The composition of the Board of Diretor is as under:8. It was further decided by the Government that the share of the Corporation of the Company would be proportionate to the property and its undertaking and that the company shall hold the property acquired by both the undertakings. A further decision was taken that the procedure regarding the establishment and other administrative and financial aspect would be completed within six months from the date of the order. 9. Perusal of the aforesaid Government Resolution discloses that a policy decision has been taken by the Government after taking into consideration the resolutions, which were passed by the two Corporations and recommendations made by various Expert Committees from time to time. The decision has been taken in view of the demand made by the public from time to time and in public interest. The constitution of the Board of Directors of the company clearly discloses that all responsible and high ranking officers of the Government and the PMC and PCMC as also the Director of Central Institute of Road Transport and General Manager of both PMT and PCMC are included in the list of Board of Directors. Simultaneously three Corporators from the Pune Municipal Corporation and two Corporators from the Pimpri Chinchwad Municipal Corporations have also been included in the Board of Directors. The composition of the said Board of Directors, therefore, clearly allays the apprehension and fear expressed by the Petitioners about mismanagement and misappropriation on the formation of the alleged company under the Companies Act. Therefore, there is no substance in the submission made by the Learned Counsel appearing on behalf of the Petitioners that the Government erred in issuing the G.R. Dated 19th April, 2007. In any case, the said impugned Government Resolution is a policy decision, which has been taken by the Government on the recommendations of Expert Committees and persons who are experts in the field of transport and as such it is not possible for this Court to interfere with the policy decision taken by the Government. 10. The grievance of the Petitioners essentially is in respect of the formation of the new company under the Indian Companies Act. The Petitioners, therefore, are not opposing the merger of the two transport undertakings, but it is their contention that the merger ought to have been taken place under the Transport Corporation Act and not under Indian Companies Act. It is urged by the Counsels appearing on behalf of the Petitioners that the initial resolutions which were passed in the year 20052006, a recommendation was made that the two transport undertakings should be merged under the Road Transport Corporation Act and, therefore, the Government had erred in issuing the impugned Government Resolution dated 19th April, 2007 recommending merger under the Indian Companies Act. There is no substance in the said submission made by the Learned Counsel appearing on behalf of the Petitioners. Once a decision is taken to merge the two undertakings, the Government after taken into consideration the recommendation made by the two undertakings thought it fit and proper to form a new company under the Companies Act. The said decision, therefore, cannot be faulted and this Court cannot interfere in the policy decision taken by the Government while exercising its writ jurisdiction under Article 226 of the Constitution of India. 11. So far as grievance regarding disposal of the properties of the two undertakings is concerned, in the reply filed by the Respondents, it has been stated that that procedure which is laid down under BPMC Act for the disposal of assets shall be taken as prescribed under the said Act. The Company already has been established and has started functioning and in view of the statement made by the Respondents in their affidavit the submission of the learned Counsel for the Petitioners in this respect cannot be accepted.
### Response:
0
|
1,082 | Vinayak Shivajirao Pol Vs. State Of Maharashtra | is no evidence of the strangling of the deceased by the appellant. There is no merit in this contention. Even if there had been any mark of strangling, the same would not be visible as the neck was cut. The body was found in such highly de-composed condition, it would not have been possible at all for the doctor, who conducted the post mortem, to have found anything relating to the strangling of the deceased by the appellant. Further, one important factor should be kept in mind when we consider the evidence afforded by the post mortem report. When the post mortem was carried out, the appellant had not made the confession. On seeing the headless trunk, normally and naturally, the doctor would have proceeded to conduct the post mortem on the footing that the death occurred on account of the chopping of the head. In such a situation, the doctor expressed an opinion that death was due to haemorrhage but it is seen that in the post mortem report there is no reference to the symptoms which indicated such haemorrhage. The same reasoning would apply to the opinion of the doctor that the injuries found on the body were ante mortem.17. Our attention has been drawn to some of the passages in the Modis Textbook of Medical Jurisprudence and Toxicology, edited by C. A. Franklin, Twenty-first Edition and also Parikhs Text Book of Medical Jurisprudence and Toxicology edited by Dr. C. K. Parikh. None of the passages is of any help in the present case in view of the facts mentioned above and in particular the circumstance that the body was highly de-composed when it was discovered. Reference has also been made to the following passage in the Text Book on Medical Jurisprudence and Toxicology by John Glaister : "Ante-mortem and post-mortem bruises. The signs which are indicative of ante-mortem production of bruises are swelling of the tissues, discoloration of the skin, extravasation of blood into the true skin and subcutaneous tissues, with infiltration. When a bruise is well developed, an examiner is justified in assuming the view that it @page-SC1100 was produced during life. Nevertheless for medico-legal purposes, a microscopical examination should be made to verify the presence of infiltered blood. Since infiltration is possible only while the heart is beating, this sign is conclusive that the injury was produced during life. While molecular life remains in the tissues, considerable violence applied to a dead body with a blunt instrument will produce a slight degree of extravasation, but never to the same extent as during life, and infiltration of the tissues will be absent.Suspected areas of bruising should always be incised to differentiate them from colour marks due to hypostasis, since both conditions may co-exist in the same region of the body. In bruising, extravasated blood is present, but in hypostasis the severed small vessels are filled with blood and extravasation is absent." 18. There is nothing on record to show that the post mortem examination was of the type mentioned in the above passage. In such circumstances we are unable to place any reliance on the opinion of the doctor who conducted the post mortem. 19. In Manquli Dei v. State of Orissa, AIR 1989 SC 483 the wife killed her husband and buried the dead body in the house. According to her confessional statement she gave four axe blows on the head of the deceased. The dead body was recovered according to her statement but the injuries on the dead body were not visible as it was highly de-composed. The Court held that the confession could not be rejected merely on the ground that only one simple injury was stated in the post mortem report. The facts in the present case are similar and the same principle will apply. 20. There is no substance in the contention that the steel box discovered on the statement of the second accused would not be sufficient to place the dead body inside and carry it. Comments are also made that the discovery of the steel box and kukhari belies the statement of the appellant that he had discarded the same before returning to his place of duty. A card-board model of the steel trunk was produced before us. In our view the size of the trunk is quite sufficient to place the body of the deceased inside by folding it which could be possible immediately after the death. In any event the variation between the minor details contained in the statement of confession and the circumstances brought out in the evidence will not in any way affect the acceptability of the confession of the appellant that he killed his wife.21. Learned counsel for the appellant has referred to the decisions in Nishi Kant Jha v. The State of Bihar, (1969) 1 SCC 347 : (AIR 1969 SC 422 ). Harchand Singh v. State of Haryana, (1974) 3 SCC 397 : (AIR 1974 SC 344 ), Makhan Singh v. State of Punjab, 1988 (Supp) SCC 526 : (AIR 1988 SC 1705 ), Chhittar v. State of Rajasthan, 1995 Supp (4) SCC 519 : (1993 AIR SCW 3659). None of the rulings is of any help to the appellant as the facts therein are entirely different. The principles on which extra-judicial confession could form the basis of a conviction are well settled. We have already referred to the judgment in State of U. P. v. M. K. Anthony (AIR 1985 SC 48 ) (supra) and Manguli Dei v. State of Orissa (AIR 1989 SC 483 ) (supra). We may usefully add the decision in Piara Singh v. State of Punjab, AIR 1977 SC 2274 . In that case it was held that law does not require that the evidence of an extra-judicial confession should in all cases be corroborated and where such confession was proved by an independent witness who was a responsible officer and who bore no animus against the accused, there was hardly any justification to disbelieve the same. | 1[ds]12. In the present case apart from the statement of recovery there is a clinching circumstance against the appellant. That is, the head of the deceased wife was recovered from @page-SC1099 another well situated in the land of another person and the said recovery was made at the instance of the appellant. The said fact of the head being in another well was within the exclusive knowledge of the appellant and if he had not committed the murder he could not have shown the well in which the head was found. The High Court was therefore perfectly justified in relying upon the statement of confession and the recovery of the head at the instance of the appellant for holding that the appellant was guilty of murder.13. The High Court is also right in placing reliance on muddamal article 20, a letter written by the appellant to his friend who was the second accused which indicated that there was some evil plan between the two.We have carefully gone through the judgment of both the Courts below and also the evidence on record. The trial Court has given various reasons for not accepting the extra-judicial confession but all are on the premise that the other evidence on record is contrary thereto. The High Court has relied upon the crux of the statement of confession and proceeded on the footing that the other details mentioned in the statement are not of much relevance and even if there is a variation between such details and the other evidence on record, it would be of no consequence. We are in agreement with the view taken by the Highis no merit in this contention. Even if there had been any mark of strangling, the same would not be visible as the neck was cut. The body was found in such highly de-composed condition, it would not have been possible at all for the doctor, who conducted the post mortem, to have found anything relating to the strangling of the deceased by the appellant. Further, one important factor should be kept in mind when we consider the evidence afforded by the post mortem report. When the post mortem was carried out, the appellant had not made the confession. On seeing the headless trunk, normally and naturally, the doctor would have proceeded to conduct the post mortem on the footing that the death occurred on account of the chopping of the head. In such a situation, the doctor expressed an opinion that death was due to haemorrhage but it is seen that in the post mortem report there is no reference to the symptoms which indicated such haemorrhage. The same reasoning would apply to the opinion of the doctor that the injuries found on the body were ante mortem.17. Our attention has been drawn to some of the passages in the Modis Textbook of Medical Jurisprudence and Toxicology, edited by C. A. Franklin, Twenty-first Edition and also Parikhs Text Book of Medical Jurisprudence and Toxicology edited by Dr. C. K. Parikh. None of the passages is of any help in the present case in view of the facts mentioned above and in particular the circumstance that the body was highly de-composed when it was discovered. Reference has also been made to the following passage in the Text Book on Medical Jurisprudence and Toxicology by John Glaisterand post-mortem bruises. The signs which are indicative of ante-mortem production of bruises are swelling of the tissues, discoloration of the skin, extravasation of blood into the true skin and subcutaneous tissues, with infiltration. When a bruise is well developed, an examiner is justified in assuming the view that it @page-SC1100 was produced during life. Nevertheless for medico-legal purposes, a microscopical examination should be made to verify the presence of infiltered blood. Since infiltration is possible only while the heart is beating, this sign is conclusive that the injury was produced during life. While molecular life remains in the tissues, considerable violence applied to a dead body with a blunt instrument will produce a slight degree of extravasation, but never to the same extent as during life, and infiltration of the tissues will be absent.Suspected areas of bruising should always be incised to differentiate them from colour marks due to hypostasis, since both conditions may co-exist in the same region of the body. In bruising, extravasated blood is present, but in hypostasis the severed small vessels are filled with blood and extravasation is absent.There is nothing on record to show that the post mortem examination was of the type mentioned in the above passage. In such circumstances we are unable to place any reliance on the opinion of the doctor who conducted the post mortem.There is no substance in the contention that the steel box discovered on the statement of the second accused would not be sufficient to place the dead body inside and carry it. Comments are also made that the discovery of the steel box and kukhari belies the statement of the appellant that he had discarded the same before returning to his place of duty. A card-board model of the steel trunk was produced before us. In our view the size of the trunk is quite sufficient to place the body of the deceased inside by folding it which could be possible immediately after the death. In any event the variation between the minor details contained in the statement of confession and the circumstances brought out in the evidence will not in any way affect the acceptability of the confession of the appellant that he killed his wife.Learned counsel for the appellant has referred to the decisions in Nishi Kant Jha v. The State of Bihar, (1969) 1 SCC 347 : (AIR 1969 SC 422 ). Harchand Singh v. State of Haryana, (1974) 3 SCC 397 : (AIR 1974 SC 344 ), Makhan Singh v. State of Punjab, 1988 (Supp) SCC 526 : (AIR 1988 SC 1705 ), Chhittar v. State of Rajasthan, 1995 Supp (4) SCC 519 : (1993 AIR SCW 3659). None of the rulings is of any help to the appellant as the facts therein are entirely different. The principles on which extra-judicial confession could form the basis of a conviction are well settled. We have already referred to the judgment in State of U. P. v. M. K. Anthony (AIR 1985 SC 48 ) (supra) and Manguli Dei v. State of Orissa (AIR 1989 SC 483 ) (supra). We may usefully add the decision in Piara Singh v. State of Punjab, AIR 1977 SC 2274 . In that case it was held that law does not require that the evidence of an extra-judicial confession should in all cases be corroborated and where such confession was proved by an independent witness who was a responsible officer and who bore no animus against the accused, there was hardly any justification to disbelieve the same. | 1 | 3,699 | ### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
is no evidence of the strangling of the deceased by the appellant. There is no merit in this contention. Even if there had been any mark of strangling, the same would not be visible as the neck was cut. The body was found in such highly de-composed condition, it would not have been possible at all for the doctor, who conducted the post mortem, to have found anything relating to the strangling of the deceased by the appellant. Further, one important factor should be kept in mind when we consider the evidence afforded by the post mortem report. When the post mortem was carried out, the appellant had not made the confession. On seeing the headless trunk, normally and naturally, the doctor would have proceeded to conduct the post mortem on the footing that the death occurred on account of the chopping of the head. In such a situation, the doctor expressed an opinion that death was due to haemorrhage but it is seen that in the post mortem report there is no reference to the symptoms which indicated such haemorrhage. The same reasoning would apply to the opinion of the doctor that the injuries found on the body were ante mortem.17. Our attention has been drawn to some of the passages in the Modis Textbook of Medical Jurisprudence and Toxicology, edited by C. A. Franklin, Twenty-first Edition and also Parikhs Text Book of Medical Jurisprudence and Toxicology edited by Dr. C. K. Parikh. None of the passages is of any help in the present case in view of the facts mentioned above and in particular the circumstance that the body was highly de-composed when it was discovered. Reference has also been made to the following passage in the Text Book on Medical Jurisprudence and Toxicology by John Glaister : "Ante-mortem and post-mortem bruises. The signs which are indicative of ante-mortem production of bruises are swelling of the tissues, discoloration of the skin, extravasation of blood into the true skin and subcutaneous tissues, with infiltration. When a bruise is well developed, an examiner is justified in assuming the view that it @page-SC1100 was produced during life. Nevertheless for medico-legal purposes, a microscopical examination should be made to verify the presence of infiltered blood. Since infiltration is possible only while the heart is beating, this sign is conclusive that the injury was produced during life. While molecular life remains in the tissues, considerable violence applied to a dead body with a blunt instrument will produce a slight degree of extravasation, but never to the same extent as during life, and infiltration of the tissues will be absent.Suspected areas of bruising should always be incised to differentiate them from colour marks due to hypostasis, since both conditions may co-exist in the same region of the body. In bruising, extravasated blood is present, but in hypostasis the severed small vessels are filled with blood and extravasation is absent." 18. There is nothing on record to show that the post mortem examination was of the type mentioned in the above passage. In such circumstances we are unable to place any reliance on the opinion of the doctor who conducted the post mortem. 19. In Manquli Dei v. State of Orissa, AIR 1989 SC 483 the wife killed her husband and buried the dead body in the house. According to her confessional statement she gave four axe blows on the head of the deceased. The dead body was recovered according to her statement but the injuries on the dead body were not visible as it was highly de-composed. The Court held that the confession could not be rejected merely on the ground that only one simple injury was stated in the post mortem report. The facts in the present case are similar and the same principle will apply. 20. There is no substance in the contention that the steel box discovered on the statement of the second accused would not be sufficient to place the dead body inside and carry it. Comments are also made that the discovery of the steel box and kukhari belies the statement of the appellant that he had discarded the same before returning to his place of duty. A card-board model of the steel trunk was produced before us. In our view the size of the trunk is quite sufficient to place the body of the deceased inside by folding it which could be possible immediately after the death. In any event the variation between the minor details contained in the statement of confession and the circumstances brought out in the evidence will not in any way affect the acceptability of the confession of the appellant that he killed his wife.21. Learned counsel for the appellant has referred to the decisions in Nishi Kant Jha v. The State of Bihar, (1969) 1 SCC 347 : (AIR 1969 SC 422 ). Harchand Singh v. State of Haryana, (1974) 3 SCC 397 : (AIR 1974 SC 344 ), Makhan Singh v. State of Punjab, 1988 (Supp) SCC 526 : (AIR 1988 SC 1705 ), Chhittar v. State of Rajasthan, 1995 Supp (4) SCC 519 : (1993 AIR SCW 3659). None of the rulings is of any help to the appellant as the facts therein are entirely different. The principles on which extra-judicial confession could form the basis of a conviction are well settled. We have already referred to the judgment in State of U. P. v. M. K. Anthony (AIR 1985 SC 48 ) (supra) and Manguli Dei v. State of Orissa (AIR 1989 SC 483 ) (supra). We may usefully add the decision in Piara Singh v. State of Punjab, AIR 1977 SC 2274 . In that case it was held that law does not require that the evidence of an extra-judicial confession should in all cases be corroborated and where such confession was proved by an independent witness who was a responsible officer and who bore no animus against the accused, there was hardly any justification to disbelieve the same.
### Response:
1
|
1,083 | Moolchand Gupta Vs. Jagannath Gupta and Company Private Limited | Company has been continuously incurring losses and thus the substratum of the Company has disappeared. The Company had never declared any dividends and is continuously incurring losses. The affairs of the Company are conducted in a manner oppressive to the appellant. 11. On September 4, 1967, the respondent filed a Company Application being No. 229 of 1967 in the High Court for an order restraining the appellant herein from taking steps upon the said petition of advertising the same. An interim order was passed by the High Court on September 4, 1967, staying the publication of the said advertisement till the disposal of that application. The appellant contested that application which came up for hearing before R. N. Dutta, J. who concluding the hearing on February 1, 1968 and reserved the judgment. Before the judgment was announced, certain facts came to the knowledge of the appellant. He brought those facts to the notice of the learned Judge by filing an affidavit and charging the respondent with suppression of facts. Bidya Bhushan Gupta replied by an affidavit, dated April 20, 1968. 12. The learned Judge dismissed the said Company Application (No. 229 of 1967) by his Order, dated April 23, 1968 and declined to stay winding up proceedings. Thereafter, the appellant proceeded to cause the advertisement to be published in the newspapers and the same were duly published, as directed by the High Court. 13. The respondent, however, on May 27, 1968, preferred an appeal (No. 96 of 1968) before a Divisional Bench of the High Court which by its order dated July 26, 1968, allowed the appeal and granted stay of the proceedings in the said company petition (158 of 1967). 14. After obtaining a certificate, under Article 133(1)(a) and (b) of the Constitution, from the High Court, Moolchand Gupta has preferred this appeal against the aforesaid stay order passed by the Division Bench. 15. Although, the High Court has, in the order under appeal, made extensive observations with regard to the merits of the petition for winding up of the Company made by the appellant, the proceedings for winding up have been stayed by the High Court on the ground that on a complaint of the appellant, Moolchand Gupta, a parallel investigation into the affairs of the Company under the provisions of Section 235 of the Companies Act, 1956 is pending. 16. After hearing the learned counsel on both sides, we are of opinion that the High Court was in error in making the stay order it did. for the appellant has taken us through the correspondence annexed to the petition for winding up. It is evident therefrom that although the Registrar and/or the Company Law Board had made certain enquiries of an exploratory nature from the Company, yet no investigation contemplated under Section 235 or 237 or any other provision of the Companies Act, has in fact been commended. Rather, it seems that on account of the winding up proceeding the authorities have stayed their hands. 17. The learned counsel for the appellant has submitted that the Central Government has not appointed any inspectors as envisaged by Sections 235/237 and the matters are in a stalemate. The High Courts order, it is maintained has led to a stand still situation where for the appellant both the avenues for seeking redress are lying frozen. 18. It may be observed that under Section 235, it is not obligatory for the Central Government to direct an investigation. It has a discretion to appoint or not to appoint inspectors for investigating the affairs of the Company, the word used in the section being "may". Before the Government can take such action under Section 235, certain pre-conditions including those specified in Section 236, must be satisfied. Furthermore, unlike the power of the Court in a proceeding for winding up of a Company, the discretionary power of the Central Government to direct investigation is neither judicial nor quasi-judicial. It follow therefrom, that investigation on a complaint under Section 235/237 may not be an adequate substitute for proceedings in Court on a winding up petition. In other words, a petition under Section 235/237/239 may not afford an equally efficacious and alternative remedy as a petition under Section 439 to Court for winding up of the Company. 19. The intention of the Legislature as discernible from Section 243 of the Companies Act, seems to be that when the Court is already seised of the matter, at the instance of a party the Central Government should refrain from taking the initiative. Even where it appears to the Central Government from the report of the investigating inspectors appointed under Section 235/237 that it is expedient to move the court for winding up of the Company on the ground that it is just and equitable to wind it up, or that an application for an order under Section 397 or 398 be made, then also it must stay its hands from doing so if proceedings for winding up of the Company are already being taken by the Court. 20. It is, however, true that in view of Section 258 an investigation under Sections 235, 237 etc. cannot be stopped merely because a company has passed a resolution for voluntary winding up. But, such is not the case here. 21. Be that as it may, in the instant case, no inspectors had been appointed under Section 235 or 237 of the Act, and no parallel investigation by the Central Government or its authorities under the Act into the affairs of the Company was continuing. Nor was it a case where the High Court thought that for a proper and effectual adjudication of the petition pending before it, it was necessary to get the matter investigated through the agency of the Central Government. 22. In the circumstances of the case, therefore, the High Court should not have stayed the proceedings on the petition for winding up filed before it by Moolchand Gupta, but should have disposed it of on merits. 23. | 1[ds]16. After hearing the learned counsel on both sides, we are of opinion that the High Court was in error in making the stay order it did. for the appellant has taken us through the correspondence annexed to the petition for winding up. It is evident therefrom that although the Registrar and/or the Company Law Board had made certain enquiries of an exploratory nature from the Company, yet no investigation contemplated under Section 235 or 237 or any other provision of the Companies Act, has in fact been commended. Rather, it seems that on account of the winding up proceeding the authorities have stayed their hands19. The intention of the Legislature as discernible from Section 243 of the Companies Act, seems to be that when the Court is already seised of the matter, at the instance of a party the Central Government should refrain from taking the initiative. Even where it appears to the Central Government from the report of the investigating inspectors appointed under Section 235/237 that it is expedient to move the court for winding up of the Company on the ground that it is just and equitable to wind it up, or that an application for an order under Section 397 or 398 be made, then also it must stay its hands from doing so if proceedings for winding up of the Company are already being taken by the Court20. It is, however, true that in view of Section 258 an investigation under Sections 235, 237 etc. cannot be stopped merely because a company has passed a resolution for voluntary winding up. But, such is not the case here21. Be that as it may, in the instant case, no inspectors had been appointed under Section 235 or 237 of the Act, and no parallel investigation by the Central Government or its authorities under the Act into the affairs of the Company was continuing. Nor was it a case where the High Court thought that for a proper and effectual adjudication of the petition pending before it, it was necessary to get the matter investigated through the agency of the Central Government22. In the circumstances of the case, therefore, the High Court should not have stayed the proceedings on the petition for winding up filed before it by Moolchand Gupta, but should have disposed it of on merits. | 1 | 2,212 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
Company has been continuously incurring losses and thus the substratum of the Company has disappeared. The Company had never declared any dividends and is continuously incurring losses. The affairs of the Company are conducted in a manner oppressive to the appellant. 11. On September 4, 1967, the respondent filed a Company Application being No. 229 of 1967 in the High Court for an order restraining the appellant herein from taking steps upon the said petition of advertising the same. An interim order was passed by the High Court on September 4, 1967, staying the publication of the said advertisement till the disposal of that application. The appellant contested that application which came up for hearing before R. N. Dutta, J. who concluding the hearing on February 1, 1968 and reserved the judgment. Before the judgment was announced, certain facts came to the knowledge of the appellant. He brought those facts to the notice of the learned Judge by filing an affidavit and charging the respondent with suppression of facts. Bidya Bhushan Gupta replied by an affidavit, dated April 20, 1968. 12. The learned Judge dismissed the said Company Application (No. 229 of 1967) by his Order, dated April 23, 1968 and declined to stay winding up proceedings. Thereafter, the appellant proceeded to cause the advertisement to be published in the newspapers and the same were duly published, as directed by the High Court. 13. The respondent, however, on May 27, 1968, preferred an appeal (No. 96 of 1968) before a Divisional Bench of the High Court which by its order dated July 26, 1968, allowed the appeal and granted stay of the proceedings in the said company petition (158 of 1967). 14. After obtaining a certificate, under Article 133(1)(a) and (b) of the Constitution, from the High Court, Moolchand Gupta has preferred this appeal against the aforesaid stay order passed by the Division Bench. 15. Although, the High Court has, in the order under appeal, made extensive observations with regard to the merits of the petition for winding up of the Company made by the appellant, the proceedings for winding up have been stayed by the High Court on the ground that on a complaint of the appellant, Moolchand Gupta, a parallel investigation into the affairs of the Company under the provisions of Section 235 of the Companies Act, 1956 is pending. 16. After hearing the learned counsel on both sides, we are of opinion that the High Court was in error in making the stay order it did. for the appellant has taken us through the correspondence annexed to the petition for winding up. It is evident therefrom that although the Registrar and/or the Company Law Board had made certain enquiries of an exploratory nature from the Company, yet no investigation contemplated under Section 235 or 237 or any other provision of the Companies Act, has in fact been commended. Rather, it seems that on account of the winding up proceeding the authorities have stayed their hands. 17. The learned counsel for the appellant has submitted that the Central Government has not appointed any inspectors as envisaged by Sections 235/237 and the matters are in a stalemate. The High Courts order, it is maintained has led to a stand still situation where for the appellant both the avenues for seeking redress are lying frozen. 18. It may be observed that under Section 235, it is not obligatory for the Central Government to direct an investigation. It has a discretion to appoint or not to appoint inspectors for investigating the affairs of the Company, the word used in the section being "may". Before the Government can take such action under Section 235, certain pre-conditions including those specified in Section 236, must be satisfied. Furthermore, unlike the power of the Court in a proceeding for winding up of a Company, the discretionary power of the Central Government to direct investigation is neither judicial nor quasi-judicial. It follow therefrom, that investigation on a complaint under Section 235/237 may not be an adequate substitute for proceedings in Court on a winding up petition. In other words, a petition under Section 235/237/239 may not afford an equally efficacious and alternative remedy as a petition under Section 439 to Court for winding up of the Company. 19. The intention of the Legislature as discernible from Section 243 of the Companies Act, seems to be that when the Court is already seised of the matter, at the instance of a party the Central Government should refrain from taking the initiative. Even where it appears to the Central Government from the report of the investigating inspectors appointed under Section 235/237 that it is expedient to move the court for winding up of the Company on the ground that it is just and equitable to wind it up, or that an application for an order under Section 397 or 398 be made, then also it must stay its hands from doing so if proceedings for winding up of the Company are already being taken by the Court. 20. It is, however, true that in view of Section 258 an investigation under Sections 235, 237 etc. cannot be stopped merely because a company has passed a resolution for voluntary winding up. But, such is not the case here. 21. Be that as it may, in the instant case, no inspectors had been appointed under Section 235 or 237 of the Act, and no parallel investigation by the Central Government or its authorities under the Act into the affairs of the Company was continuing. Nor was it a case where the High Court thought that for a proper and effectual adjudication of the petition pending before it, it was necessary to get the matter investigated through the agency of the Central Government. 22. In the circumstances of the case, therefore, the High Court should not have stayed the proceedings on the petition for winding up filed before it by Moolchand Gupta, but should have disposed it of on merits. 23.
### Response:
1
|
1,084 | Mohd. Illahamuddin & Others Vs. Bhivasan & Another | them personally, he shall not lease them out to anyone save the respondents. But it appears that in the year 1962, the landholder put those lands in the possession of appellants Nos. 2 to 5 under agreement to sell the same to them. Thereafter the tenants moved the aforementioned application under Section 32 for possession of those lands on the ground that the landholder had contravened the terms of the compromise. The Tehsildar dismissed the said application on the ground that the same having been made more than two years after the possession was delivered by the landholder, it is barred. His decision was reversed by the Deputy Collector in appeal but the same was restored by the Revenue Tribunal. As mentioned earlier, the High Court reversed the order of the Tribunal.3. The Tehsildar, the Deputy Collector, the Tribunal as well as the High Court have concurrently come to the conclusion that if the tenants application for possession is held to have been made under Section 32, the same is barred by limitation. That conclusion was not challenged before us. As mentioned earlier, the tenants application purports to be one under Section 32. But yet the High Court opined that in effect it is an application under Section 46 and consequently, it is not barred by limitation. The application for possession made by the landholder is not on record. Hence we do not know the exact ground urged in support of the relief prayed for therein. The learned Judge of the High Court who decided the case, has mentioned in the order under appeal that it was an application under Section 19 on the ground that the tenants had committed default in the payment of the rent. This conclusion of his conflicts with his latter finding that the landholders application must have been one under Section 46 (44?). From the order, it is not possible to find out the basis on which the learned Judge came to the conclusion that the application made by the landholder must have been one under Section 46. It appears from the order of the Revenue Tribunal that it was conceded before it by the learned Counsel for the tenants that Section 46 of the Act in terms does not apply to the present proceedings. But yet, for reasons not stated in his order, the learned Judge of the High Court came to the cosnclusion that it must have been an application under Section 46. A somewhat similar conclusion had been arrived at by the Deputy Collector.4. Section 44 empowers a landholder to terminate a protected tenancy under certain circumstances; one of the circumstances under which he could have terminated the tenancy is that he required the land in the possession of the tenants for personal cultivation for which purpose he could have resumed a maximum of three family holdings (Section 44 (1)). Section 45 provides that if on the termination of the tenancy under Section 44, the landholder does not within one year from the date on which he resumed possession of the land cultivate the same personally or having commenced such cultivation, discontinues the same within 10 years of the said date, he shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him unless he has obtained from the tenancy his refusal in writing to accept the tenancy on the terms and conditions prevailing before the termination of the tenancy or has offered in writing to give possession of the land to the tenant on the said terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof.5. The tenants did not mention in their petition that the landholder had terminated their tenancy under Section 44, nor did they plead therein that they were entitled to the possession of the properties on the ground that the landholder had contravened S. 45. Their application not only does not refer to Ss. 44 to 46, the facts stated therein do not bring the case within the scope of those provisions. It is a bald petition. The only ground on which the possession was asked for was that the landholder had failed to comply with clause (5) of the compromise though no doubt in the rejoinder they stated that the landholder had applied for possession on the ground that he required the land for personal cultivation.6. We do not know the basis on which the Dy. Collector and the learned Single Judge of the High Court came to the conclusion that there was a termination of the tenancy under Section 44.From the mere fact that the landholder had agreed under the compromise petition to lease out the lands to the tenants in the event of his failing to cultivate them personally, they could not have drawn the conclusion that the application made by the landholder was one under Section 44. If the High Court wanted to satisfy itself as to the true nature of the proceedings initiated by the landholder, it should have called for the application made by him and found out whether there was any termination of the tenancy under Section 44. If there was no termination of the tenancy on the ground that the lands in question were required for personal cultivation, the tenants application could not have been made under Section 46.7. For the reasons mentioned above, we are of the opinion that the finding of the High Court that the action taken by the landholder was under Section 44 is clearly without basis. It may be that on a perusal of the application in question it will be found that the same was one based on the termination of the tenancyd under Section 44 but such a conclusion is not possible on the material before us. But if all that is established is that there was a contravention of one of the terms of the compromise, no aid from Section 46 could be taken by the tenants. | 1[ds]5. The tenants did not mention in their petition that the landholder had terminated their tenancy under Section 44, nor did they plead therein that they were entitled to the possession of the properties on the ground that the landholder had contravened S. 45. Their application not only does not refer to Ss. 44 to 46, the facts stated therein do not bring the case within the scope of those provisions. It is a bald petition.The only ground on which the possession was asked for was that the landholder had failed to comply with clause (5) of the compromise though no doubt in the rejoinder they stated that the landholder had applied for possession on the ground that he required the land for personal cultivation.We do not know the basis on which the Dy. Collector and the learned Single Judge of the High Court came to the conclusion that there was a termination of the tenancy under Section 44.From the mere fact that the landholder had agreed under the compromise petition to lease out the lands to the tenants in the event of his failing to cultivate them personally, they could not have drawn the conclusion that the application made by the landholder was one under Section 44. If the High Court wanted to satisfy itself as to the true nature of the proceedings initiated by the landholder, it should have called for the application made by him and found out whether there was any termination of the tenancy under Section 44. If there was no termination of the tenancy on the ground that the lands in question were required for personal cultivation, the tenants application could not have been made under Section 46.7. For the reasons mentioned above, we are of the opinion that the finding of the High Court that the action taken by the landholder was under Section 44 is clearly without basis. It may be that on a perusal of the application in question it will be found that the same was one based on the termination of the tenancyd under Section 44 but such a conclusion is not possible on the material before us. But if all that is established is that there was a contravention of one of the terms of the compromise, no aid from Section 46 could be taken by the tenants. | 1 | 1,307 | ### Instruction:
Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal.
### Input:
them personally, he shall not lease them out to anyone save the respondents. But it appears that in the year 1962, the landholder put those lands in the possession of appellants Nos. 2 to 5 under agreement to sell the same to them. Thereafter the tenants moved the aforementioned application under Section 32 for possession of those lands on the ground that the landholder had contravened the terms of the compromise. The Tehsildar dismissed the said application on the ground that the same having been made more than two years after the possession was delivered by the landholder, it is barred. His decision was reversed by the Deputy Collector in appeal but the same was restored by the Revenue Tribunal. As mentioned earlier, the High Court reversed the order of the Tribunal.3. The Tehsildar, the Deputy Collector, the Tribunal as well as the High Court have concurrently come to the conclusion that if the tenants application for possession is held to have been made under Section 32, the same is barred by limitation. That conclusion was not challenged before us. As mentioned earlier, the tenants application purports to be one under Section 32. But yet the High Court opined that in effect it is an application under Section 46 and consequently, it is not barred by limitation. The application for possession made by the landholder is not on record. Hence we do not know the exact ground urged in support of the relief prayed for therein. The learned Judge of the High Court who decided the case, has mentioned in the order under appeal that it was an application under Section 19 on the ground that the tenants had committed default in the payment of the rent. This conclusion of his conflicts with his latter finding that the landholders application must have been one under Section 46 (44?). From the order, it is not possible to find out the basis on which the learned Judge came to the conclusion that the application made by the landholder must have been one under Section 46. It appears from the order of the Revenue Tribunal that it was conceded before it by the learned Counsel for the tenants that Section 46 of the Act in terms does not apply to the present proceedings. But yet, for reasons not stated in his order, the learned Judge of the High Court came to the cosnclusion that it must have been an application under Section 46. A somewhat similar conclusion had been arrived at by the Deputy Collector.4. Section 44 empowers a landholder to terminate a protected tenancy under certain circumstances; one of the circumstances under which he could have terminated the tenancy is that he required the land in the possession of the tenants for personal cultivation for which purpose he could have resumed a maximum of three family holdings (Section 44 (1)). Section 45 provides that if on the termination of the tenancy under Section 44, the landholder does not within one year from the date on which he resumed possession of the land cultivate the same personally or having commenced such cultivation, discontinues the same within 10 years of the said date, he shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him unless he has obtained from the tenancy his refusal in writing to accept the tenancy on the terms and conditions prevailing before the termination of the tenancy or has offered in writing to give possession of the land to the tenant on the said terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof.5. The tenants did not mention in their petition that the landholder had terminated their tenancy under Section 44, nor did they plead therein that they were entitled to the possession of the properties on the ground that the landholder had contravened S. 45. Their application not only does not refer to Ss. 44 to 46, the facts stated therein do not bring the case within the scope of those provisions. It is a bald petition. The only ground on which the possession was asked for was that the landholder had failed to comply with clause (5) of the compromise though no doubt in the rejoinder they stated that the landholder had applied for possession on the ground that he required the land for personal cultivation.6. We do not know the basis on which the Dy. Collector and the learned Single Judge of the High Court came to the conclusion that there was a termination of the tenancy under Section 44.From the mere fact that the landholder had agreed under the compromise petition to lease out the lands to the tenants in the event of his failing to cultivate them personally, they could not have drawn the conclusion that the application made by the landholder was one under Section 44. If the High Court wanted to satisfy itself as to the true nature of the proceedings initiated by the landholder, it should have called for the application made by him and found out whether there was any termination of the tenancy under Section 44. If there was no termination of the tenancy on the ground that the lands in question were required for personal cultivation, the tenants application could not have been made under Section 46.7. For the reasons mentioned above, we are of the opinion that the finding of the High Court that the action taken by the landholder was under Section 44 is clearly without basis. It may be that on a perusal of the application in question it will be found that the same was one based on the termination of the tenancyd under Section 44 but such a conclusion is not possible on the material before us. But if all that is established is that there was a contravention of one of the terms of the compromise, no aid from Section 46 could be taken by the tenants.
### Response:
1
|
1,085 | M/S Jain Studios Limited Through Its President Vs. Shin Satellite Public Co. Ltd | tribunal and provides that if the parties had not previously agreed to the number of arbitrators and if within fifteen days after the receipt by the respondent of the notice of arbitration, the parties had not agreed that there should be only one arbitrator, three arbitrators should be appointed. According to the applicant, Shin Satellite, through its advocate, served a notice and called upon the applicant herein to appoint an arbitrator but no appointment was made by the applicant. On that eventuality, submitted the counsel, three arbitrators ought to have been appointed. It is not disputes that the applicant contested the matter urging that there was no legal and valid arbitration agreement between the parties. It is also not disputed that in the light of the objection by the applicant herein, an application was made by Shin Satellite to the Honble the Chief Justice of India for appointment of arbitrator under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (Act for short) and as a nominee of the Honble the Chief Justice of India, by an order dated January 31, 2006, I allowed the application and appointed Honble Mr. Justice M.L. Pendse, Retd. Judge as the sole arbitrator. The counsel, however, submitted that as per UNCITRAL Model, three arbitrators ought to have been appointed. To that extent, therefore, the order deserves to be reviewed and an appropriate order requires to be passed for appointment of three arbitrators.5. The learned counsel for the respondent contested the review petition. He raised a preliminary objection that review petition is not maintainable and it is liable to be dismissed on that ground alone. He submitted that there is no inherent power of review in a Court or in any other authority. Such power must be conferred expressly by a statutory provision. It is also submitted that the judgment of a larger Bench of this Court in SBP & Company v. Patel Engineering Ltd., (2005) 8 SCC 618 makes it clear that the power exercised by the Chief Justice of a High Court or his nominee or by the Chief Justice of India or his nominee under sub-section (6) of Section 11 of the Act is judicial. Relying on sub-section (7) of Section 11 of the Act, the counsel submitted that the decision of the Chief Justice or his nominee is final and no review lies against such order. 6. On merits, it was submitted that the applicant seeks to re agitate the same point which was advanced at the time of hearing. A prayer was made when the main matter was argued that the applicant may be granted time to make the appointment of an arbitrator but the prayer was rejected. By invoking review jurisdiction, virtually the same prayer has been made, which was expressly negatived earlier. The learned counsel submitted that the review is yet another dilatory tactic adopted by the applicant who is not interested in speedy resolution of dispute between the parties. He, therefore, submitted that the review application may be dismissed with costs.7. So far as the maintainability of review petition is concerned, in my opinion, the preliminary objection raised by the learned counsel for the respondent is not well-founded. In Patel Engineering Ltd., this Court by majority of 6:1 held the function performed by the Chief Justice of a High Court or his nominee or by the Chief Justice of India or his nominee to be a judicial one. Once the function performed by the Chief Justice of India or his nominee is held to be judicial, it cannot be contended that an application for review of an order passed by the Chief Justice of India or his nominee is not maintainable. In any opinion, the learned counsel for the applicant is right in relying upon Article 137 of the Constitution which reads thus: 137. Review of judgments or orders by the Supreme Court.- Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. 8. An order passed by the Chief Justice of India or his nominee under Section 11(6) of the Act is indeed an order within the meaning of Article 137 of the Constitution and is subject to review under the aforesaid provision. 9. I accordingly hold the review petition to be maintainable and proceed to consider it on merits. 10. Regarding correction of errors shown by the applicant, the learned counsel for the opponent does not dispute the position and accordingly the submission is accepted by observing that it was not the case of the applicant herein (respondent in the main matter), that arbitration be held in London or in Singapore. The mistake is ordered to be corrected accordingly. 11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the Arbitration Petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of second innings which is impermissible and unwarranted and cannot be granted. 13. | 1[ds]So far as the maintainability of review petition is concerned, in my opinion, the preliminary objection raised by the learned counsel for the respondent is not well-founded. In Patel Engineering Ltd., this Court by majority of 6:1 held the function performed by the Chief Justice of a High Court or his nominee or by the Chief Justice of India or his nominee to be a judicial one. Once the function performed by the Chief Justice of India or his nominee is held to be judicial, it cannot be contended that an application for review of an order passed by the Chief Justice of India or his nominee is not maintainable. In any opinion, the learned counsel for the applicant is right in relying upon Article 137 of thecorrection of errors shown by the applicant, the learned counsel for the opponent does not dispute the position and accordingly the submission is accepted by observing that it was not the case of the applicant herein (respondent in the main matter), that arbitration be held in London or in Singapore. The mistake is ordered to be correctedfar as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptionala prayer to appoint an arbitrator by the applicant herein had been made at the time when the Arbitration Petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of second innings which is impermissible and unwarranted and cannot be granted. | 1 | 1,378 | ### 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:
tribunal and provides that if the parties had not previously agreed to the number of arbitrators and if within fifteen days after the receipt by the respondent of the notice of arbitration, the parties had not agreed that there should be only one arbitrator, three arbitrators should be appointed. According to the applicant, Shin Satellite, through its advocate, served a notice and called upon the applicant herein to appoint an arbitrator but no appointment was made by the applicant. On that eventuality, submitted the counsel, three arbitrators ought to have been appointed. It is not disputes that the applicant contested the matter urging that there was no legal and valid arbitration agreement between the parties. It is also not disputed that in the light of the objection by the applicant herein, an application was made by Shin Satellite to the Honble the Chief Justice of India for appointment of arbitrator under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (Act for short) and as a nominee of the Honble the Chief Justice of India, by an order dated January 31, 2006, I allowed the application and appointed Honble Mr. Justice M.L. Pendse, Retd. Judge as the sole arbitrator. The counsel, however, submitted that as per UNCITRAL Model, three arbitrators ought to have been appointed. To that extent, therefore, the order deserves to be reviewed and an appropriate order requires to be passed for appointment of three arbitrators.5. The learned counsel for the respondent contested the review petition. He raised a preliminary objection that review petition is not maintainable and it is liable to be dismissed on that ground alone. He submitted that there is no inherent power of review in a Court or in any other authority. Such power must be conferred expressly by a statutory provision. It is also submitted that the judgment of a larger Bench of this Court in SBP & Company v. Patel Engineering Ltd., (2005) 8 SCC 618 makes it clear that the power exercised by the Chief Justice of a High Court or his nominee or by the Chief Justice of India or his nominee under sub-section (6) of Section 11 of the Act is judicial. Relying on sub-section (7) of Section 11 of the Act, the counsel submitted that the decision of the Chief Justice or his nominee is final and no review lies against such order. 6. On merits, it was submitted that the applicant seeks to re agitate the same point which was advanced at the time of hearing. A prayer was made when the main matter was argued that the applicant may be granted time to make the appointment of an arbitrator but the prayer was rejected. By invoking review jurisdiction, virtually the same prayer has been made, which was expressly negatived earlier. The learned counsel submitted that the review is yet another dilatory tactic adopted by the applicant who is not interested in speedy resolution of dispute between the parties. He, therefore, submitted that the review application may be dismissed with costs.7. So far as the maintainability of review petition is concerned, in my opinion, the preliminary objection raised by the learned counsel for the respondent is not well-founded. In Patel Engineering Ltd., this Court by majority of 6:1 held the function performed by the Chief Justice of a High Court or his nominee or by the Chief Justice of India or his nominee to be a judicial one. Once the function performed by the Chief Justice of India or his nominee is held to be judicial, it cannot be contended that an application for review of an order passed by the Chief Justice of India or his nominee is not maintainable. In any opinion, the learned counsel for the applicant is right in relying upon Article 137 of the Constitution which reads thus: 137. Review of judgments or orders by the Supreme Court.- Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it. 8. An order passed by the Chief Justice of India or his nominee under Section 11(6) of the Act is indeed an order within the meaning of Article 137 of the Constitution and is subject to review under the aforesaid provision. 9. I accordingly hold the review petition to be maintainable and proceed to consider it on merits. 10. Regarding correction of errors shown by the applicant, the learned counsel for the opponent does not dispute the position and accordingly the submission is accepted by observing that it was not the case of the applicant herein (respondent in the main matter), that arbitration be held in London or in Singapore. The mistake is ordered to be corrected accordingly. 11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the Arbitration Petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of second innings which is impermissible and unwarranted and cannot be granted. 13.
### Response:
1
|
1,086 | THE STATE OF HARYANA Vs. SANDEEP SINGH | Supplied)*** *** ***chart15. We find that the High Court has taken a simplistic view on the bare reading of Rule 9 (5) of 2012 Rules to hold that with the commencement of 2012 Rules, the C&V Teachers become part of TGT Cadre and as part of the TGT Cadre, they become entitled for promotion to the post of Elementary School Headmaster from the day their juniors were promoted to such post.16. The appointment of the writ petitioners as C&V Teacher is prior to the commencement of 2012 Rules. The 1998 Rules contemplate direct recruitment to the post of Master and to various other disciplines, commonly called as C&V Teachers. In fact, the post of Master is a promotion post for C&V Teachers in terms of Rule 9 of the 1998 Rules. The qualification for the post of Art Master by way of direct recruitment and promotion is Graduate or Matric/10+2 with 5 years Degree/Diploma. However, for promotion the additional qualification is 3 years? experience on the post of JBT and C&V Teachers.17. The post of TGT is contemplated to be filled up by direct recruitment and by promotion from amongst primary teachers/C&V Teachers. Column 3 of the Appendix B of 2012 Rules prescribes the academic qualifications and experience for direct recruitment on contract basis whereas, Column 4 prescribes academic qualifications and experience for appointment other than by direct recruitment on contract basis. The qualifications for filling up the post of TGT by way of promotion are B.F .A/B.A and 2-year Diploma in Elementary Education; or B.F.A/B.A with at least 50% marks and 1-year Bachelor in Education (B.Ed.); or B.F.A/B.A with at least 45% marks and 1-year Bachelor in Education (B.Ed.); in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard; or Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A. Ed. Etc. and 3 years? experience as Primary Teacher (PRT)/Classical & Vernacular (C&V) Teacher. Thus, the post of TGT is a promotion post for C&V Teachers as well.18. Therefore, the reading of the entire 2012 Rules shows that the Masters appointed under 1998 Rules alone were holding equivalent post to that of the members of the cadre of TGT. It is such category alone who are entitled to be promoted to the post of Elementary School Headmaster in terms of the qualifications prescribed in Appendix B particularly in view of Rule 2(h) and Rule 7 of the 2012 Rules. TGT means a Trained Graduate Teacher in the relevant subject appointed after notification of the 2012 Rules and include the Masters appointed before the notification of these Rules. Therefore, the Masters appointed in terms of 1998 Rules are only the Trained Graduate Teachers in terms of 2012 Rules. The post of Master under the 1998 Rules or the Post of TGT under the 2012 Rules is in fact promotion post for the C&V Teachers.19. The entire argument of the appellants is based upon the expression used that C&V Teachers governed by 1998 Rules shall be ?converted to TGT in relevant subject?. The question is whether such C&V Teachers stand upgraded to the post of TGT though, their promotion channel under 1998 Rules was to the post of Master which alone has been treated as TGT as defined in Rule 2(h) of the 2012 Rules and in view of express language of Rule 7 which mandates that the appointment shall be made to the post of TGT only in accordance with the qualifications prescribed in 2012 Rules.20. The reading of the Rules would show that C&V Teachers are treated to be TGT so as to avoid anomalous situation where the C&V Teachers after the commencement of 2012 Rules would not be governed by any set of Rules. Therefore, the expression that such C&V Teachers stand converted to TGT is only to facilitate their service conditions to be governed by the 2012 Rules rather than to upgrade the C&V Teachers as members of TGT Cadre. The feeder and the promotional cadre cannot be treated at par by virtue of the expression used in Rule 9(5) of 2012 Rules that the C&V Teachers shall be converted to TGT. Such conversion is only for a limited purpose of 2012 Rules being extended to them and that such C&V Teachers do not become member of the ?cadre? eligible for promotion as Elementary School Headmaster. Rule 9(5) of 2012 Rules does not use the word ?cadre?. Therefore, such teachers cannot be treated to be part of TGT cadre. Such interpretation is further supported by the fact that C&V Teacher is a dying cadre and no further recruitment is to be made in these categories.21. Such C&V Teachers, if eligible, can seek appointment by way of a direct recruitment or other than by direct recruitment in terms of the academic qualifications and experience contained in Appendix B of 2012 Rules but they cannot be treated en masse as members of TGT Cadre. The State may consider to provide opportunity to such teachers for appointment as TGT s.22. The TGT s are engaged to provide elementary education. The purpose of the Rules is better served by ensuring education to the students of primary schools in the State by Trained Graduate Teachers rather than C&V Teachers who were being engaged earlier. It is upgradation of qualification of teachers to be engaged for teaching the students of the primary schools for appointment as TGT s. Therefore, the interpretation which sub serves cause of education is to be preferred as against the interpretation leading to anomalous result, more so it is not warranted by the cumulative reading of the 2012 Rules.23. In view of the above, we find that the order passed by the High Court that C&V Teachers become member of the TGT Cadre after the commencement of 2012 Rules in fact violates the cumulative reading of the 2012 Rules and defeats the cause of the primary education in the State guaranteed by Article 21A of the Constitution. | 1[ds]15. We find that the High Court has taken a simplistic view on the bare reading of Rule 9 (5) of 2012 Rules to hold that with the commencement of 2012 Rules, the C&V Teachers become part of TGT Cadre and as part of the TGT Cadre, they become entitled for promotion to the post of Elementary School Headmaster from the day their juniors were promoted to such post.16. The appointment of the writ petitioners as C&V Teacher is prior to the commencement of 2012 Rules. The 1998 Rules contemplate direct recruitment to the post of Master and to various other disciplines, commonly called as C&V Teachers. In fact, the post of Master is a promotion post for C&V TTherefore, the reading of the entire 2012 Rules shows that the Masters appointed under 1998 Rules alone were holding equivalent post to that of the members of the cadre of TGT. It is such category alone who are entitled to be promoted to the post of Elementary School Headmaster in terms of the qualifications prescribed in Appendix B particularly in view of Rule 2(h) and Rule 7 of the 2012 Rules. TGT means a Trained Graduate Teacher in the relevant subject appointed after notification of the 2012 Rules and include the Masters appointed before the notification of these Rules. Therefore, the Masters appointed in terms of 1998 Rules are only the Trained Graduate Teachers.19. The entire argument of the appellants is based upon the expression used that C&V Teachers governed by 1998 Rules shall be ?converted to TGT in relevant subject?. The question is whether such C&V Teachers stand upgraded to the post of TGT though, their promotion channel under 1998 Rules was to the post of Master which alone has been treated as TGT as defined in Rule 2(h) of the 2012 Rules and in view of express language of Rule 7 which mandates that the appointment shall be made to the post of TGT only in accordance with the qualifications prescribed in 2012 Rules.20. The reading of the Rules would show that C&V Teachers are treated to be TGT so as to avoid anomalous situation where the C&V Teachers after the commencement of 2012 Rules would not be governed by any set of Rules. Therefore, the expression that such C&V Teachers stand converted to TGT is only to facilitate their service conditions to be governed by the 2012 Rules rather than to upgrade the C&V Teachers as members of TGT Cadre. The feeder and the promotional cadre cannot be treated at par by virtue of the expression used in Rule 9(5) of 2012 Rules that the C&V Teachers shall be converted to TGT. Such conversion is only for a limited purpose of 2012 Rules being extended to them and that such C&V Teachers do not become member of the ?cadre? eligible for promotion as Elementary School Headmaster. Rule 9(5) of 2012 Rules does not use the word ?cadre?. Therefore, such teachers cannot be treated to be part of TGT cadre. Such interpretation is further supported by the fact that C&V Teacher is a dying cadre and no further recruitment is to be made in these categories.21. Such C&V Teachers, if eligible, can seek appointment by way of a direct recruitment or other than by direct recruitment in terms of the academic qualifications and experience contained in Appendix B of 2012 Rules but they cannot be treated en masse as members of TGT Cadre. The State may consider to provide opportunity to such teachers for appointment as TGT s.22. The TGT s are engaged to provide elementary education. The purpose of the Rules is better served by ensuring education to the students of primary schools in the State by Trained Graduate Teachers rather than C&V Teachers who were being engaged earlier. It is upgradation of qualification of teachers to be engaged for teaching the students of the primary schools for appointment as TGT s. Therefore, the interpretation which sub serves cause of education is to be preferred as against the interpretation leading to anomalous result, more so it is not warranted by the cumulative reading of the 2012 Rules.In view of the above, we find that the order passed by the High Court that C&V Teachers become member of the TGT Cadre after the commencement of 2012 Rules in fact violates the cumulative reading of the 2012 Rules and defeats the cause of the primary education in the State guaranteed by Article 21A of the Constitution. | 1 | 3,425 | ### 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:
Supplied)*** *** ***chart15. We find that the High Court has taken a simplistic view on the bare reading of Rule 9 (5) of 2012 Rules to hold that with the commencement of 2012 Rules, the C&V Teachers become part of TGT Cadre and as part of the TGT Cadre, they become entitled for promotion to the post of Elementary School Headmaster from the day their juniors were promoted to such post.16. The appointment of the writ petitioners as C&V Teacher is prior to the commencement of 2012 Rules. The 1998 Rules contemplate direct recruitment to the post of Master and to various other disciplines, commonly called as C&V Teachers. In fact, the post of Master is a promotion post for C&V Teachers in terms of Rule 9 of the 1998 Rules. The qualification for the post of Art Master by way of direct recruitment and promotion is Graduate or Matric/10+2 with 5 years Degree/Diploma. However, for promotion the additional qualification is 3 years? experience on the post of JBT and C&V Teachers.17. The post of TGT is contemplated to be filled up by direct recruitment and by promotion from amongst primary teachers/C&V Teachers. Column 3 of the Appendix B of 2012 Rules prescribes the academic qualifications and experience for direct recruitment on contract basis whereas, Column 4 prescribes academic qualifications and experience for appointment other than by direct recruitment on contract basis. The qualifications for filling up the post of TGT by way of promotion are B.F .A/B.A and 2-year Diploma in Elementary Education; or B.F.A/B.A with at least 50% marks and 1-year Bachelor in Education (B.Ed.); or B.F.A/B.A with at least 45% marks and 1-year Bachelor in Education (B.Ed.); in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard; or Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A. Ed. Etc. and 3 years? experience as Primary Teacher (PRT)/Classical & Vernacular (C&V) Teacher. Thus, the post of TGT is a promotion post for C&V Teachers as well.18. Therefore, the reading of the entire 2012 Rules shows that the Masters appointed under 1998 Rules alone were holding equivalent post to that of the members of the cadre of TGT. It is such category alone who are entitled to be promoted to the post of Elementary School Headmaster in terms of the qualifications prescribed in Appendix B particularly in view of Rule 2(h) and Rule 7 of the 2012 Rules. TGT means a Trained Graduate Teacher in the relevant subject appointed after notification of the 2012 Rules and include the Masters appointed before the notification of these Rules. Therefore, the Masters appointed in terms of 1998 Rules are only the Trained Graduate Teachers in terms of 2012 Rules. The post of Master under the 1998 Rules or the Post of TGT under the 2012 Rules is in fact promotion post for the C&V Teachers.19. The entire argument of the appellants is based upon the expression used that C&V Teachers governed by 1998 Rules shall be ?converted to TGT in relevant subject?. The question is whether such C&V Teachers stand upgraded to the post of TGT though, their promotion channel under 1998 Rules was to the post of Master which alone has been treated as TGT as defined in Rule 2(h) of the 2012 Rules and in view of express language of Rule 7 which mandates that the appointment shall be made to the post of TGT only in accordance with the qualifications prescribed in 2012 Rules.20. The reading of the Rules would show that C&V Teachers are treated to be TGT so as to avoid anomalous situation where the C&V Teachers after the commencement of 2012 Rules would not be governed by any set of Rules. Therefore, the expression that such C&V Teachers stand converted to TGT is only to facilitate their service conditions to be governed by the 2012 Rules rather than to upgrade the C&V Teachers as members of TGT Cadre. The feeder and the promotional cadre cannot be treated at par by virtue of the expression used in Rule 9(5) of 2012 Rules that the C&V Teachers shall be converted to TGT. Such conversion is only for a limited purpose of 2012 Rules being extended to them and that such C&V Teachers do not become member of the ?cadre? eligible for promotion as Elementary School Headmaster. Rule 9(5) of 2012 Rules does not use the word ?cadre?. Therefore, such teachers cannot be treated to be part of TGT cadre. Such interpretation is further supported by the fact that C&V Teacher is a dying cadre and no further recruitment is to be made in these categories.21. Such C&V Teachers, if eligible, can seek appointment by way of a direct recruitment or other than by direct recruitment in terms of the academic qualifications and experience contained in Appendix B of 2012 Rules but they cannot be treated en masse as members of TGT Cadre. The State may consider to provide opportunity to such teachers for appointment as TGT s.22. The TGT s are engaged to provide elementary education. The purpose of the Rules is better served by ensuring education to the students of primary schools in the State by Trained Graduate Teachers rather than C&V Teachers who were being engaged earlier. It is upgradation of qualification of teachers to be engaged for teaching the students of the primary schools for appointment as TGT s. Therefore, the interpretation which sub serves cause of education is to be preferred as against the interpretation leading to anomalous result, more so it is not warranted by the cumulative reading of the 2012 Rules.23. In view of the above, we find that the order passed by the High Court that C&V Teachers become member of the TGT Cadre after the commencement of 2012 Rules in fact violates the cumulative reading of the 2012 Rules and defeats the cause of the primary education in the State guaranteed by Article 21A of the Constitution.
### Response:
1
|
1,087 | Oil India Ltd Vs. The Superintendent Of Taxes & Others | refinery at Barauni treating the supply as intrastate sales. For the period ending 30 September, 1964, the petitioner company sold crude oil worth Rs. 49,26,813.06 to the refinery at Barauni and the same was subjected to sales tax under the Bihar Sales Tax Act, In the year 1966, sales tax authorities in Assam issued notice to the petitioner stating that sales tax was payable on the supply of crude oil to the refinery at Barauni under the Central Sales Tax Act as according to them the sales were in the course of inter-State trade. The petitioner contended that sale were intra-state and not subject to tax under the Central Sales Tax Act. By the assessment order dated 31-3-1966, respondent No. 1 negatived the contention raised by the petitioner and held that by supplying crude oil to the refinery at Barauni the petitioner effected sales of oil to the Indian Oil Company and that they were sales in the course of inter -State trade and assessed the petitioner- company to pay a tax of Rs. 4,47,892.10 (Annexure J). By another order dated 31-3-1966, the petitioner was assessed to sales tax under Central Sales Tax Act to Rs. 12,23,072.90 by respondent No. 1 (Annexure K).4. In these writ petitions the petitioner prays for quashing Annexures J and K and for a mandamus directing respondents 1 to 3 not to levy sales tax under the Central Sales Tax Act on the sale of crude oil supplied by the petitioner to the refinery at Barauni.4-A. In the alternative, the petitioner prays for:1. the issue of a writ, order or direction in the nature of mandamus directing respondents 4, 5 and 6 not to levy tax under the Bihar Sales Tax Act on the sales of crude oil made by the petitioner to the refinery at Barauni ;2. a writ, order or direction in the nature of certiorari quashing the various assessment orders passed by the respondent No. 4 on the sales of crude oil made by the petitioner-company to the refinery at Barauni; and3. a writ, order or direction in the nature of a mandamus directing the respondents 4 to 6 to refund the various amounts collected as sales tax from the petitioner company.5. The question for consideration in these writ petitions is whether the sales made by the petitioner in pursuance to clause 7 of the second supplemental agreement to Government of India through the agency of Indian Oil Corporation were sales in the course of inter-State trade and were therefore liable to sales tax under the Central Sales Tax Act. Section 3 of the Central Sales Tax Act provides:"3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase -(a) occasions the movement of goods from one State to another, or(b) is effected by a transfer of documents of title to the goods during their movement from one State to another."6. This Court has held in a number of cases that is the movement of goods from one State to another is the result of a covenant or an incident of the Contract of Sale, then the sale is inter-State sale.See Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, (1961) 1 SCR 379 at p. 391 = (AIR 1961 SC 65 at p. 72) and The State of Jammu and Kashmir v. Caltex (India) Ltd., 17 STC 612 -(AIR 1966 SC 1350 ). Here, the crude oil was carried from Assam through the pipelines specially constructed by the petitioner to the refinery at Barauni in Bihar and there the oil was pumped and delivered to the Indian Oil Corporation. Clause 12 of the agreement dated 14-11958 provides that the petitioner shall arrange for the construction of pipeline or such other related facilities as the company shall consider necessary for the transport of crude oil to be produced by it to the refinery at Barauni. This would indicate that the construction of pipeline was undertaken by the petitioner in pursuance of the agreement and that that was for the specific purpose of transporting crude oil to Barauni from Assam. This can only point to the conclusion that the parties contemplated that there should be movement of goods from the State of Assam to the State of Bihar in pursuance to the contract of sale.7. Clause 7 of the 1961 agreement must needs be read with its precursory clause 12 of the 1958 agreement since all the contracting parties were well aware of their respective obligations in the transactions arising out of the several agreements - not one of which can be left out of consideration.8. Even though clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions "movement of goods from one State to another is a sale in the course of inter-state trade". The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce that the covenant regarding inter-State movement must be specified in the contract itself, It would be enough if the movement was in pursuance of and incidental to the contract of sale. See State Trading Corporation v State of Mysore, 14 STC 188 =(AIR 1963 SC 548 ). | 1[ds]Clause 12 of the agreement dated 14-11958 provides that the petitioner shall arrange for the construction of pipeline or such other related facilities as the company shall consider necessary for the transport of crude oil to be produced by it to the refinery at Barauni. This would indicate that the construction of pipeline was undertaken by the petitioner in pursuance of the agreement and that that was for the specific purpose of transporting crude oil to Barauni from Assam. This can only point to the conclusion that the parties contemplated that there should be movement of goods from the State of Assam to the State of Bihar in pursuance to the contract of sale.Even though clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions "movement of goods from one State to another is a sale in the course of inter-state trade". The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce that the covenant regarding inter-State movement must be specified in the contract itself, It would be enough if the movement was in pursuance of and incidental to the contract of sale.. Clause 7 of the 1961 agreement must needs be read with its precursory clause 12 of the 1958 agreement since all the contracting parties were well aware of their respective obligations in the transactions arising out of the several agreementsnot one of which can be left out of consideration. | 1 | 1,577 | ### Instruction:
Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0).
### Input:
refinery at Barauni treating the supply as intrastate sales. For the period ending 30 September, 1964, the petitioner company sold crude oil worth Rs. 49,26,813.06 to the refinery at Barauni and the same was subjected to sales tax under the Bihar Sales Tax Act, In the year 1966, sales tax authorities in Assam issued notice to the petitioner stating that sales tax was payable on the supply of crude oil to the refinery at Barauni under the Central Sales Tax Act as according to them the sales were in the course of inter-State trade. The petitioner contended that sale were intra-state and not subject to tax under the Central Sales Tax Act. By the assessment order dated 31-3-1966, respondent No. 1 negatived the contention raised by the petitioner and held that by supplying crude oil to the refinery at Barauni the petitioner effected sales of oil to the Indian Oil Company and that they were sales in the course of inter -State trade and assessed the petitioner- company to pay a tax of Rs. 4,47,892.10 (Annexure J). By another order dated 31-3-1966, the petitioner was assessed to sales tax under Central Sales Tax Act to Rs. 12,23,072.90 by respondent No. 1 (Annexure K).4. In these writ petitions the petitioner prays for quashing Annexures J and K and for a mandamus directing respondents 1 to 3 not to levy sales tax under the Central Sales Tax Act on the sale of crude oil supplied by the petitioner to the refinery at Barauni.4-A. In the alternative, the petitioner prays for:1. the issue of a writ, order or direction in the nature of mandamus directing respondents 4, 5 and 6 not to levy tax under the Bihar Sales Tax Act on the sales of crude oil made by the petitioner to the refinery at Barauni ;2. a writ, order or direction in the nature of certiorari quashing the various assessment orders passed by the respondent No. 4 on the sales of crude oil made by the petitioner-company to the refinery at Barauni; and3. a writ, order or direction in the nature of a mandamus directing the respondents 4 to 6 to refund the various amounts collected as sales tax from the petitioner company.5. The question for consideration in these writ petitions is whether the sales made by the petitioner in pursuance to clause 7 of the second supplemental agreement to Government of India through the agency of Indian Oil Corporation were sales in the course of inter-State trade and were therefore liable to sales tax under the Central Sales Tax Act. Section 3 of the Central Sales Tax Act provides:"3. A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase -(a) occasions the movement of goods from one State to another, or(b) is effected by a transfer of documents of title to the goods during their movement from one State to another."6. This Court has held in a number of cases that is the movement of goods from one State to another is the result of a covenant or an incident of the Contract of Sale, then the sale is inter-State sale.See Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, (1961) 1 SCR 379 at p. 391 = (AIR 1961 SC 65 at p. 72) and The State of Jammu and Kashmir v. Caltex (India) Ltd., 17 STC 612 -(AIR 1966 SC 1350 ). Here, the crude oil was carried from Assam through the pipelines specially constructed by the petitioner to the refinery at Barauni in Bihar and there the oil was pumped and delivered to the Indian Oil Corporation. Clause 12 of the agreement dated 14-11958 provides that the petitioner shall arrange for the construction of pipeline or such other related facilities as the company shall consider necessary for the transport of crude oil to be produced by it to the refinery at Barauni. This would indicate that the construction of pipeline was undertaken by the petitioner in pursuance of the agreement and that that was for the specific purpose of transporting crude oil to Barauni from Assam. This can only point to the conclusion that the parties contemplated that there should be movement of goods from the State of Assam to the State of Bihar in pursuance to the contract of sale.7. Clause 7 of the 1961 agreement must needs be read with its precursory clause 12 of the 1958 agreement since all the contracting parties were well aware of their respective obligations in the transactions arising out of the several agreements - not one of which can be left out of consideration.8. Even though clause 7 of the supplemental agreement does not expressly provide for movement of the goods, it is clear that the parties envisaged the movement of crude oil in pursuance to the contract from the State of Assam to the State of Bihar. In other words, the movement of crude oil from the State of Assam to the State of Bihar was an incident of the contract of sale. No matter in which State the property in the goods passes, a sale which occasions "movement of goods from one State to another is a sale in the course of inter-state trade". The inter-State movement must be the result of a covenant express or implied in the contract of sale or an incident of the contract. It is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement. It is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce that the covenant regarding inter-State movement must be specified in the contract itself, It would be enough if the movement was in pursuance of and incidental to the contract of sale. See State Trading Corporation v State of Mysore, 14 STC 188 =(AIR 1963 SC 548 ).
### Response:
1
|
1,088 | J. Mohapatra and Company and Another Vs. State of Orissa and Another | the High Court was, not only in respect of the books selected and purchased for those years but also with respect to the books selected and to be purchased from the Central Government grant because these books have also by now been purchased and distributed among the various school and college libraries. All that we can, therefore, do in this Appeal is to lay down guide-lines which should be followed in the future in selecting not only books for libraries in educational institutions but also in prescribing text-books and in constituting committees for these purposes. 8. It was, however, submitted on behalf of the Respondents that it was not necessary for this Court to lay down any guide-lines inasmuch as after the Special Leave to Appeal was granted in this case, the State Government had issued a fresh Government Resolution dated November 24, 1983, whereby it constituted a new Purchase Committee and Assessment Committee consisting of Government officials and non- official members, clause (8) of which Resolution satisfied the principles of fair play and natural justice by eliminating the possibility of any author -member of the committee influencing author-members in selecting his book. Clause (8) of the said Resolution reads as follows:"No member of the Purchase/Assessment Committee shall remain present in discussion while considering a book in which he/she is interested as author/editor/publisher." 9. In the alternative, it was submitted that if the Court desires to lay down guide-lines, it should do so by adopting clause (8) of the said Government Resolution dated November 24, 1983.We are unable to accept either of the above two submissions. Several books would come up for consideration before the committee, one or more of them by one of the members and the other or others by some o f the other members. Mere non-participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because th e evil of quid pro quo cannot be eliminated by this. Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books. 10. It was suggested on behalf of the Appellants that in laying down the guide-lines we should provide that if a publisher has published a book written by one of the members of the committee or sub-committee concerned with the selection of books, such publisher should not be permitted to submit any book for selection even though no book by that author-member had been submitted for selection. It was urged that in such a case the author-member would be favourably inclined to select or approve the book of that publisher in order to maintain good relations with him. We find this suggestion to be unrealistic. Many a person falls a victim to that disease which Jnvenal called cacoethes scriben di(the writers itch), for as Byron said in his English Bards and Scottish Reviewers:"Tis pleasant, sure, to see ones name in print; A books a book, although theres nothing int." 11. It would, therefore, be unfair to prohibit p ublishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.In the light of the above discuss ion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature:(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be s elected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit. (2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection. (3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted. | 1[ds]It would, therefore, be unfair to prohibit p ublishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.In the light of the above discuss ion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature:(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be s elected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit(2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection(3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted. | 1 | 5,116 | ### 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:
the High Court was, not only in respect of the books selected and purchased for those years but also with respect to the books selected and to be purchased from the Central Government grant because these books have also by now been purchased and distributed among the various school and college libraries. All that we can, therefore, do in this Appeal is to lay down guide-lines which should be followed in the future in selecting not only books for libraries in educational institutions but also in prescribing text-books and in constituting committees for these purposes. 8. It was, however, submitted on behalf of the Respondents that it was not necessary for this Court to lay down any guide-lines inasmuch as after the Special Leave to Appeal was granted in this case, the State Government had issued a fresh Government Resolution dated November 24, 1983, whereby it constituted a new Purchase Committee and Assessment Committee consisting of Government officials and non- official members, clause (8) of which Resolution satisfied the principles of fair play and natural justice by eliminating the possibility of any author -member of the committee influencing author-members in selecting his book. Clause (8) of the said Resolution reads as follows:"No member of the Purchase/Assessment Committee shall remain present in discussion while considering a book in which he/she is interested as author/editor/publisher." 9. In the alternative, it was submitted that if the Court desires to lay down guide-lines, it should do so by adopting clause (8) of the said Government Resolution dated November 24, 1983.We are unable to accept either of the above two submissions. Several books would come up for consideration before the committee, one or more of them by one of the members and the other or others by some o f the other members. Mere non-participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because th e evil of quid pro quo cannot be eliminated by this. Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books. 10. It was suggested on behalf of the Appellants that in laying down the guide-lines we should provide that if a publisher has published a book written by one of the members of the committee or sub-committee concerned with the selection of books, such publisher should not be permitted to submit any book for selection even though no book by that author-member had been submitted for selection. It was urged that in such a case the author-member would be favourably inclined to select or approve the book of that publisher in order to maintain good relations with him. We find this suggestion to be unrealistic. Many a person falls a victim to that disease which Jnvenal called cacoethes scriben di(the writers itch), for as Byron said in his English Bards and Scottish Reviewers:"Tis pleasant, sure, to see ones name in print; A books a book, although theres nothing int." 11. It would, therefore, be unfair to prohibit p ublishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.In the light of the above discuss ion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature:(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be s elected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit. (2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection. (3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.
### Response:
1
|
1,089 | Commissioner of Customs, Pune Vs. M/s Ballarpur Industries Ltd | Schedule to the Customs Traffic Act 1975, originated in, or exported from, Korea R.P. are chargeable to Anti-dumping Duty @ US $ 0.0689 per Kg. In view of the fact that the goods covered under five Bills of Entry referred as above ·are found as STYRENE BUTADlENE RUBBER of 1900 series as confirmed by IRMRA Test Report dated 06.03.2006 and the goods are of Korea R.P. origin, the goods become chargeable to Anti-dumping duty @ US $ Q.0689 per kg as per Notification No: 100/2004 dated· 28.09.2004. Paragraph 4 of the Notice contains similar allegations that: 4. Whereas the goods imported in question were declared as LUTEX 701 in import documents and, not as Styrene Butadiene Rubber (SBR) of 1900 Series which has been confirmed by Test Report dated 06.03.2006 from IRMRA. The importer is regular importer of subject goods and are actual users of the goods and therefore they should be well aware of the description of the goods imported and the duty liability thereon. Therefore it appeared that the Importer mis declared the description of the goods as TUTEX 701 instead of as Styrene Butadiene Rubber (SBR) of 1900 Series with the intention to evade the Anti Dumping Duty. At the time of filing of Dills of Entry, the Importer did not come up with full a.id complete description of the goods imported. If the Importer had declared the complete and proper description of the. goods at the time of filing of Bills of Entry, the Anti Dumping duty would have been levied at the time of provisional assessment. Therefore it appears to be a case of suppression of facts on the part of the Importer by not declaring proper description of the goods and mis declaring the description of the goods as LUTEX-701 against proper description as 4 Styrene Butadiene Rubber (SBR) of 1900 Series. As importer is an actual user of the goods ii question and was aware of the Anti Dumping duty notification no: 100/2004 issued on 28.09.2004 at the time of filing of import documents, it appears that the importer willfully did not declare the proper and complete description of the goods in import documents with the intention to evade the Anti dumping duty. A similar allegation was contained in the second show cause notice. The Commissioner of Customs specifically dealt with the contents of the test reports in paragraph 6.2 of the order dated 17 October 2006, which is extracted below: 6.2 As has been extracted at paras 4 and 5 supra, the said Importer has heavily argued that the Test Reports of IRMRA are Inconclusive and have sought for the cross examination of the official of the IRMRA. For the reasons recorded here under, I am not persuaded by these arguments of the said Importer. As per the facts, it may be seen that, initially, samples of Lutex 701 and Lutex 780 were drawn for tests to be done by the Dy. Chief Chemist, CCRL Nhava Sheva to ascertain (1) composition (2). percentage of Styrene, and (3) whether the goods are Styrene Butadiene Rubber of 1900 series. The Dy. Chief Chemist CRCL vide his report dated 30th June, 2005, for the product, Lutex 701, informed that the samples In the form of white coloured liquid. It Is an aqueous emulsion based on synth1tic resin - Styrene Butadiene type solid contents = , 54.5°/o. For content of Syrene, sample may be forwarded to some rubber testing laboratory Similarly, In his report dated 5th July, 2005, relating to the samples of Lutex 780 it was informed by the Dy. chief Chemist, CRCL, that The· sample is in the form of white liquid. It. is an aqueous· emulsion of Styrene Butadiene, For content of Styrene, sample may be forwarded to rubber testing laboratory; 16. The Commissioner also recorded in paragraph 6.4 that the importer had also approached IRMRA independently for testing the samples of Lutex 701 and 780 in their control. A similar finding was arrived at by IRMRA from the samples furnished by the importer. Paragraphs 6.4 of the decision of the Commissioner reads as follows : 6.4 It may be pertinent to again mention here that the said Importer themselves had also approached the IRMRA for an independent testing of the samples of Lutex 701 and Lutex 780 which were in their control and the said IRMRA, vide their Evaluation Report dated 14.09.2006, for the same goods under the control of the said Importer and which are also covered under the First Notice and the Second Notice conveyed the results thereof to the said Importer wherein the Styrene content was observed to be 64.44% and 66.75% respectively for Lutex 701 and Lutex 780. In this background, the Commissioner held: 6.5 Thus, It may be seen that when the said Importer got the Impugned goods tested on his own from the same laboratory where the department had sent the goods for ascertaining the Styrene content, in the imported Lutex 701 and Lutex 780, the styrene content was reported to be above, 60%. None of the above findings have been displaced in the order of the Tribunal. The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory. The findings of the Tribunal are contrary to the record and cannot therefore be sustained. 17. At the same time, since the Tribunal has not considered the case of the respondent in appeal on merits, we are of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose. In order to facilitate a fresh decision on remand, we have recorded the broad submissions of the contesting parties on the merits as well but leave open the matter for evaluation by the Tribunal on remand. | 1[ds]11. In the present proceedings, there is no dispute about the position that the product under consideration of the Designated Authority was SBR of 1500, 1700 and 1900 series falling under CTH 4002.19 of the Customs Tariff Act 1975 but not goods covered by the CTH 40021100. The Tribunal, as is evident from the two extracts of its decision which have been reproduced earlier came to the conclusion that:(i) No basis was indicated in the show cause notice to disturb the classification claimed by the respondent as the result of which the declaration by the respondent that the goods fell under CTH 40021100 remained untouched; and(ii) While issuing the notice to show cause, the adjudicating authority had not examined the classification based on the Laboratory report.15. The Tribunal has set aside the decision of the Commissioner of Customs on an evidently superficial evaluation of the issues raised in the appeals. The Tribunal came to the conclusion that there is no whisper of any reason in the Show Cause Notice to disturb the classification claimed by the importer. This finding is contrary to the record.None of the above findings have been displaced in the order of the Tribunal. The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory. The findings of the Tribunal are contrary to the record and cannot therefore be sustained.17. At the same time, since the Tribunal has not considered the case of the respondent in appeal on merits, we are of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose. In order to facilitate a fresh decision on remand, we have recorded the broad submissions of the contesting parties on the merits as well but leave open the matter for evaluation by the Tribunal on remand. | 1 | 3,694 | ### Instruction:
Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition?
### Input:
Schedule to the Customs Traffic Act 1975, originated in, or exported from, Korea R.P. are chargeable to Anti-dumping Duty @ US $ 0.0689 per Kg. In view of the fact that the goods covered under five Bills of Entry referred as above ·are found as STYRENE BUTADlENE RUBBER of 1900 series as confirmed by IRMRA Test Report dated 06.03.2006 and the goods are of Korea R.P. origin, the goods become chargeable to Anti-dumping duty @ US $ Q.0689 per kg as per Notification No: 100/2004 dated· 28.09.2004. Paragraph 4 of the Notice contains similar allegations that: 4. Whereas the goods imported in question were declared as LUTEX 701 in import documents and, not as Styrene Butadiene Rubber (SBR) of 1900 Series which has been confirmed by Test Report dated 06.03.2006 from IRMRA. The importer is regular importer of subject goods and are actual users of the goods and therefore they should be well aware of the description of the goods imported and the duty liability thereon. Therefore it appeared that the Importer mis declared the description of the goods as TUTEX 701 instead of as Styrene Butadiene Rubber (SBR) of 1900 Series with the intention to evade the Anti Dumping Duty. At the time of filing of Dills of Entry, the Importer did not come up with full a.id complete description of the goods imported. If the Importer had declared the complete and proper description of the. goods at the time of filing of Bills of Entry, the Anti Dumping duty would have been levied at the time of provisional assessment. Therefore it appears to be a case of suppression of facts on the part of the Importer by not declaring proper description of the goods and mis declaring the description of the goods as LUTEX-701 against proper description as 4 Styrene Butadiene Rubber (SBR) of 1900 Series. As importer is an actual user of the goods ii question and was aware of the Anti Dumping duty notification no: 100/2004 issued on 28.09.2004 at the time of filing of import documents, it appears that the importer willfully did not declare the proper and complete description of the goods in import documents with the intention to evade the Anti dumping duty. A similar allegation was contained in the second show cause notice. The Commissioner of Customs specifically dealt with the contents of the test reports in paragraph 6.2 of the order dated 17 October 2006, which is extracted below: 6.2 As has been extracted at paras 4 and 5 supra, the said Importer has heavily argued that the Test Reports of IRMRA are Inconclusive and have sought for the cross examination of the official of the IRMRA. For the reasons recorded here under, I am not persuaded by these arguments of the said Importer. As per the facts, it may be seen that, initially, samples of Lutex 701 and Lutex 780 were drawn for tests to be done by the Dy. Chief Chemist, CCRL Nhava Sheva to ascertain (1) composition (2). percentage of Styrene, and (3) whether the goods are Styrene Butadiene Rubber of 1900 series. The Dy. Chief Chemist CRCL vide his report dated 30th June, 2005, for the product, Lutex 701, informed that the samples In the form of white coloured liquid. It Is an aqueous emulsion based on synth1tic resin - Styrene Butadiene type solid contents = , 54.5°/o. For content of Syrene, sample may be forwarded to some rubber testing laboratory Similarly, In his report dated 5th July, 2005, relating to the samples of Lutex 780 it was informed by the Dy. chief Chemist, CRCL, that The· sample is in the form of white liquid. It. is an aqueous· emulsion of Styrene Butadiene, For content of Styrene, sample may be forwarded to rubber testing laboratory; 16. The Commissioner also recorded in paragraph 6.4 that the importer had also approached IRMRA independently for testing the samples of Lutex 701 and 780 in their control. A similar finding was arrived at by IRMRA from the samples furnished by the importer. Paragraphs 6.4 of the decision of the Commissioner reads as follows : 6.4 It may be pertinent to again mention here that the said Importer themselves had also approached the IRMRA for an independent testing of the samples of Lutex 701 and Lutex 780 which were in their control and the said IRMRA, vide their Evaluation Report dated 14.09.2006, for the same goods under the control of the said Importer and which are also covered under the First Notice and the Second Notice conveyed the results thereof to the said Importer wherein the Styrene content was observed to be 64.44% and 66.75% respectively for Lutex 701 and Lutex 780. In this background, the Commissioner held: 6.5 Thus, It may be seen that when the said Importer got the Impugned goods tested on his own from the same laboratory where the department had sent the goods for ascertaining the Styrene content, in the imported Lutex 701 and Lutex 780, the styrene content was reported to be above, 60%. None of the above findings have been displaced in the order of the Tribunal. The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory. The findings of the Tribunal are contrary to the record and cannot therefore be sustained. 17. At the same time, since the Tribunal has not considered the case of the respondent in appeal on merits, we are of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose. In order to facilitate a fresh decision on remand, we have recorded the broad submissions of the contesting parties on the merits as well but leave open the matter for evaluation by the Tribunal on remand.
### Response:
1
|
1,090 | Commissioner Of Income-Tax, Ahmedabad Vs. A. Abdul Rahim & Co., Baroda | is a mere trustee of the real owner and he has no beneficial interest in the property or the business of the real owner. But in law, just as in the case of a trustee, he can also enter into a partnership with others.10. If so, what is the principle of law which prohibits the benamidar of a partner from being also a partner along with the said partner with others? Qua the other partners, he has separate and real existence; he is governed by the terms of the partnership deed; his rights and liabilities are governed by the terms of the contract and by the provisions of the Partnership Act; his liability to third parties for the acts of the partnership is co-equal with that of the other partners; the other partners have no concern with the real owner; they can only look to him for enforcing their rights or discharging their obligations under the partnership deed. Any internal arrangement between him and another partner is not governed by the terms of the partnership; that arrangement operates only on the profits accruing to the benamidar; it is outside the partnership arrangement. If a benamidar possesses the legal character to enter into a partnership with another, the fact that he is accountable for his profits to, and has the right to be indemnified for his losses by, a third party or even by one of the partners does not disgorge him of the said character.11. It is true that different considerations may arise, if the partnership is only between two persons of whom one is a benamidar of the other. In that event the partnership may be bad not because the benamidar has no power to enter into the partnership but because the partnership in law is the relationship between at least two persons and in the case of a benamidar and the real owner in fact there is only one person. It may also be that in a case where a benamidar is taken as a partner with the consent of the other partners, he will only be a "dummy". We do not propose to express any final opinion on the said two questions, as they do not arise in this appeal.12. A Division Bench of the Bombay High Court in In re Central Talkies Circuit, Matunga, (1941) 9 ITR 44 at p. 52 : (AIR 1941 Bom 205 at p. 207) held that there was evidence to justify the finding of the Income-tax authorities that the alleged partnership was not a genuine partnership and that they acted rightly in refusing to register the firm. That finding was sufficient to dispose of the reference before the Court. But Beaumont, C. J., in the course of the judgment made some observations which lend support to the contention of the appellant. The learned Chief Justice said :"Speaking for myself, I should say that if it were shown that one of the partners was only a nominee of a share allotted to him or her for another partner, the deed would not then specify correctly the individual shares, I think it must specify correctly the individual and beneficial shares, because that is a matter which is relevant from the point of view of the Income-tax authorities. If the Assistant Commissioner had any evidence before him to lead to the conclusion that the mother in the case was not really entitled to a beneficial interest of 4 1/2 annas share, I think he was justified in refusing to register the deed."With great respect, we cannot agree with the said observations. If a benamidar has the character of a trustee and, therefore, can enter into partnership with another in his own name, the share allotted to him in the partnership must be held to specify correctly his individual share therein. Kania, J., as he then was, did not express any opinion on this aspect of the case. A Division Bench of the Andhra Pradesh High Court in Hiranand Ramsukh v. Commr. of Income-tax, Hyderabad (1963) 47 ITR 598 (Andh Pra), held that a person shown as a partner in a partnership deed was not a genuine partner and, therefore, the Income-tax Officer was perfectly justified in refusing to register the firm. There the assessee-firm originally consisted of 2 partners with equal share, namely, Ramprasad an Bhagwandas. After the death of Bhagwandas, Ramprasad took his aunt, Mrs. Chandrabai, and his minor son as partners. The Income-tax Officer held that both Mrs. Chandrabai and Ramprasads minor son were not genuine partners but were dummies, and they were shown merely as partners to reduce the incidence of tax. As two of the three partners were not genuine partners, the partnership itself was not genuine. Though Some of the observations in the judgment are wide, that decision does not touch the present case. The decision of the Madras High Court in P. A. Raju Chettiar v. Commr. of Income-tax, Madras (1949) 17 ITR 51 : (Al R 1949 Mad 516) , is also one where the finding was that the partnership was not a genuine one. That decision also is besides the point.13. The legal position may be stated thus : When a firm makes an application under S. 26-A of the Act for registration, the Income-tax Officer can reject the same if he comes to the conclusion that the partnership is not genuine or the instrument of partnership does not specify correctly the individual shares of the partners. But once he comes to the conclusion that the partnership is genuine and a valid one he cannot refuse registration on the ground that one of the partners is a benamidar of another. If the partnership is genuine and legal, the share given to the benamidar will be the correct specification of his individual share in the partnership. The beneficial interest in the income pertaining to the share of the said benamidar may have relevance to the matter of assessment, but none in regard to the question of registration. | 1[ds]6. In the present case the partnership was found to be a genuine one. All the formalities prescribed by the rules have been complied with. The individual shares of the partners as shown in the Instrument of Partnership have been specified in the application. Therefore, unless there is some legal impediment in the way of a benamidar of one of the partners being a partner of the firm, the Income-tax Officer would not be exercising his jurisdiction if he rejected the application forS. 2 (68) of the Act, "firm" "partner" and "partnership" have the same meanings, respectively, as in the Indian Partnership Act, 1932 (IX of 1932) : provided that the expressions "partner" includes any person who being a minor has been admitted to the benefits of partnership. Under S. 4 of the Indian Partnership Act. "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. If the partnership is genuine, as it is held in the present case, it follows that the 4 partners mentioned in the partnership deed must be held to have Agreed to share the profits of the business carried on by them in the manner specified in the document. Indeed, in the present case the Instrument of Partnership and the application for registration contain clear recitals that the 4 partners have clear and definite shares in the profits of theview of the finding given by the Tribunal that the Instrument of Partnership was genuine, it follows that it was not executed as a pretence in order to escape liability for tax, but in truth it defined the rights and liabilities of the parties between themselves.It is true that different considerations may arise, if the partnership is only between two persons of whom one is a benamidar of the other. In that event the partnership may be bad not because the benamidar has no power to enter into the partnership but because the partnership in law is the relationship between at least two persons and in the case of a benamidar and the real owner in fact there is only one person. It may also be that in a case where a benamidar is taken as a partner with the consent of the other partners, he will only be a "dummy". We do not propose to express any final opinion on the said two questions, as they do not arise in thisgreat respect, we cannot agree with the said observations. If a benamidar has the character of a trustee and, therefore, can enter into partnership with another in his own name, the share allotted to him in the partnership must be held to specify correctly his individual share therein. Kania, J., as he then was, did not express any opinion on this aspect of the case.The legal position may be stated thus : When a firm makes an application under S. 26-A of the Act for registration, the Income-tax Officer can reject the same if he comes to the conclusion that the partnership is not genuine or the instrument of partnership does not specify correctly the individual shares of the partners. But once he comes to the conclusion that the partnership is genuine and a valid one he cannot refuse registration on the ground that one of the partners is a benamidar of another. If the partnership is genuine and legal, the share given to the benamidar will be the correct specification of his individual share in the partnership. The beneficial interest in the income pertaining to the share of the said benamidar may have relevance to the matter of assessment, but none in regard to the question ofis, therefore, settled law that if a partnership is a genuine and valid one, theOfficer has no power to reject its registration if the other provisions of S.of the Act and the rules made thereunder are complieda benamidar is a mere trustee of the real owner and he has no beneficial interest in the property or the business of the real owner. But in law, just as in the case of a trustee, he can also enter into a partnership with others.10. If so, what is the principle of law which prohibits the benamidar of a partner from being also a partner along with the said partner with others? Qua the other partners, he has separate and real existence; he is governed by the terms of the partnership deed; his rights and liabilities are governed by the terms of the contract and by the provisions of the Partnership Act; his liability to third parties for the acts of the partnership iswith that of the other partners; the other partners have no concern with the real owner; they can only look to him for enforcing their rights or discharging their obligations under the partnership deed. Any internal arrangement between him and another partner is not governed by the terms of the partnership; that arrangement operates only on the profits accruing to the benamidar; it is outside the partnership arrangement. If a benamidar possesses the legal character to enter into a partnership with another, the fact that he is accountable for his profits to, and has the right to be indemnified for his losses by, a third party or even by one of the partners does not disgorge him of the said character. | 1 | 3,534 | ### 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:
is a mere trustee of the real owner and he has no beneficial interest in the property or the business of the real owner. But in law, just as in the case of a trustee, he can also enter into a partnership with others.10. If so, what is the principle of law which prohibits the benamidar of a partner from being also a partner along with the said partner with others? Qua the other partners, he has separate and real existence; he is governed by the terms of the partnership deed; his rights and liabilities are governed by the terms of the contract and by the provisions of the Partnership Act; his liability to third parties for the acts of the partnership is co-equal with that of the other partners; the other partners have no concern with the real owner; they can only look to him for enforcing their rights or discharging their obligations under the partnership deed. Any internal arrangement between him and another partner is not governed by the terms of the partnership; that arrangement operates only on the profits accruing to the benamidar; it is outside the partnership arrangement. If a benamidar possesses the legal character to enter into a partnership with another, the fact that he is accountable for his profits to, and has the right to be indemnified for his losses by, a third party or even by one of the partners does not disgorge him of the said character.11. It is true that different considerations may arise, if the partnership is only between two persons of whom one is a benamidar of the other. In that event the partnership may be bad not because the benamidar has no power to enter into the partnership but because the partnership in law is the relationship between at least two persons and in the case of a benamidar and the real owner in fact there is only one person. It may also be that in a case where a benamidar is taken as a partner with the consent of the other partners, he will only be a "dummy". We do not propose to express any final opinion on the said two questions, as they do not arise in this appeal.12. A Division Bench of the Bombay High Court in In re Central Talkies Circuit, Matunga, (1941) 9 ITR 44 at p. 52 : (AIR 1941 Bom 205 at p. 207) held that there was evidence to justify the finding of the Income-tax authorities that the alleged partnership was not a genuine partnership and that they acted rightly in refusing to register the firm. That finding was sufficient to dispose of the reference before the Court. But Beaumont, C. J., in the course of the judgment made some observations which lend support to the contention of the appellant. The learned Chief Justice said :"Speaking for myself, I should say that if it were shown that one of the partners was only a nominee of a share allotted to him or her for another partner, the deed would not then specify correctly the individual shares, I think it must specify correctly the individual and beneficial shares, because that is a matter which is relevant from the point of view of the Income-tax authorities. If the Assistant Commissioner had any evidence before him to lead to the conclusion that the mother in the case was not really entitled to a beneficial interest of 4 1/2 annas share, I think he was justified in refusing to register the deed."With great respect, we cannot agree with the said observations. If a benamidar has the character of a trustee and, therefore, can enter into partnership with another in his own name, the share allotted to him in the partnership must be held to specify correctly his individual share therein. Kania, J., as he then was, did not express any opinion on this aspect of the case. A Division Bench of the Andhra Pradesh High Court in Hiranand Ramsukh v. Commr. of Income-tax, Hyderabad (1963) 47 ITR 598 (Andh Pra), held that a person shown as a partner in a partnership deed was not a genuine partner and, therefore, the Income-tax Officer was perfectly justified in refusing to register the firm. There the assessee-firm originally consisted of 2 partners with equal share, namely, Ramprasad an Bhagwandas. After the death of Bhagwandas, Ramprasad took his aunt, Mrs. Chandrabai, and his minor son as partners. The Income-tax Officer held that both Mrs. Chandrabai and Ramprasads minor son were not genuine partners but were dummies, and they were shown merely as partners to reduce the incidence of tax. As two of the three partners were not genuine partners, the partnership itself was not genuine. Though Some of the observations in the judgment are wide, that decision does not touch the present case. The decision of the Madras High Court in P. A. Raju Chettiar v. Commr. of Income-tax, Madras (1949) 17 ITR 51 : (Al R 1949 Mad 516) , is also one where the finding was that the partnership was not a genuine one. That decision also is besides the point.13. The legal position may be stated thus : When a firm makes an application under S. 26-A of the Act for registration, the Income-tax Officer can reject the same if he comes to the conclusion that the partnership is not genuine or the instrument of partnership does not specify correctly the individual shares of the partners. But once he comes to the conclusion that the partnership is genuine and a valid one he cannot refuse registration on the ground that one of the partners is a benamidar of another. If the partnership is genuine and legal, the share given to the benamidar will be the correct specification of his individual share in the partnership. The beneficial interest in the income pertaining to the share of the said benamidar may have relevance to the matter of assessment, but none in regard to the question of registration.
### Response:
1
|
1,091 | Tata Consulting Engineers Vs. Workmen Employed and Vice-Versa | Rs. 7, 64, 256/-. The statement then goes on to indicate that if a flat increase of Rs. 75/-per month were given to individual workmen of a ll categories the total increase would be Rs. 5, 78, 220/-. Again, if the flat increase is Rs. 65/- per month to the individual workmen of all categories, the additional load would total Rs. 4, 97, 772/-. Finally, on the basis that the individual Draughtsman would be given an increase of Rs. 75/- per month and the individual workmen of other categories Rs. 50/- per month, the additional load was calculated at Rs. 4, 63, 092/-. It will be noted that the statement, Exhibit C -51, was prepared on the basis of the employees strength as in December, 1971. A similar statement was prepared on the basis of the employees strength as in September, 1978. These statements cannot be regarded as evidence that the appellant was cognizant of the intention of the Tribunal to provide a flat increase to the pay of each workman. The statement afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workman on the alternative basis set forth therein. None of the alternatives was actually adopted by the Tribunal, because when the award was made the Tribunal proceeded instead to restructure the wage scales by the addition of Rs. 150/- in the case of the category of Draughtsmen and Rs. 100/- in the case of other categories to the initial pay in the wage scales pertaining to those categories. The addition was integrated as a feature of the wage scales; it was not regarded as an add ition to the pay of each individual workman.It seems that the Tribunal was betrayed by a curious confusion in accepting the plea of the Union that a flat increase to the pay of each workman was intended in the original wage and, consequently, it fell into the error of amending the award. The evidence contained in the award throughout provides incontrovertible proof that this flat increase was never originally intended in the award. The amendment has resulted in the Tribunal m aking, as it were, a supplementary award, whereby a further relief is being granted beyond that granted in the original award. The original award was completed and signed by the Tribunal, and it cannot be reopened now except for the limited pu rpose of Rule 31. In travelling outside and beyond the terms of the original award, the Tribunal has committed a jurisdictional error. Our attention has been drawn to what purports to be an endorsement by counsel for the appellant on the application dated 22nd December, 1978 filed by the Union before the Tribunal to the effect that the appellant would submit to whatever the Tribunal decided, and it is urged that the appellant is bound by the order made on the application. It is an accepted principle that consent by a party cannot confer jurisdiction on a court. What is without jurisdiction will remain so. In the circumstances the order of 22nd December, 1978 is invalid so far as it amends paragraph 23 of the original award. The corrigendum amending the award in consequence is liable to be quashed. The second contention of the appellant is entitled to succeed.17. I shall now consider Civil Appeal No. 2300 of 1979 filed by the workmen. The only contention of th e workmen is that the Tribunal should have fixed the dearness allowance in communion with the cost of living index. It is wrong in principle, it is said, to provide a fixed dearness allowance. Reliance was placed on The Hindustan Times Ltd., New Delhi v. Their Workmen where it was observed by this Court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. Reference was also made to Bengal Chemical &Pharmaceutical Works Limited v. Its Workmen. Now, it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index. The Tribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein. It noted that dearness allowance was being granted by the appellant at 10% of the salary sub ject to a minimum of Rs. 50/- and house rent allowance at 30% of the basic salary. Having regard to the not inconsiderable improvement in the level of the basic wage, it observed that there would be a consequent increase in the dearness al lowance and house rent allowance. In view of the increase so secured, the Tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dear ness allowance was being presently granted. It declared that the cumulative effect of an improved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about Rs. 1 crore on the financial capacity of the appellant. It was open to the Tribunal to adopt the position which it did. If the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been m ade will have to be reconsidered. The award is a composite document in which the several elements of increased wage scales, larger increments, longer span of 20 years for earning increments, dearness allowance at 10% of the basic wage, besid es several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant. It is not possible to maintain one part of the award and supersede another.Accordingly, the appeal filed by the workmen must fail.18. | 1[ds]In its order of 22nd December, 1978, the Tribunal has referred to the statement (Exhibit C-51) filed by the appellant when called upon to indicate the increased financial burden apprehended by it. The Tribunal has relied on this statement as evidence showing that the appellant knew that a flat increase of Rs. 150/- and Rs. 100/-was intended to each of the employees in the category of Draughtsmen and the other categories. In so construing the statement, Exhibit C- 51, the Tribunal has grievously erred. It seems from a perusal of the document, Exhibit C-51, that it is a statement giving trial figures of the increased financial load on different bases. On the basis that a sum of Rs. 150/- per month was add ed to the pay of each Draughtsman and a sum of Rs. 100/- was added to the pay of every other workman, who belonged to the Union staff, the financial load would increase to Rs. 9, 22, 032/-. Likewise, if a flat increase of Rs. 100/- was given to individual workmen of all categories, including Draughtsmen, the increased financial load would total Rs. 7, 64, 256/-. The statement then goes on to indicate that if a flat increase of Rs. 75/-per month were given to individual workmen of a ll categories the total increase would be Rs. 5, 78, 220/-. Again, if the flat increase is Rs. 65/- per month to the individual workmen of all categories, the additional load would total Rs. 4, 97, 772/-. Finally, on the basis that the individual Draughtsman would be given an increase of Rs. 75/- per month and the individual workmen of other categories Rs. 50/- per month, the additional load was calculated at Rs. 4, 63, 092/-. It will be noted that the statement, Exhibit C -51, was prepared on the basis of the employees strength as in December, 1971. A similar statement was prepared on the basis of the employees strength as in September, 1978. These statements cannot be regarded as evidence that the appellant was cognizant of the intention of the Tribunal to provide a flat increase to the pay of each workman. The statement afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workman on the alternative basis set forth therein. None of the alternatives was actually adopted by the Tribunal, because when the award was made the Tribunal proceeded instead to restructure the wage scales by the addition of Rs. 150/- in the case of the category of Draughtsmen and Rs. 100/- in the case of other categories to the initial pay in the wage scales pertaining to those categories. The addition was integrated as a feature of the wage scales; it was not regarded as an add ition to the pay of each individual workman.It seems that the Tribunal was betrayed by a curious confusion in accepting the plea of the Union that a flat increase to the pay of each workman was intended in the original wage and, consequently, it fell into the error of amending the award. The evidence contained in the award throughout provides incontrovertible proof that this flat increase was never originally intended in the award. The amendment has resulted in the Tribunal m aking, as it were, a supplementary award, whereby a further relief is being granted beyond that granted in the original award. The original award was completed and signed by the Tribunal, and it cannot be reopened now except for the limited pu rpose of Rule 31. In travelling outside and beyond the terms of the original award, the Tribunal has committed a jurisdictional error. Our attention has been drawn to what purports to be an endorsement by counsel for the appellant on the application dated 22nd December, 1978 filed by the Union before the Tribunal to the effect that the appellant would submit to whatever the Tribunal decided, and it is urged that the appellant is bound by the order made on the application. It is an accepted principle that consent by a party cannot confer jurisdiction on a court. What is without jurisdiction will remain so. In the circumstances the order of 22nd December, 1978 is invalid so far as it amends paragraph 23 of the original award. The corrigendum amending the award in consequence is liable to be quashed. The second contention of the appellant is entitled toTribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein. It noted that dearness allowance was being granted by the appellant at 10% of the salary sub ject to a minimum of Rs. 50/- and house rent allowance at 30% of the basic salary. Having regard to the not inconsiderable improvement in the level of the basic wage, it observed that there would be a consequent increase in the dearness al lowance and house rent allowance. In view of the increase so secured, the Tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dear ness allowance was being presently granted. It declared that the cumulative effect of an improved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about Rs. 1 crore on the financial capacity of the appellant. It was open to the Tribunal to adopt the position which it did. If the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been m ade will have to be reconsidered. The award is a composite document in which the several elements of increased wage scales, larger increments, longer span of 20 years for earning increments, dearness allowance at 10% of the basic wage, besid es several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant. It is not possible to maintain one part of the award and supersede another.Accordingly, the appeal filed by the workmen must fail. | 1 | 5,069 | ### 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:
Rs. 7, 64, 256/-. The statement then goes on to indicate that if a flat increase of Rs. 75/-per month were given to individual workmen of a ll categories the total increase would be Rs. 5, 78, 220/-. Again, if the flat increase is Rs. 65/- per month to the individual workmen of all categories, the additional load would total Rs. 4, 97, 772/-. Finally, on the basis that the individual Draughtsman would be given an increase of Rs. 75/- per month and the individual workmen of other categories Rs. 50/- per month, the additional load was calculated at Rs. 4, 63, 092/-. It will be noted that the statement, Exhibit C -51, was prepared on the basis of the employees strength as in December, 1971. A similar statement was prepared on the basis of the employees strength as in September, 1978. These statements cannot be regarded as evidence that the appellant was cognizant of the intention of the Tribunal to provide a flat increase to the pay of each workman. The statement afforded an indication merely of what the additional financial load would be if a flat increase was given to the individual workman on the alternative basis set forth therein. None of the alternatives was actually adopted by the Tribunal, because when the award was made the Tribunal proceeded instead to restructure the wage scales by the addition of Rs. 150/- in the case of the category of Draughtsmen and Rs. 100/- in the case of other categories to the initial pay in the wage scales pertaining to those categories. The addition was integrated as a feature of the wage scales; it was not regarded as an add ition to the pay of each individual workman.It seems that the Tribunal was betrayed by a curious confusion in accepting the plea of the Union that a flat increase to the pay of each workman was intended in the original wage and, consequently, it fell into the error of amending the award. The evidence contained in the award throughout provides incontrovertible proof that this flat increase was never originally intended in the award. The amendment has resulted in the Tribunal m aking, as it were, a supplementary award, whereby a further relief is being granted beyond that granted in the original award. The original award was completed and signed by the Tribunal, and it cannot be reopened now except for the limited pu rpose of Rule 31. In travelling outside and beyond the terms of the original award, the Tribunal has committed a jurisdictional error. Our attention has been drawn to what purports to be an endorsement by counsel for the appellant on the application dated 22nd December, 1978 filed by the Union before the Tribunal to the effect that the appellant would submit to whatever the Tribunal decided, and it is urged that the appellant is bound by the order made on the application. It is an accepted principle that consent by a party cannot confer jurisdiction on a court. What is without jurisdiction will remain so. In the circumstances the order of 22nd December, 1978 is invalid so far as it amends paragraph 23 of the original award. The corrigendum amending the award in consequence is liable to be quashed. The second contention of the appellant is entitled to succeed.17. I shall now consider Civil Appeal No. 2300 of 1979 filed by the workmen. The only contention of th e workmen is that the Tribunal should have fixed the dearness allowance in communion with the cost of living index. It is wrong in principle, it is said, to provide a fixed dearness allowance. Reliance was placed on The Hindustan Times Ltd., New Delhi v. Their Workmen where it was observed by this Court that dearness allowance should not remain fixed at any figure but should be on a sliding scale in order to neutralise a portion of the increase in the cost of living. Reference was also made to Bengal Chemical &Pharmaceutical Works Limited v. Its Workmen. Now, it is not a universal rule that the dearness allowance should in all cases be correlated with the cost of living index. The Tribunal, in the present case, considered the matter and found it sufficient and in accord with justice that the wage scales should be restructured with suitable increments provided therein. It noted that dearness allowance was being granted by the appellant at 10% of the salary sub ject to a minimum of Rs. 50/- and house rent allowance at 30% of the basic salary. Having regard to the not inconsiderable improvement in the level of the basic wage, it observed that there would be a consequent increase in the dearness al lowance and house rent allowance. In view of the increase so secured, the Tribunal rejected the suggestion that a slab system should be introduced in the dearness allowance or that there should be any other modification of the principle on which dear ness allowance was being presently granted. It declared that the cumulative effect of an improved wage structure together with dearness allowance operating on a slab system would throw an impossible burden of about Rs. 1 crore on the financial capacity of the appellant. It was open to the Tribunal to adopt the position which it did. If the dearness allowance is linked with the cost of living index the whole award will have to be reopened and the entire basis on which it has been m ade will have to be reconsidered. The award is a composite document in which the several elements of increased wage scales, larger increments, longer span of 20 years for earning increments, dearness allowance at 10% of the basic wage, besid es several other benefits, have been integrated into a balanced arrangement in keeping with what the Tribunal has found to be the financial capacity of the appellant. It is not possible to maintain one part of the award and supersede another.Accordingly, the appeal filed by the workmen must fail.18.
### Response:
1
|
1,092 | M/s. Ramchand Jagadish Chand Vs. Union of India & Others | was exported, substantially exceeded the rate of Rs. 1.50 nP. per yard of 36" width. In the circumstances, we would not be justified in assuming that the Committee made an arbitrary decision in arriving at the value of the bush shirt cloth exported for the purpose of recommending the grant of import licence.15. The contention that the order passed by the Controller granting a licence only for 45% of the value of the goods exported infringes the fundamental right of the petitioners under Art. 19(1) (g) by imposing an unreasonable restriction cannot therefore be sustained.16. Does the fact that the petitioners have been granted licence approximately, for 45% of the total value of the goods exported amount to discrimination entitling them to protection of Art. 14 of the Constitution? Under the Export Promotion Scheme, the petitioners have exported art silk goods of the value of Rs. 7,07.709.55 nP. and may in the normal course have been entitled to import licence for 100 % of the value of the goods exported unless there was a reduction in the value of the licence for imports on account of certain circumstances such as general deterioration of the foreign exchange position or necessity to conserve a particular currency or other circumstances justifying a departure from the maxima set out in C1. 2 of appendix 42 of the Export Promotion Scheme. The reduction may also be justified on grounds personal to the petitioners or to a group to which they belonged. Any malpractice or underhand dealing may warrant such a reduction.17. It was the case of the respondents that many exporters were guilty of malpractices and with a view either to speculate in art silk goods or to repatriate unlawfully foreign assests, the value of the goods exported was unduly inflated. In the order passed by the Committee appointed by the Government of India, dealing with the case of the petitioners, it was observed that the petitioners had business relations with certain firms and that the rates at which bush shirt cloth were purchased varied from Rs. 3.87 to Rs. 3.92 nP. The Committee was not satisfied that the documentary evidence produced by the petitioners related to the goods exported by them. These findings disclosed that, in the view of the Committee, there was reason to believe that the claim of the petitioners that they had purchased goods approximately for the prices at which they were exported, was not made out. The Committee accordingly recommended that the value of bush shirt, cloth" should be computed at the rate of Rs. 1.50 nP. per yard. It is true that there is no definite evidence on the record indicating that that was the current market rate, but the court may be justified in holding that the members of the Committee who were vitally concerned with the trade in artsilk goods were conversant with the current market rates of the cloth which was exported by the petitioners.18. Counsel for the Union has placed before us in the course of the hearing the resort of the Committee in respect of seven out of the eight exporters who the petitioners claimed had been given import licence for the full value of the exports. The report of the Committee with regard to M/s. Rajasthan Exporters and Importers, Calcutta is not placed before us on the plea that it is not immediately available. On a perusal of the report of the Committee with regard to other exporters, it may be stated that the claim of the petitioners that Raghunath Rai Piyarilal were given import licence for the full value of the goods exported is not correct. It appears from the record that only 40 % of the F.O.B value was to be taken for "Glass Nylon dyed" exported in respect of application No. 36. Similarly, in respect of application No. 35, 40% of the F.O.B. value was to be taken for the purpose of granting import licences. It is true that in the cases of the other importers Premuskhdass Sitaram, Indian Exporters and Importers Corporation, M/s. Universal Watch Emporium, M/s. Jawahar Knitting Hosiery, M/s. Vastralaya Ltd., and M/s. Agarwala Trading Co. Ltd., the Committee have recommended acceptance of the purchase prices submitted by the exporters in granting Import licences. It may therefore, be assumed that these importers were given licence for 100% of the export value of the goods. But the Committee have given reasons which appear to be prima facie good for accepting the claims of these exporters. If, on the materials placed before them, the Committee were satisfied that there was some misconduct or under- hand dealing on the part of the petitioners, or that the evidence led before them justified the Committee in holding that the goods exported were not of the value claimed by the petitioners in their invoices, an order recommending that import licence may be granted for the value of bush shirt cloth computed on the basis of Rs. 1-50 nP. per yard does not amount to discriminatory treatment of the petitioners. Article 14 confers a guarantee of the equal protection of the laws - a guarantee against arbitrary discrimination between persons similarly circumstanced. On the materials placed before the Committee, there was evidence to show that the record produced by the petitioners was unsatisfactory; they were not satisfied that the prices which the petitioners said they had paid for purchasing the goods were in truth paid. If there was evidence to show that in respect of other persons who were in the opinion of the Committee found also to have inflated the prices in the manner adopted by the petitioners and still the Controller had granted import licences to those persons for the full amount of the export value or a percentage substantially in excess of the percentage for which import licence was granted to the petitioners, a case of discrimination could have been made out; but in the absence of such evidence, we do not think that any case of discrimination is made out. | 0[ds]authority to grant or refuse to gram licences is conferred upon high officers of the State and the grant of licences is governed by the Import Trade Control Policy which is issued from time to time and detailed provisions are made in the Imports (Control) Order setting out the grounds on which licences may be refused amended, suspended or cancelled (see Cls. 6 to 9 of the order). Provision to afford a hearing to the licencee before action is taken under Cls. 6 to 9 is also made. It cannot therefore be said that the power conferred is uncanalised orclause invests the Controller with authority, it does not impose an obligation upon him enforceable at the instance of the exporter, to issue a licence for the amount (subject to the maximum prescribed) claimed by the exporter. The power is plainly discretionary. It is true that the discretion has to be exercised reasonably and not arbitrarily The licensing authority would normally issue an import licence for 100% of the value of the goods exported, but having regard to special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interest of the State import licences for a smaller percentage may be granted to the exporters. But by the use of the expression "upto the following percentage of the rupee equivalent" power to fix arbitrarily a percentage of the value of the goods exported for awarding an import licence is not granted.9. In granting a licence to the petitioners for Rs. 3,19,354 has the authority been exercised arbitrarily or is it supported by some reasonably discermible principle ? Ram Murth Sharma Deputy Chief Controller of Imports and Exports in his affidavit stated that of the Export Promotion Scheme wrongful advantage was taken by some exporters of artsilk fabrics: it was found by the Government of India that invoice values or artificial silk fabrics were inflated by the exporters by more than 100% of the value with the object of importing "speculative commodities like artificial silkindex number of wholesale price n India in respect of "silk and reyon fabrics during the month of June, 1957, was 85 and during the month of March, 1959 it rose to 95.7 only thus showing a rise of about 11%. Against this rise, the rise in the price invoiced by the exporters showed a rise of over 125% during the span of the same period. This will clearly show that the aforesaid rise was shown by merchants merely with a view to get licences for higher value for the import of speculative item like "Art Silkappears therefore that some exporters under cover of the Export Promotion Scheme by inflating the prices were found not only to import speculative varieties of goods for very much larger values than the real prices justified, but were suspected by the authorities even to repatriate foreign assets without disclosing the same to the State as required by law. It cannot therefore be said that the power granted to the licensing authorities to grant licences only upto the maximum specified in C1. 2 is by itself an unreasonable restriction; nor will the notification directing scrutiny of all applications amount to imposing an unreasonablereduction may also be justified on grounds personal to the petitioners or to a group to which they belonged. Any malpractice or underhand dealing may warrant such ais true that there is no definite evidence on the record indicating that that was the current market rate, but the court may be justified in holding that the members of the Committee who were vitally concerned with the trade in artsilk goods were conversant with the current market rates of the cloth which was exported by thethe materials placed before the Committee, there was evidence to show that the record produced by the petitioners was unsatisfactory; they were not satisfied that the prices which the petitioners said they had paid for purchasing the goods were in truth paid. If there was evidence to show that in respect of other persons who were in the opinion of the Committee found also to have inflated the prices in the manner adopted by the petitioners and still the Controller had granted import licences to those persons for the full amount of the export value or a percentage substantially in excess of the percentage for which import licence was granted to the petitioners, a case of discrimination could have been made out; but in the absence of such evidence, we do not think that any case of discrimination is made out. | 0 | 4,538 | ### 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:
was exported, substantially exceeded the rate of Rs. 1.50 nP. per yard of 36" width. In the circumstances, we would not be justified in assuming that the Committee made an arbitrary decision in arriving at the value of the bush shirt cloth exported for the purpose of recommending the grant of import licence.15. The contention that the order passed by the Controller granting a licence only for 45% of the value of the goods exported infringes the fundamental right of the petitioners under Art. 19(1) (g) by imposing an unreasonable restriction cannot therefore be sustained.16. Does the fact that the petitioners have been granted licence approximately, for 45% of the total value of the goods exported amount to discrimination entitling them to protection of Art. 14 of the Constitution? Under the Export Promotion Scheme, the petitioners have exported art silk goods of the value of Rs. 7,07.709.55 nP. and may in the normal course have been entitled to import licence for 100 % of the value of the goods exported unless there was a reduction in the value of the licence for imports on account of certain circumstances such as general deterioration of the foreign exchange position or necessity to conserve a particular currency or other circumstances justifying a departure from the maxima set out in C1. 2 of appendix 42 of the Export Promotion Scheme. The reduction may also be justified on grounds personal to the petitioners or to a group to which they belonged. Any malpractice or underhand dealing may warrant such a reduction.17. It was the case of the respondents that many exporters were guilty of malpractices and with a view either to speculate in art silk goods or to repatriate unlawfully foreign assests, the value of the goods exported was unduly inflated. In the order passed by the Committee appointed by the Government of India, dealing with the case of the petitioners, it was observed that the petitioners had business relations with certain firms and that the rates at which bush shirt cloth were purchased varied from Rs. 3.87 to Rs. 3.92 nP. The Committee was not satisfied that the documentary evidence produced by the petitioners related to the goods exported by them. These findings disclosed that, in the view of the Committee, there was reason to believe that the claim of the petitioners that they had purchased goods approximately for the prices at which they were exported, was not made out. The Committee accordingly recommended that the value of bush shirt, cloth" should be computed at the rate of Rs. 1.50 nP. per yard. It is true that there is no definite evidence on the record indicating that that was the current market rate, but the court may be justified in holding that the members of the Committee who were vitally concerned with the trade in artsilk goods were conversant with the current market rates of the cloth which was exported by the petitioners.18. Counsel for the Union has placed before us in the course of the hearing the resort of the Committee in respect of seven out of the eight exporters who the petitioners claimed had been given import licence for the full value of the exports. The report of the Committee with regard to M/s. Rajasthan Exporters and Importers, Calcutta is not placed before us on the plea that it is not immediately available. On a perusal of the report of the Committee with regard to other exporters, it may be stated that the claim of the petitioners that Raghunath Rai Piyarilal were given import licence for the full value of the goods exported is not correct. It appears from the record that only 40 % of the F.O.B value was to be taken for "Glass Nylon dyed" exported in respect of application No. 36. Similarly, in respect of application No. 35, 40% of the F.O.B. value was to be taken for the purpose of granting import licences. It is true that in the cases of the other importers Premuskhdass Sitaram, Indian Exporters and Importers Corporation, M/s. Universal Watch Emporium, M/s. Jawahar Knitting Hosiery, M/s. Vastralaya Ltd., and M/s. Agarwala Trading Co. Ltd., the Committee have recommended acceptance of the purchase prices submitted by the exporters in granting Import licences. It may therefore, be assumed that these importers were given licence for 100% of the export value of the goods. But the Committee have given reasons which appear to be prima facie good for accepting the claims of these exporters. If, on the materials placed before them, the Committee were satisfied that there was some misconduct or under- hand dealing on the part of the petitioners, or that the evidence led before them justified the Committee in holding that the goods exported were not of the value claimed by the petitioners in their invoices, an order recommending that import licence may be granted for the value of bush shirt cloth computed on the basis of Rs. 1-50 nP. per yard does not amount to discriminatory treatment of the petitioners. Article 14 confers a guarantee of the equal protection of the laws - a guarantee against arbitrary discrimination between persons similarly circumstanced. On the materials placed before the Committee, there was evidence to show that the record produced by the petitioners was unsatisfactory; they were not satisfied that the prices which the petitioners said they had paid for purchasing the goods were in truth paid. If there was evidence to show that in respect of other persons who were in the opinion of the Committee found also to have inflated the prices in the manner adopted by the petitioners and still the Controller had granted import licences to those persons for the full amount of the export value or a percentage substantially in excess of the percentage for which import licence was granted to the petitioners, a case of discrimination could have been made out; but in the absence of such evidence, we do not think that any case of discrimination is made out.
### Response:
0
|
1,093 | M/s. Shree Sidhbali Steels Ltd. & Others Vs. State of U.P. & Others | that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff rates. 21. Another question, which needs to be answered, is whether the Court of law would be justified in interfering with the policy decision of the Government either to grant or not to grant rebate to certain industrial units. From the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical location. 22. Mr. Shanti Bhushan, learned counsel for the petitioners, argued that under Section 12 of the Act of 1999 the State Government was entitled to issue policy directions to the Regulatory Commission just as it had earlier power to issue policy directions to the U.P. State Electricity Board under Section 78 of the Act of 1948. It is true that the State Government has power to issue policy directions to the Commission under the new Act. Therefore, the next question which arises for consideration is whether such a policy direction in fact was given by the State Government to the Regulatory Commission and the answer is obviously No. There is no manner of doubt that the State Government could have issued direction regarding subsidy to be made available by the State Government to the licensee. However, on February 3, 2010, when the Special Leave Petition was listed for hearing before this Court, the Court had directed the learned counsel for the State of Uttarakhand to seek instructions from the Government whether the State Government was still willing to extend subsidy of development rebate of 33.33% to the industrial units set up in hill area, as was done by the erstwhile State Government of Uttar Pradesh. Accordingly, the learned counsel for the State of Uttarakhand had taken appropriate instructions and as mentioned earlier, filed a short affidavit on April 19, 2010 for consideration of the Court. In the said affidavit it is specifically mentioned that with an objective to accelerate the pace of industrial development in remote and backward hill region and to remove economic backwardness of the hill region by generating the employment opportunities with the possibility to check the brain drain from this area and keeping in view the uneven geographical situation, the environmental and social conditions, the Government of Uttarakhand has framed Special Integration Industrial Development Policy for hills and remote areas of Uttarakhand, but as far as power concession to new industrial units is concerned, the aforesaid policy does not provide for any concession to the steel industries established in the State because it was not considered necessary in the larger public interest to grant such subsidy. In the said affidavit it is mentioned that in view of lack of provision in the industrial development policy, the concession of Hill Development Rebate of 33.33% earlier granted by the Uttar Pradesh Government cannot be extended to the steel industries in the State of Uttarakhand. Whether to grant rebate to certain industrial units located in an area is basically and essentially a policy decision. The policy decision as reflected in the affidavit dated April 19, 2010 filed by Nitesh Kumar Jha, Additional Secretary, Government of Uttarakhand, Department of Energy, is neither found to be unreasonable nor found to be arbitrary in any manner. The Special Integration Policy introduced by the State of Uttarakhand for hills and remote areas of Uttarakhand is not subject-matter of challenge by the petitioners in the present writ petition. Grant of power concession to new industrial units is not found by the State Government to be in larger public interest. This Court, while exercising powers under Article 32 of the Constitution, cannot substitute the opinion and/or view of the Government and come to the conclusion that power concession to new steel industries is in the larger public interest and, therefore, should be made available to the new steel industries. Such a course is not permissible at all. The policy having not been found either arbitrary, capricious or unreasonable, this Court cannot interfere with the policy decision of the State Government. As observed earlier, there is nothing on record to show that any policy direction was given by the State of Uttarakhand to the Electricity Regulatory Commission to provide for rebate to industrial units situated in the hill area. The policy of the State Government in not granting rebate to industrial units situated in a particular area is basically a fiscal decision and in absence of arbitrariness of unreasonableness in the said policy, it cannot be a subject-matter of judicial review of this Court while exercising powers under Article 32 of the Constitution. Therefore, this Court holds that no case is made out by the petitioners to interfere with the said policy. | 1[ds]From the principle enunciated in the above mentioned decision there is no manner of doubt that the rebate which was granted to the petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity Supply Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff, they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was grantedSo far as, merits of the matter is concerned, it is stated that the notification dated 07.08.2000 is neither illegal nor arbitrary nor discriminatory nor hit by the principle of promissory estoppel and the reliance placed upon the decision dated 25.05.2000 rendered by the High Court in Writ Petition No.3 of 1999 is misconceived as the same is subject matter of challenge in the pending SLPs. According to the reply, during the pendency of SLP filed by the respondent UP Power Corporation Limited, the UP Electricity Regulatory Commission framed a new tariff in exercise of statutory powers and directed the respondents to enforce the same and therefore the respondents to enforce the same and therefore the respondents who are bound to enforce the tariff, have enforced the same vide notification dated 07.08.2000. It is claimed that tariff revision made under the statutory powers has nothing to do with the interim order dated 28.07.2000 passed by this Court in the SLPs filed by the U.P. Power Corporation Limited and the High Court is wrong in allowing the Writ Petitions and directed that 33.33% rebate should be given to the petitioners, when the entire tariff is changed and total financial burden on the petitioners is less than 5% of tariff. After asserting that the Kotdwar is practically situated in plain area and very near to to Najibabad, it is stated that the claim of high cost advanced by the petitioners is not genuine. In the reply it is emphasized that the tariff was revised to minimize the theft of electricity which was prevalent amongst large and heavy consumers like petitioners and in fact rates enforced with effect from 18.06.1998 were more favourable to the petitioners but they were not satisfied with the said tariff and therefore had filed writ petition in the High Court from which the SLP No.6 of 2000 have arisen. Another affidavit dated 26.12.2000 is also filed by Mr. N.N. Srivastava clarifying certain aspects of the matter. In the additional reply, different provisions of U.P. Electricity Regulatory Commission Act and U.P. Electricity Reforms Act, 1999 are adverted to and it is claimed that in view of Section 7(a) of the Act, the tariff as framed by the U.P. State Electricity Board is applicable to the petitioners and they having undertaken to pay the electricity charges as per the rules/tariff determined by UP State Electricity Board from time to time, the petition is not maintainable. It is also asserted in the reply that when the Regulatory Commission has held that no development rebate is to be given to a consumer, the Corporation has no authority at all to grant any development rebate and, therefore, the petitioners are not entitled to the reliefs claimed in the petitionA company not being a citizen has no Fundamental Right under Article 19. When a law infringes the Fundamental Right of a company, a shareholder cannot normally apply under Article 32 for enforcement of companys Fundamental Right as in the eye of law two are distinct entities. A corporation in law is equal to a natural person and has legal entity of its own. The entity of a corporation is entirely separate from that of its shareholder applying the doctrine of piercing or lifting of veil and it cannot be said that the petition by corporation is a petition by the shareholder. It is important to mention that the petitioners are the companies registered under the provisions of the Companies Act, 1956. It is well settled that a company cannot maintain a petition under Article 32 of the Constitution for enforcement of Fundamental Rights guaranteed under Article 19 of the Constitution. A company, being not a citizen, has no Fundamental Rights under Article 19 of the Constitution. Nonetheless the companies would be entitled to claim right under Article 14 of the Constitution and, therefore, it would be relevant to examine whether the respondents have committed breach of Article 14 by withdrawing the concession in electricity rates given/granted earlierAs noticed earlier, the Civil Appeals arising out of SLPs filed by UP State Power Corporation were notified for hearing with the instant writ petition. It is difficult to fathom the reason, which promptedg of the writ petition when Civil Appeals were heard on merits. The petitioners could neither offer any plausible explanation nor could they point out the relevant circumstances which resulted into theg of the instant writ petition from the civil appeals. There is no manner of doubt that certain observations made in paragraphs 34 and 36 quoted above from the reported decision are against the present petitioners but the Court also held that all the benefits which were being given to entrepreneurs shall stand protected before coming into force of the Act of 1999 on the principle of promissory estoppel. Therefore, this Court will have to consider the question whether the reasoning adopted by the Division Bench for coming to the said conclusion is legal, though it was made clear to all the learned counsel for the parties that the instant Writ Petition cannot be treated as an appeal against the decision dated December 10, 2007 rendered by the two learned Judges of this Court in Civil Appeal Nos.11. In view of the observations made by the Division Bench of this Court in the reported decisions, the questions that fall for consideration of this larger Bench are whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification and whether the principles of promissory estoppel would be applicable in a case where concessions/rebates given by a statutory notification are subsequently withdrawn by another statutory notification. It is an admitted position that the notification dated June 28, 1996, granting rebate to the industries set up in hill areas, was issued in exercise of powers conferred by Section 49 of Electricity (Supply) Act, 1948. By the said notification rebate in electricity charges to the extent of 33.33% was given to the industries, which were set up in the hill areas during the specified period. It is also an admitted position that thereafter, by notifications dated June 18, 1998 and January 25, 1999, issued in exercise of the powers conferred by Section 49 of the Act of 1948, the percentage of rebate granted by the earlier notification was reduced to 17%. However, by notification dated August 7, 2000 the benefit, which was granted to the industries set up in the hill areas regarding rebate in the electricity charges, was completely withdrawn. What is relevant to notice is that it is not in dispute that the notification dated August 7, 2000 withdrawing the benefits granted earlier, was issued in exercise of powers conferred by Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999. The above mentioned fact makes it evident that the benefits, which were granted and/or curtailed in exercise of statutory powers, were subsequently withdrawn in exercise of another statutory power conferred by another statute, namely, Uttar Pradesh Electricity Reforms Act, 1999. In the light of above mentioned facts, the question whether principle of promissory estoppel would apply to exercise of statutory powers will have to be considered. The doctrine of promissory estoppel is by now well recongized and well defined by catena of decisions of this Court. Where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 229 of the Constitution. The rule of promissory estoppel being an equitable doctrine has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. This doctrine is a principle evolved by equity, to avoid injustice and though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. For application of doctrine of promissory estoppel the promisee must establish that he suffered in detriment or altered his position by reliance on the promise. Normally, the doctrine of promissory estoppel is being applied against the Government and defence based on executive necessity would not be accepted by the Court. However, if it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. Where public interest warrants, the principles of promissory estoppel cannot be invoked. Government can change the policy in public interest. However, it is well settled that taking cue from this doctrine, the authority cannot be compelled to do something which is not allowed by law or prohibited by law. There is no promissory estoppel against the settled proposition of law. Doctrine of promissory estoppel cannot be invoked for enforcement of a promise made contrary to law, because none can be compelled to act against the statute. Thus, the Government or public authority cannot be compelled to make a provision which is contrary of law. Having noticed salient features of the principle of promissory estoppel it would be relevant to refer to certain observations made by the two Judge Bench of this Court in U.P. Power Corporation Ltd. and another vs. Sant Steel and Alloys (P) Ltd. (supra). In the said decision the Court has observed in paragraph 33 of the reported decision as under:A critical analysis of the above quoted passage makes it evident that the two Judge Bench was of the view that notification issued under Section 49 of the Act of 1948 can be revoked/modified only if express provision was made for the revocation/modification of the said notification under Section 49 itself and the Court found that as there was no such provision contained in Section 49, it was not open to the Corporation to revoke the same. Further, though the Court made reference to General Clauses Act, it added that the provisions of General Clauses Act would be applicable in case of delegated legislation if withdrawal/curtailment of benefit was in larger public interest or if the legislation was enacted by the Legislature authorizing the Government to withdraw/curtail the benefit granted by a notification. Under the circumstances the two notifications curtailing the benefit to 17% were treated as contrary to Section 49 of the Act of 1948. On review of the law on the subject and the relevant statutory provisions, this Court finds that, for the reasons mentioned hereinafter, the above statement of law is not an accurate proposition of law14. There being nothing repugnant to raising of public revenue in exercise of sovereign power of State of impose and collect taxes including electricity duty, in any provision of the Act of 1948 or the policy statement made in the notification granting rebate, the raising of public revenue by withdrawing or reducing exemption, cannot be said to be against the provisions of any statute. It is relevant to notice that the new industrial units, which were being established in the hill areas, could not have compelled the Government to exercise power under Section 49 of the Act of 1948 in their favour, for grant of rebate/concession in electricity tariff. Powers under Section 49 normally would be exercised by the State Government for industrial growth of an area and to generate employment opportunities for those who are residing in the area. However, on change in the circumstances, the Government can always reconsider the matter and can either curtail or withdraw the benefit granted earlier. This Court finds that the proposition of law laid down by the two Judge Bench in the decision mentioned above is too wide and has tendency to make Section 21 of the General Clauses Act, 1897, inoperative. The concept of the larger public interest introduced, before invocation of Section 21 of the General Clauses Act, in fact, amounts to amendment of the said provision, as notifications dated June 18, 1998 and January 25, 1999, issued under Section 49 of the Act of 1948, as well as notification dated August 7, 2000, issued under Section 24 of the Uttar Pradesh Electricity Reforms Act, 1999, are in the nature of legislations and, therefore, the principle of promissory estoppel would not apply to themFrom the principle enunciated in the above mentioned decision there is no manner of doubt that the rebate which was granted to the petitioners, was, by definition, a freedom from an obligation which the appellants otherwise were liable to discharge. The rebate was a privilege granting an advantage which was not made available to others. The rebate granted under Section 49 of the Electricity Supply Act of 1948 was, therefore, a concession granted by the State Government so that the beneficiaries of such concessions were not required to pay the electricity tariff, they were otherwise liable to pay under the said Act during the period of its grant. The petitioners, as recipients of concession, accepted to enjoy the benefits of the concession during the period of its grant. This right to enjoy was a defeasible one in the sense that it was liable to be taken away or withdrawn in exercise of the very power under which the exemption was granted18. From the above discussion, it is clear that the petitioners cannot raise plea of estoppel against the notification dated August 7, 2000 reducing Hill Development Rebate to 0% as there can be no estoppel against the statute20. It is pertinent to notice that before starting the industrial units, the petitioners had entered into agreement units, the petitioners had entered into agreement with the then U.P. State Electricity Board. Clause 7 of this agreement provided that the rates/tariff fixed/revised by the supplier, i.e., the respondent No.2 from time to time, will be applicable to the petitionersThe petitioners being parties to the agreement now cannot turn around and argue that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff ratesFrom the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical locationIt is true that the State Government has power to issue policy directions to the Commission under the new Act. | 1 | 10,286 | ### 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:
that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff rates. 21. Another question, which needs to be answered, is whether the Court of law would be justified in interfering with the policy decision of the Government either to grant or not to grant rebate to certain industrial units. From the record of the case, it is evident that before August 8, 2000, the U.P. State Electricity Board had power to frame/fix tariff under Section 49 of the Electricity (Supply) Act, 1948. However, thereafter tariff was determined and is being determined by U.P. Electricity Regulatory Commission under the provisions of U.P. Electricity Reforms Act, 1999. What is relevant to notice is that earlier the U.P. State Electricity Board had power to make/fix a tariff other than the uniform tariff contemplated under Section 49(3) of the Act of 1948 for the electricity to be supplied to its consumers having regard to the geographical position of any area. However, this power was not conferred on U.P. Electricity Regulatory Commission under the Act of U.P. Electricity Reforms Act, 1999. As the power to fix/prescribe the different rates of tariff in relation to geographical area is not provided and/or is not available under Section 24 of the Act of 1999, this Court is of the opinion that the Regulatory Commission could not have issued such differential tariff giving rebate to certain industries set up having particular geographical location. 22. Mr. Shanti Bhushan, learned counsel for the petitioners, argued that under Section 12 of the Act of 1999 the State Government was entitled to issue policy directions to the Regulatory Commission just as it had earlier power to issue policy directions to the U.P. State Electricity Board under Section 78 of the Act of 1948. It is true that the State Government has power to issue policy directions to the Commission under the new Act. Therefore, the next question which arises for consideration is whether such a policy direction in fact was given by the State Government to the Regulatory Commission and the answer is obviously No. There is no manner of doubt that the State Government could have issued direction regarding subsidy to be made available by the State Government to the licensee. However, on February 3, 2010, when the Special Leave Petition was listed for hearing before this Court, the Court had directed the learned counsel for the State of Uttarakhand to seek instructions from the Government whether the State Government was still willing to extend subsidy of development rebate of 33.33% to the industrial units set up in hill area, as was done by the erstwhile State Government of Uttar Pradesh. Accordingly, the learned counsel for the State of Uttarakhand had taken appropriate instructions and as mentioned earlier, filed a short affidavit on April 19, 2010 for consideration of the Court. In the said affidavit it is specifically mentioned that with an objective to accelerate the pace of industrial development in remote and backward hill region and to remove economic backwardness of the hill region by generating the employment opportunities with the possibility to check the brain drain from this area and keeping in view the uneven geographical situation, the environmental and social conditions, the Government of Uttarakhand has framed Special Integration Industrial Development Policy for hills and remote areas of Uttarakhand, but as far as power concession to new industrial units is concerned, the aforesaid policy does not provide for any concession to the steel industries established in the State because it was not considered necessary in the larger public interest to grant such subsidy. In the said affidavit it is mentioned that in view of lack of provision in the industrial development policy, the concession of Hill Development Rebate of 33.33% earlier granted by the Uttar Pradesh Government cannot be extended to the steel industries in the State of Uttarakhand. Whether to grant rebate to certain industrial units located in an area is basically and essentially a policy decision. The policy decision as reflected in the affidavit dated April 19, 2010 filed by Nitesh Kumar Jha, Additional Secretary, Government of Uttarakhand, Department of Energy, is neither found to be unreasonable nor found to be arbitrary in any manner. The Special Integration Policy introduced by the State of Uttarakhand for hills and remote areas of Uttarakhand is not subject-matter of challenge by the petitioners in the present writ petition. Grant of power concession to new industrial units is not found by the State Government to be in larger public interest. This Court, while exercising powers under Article 32 of the Constitution, cannot substitute the opinion and/or view of the Government and come to the conclusion that power concession to new steel industries is in the larger public interest and, therefore, should be made available to the new steel industries. Such a course is not permissible at all. The policy having not been found either arbitrary, capricious or unreasonable, this Court cannot interfere with the policy decision of the State Government. As observed earlier, there is nothing on record to show that any policy direction was given by the State of Uttarakhand to the Electricity Regulatory Commission to provide for rebate to industrial units situated in the hill area. The policy of the State Government in not granting rebate to industrial units situated in a particular area is basically a fiscal decision and in absence of arbitrariness of unreasonableness in the said policy, it cannot be a subject-matter of judicial review of this Court while exercising powers under Article 32 of the Constitution. Therefore, this Court holds that no case is made out by the petitioners to interfere with the said policy.
### Response:
1
|
1,094 | Puri Municipal Council and Others Vs. Indian Tobacco Company Limited | PUNCHHI, M.M. & MANOHAR SUJATA V. (J) 1. The famous city of Puri in the State of Orissa, is a municipality under the Orissa Municipal Act, 1950. Its limits extends upto the sea waters, on the side of the Bay of Bengal. Fish and prawn caught by fishermen from the sea have all along been brought within the municipal limit, sometimes through the nearest octroi checkpost on payment of octroi and more often without adopting that course. The fish and prawn are then taken to the market by fishermen where they are sold and bought by non-fishermen for local consumption or for export to other destinations. In the latter course, the goods inevitably are transported and have to pass out through octroi checkposts. The dispute between the parties i.e. the Puri Municipal Council and its officers on the one side and the Indian Tobacco Company Ltd. on the other, as projected before the High Court in writ proceedings centered around the question whether the taxing provisions of the Orissa Municipal Act and t he bye-laws made thereunder, permitted the Puri Municipal Council to charge octroi tax on a non-fishermen merely found in possession of fish and prawn within the municipal area, or while taking them out through exist points, or octroi posts. 2. On challenge made by the respondent company to the steps taken by the Municipal Council, the Division Bench of Orissa High Court has taken the view that the invoked bye-law 11(2) by the Municipal Council speaks of evasion authorising the municipality to effect recovery of octroi tax on detection of that happening but that word was considered by the Bench to be distinct from non-payment of octroi duty the doubt about which could arise when the commodity is found in the municipal area in the possession of someone. The straight case of the municipality was that it can, under the said bye-law, proceed against the possessors of fish or prawnsincluding exporters of these on the premise of non-payment of octroi tax. That p lea has been negatived by the High Court by a well-reasoned judgment.The word expression octri committed by the person bringing goods within municipal limits, since it is an entry tax. The person bringing the goods without payment of octroi is the evader and can certainly be brought within the ship of bye-law 11(2). A person merely in possession of such goods within a municipal area cannot be brought with ambit of bye-law 11(2) raising a presumtion that he is an evader because he may not have caused the entry and hence be not an evader. 3. On the pleas of the municipality, the tax cannot be allowed to assume the character of a possessory tax or an exit tax. That would be against the text and content of the taxing provisions and their culpable part. the High Court in this fact situation properly saw through the matter and, in our view., afforded appropriate rellef to the respondent, throwing out the specious plea of the appellant-municipality based on the fact that it was not in a position to put up octroi posts at every conceivable point alongside the sea shore. That aspect is the concern of the municipality and not that of the subject. If the words in the taxing statute fail, the tax must fail, without sentiment playing any role. 4. | 0[ds]The word expression octri committed by the person bringing goods within municipal limits, since it is an entry tax. The person bringing the goods without payment of octroi is the evader and can certainly be brought within the ship of bye-law 11(2). A person merely in possession of such goods within a municipal area cannot be brought with ambit of bye-law 11(2) raising a presumtion that he is an evader because he may not have caused the entry and hence be not an evader.On the pleas of the municipality, the tax cannot be allowed to assume the character of a possessory tax or an exit tax. That would be against the text and content of the taxing provisions and their culpable part. the High Court in this fact situation properly saw through the matter and, in our view., afforded appropriateto the respondent, throwing out the specious plea of the appellant-municipality based on the fact that it was not in a position to put up octroi posts at every conceivable point alongside the sea shore. That aspect is the concern of the municipality and not that of the subject. If the words in the taxing statute fail, the tax must fail, without sentiment playing any role. | 0 | 612 | ### 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:
PUNCHHI, M.M. & MANOHAR SUJATA V. (J) 1. The famous city of Puri in the State of Orissa, is a municipality under the Orissa Municipal Act, 1950. Its limits extends upto the sea waters, on the side of the Bay of Bengal. Fish and prawn caught by fishermen from the sea have all along been brought within the municipal limit, sometimes through the nearest octroi checkpost on payment of octroi and more often without adopting that course. The fish and prawn are then taken to the market by fishermen where they are sold and bought by non-fishermen for local consumption or for export to other destinations. In the latter course, the goods inevitably are transported and have to pass out through octroi checkposts. The dispute between the parties i.e. the Puri Municipal Council and its officers on the one side and the Indian Tobacco Company Ltd. on the other, as projected before the High Court in writ proceedings centered around the question whether the taxing provisions of the Orissa Municipal Act and t he bye-laws made thereunder, permitted the Puri Municipal Council to charge octroi tax on a non-fishermen merely found in possession of fish and prawn within the municipal area, or while taking them out through exist points, or octroi posts. 2. On challenge made by the respondent company to the steps taken by the Municipal Council, the Division Bench of Orissa High Court has taken the view that the invoked bye-law 11(2) by the Municipal Council speaks of evasion authorising the municipality to effect recovery of octroi tax on detection of that happening but that word was considered by the Bench to be distinct from non-payment of octroi duty the doubt about which could arise when the commodity is found in the municipal area in the possession of someone. The straight case of the municipality was that it can, under the said bye-law, proceed against the possessors of fish or prawnsincluding exporters of these on the premise of non-payment of octroi tax. That p lea has been negatived by the High Court by a well-reasoned judgment.The word expression octri committed by the person bringing goods within municipal limits, since it is an entry tax. The person bringing the goods without payment of octroi is the evader and can certainly be brought within the ship of bye-law 11(2). A person merely in possession of such goods within a municipal area cannot be brought with ambit of bye-law 11(2) raising a presumtion that he is an evader because he may not have caused the entry and hence be not an evader. 3. On the pleas of the municipality, the tax cannot be allowed to assume the character of a possessory tax or an exit tax. That would be against the text and content of the taxing provisions and their culpable part. the High Court in this fact situation properly saw through the matter and, in our view., afforded appropriate rellef to the respondent, throwing out the specious plea of the appellant-municipality based on the fact that it was not in a position to put up octroi posts at every conceivable point alongside the sea shore. That aspect is the concern of the municipality and not that of the subject. If the words in the taxing statute fail, the tax must fail, without sentiment playing any role. 4.
### Response:
0
|
1,095 | M. Gopalakrishnan Vs. The United India Insurance Company Limited & Another | money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.? In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance company Limited (2011) 13 SCC 236 , this Court observed as under: ?The compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. The term ?disability?, as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.? In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.The most serious error committed by the Tribunal and the High Court is that neither of them awarded compensation to the appellant for future medical treatment. The compensation awarded by the Tribunal for nourishing food, pain and suffering, loss of income during the period of treatment and thereafter and loss of amenities of life including marital prospect and expectation of life was also wholly inadequate. By reducing amount under various heads the High Court virtually rubbed salt in the wound of the appellant.In our considered view, the High Court was not at all justified in declaring that the disability suffered by the appellant was partial. While the appellant had proved the nature of injury and the extent of disability by examining the doctor, who opined that the appellant had suffered 40% permanent disability and further that he will have to undergo operations till his 30th year for removal of the bones. The learned Single Judge of the High Court, without assigning any reason, declared that the disability was partial. Therefore, that part of the impugned judgment is liable to be set aside.We are further of the view that the Tribunal and the High Court were bound to award adequate compensation in lieu of the expenses already incurred for treatment and also for ?future medical expenses? for next 9 years keeping in view the escalating cost of medical treatment. Having regard to the nature of injuries and the fact that the appellant will have to undergo 9 operations for removal of the downward growing bones, we deem it proper to award total compensation of Rs.4 lakhs under this head. For ?pain and suffering? for 9 years, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of marital expectation?, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of income, etc.,? the appellant deserves to be awarded a sum of Rs.1 lakh. | 1[ds]In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.The most serious error committed by the Tribunal and the High Court is that neither of them awarded compensation to the appellant for future medical treatment. The compensation awarded by the Tribunal for nourishing food, pain and suffering, loss of income during the period of treatment and thereafter and loss of amenities of life including marital prospect and expectation of life was also wholly inadequate. By reducing amount under various heads the High Court virtually rubbed salt in the wound of the appellant.In our considered view, the High Court was not at all justified in declaring that the disability suffered by the appellant was partial. While the appellant had proved the nature of injury and the extent of disability by examining the doctor, who opined that the appellant had suffered 40% permanent disability and further that he will have to undergo operations till his 30th year for removal of the bones. The learned Single Judge of the High Court, without assigning any reason, declared that the disability was partial. Therefore, that part of the impugned judgment is liable to be set aside.We are further of the view that the Tribunal and the High Court were bound to award adequate compensation in lieu of the expenses already incurred for treatment and also formedical expenses? for next 9 years keeping in view the escalating cost of medical treatment. Having regard to the nature of injuries and the fact that the appellant will have to undergo 9 operations for removal of the downward growing bones, we deem it proper to award total compensation of Rs.4 lakhs under this head. | 1 | 3,137 | ### 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:
money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.? In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance company Limited (2011) 13 SCC 236 , this Court observed as under: ?The compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. The term ?disability?, as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.? In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.The most serious error committed by the Tribunal and the High Court is that neither of them awarded compensation to the appellant for future medical treatment. The compensation awarded by the Tribunal for nourishing food, pain and suffering, loss of income during the period of treatment and thereafter and loss of amenities of life including marital prospect and expectation of life was also wholly inadequate. By reducing amount under various heads the High Court virtually rubbed salt in the wound of the appellant.In our considered view, the High Court was not at all justified in declaring that the disability suffered by the appellant was partial. While the appellant had proved the nature of injury and the extent of disability by examining the doctor, who opined that the appellant had suffered 40% permanent disability and further that he will have to undergo operations till his 30th year for removal of the bones. The learned Single Judge of the High Court, without assigning any reason, declared that the disability was partial. Therefore, that part of the impugned judgment is liable to be set aside.We are further of the view that the Tribunal and the High Court were bound to award adequate compensation in lieu of the expenses already incurred for treatment and also for ?future medical expenses? for next 9 years keeping in view the escalating cost of medical treatment. Having regard to the nature of injuries and the fact that the appellant will have to undergo 9 operations for removal of the downward growing bones, we deem it proper to award total compensation of Rs.4 lakhs under this head. For ?pain and suffering? for 9 years, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of marital expectation?, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of income, etc.,? the appellant deserves to be awarded a sum of Rs.1 lakh.
### Response:
1
|
1,096 | State of Punjab Vs. Salil Sabhlok and Ors. | quo warranto but to other directions, orders or writs. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench, has explained the wide scope of the powers of the High Court under Article 226 of the Constitution thus: This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and Ors. may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 1955 1 SCR 250 : AIR 1954 SC 440 and Irani v. State of Madras 1962 (2) SCR 169 : AIR 1961 SC 1731 . Therefore, I hold that the High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extra-ordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution. 35. Coming now to the facts of the present case, I find that the Division Bench of the High Court in its order dated 13.07.2011 has already held that the irregularities and illegalities alleged against Mr. Harish Dhanda have not been substantiated. I must, however, enquire whether the State Government took into consideration the relevant factors relating to his competency to act as the Chairman of the State Public Service Commission. We had, therefore, passed orders on 01.08.2012 calling upon the State of Punjab to produce before us the material referred to in para 69 of the judgment of the Full Bench of the High Court on the basis of which Mr. Harish Dhanda was selected for appointment as Chairman of the Punjab Public Service Commission. Pursuant to the order dated 01.08.2012, the State Government has produced the files in which the selection and appointment of Mr. Harish Dhanda was processed by the State Government. At page 26 of the file on the subject Appointment of Chairman of P.P.S.C.- Mr. S.K. Sinha, IAS, Mr. Harish Rai Dhanda, I find that a bio-data in one sheet has been placed at page 41 of the file, which reads as under: BIO DATA Harish Rai Dhanda S/o. Sh. Kulbhushan Rai Resident: The Retreat, Ferozepur Road, Ludhiana Date of Birth: 15th May, 1960 Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979). Attained Bachelor in Laws from Law College, Punjab University (1982). Registered with Bar Council of Punjab and Haryana as Advocate in 1982. Practiced Law at District Courts, Ludhiana from 1982 to 2007. Elected as President of District Bar Association, Ludhiana for seven terms. Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and L.L.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Mr. Harish Dhanda has the positive qualities to perform the duties of the office of the Chairman of the State Public Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties entrusted to the Public Service Commissions under Article 320 of the Constitution. | 1[ds]I have perused the writ petition CWP No. 11846 of 2011, which was filed before the High Court by the Respondent No. 1, and I find that in the first paragraph of the writ petition the Respondent No. 1 has stated that he was a public spirited person and that he had filed the writ petition for espousing the public interest and for the betterment of citizens of the State of Punjab. In the writ petition, the Respondent No. 1 has relied on the provisions of Articles 315, 316, 317, 318, 319 and 320 of the Constitution relating to Public Service Commissions to contend that the functions of the Public Service Commission are sensitive and important and it is very essential that a person, who is appointed as the Chairman of the Public Service Commission, must possess outstanding and high degree educational qualifications and a great amount of experience in the field of selection, administration and recruitment and he must also be a man of integrity and impartiality. The Respondent No. 1 has alleged in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of Public Service Commission on the basis of political affiliation. In the writ petition, the Respondent No. 1 has also given the example of Mr. Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing of various criminal cases against the officials of the Public Service Commission as well Mr. Sidhu. The Respondent No. 1 has further stated in the writ petition that he has filed the writ petition after he read a news report titled: MLA Dhanda to be new PPSC Chairperson. He has stated in the writ petition that Mr. Harish Dhanda was an Advocate at Ludhiana before he ventured into politics and had unsuccessfully contested the Vidhan Sabha election before he was elected as MLA on the Shiromani Akali Dal ticket and that he had close political affiliation and affinity with high ups of the ruling party and that the ruling party in the State of Punjab has cleared his name for appointment as the Chairman of the Punjab Public Service Commission shortly. The Respondent No. 1 has also alleged in the writ petition various irregularities and illegalities committed by Mr. Harish Dhanda. He has further stated in the writ petition that his colleague has even sent a representation to the Governor of Punjab and the Chief Minister of Punjab against the proposed appointment of Mr. Harish Dhanda. He has accordingly prayed in the writ petition for a mandamus to the State of Punjab to frame Regulations governing the conditions of service and appointment of the Chairman and Members of the Punjab Public Service Commission and for an order restraining the State of Punjab from appointing Mr. Harish Dhanda as Chairman of the Punjab Public Service Commission. On a reading of the entire writ petition filed by the Respondent No. 1 before the High Court, I have no doubt that the Respondent No. 1 has filed this writ petition for espousing the cause of the general public of the State of Punjab with a view to ensure that a person appointed as the Chairman of the Punjab Public Service Commission is a man of ability and integrity so that recruitment to public services in the State of Punjab are from the best available talents and are fair and is not influenced by politics and extraneous considerations. Considering the averments in the writ petition, I cannot hold that the writ petition is just a service matter in which only the aggrieved party has the locus to initiate a legal action in the court of law. The writ petition is a matter affecting interest of the general public in the State of Punjab and any member of the public could espouse the cause of the general public so long as his bonafides are not in doubt. Therefore, I do not accept the submission of Mr. P.P. Rao, learned senior Counsel appearing for the State of Punjab, that the writ petition was a service matter and the High Court was not right in entertaining the writ petition as a Public Interest Litigation at the instance of the Respondent No. 1. The decisions cited by Mr. Rao were in cases where this Court found that the nature of the matter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party and not any third party can only initiate a legal action.As I have noticed, the Respondent No. 1 had, in the writ petition, relied on the constitutional provisions in Articles 315, 316, 317, 318, 319 and 320 of the Constitution to plead that the functions of the Public Service Commissions were of a sensitive and critical nature and hence the Chairman of the Public Service Commission must possess outstanding and high educational qualifications and a great amount of experience in the field of selection, administration and recruitment. The Respondent No. 1 has further pleaded in the writ petition that the State Government had on an earlier occasion made an appointment of a Chairman of the Punjab Public Service Commission on the basis of political affiliation and this has resulted in selection and appointment of undeserving persons to public service for extraneous considerations. Though Respondent No. 1 had alleged in the writ petition some irregularities and illegalities on the part of Mr. Harish Dhanda, who was proposed to be appointed as Chairman of the Public Service Commission by the State Government, the writ petition was not founded only on such irregularities and illegalities alleged against Mr. Harish Dhanda. In addition, the Respondent No. 1 had also alleged in the writ petition that Mr. Harish Dhanda was politically affiliated to the ruling party and was not selected for appointment as Chairman of the Public Service Commission on the basis of his qualifications, experience or ability which are necessary for the post of the Chairman of the Public Service Commission. Thus, even if the Division Bench had recorded a finding in the order dated 13.07.2011 that the irregularities and illegalities pointed out in the writ petition against Mr. Harish Dhanda do not stand substantiated, the writ petition could not be disposed of with the said finding only.25. It will be clear from the Paragraphs 6 and 7 of the order dated 13.07.2011 quoted above that the Division Bench of the High Court found that Article 316 of the Constitution, which provides for appointment of the Chairman and other Members of the Public Service Commission by the Governor, does not prescribe any particular procedure and took the view that, having regard to the purpose and nature of appointment, it cannot be assumed that power of appointment need not be regulated by any procedure. The Division Bench of the High Court was of the further view that the persons to be appointed must have competence and integrity, but how such persons are to be identified and selected must be considered by a Bench of three Judges and accordingly referred the matter to the three Judges. The Division Bench also referred the question to the larger Bench of three Judges as to whether the procedure adopted in the present case for appointing Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was valid and if not, what is the effect of not following the procedure. I do not, therefore, find any merit in the submission of Mr. Rao that the Division Bench of the High Court having found in its order dated 13.07.2011 that the irregularities and illegalities pointed out in the writ petition against Mr. Harish Dhanda are unsubstantiated, should not have made an academic reference to the larger Bench of the High Court.In Mehar Singh Saini Chairman, HPSC In Re (supra), this Court noticed that the provisions of Article 316 of the Constitution do not lay down any qualification, educational or otherwise, for appointment to the Commission as Chairman and Members and made the following observations in Para 85 of the judgment as reported in the SCC:Desirability, if any, of providing specific qualification or experience for appointment as Chairman/members of the Commission is a function of Parliament. The guidelines or parameters, if any, including that of stature, if required to be specified, are for the appropriate Government to frame. This requires expertise in the field, data study and adoption of the best methodology by the Government concerned to make appointments to the Commission on merit, ability and integrity. Neither is such expertise available with the Court nor will it be in consonance with the constitutional scheme that this Court should venture into reading such qualifications into Article 316 or provide any specific guidelines controlling the academic qualification, experience and stature of an individual who is proposed to be appointed to this coveted office. of course, while declining to enter into such arena, we still feel constrained to observe that this is a matter which needs the attention of the Parliamentarians and quarters concerned in the Governments. One of the factors, which has persuaded us to make this observation, is the number of cases which have been referred to this Court by the President of India in terms of Article 317(1) of the Constitution in recent years. A large number of inquiries are pending before this Court which itself reflects that all is not well with the functioning of the Commissions.The observations of this Court in the aforesaid case of Mehar Singh Saini Chairman, HPSC In Re (supra) relate to qualification and experience for appointment as Chairman/Members of the Commission and have nothing to do with the questions relating to the procedure for identifying persons of integrity and competence to be appointed as Chairman of the Public Service Commission, which were referred by the Division Bench of the High Court to the Full Bench by the order dated 13.07.2011. Mr. Rao is, therefore, not right in his submission that in view of the law declared by this Court in Mehar Singh Saini, Chairman, HPSC In Re (supra), there was no necessity for the Division Bench to make a reference to the Full Bench by the order dated 13.07.2011.I have perused Rules 6, 7, 8 and 9 of the Punjab High Court Rules which relate to Full Bench and I do not find therein any provision which provides what matters a Full Bench comprising three Judges of the High Court will decide. Hence, the Division Bench of the High Court has the jurisdiction to decide a case, unless otherwise provided by law or by a special order of the Chief Justice and the jurisdiction of a Full Bench to decide matters will flow either from the order of the Chief Justice of the High Court or from the order of the Division Bench which makes a reference to the Full Bench. In the present case, there is no order of the Chief Justice making a reference but only the order dated 13.07.2011 of the Division Bench of the High Court making a reference to the Full Bench of three Judges of the High Court. Thus, I have to look at the order dated 13.07.2011 of the Division Bench to find out whether the Division Bench referred only specific questions to the Full Bench as contended by Mr. Rao or referred the entire case to the Full Bench as contended by Mr. Lalit.28. On a close scrutiny of Paragraphs 6 and 7 of the order dated 13.07.2011 of the Division Bench of the High Court which are extracted above, I find that the Division Bench of the High Court has referred only specific questions to the Full Bench: how persons of competence and integrity are to be identified and selected for appointment as Chairman of the Public Service Commission and if the procedure adopted for such appointment in the present case was not valid, the effect thereof. The Division Bench of the High Court has made it clear in Para 7 of its order dated 13.07.2001 that these questions need to be considered by a Bench of three Honble Judges. I, therefore, do not agree with Mr. Lalit that the Division Bench referred the entire case to the Full Bench by the order dated 13.07.2011. I further find that although the aforesaid specific questions relating to the procedure for identifying persons of competence and integrity for appointment as the Chairman of the Public Service Commission only were referred by the Division Bench of the High Court, the Full Bench, instead of deciding these specific questions referred to it, has given directions to the State of Punjab and the State of Haryana to follow a particular procedure for appointment of Members and Chairman of the Public Service Commission till such time a fair, rational, objective and transparent policy to meet the mandate of Article 14 of the Constitution is made. I, therefore, agree with Mr. Rao that the Full Bench of the High Court has decided issues which were not referred to it by the Division Bench of the High Court and the judgment dated 17.08.2011 of the Full Bench of the High Court was without jurisdiction.A reading of Article 316 of the Constitution would show that it confers power on the Governor of the State to appoint the Chairman and other Members of a Public Service Commission. It has been held by this Court in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. (supra) that an authority has implied powers to make available and carry into effect powers expressly conferred on it. Thus, under Article 316 of the Constitution, the Governor of a State has not only the express power of appointing the Chairman and other Members of Public Service Commission but also the implied powers to lay down the procedure for appointment of Chairman and Members of the Public Service Commission and the High Court cannot under Article 226 of the Constitution usurp this constitutional power of the Government and lay down the procedure for appointment of the Chairman and other Members of the Public Service Commission. The Full Bench of the High Court, therefore, could not have laid down the procedure for appointment of the Chairman and Members of the Punjab Public Service Commission and the Haryana Public Service Commission by the impugned judgment dated 17.08.2011.30. Having held that the Full Bench of the High Court has in its judgment dated 17.08.2011 acted beyond its jurisdiction and has usurped the constitutional power of the Governor in laying down the procedure for appointment of the Chairman and Members of the Public Service Commission, I have to set aside the judgment dated 17.08.2011 of the Full Bench of the High Court. Thereafter, either of the two courses are open to me: remand the matter to the High Court for disposal of the writ petition in accordance with law or decide the writ petition on merits. To cut short the litigation, I proceed to decide the writ petition on merits instead of remanding the matter to the High Court.Considering this experience of the damage to recruitment to public services caused by appointing a person lacking in character as the Chairman of the Public Service Commission in the State of Punjab, when the Respondent No. 1 brought to the notice of the High Court through the writ petition that the State Government of Punjab proposed to appoint Mr. Harish Dhanda as the Chairman of the Public Service Commission, only because of his political affiliation, the Division Bench of the High Court rightly entertained the writ petition as a public interest litigation. The Division Bench of the High Court, however, found that no procedure for appointment of Chairman and Members of the Public Service Commission has been laid down in Article 316 of the Constitution and therefore posed the question in Paragraphs 6 and 7 of its order dated 13.07.2011 as to what should be the procedure for identifying and selecting persons of integrity and competence for appointment of Chairman of the Public Service Commission and referred the question to a larger Bench of three Judges. I have already held that it is for the Governor who is the appointing authority under Article 316 of the Constitution to lay down the procedure for appointment of the Chairman and Members of the Public Service Commission, but this is not to say that in the absence of any procedure laid down by the Governor for appointment of Chairman and Members of the Public Service Commission under Article 316 of the Constitution, the State Government would have absolute discretion in selecting and appointing any person as the Chairman of the State Public Service Commission. Even where a procedure has not been laid down by the Governor for appointment of Chairman and Members of the Public Service Commission, the State Government has to select only persons with integrity and competence for appointment as Chairman of the Public Service Commission, because the discretion vested in the State Government under Article 316 of the Constitution is impliedly limited by the purposes for which the discretion is vested and the purposes are discernible from the functions of the Public Service Commissions enumerated in Article 320 of the Constitution. Under Clause (1) of Article 320 of the Constitution, the State Public Service Commission has the duty to conduct examinations for appointments to the services of the State. Under Clause (3) of Article 320, the State Public Service Commission has to be consulted by the State Government on matters relating to recruitment and appointment to the civil services and civil posts in the State, on disciplinary matters affecting a person serving under the Government of a State in a civil capacity, on claims by and in respect of a person who is serving under the State Government towards costs of defending a legal proceeding, on claims for award of pension in respect of injuries sustained by a person while serving under the State Government and other matters. In such matters, the State Public Service Commission is expected to act with independence from the State Government and with fairness, besides competence and maturity acquired through knowledge and experience of public administration.32. I, therefore, hold that even though Article 316 does not specify the aforesaid qualities of the Chairman of a Public Service Commission, these qualities are amongst the implied relevant factors which have to be taken into consideration by the Government while determining the competency of the person to be selected and appointed as Chairman of the Public Service Commission under Article 316 of the Constitution. Accordingly, if these relevant factors are not taken into consideration by the State Government while selecting and appointing the Chairman of the Public Service Commission, the Court can hold the selection and appointment as not in accordance with the Constitution.I am of the considered opinion that the Chairman of the Public Service Commission, who along with its other members has to perform his duties under Article 320 of the Constitution with independence from the State Government cannot be equated with the Chief Secretary or the DG and IG Police, who are concerned solely with the administrative functions and have to work under the State Government. To ensure this independence of the Chairman and Members of the Public Service Commission, Clause (3) of Article 316 of the Constitution provides that a person shall, on expiration of his term of office be ineligible for reappointment to that office.I have already held that besides express restrictions in a statute or the Constitution, there can be implied restrictions in a statute and the Constitution and the statutory or the constitutional authority cannot in breach of such implied restrictions exercise its discretionary power. Moreover, Article 226 of the Constitution vests in the High Court the power to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The power of the High Court under Article 226 of the Constitution is, thus, not confined to only writ of quo warranto but to other directions, orders or writs. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench, has explained the wide scope of the powers of the High Court under Article 226 of the Constitution thus:This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and Ors. may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 1955 1 SCR 250 : AIR 1954 SC 440 and Irani v. State of Madras 1962 (2) SCR 169 : AIR 1961 SC 1731 .Therefore, I hold that the High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extra-ordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution.35. Coming now to the facts of the present case, I find that the Division Bench of the High Court in its order dated 13.07.2011 has already held that the irregularities and illegalities alleged against Mr. Harish Dhanda have not been substantiated. I must, however, enquire whether the State Government took into consideration the relevant factors relating to his competency to act as the Chairman of the State Public Service Commission. We had, therefore, passed orders on 01.08.2012 calling upon the State of Punjab to produce before us the material referred to in para 69 of the judgment of the Full Bench of the High Court on the basis of which Mr. Harish Dhanda was selected for appointment as Chairman of the Punjab Public Service Commission. Pursuant to the order dated 01.08.2012, the State Government has produced the files in which the selection and appointment of Mr. Harish Dhanda was processed by the State Government. At page 26 of the file on the subject Appointment of Chairman of P.P.S.C.- Mr. S.K. Sinha, IAS, Mr. Harish Rai Dhanda, I find that a bio-data in one sheet has been placed at page 41 of the file, which reads as under:BIO DATAHarish Rai Dhanda S/o. Sh. Kulbhushan RaiResident: The Retreat, Ferozepur Road, LudhianaDate of Birth: 15th May, 1960Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979).Attained Bachelor in Laws from Law College, Punjab University (1982).Registered with Bar Council of Punjab and Haryana as Advocate in 1982.Practiced Law at District Courts, Ludhiana from 1982 to 2007.Elected as President of District Bar Association, Ludhiana for seven terms.Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and L.L.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Mr. Harish Dhanda has the positive qualities to perform the duties of the office of the Chairman of the State Public Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties entrusted to the Public Service Commissions under Article 320 of the Constitution. | 1 | 11,733 | ### 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:
quo warranto but to other directions, orders or writs. In Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and Anr. (supra), K. Subba Rao, J. speaking for a three-Judge Bench, has explained the wide scope of the powers of the High Court under Article 226 of the Constitution thus: This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and Ors. may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa, 1955 1 SCR 250 : AIR 1954 SC 440 and Irani v. State of Madras 1962 (2) SCR 169 : AIR 1961 SC 1731 . Therefore, I hold that the High Court should not normally, in exercise of its power under Article 226 of the Constitution, interfere with the discretion of the State Government in selecting and appointing the Chairman of the State Public Service Commission, but in an exceptional case if it is shown that relevant factors implied from the very nature of the duties entrusted to Public Service Commissions under Article 320 of the Constitution have not been considered by the State Government in selecting and appointing the Chairman of the State Public Service Commission, the High Court can invoke its wide and extra-ordinary powers under Article 226 of the Constitution and quash the selection and appointment to ensure that the discretion of the State Government is exercised within the bounds of the Constitution. 35. Coming now to the facts of the present case, I find that the Division Bench of the High Court in its order dated 13.07.2011 has already held that the irregularities and illegalities alleged against Mr. Harish Dhanda have not been substantiated. I must, however, enquire whether the State Government took into consideration the relevant factors relating to his competency to act as the Chairman of the State Public Service Commission. We had, therefore, passed orders on 01.08.2012 calling upon the State of Punjab to produce before us the material referred to in para 69 of the judgment of the Full Bench of the High Court on the basis of which Mr. Harish Dhanda was selected for appointment as Chairman of the Punjab Public Service Commission. Pursuant to the order dated 01.08.2012, the State Government has produced the files in which the selection and appointment of Mr. Harish Dhanda was processed by the State Government. At page 26 of the file on the subject Appointment of Chairman of P.P.S.C.- Mr. S.K. Sinha, IAS, Mr. Harish Rai Dhanda, I find that a bio-data in one sheet has been placed at page 41 of the file, which reads as under: BIO DATA Harish Rai Dhanda S/o. Sh. Kulbhushan Rai Resident: The Retreat, Ferozepur Road, Ludhiana Date of Birth: 15th May, 1960 Attained Bachelor in Arts from SCD Government College, Ludhiana, Punjab University, (1979). Attained Bachelor in Laws from Law College, Punjab University (1982). Registered with Bar Council of Punjab and Haryana as Advocate in 1982. Practiced Law at District Courts, Ludhiana from 1982 to 2007. Elected as President of District Bar Association, Ludhiana for seven terms. Besides the aforesaid bio-data, there is a certificate dated 06.07.2011 given by the Speaker, Punjab Vidhan Sabha, certifying that Mr. Harish Rai Dhanda, MLA, has resigned from the membership of the 13th Punjab Legislative Assembly with effect from 06.07.2011 and that his resignation has been accepted by the Speaker. The aforesaid materials indicate that Mr. Harish Dhanda had B.A. and L.L.B Degrees and was practicing as an Advocate at the District Courts in Ludhiana and had been elected as the President of the District Bar Association, Ludhiana for seven terms and has been member of the Legislative Assembly. These materials do not indicate that Mr. Harish Dhanda had any knowledge or experience whatsoever either in administration or in recruitment nor do these materials indicate that Mr. Harish Dhanda had the qualities to perform the duties as the Chairman of the State Public Service Commission under Article 320 of the Constitution which I have discussed in this judgment. No other information through affidavit has also been placed on record before us to show that Mr. Harish Dhanda has the positive qualities to perform the duties of the office of the Chairman of the State Public Service Commission under Article 320 of the Constitution. The decision of the State Government to appoint Mr. Harish Dhanda as the Chairman of the Punjab Public Service Commission was thus invalid for non-consideration of relevant factors implied from the very nature of the duties entrusted to the Public Service Commissions under Article 320 of the Constitution.
### Response:
1
|
1,097 | P. Mohanan Pillai Vs. State Of Kerala | Council, Kalamassery." 9. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. 10. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant.11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. 12. In Pitta Naveen Kumar & Ors. v. Raja Narasaiah Zangiti & Ors. [2006 (9) SCALE 298 ], a rule framed by the State of Andhra Pradesh reducing the cut-off mark was struck down by this Court, holding: "55. The question, however, remains as to whether the State could reduce the cut-off marks. If the cut-off mark specified by the State is arbitrary, Article 14 would be attracted. The Tribunal did not have any jurisdiction to pass an interim order directing reduction in the cut-off mark. The cut-off mark at 66% was fixed having regard to the ratio of the candidates eligible for sitting at the written examination at 1:50. An interim order as is well-known is issued for a limited purpose. By reason thereof, the Tribunal had jurisdiction to grant a final relief.56. Moreover, the Tribunal could not have directed the Commission to do something which was contrary to rules. An interim order is subject to variation or modification. An interim order would ordinarily not survive when the main matter is dismissed. The Commission also did not intend to abide by the said directions. It wanted the State to pass an appropriate order. It was, pursuant to or in furtherance of the said desire of the Commission as also the direction of the Tribunal as contained in its interim order dated 6.1.2005, GOMs 200 was issued. The said Government Order was, thus, not issued by the State of its own. There was no independent application of mind. The statutory requirements for passing an government order independent of the interim directions issued by the Tribunal were wholly absent." 13. Reliance placed my Mr. Sree Kumar on Vijay Syal and Another v. State of Punjab & Others [(2003) 9 SCC 401] runs counter to the submission of the learned counsel. Therein, the appellants secured less marks than those whose appointments were in question. In that situation it was held that they were to be denied appointments on the ground that they were called for in the interview in the second list, the position of the appellant could not improve. Allegedly, when those candidates who belonged to Scheduled Caste and had secured higher marks and in that view of the matter, the appellant therein could not be selected in the general category. 14. In the said decision, however, the Bench categorically opined that the marks allocated for the viva voce should not normally exceed 12.5% noticing the decisions of this Court in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] , All India State Bank Officers Federation v. Union of India [(1997) 9 SCC 151] as also Jasvinder Singh v. State of J&K [(2003) 2 SCC 132] . The question as to how much marks should be allocated for interview would depend upon the post and nature of duties to be performed. The nature of duties to be performed on the post of Watchman/Messenger/Attender is not such which requires a high intellectual ability or any particular trait of the candidates which is required to be judged by an expert. [See e.g. I.I.T., Kanpur v. Umesh Chandra and Others (2006) 5 SCC 664 ]. 15. We may notice that in Inder Parkash Gupta v. State of J&K and Others [(2004) 6 SCC 786] , a three-Judge Bench opined: "34. It is true that for allocation of marks for viva voce test, no hard-and-fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India.36. We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience, etc. but could also take viva voce test. But marks allotted therefor should indisputably be within a reasonable limit. Having regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast." 16. In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav (supra) and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the Appointing Authority for unauthorized purpose. When a power is exercised for an unauthorized purpose, the same would amount to malice in law [See The Manager, Govt. Branch Press and Another v. D.B. Belliappa - AIR 1979 SC 429 , Punjab State Electricity Board v. Zora Singh and Others - (2005) 6 SCC 776 and K.K. Bhalla v. State of M.P. and Others - (2006) 3 SCC 581 ]. 17. | 1[ds]10. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant.11. It is nowthat ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav (supra) and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the Appointing Authority for unauthorized purpose. When a power is exercised for an unauthorized purpose, the same would amount to malice in law [See The Manager, Govt. Branch Press and Another v. D.B. BelliappaAIR 1979 SC 429 , Punjab State Electricity Board v. Zora Singh and Others(2005) 6 SCC 776 and K.K. Bhalla v. State of M.P. and Others(2006) 3 SCC 581 ]. | 1 | 2,360 | ### 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:
Council, Kalamassery." 9. Why such a decision had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the Company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut-off mark was also lowered remained a mystery. 10. It may be that in a given situation, a decision of the State may be changed, but therefor good and sufficient reasons must be assigned. The Company failed to do so. The decision taken in this behalf smacks of arbitrariness. It prejudiced the candidates like the appellant.11. It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed. 12. In Pitta Naveen Kumar & Ors. v. Raja Narasaiah Zangiti & Ors. [2006 (9) SCALE 298 ], a rule framed by the State of Andhra Pradesh reducing the cut-off mark was struck down by this Court, holding: "55. The question, however, remains as to whether the State could reduce the cut-off marks. If the cut-off mark specified by the State is arbitrary, Article 14 would be attracted. The Tribunal did not have any jurisdiction to pass an interim order directing reduction in the cut-off mark. The cut-off mark at 66% was fixed having regard to the ratio of the candidates eligible for sitting at the written examination at 1:50. An interim order as is well-known is issued for a limited purpose. By reason thereof, the Tribunal had jurisdiction to grant a final relief.56. Moreover, the Tribunal could not have directed the Commission to do something which was contrary to rules. An interim order is subject to variation or modification. An interim order would ordinarily not survive when the main matter is dismissed. The Commission also did not intend to abide by the said directions. It wanted the State to pass an appropriate order. It was, pursuant to or in furtherance of the said desire of the Commission as also the direction of the Tribunal as contained in its interim order dated 6.1.2005, GOMs 200 was issued. The said Government Order was, thus, not issued by the State of its own. There was no independent application of mind. The statutory requirements for passing an government order independent of the interim directions issued by the Tribunal were wholly absent." 13. Reliance placed my Mr. Sree Kumar on Vijay Syal and Another v. State of Punjab & Others [(2003) 9 SCC 401] runs counter to the submission of the learned counsel. Therein, the appellants secured less marks than those whose appointments were in question. In that situation it was held that they were to be denied appointments on the ground that they were called for in the interview in the second list, the position of the appellant could not improve. Allegedly, when those candidates who belonged to Scheduled Caste and had secured higher marks and in that view of the matter, the appellant therein could not be selected in the general category. 14. In the said decision, however, the Bench categorically opined that the marks allocated for the viva voce should not normally exceed 12.5% noticing the decisions of this Court in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] , All India State Bank Officers Federation v. Union of India [(1997) 9 SCC 151] as also Jasvinder Singh v. State of J&K [(2003) 2 SCC 132] . The question as to how much marks should be allocated for interview would depend upon the post and nature of duties to be performed. The nature of duties to be performed on the post of Watchman/Messenger/Attender is not such which requires a high intellectual ability or any particular trait of the candidates which is required to be judged by an expert. [See e.g. I.I.T., Kanpur v. Umesh Chandra and Others (2006) 5 SCC 664 ]. 15. We may notice that in Inder Parkash Gupta v. State of J&K and Others [(2004) 6 SCC 786] , a three-Judge Bench opined: "34. It is true that for allocation of marks for viva voce test, no hard-and-fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such marks is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India.36. We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience, etc. but could also take viva voce test. But marks allotted therefor should indisputably be within a reasonable limit. Having regard to Rule 8 of the 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast." 16. In this case allocation of marks for interview was in fact misused. It not only contravened the ratio laid down by this Court in Ashok Kumar Yadav (supra) and subsequent cases, but in the facts and circumstances of the case, it is reasonable to draw an inference of favouritism. The power in this case has been used by the Appointing Authority for unauthorized purpose. When a power is exercised for an unauthorized purpose, the same would amount to malice in law [See The Manager, Govt. Branch Press and Another v. D.B. Belliappa - AIR 1979 SC 429 , Punjab State Electricity Board v. Zora Singh and Others - (2005) 6 SCC 776 and K.K. Bhalla v. State of M.P. and Others - (2006) 3 SCC 581 ]. 17.
### Response:
1
|
1,098 | CHANDER MOHAN NEGI & ORS Vs. STATE OF HIMACHAL PRADESH & ORS | was 10+2 with 50% marks and JBT certificate. As submitted by learned senior counsel appearing for the State that initially though 3500 odd teachers were appointed, as of now there are only a total of 3294 teachers working in this category and out of this about 1866 had the qualification of 10+2 with more than 50% marks at the relevant point of engagement. Out of the balance of 1015 had 10+2 with less than 50% marks, but they had higher qualification such as B.A./M.A./M.Sc. or B.Ed. etc. Further, it is also brought to our notice that out of all the candidates 3294 candidates who are presently working have acquired the professional qualification of diploma in elementary education or have undergone Professional Development Programme for Elementary Teachers. In that view of the matter, we are of the view that when the appointees appointed under the scheme have completed more than almost 15 years of service now and also have acquired the professional qualifications, they cannot be denied regularisation at this point of time. As the appointments were made as per the schemes notified by the Government such appointments cannot be treated as illegal, if at all they can be considered irregular. When it is the plea of the State that in view of the hard topography/tribal areas in the State, large number of vacancies were there even single teacher schools and to achieve the object of The Himachal Pradesh Primary Education Act, 1997 such steps were taken, there is no reason to disbelieve the same, more so, in absence of any affidavit by way of rejoinder by the writ petitioners before the High Court controverting the allegations in the reply filed on behalf of the State. 12. Even with regard to Para Teachers Policy under which various category of teachers were appointed in the year 2003 pursuant to policy notified on 17.09.2003 it is clear from the record placed before this Court that all the persons who were recruited as Para Teachers were fully qualified as per the Recruitment and Promotion Rules, i.e., The Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973. In view of the stand of the State that such policy was necessitated due to large number of vacant posts which have arisen year after year and which could not be filled since the State Selection Subodinate Board, Hamirpur which was responsible for the selection of teachers had come under a cloud and the selection process had come to a halt, such appointments cannot be rendered as illegal. Such aspect is also evident from the policy itself. Even in other category of Grant-in-Aid to Parent Teacher Association Rules, all teachers appointed under the scheme fulfil the educational qualifications prescribed in the Rules. For such kind of teachers, Cabinet has taken decision to take over the teachers on contract basis after completion of eight years of service which period was later reduced to seven years. It is also brought to our notice during the course of arguments that out of the total 6799 teachers, 5017 teachers were already taken over on contract basis by the State Government and only 1782 could not be taken over in view of the interim orders passed by this Court. 13. It is true that in the initial schemes notified by the Government there was a condition that such appointees should not seek regularisation/absorption but at the same time for no fault of them, they cannot be denied regularisation/absorption. It is in view of the requirement of the State, their services were extended from time to time and now all the appointees have completed more than 15 years of service. For majority of the appointed teachers under the various schemes benefit was already extended and some left over candidates were denied on account of interim orders passed by this Court. With regard to Primary Assistant Teachers, it is stated that all the candidates have completed Special Teacher Training Qualifying Condensed Course and also had obtained special JBT certificate after 5 years continuous service in terms of the Himachal Pradesh Education Code 1985. The judgments relied on by learned counsel Sri Prashant Bhushan also would not render any assistance to the case of the appellants herein for the reason that there was unexplained and inordinate delay on the part of the appellants in approaching the High Court and further having regard to explanation offered by the State about the need of framing such policies to meet the immediate requirement to fill up single teacher schools which were vacant for a very long time, having regard to topographical conditions, which is not even controverted by way of any rejoinder before the High Court. In such view of the matter, taking the totality of peculiar circumstances of these cases, we are of the that the view expressed by this Court in the judgments relied on cannot be applied to the facts of the case on hand. All the appointed candidates are working for the meagre salaries pursuant to schemes notified by the Government. Except the vague submission that such schemes were framed only to make back door entries, there is no material placed on record to buttress such submission. Further it is also to be noted that though such schemes were notified as early as in 2003, nobody has questioned such policies and appointments upto 2012 and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012 without even impleading the appointees as party respondents. In the writ petition there was no rejoinder filed by the writ petitioners disputing the averments of the State as stated in the reply affidavit. Having regard to nature of such appointments, appointments made as per policies cannot be termed as illegal. Having regard to material placed before this Court and having regard to reasons recorded in the impugned order by the High Court, we are of the view that no case is made out to interfere with the impugned judgment of the High Court. | 0[ds]11. At the outset, it is to be noted that the schemes in question were notified in the year 2001 and 2003 under which appointments were made with regard to Primary Assistant Teachers and teachers in other categories. At the relevant point of time nobody has questioned either the schemes or the appointments. It is the specific case of the respondent-State that such appointments have not affected the writ petitioners and the Department was not in a position to leave the schools, teachers deficient for long since it would have affected the studies of the students very badly. Therefore, it was the case of the State that teachers had been appointed under various schemes at that point of time and such appointments have been made upto the year 2007 and have no impact on the appellants since they have completed their two-year JBT training in the year 2011. As is evident from the order under appeal passed by the Division Bench of the High Court, the appellant-writ petitioners have not even chosen to file rejoinder and the stand taken by the State thus has remained uncontroverted. Further, it is also to be noted that when such appointments were made during the year 2001 and 2003 the writ petitions came to be filed in the year 2012 and 2013. As the writ petitioners have claimed interest for their appointment, the Division Bench of the High Court has rightly held that such petitions cannot be considered as the public interest litigation. Such a writ petition which was filed by the petitioners who came to be qualified only in the year 2011 are not entitled for any relief on the ground of unexplained laches and inordinate delay of about more than 10 years in approaching the court for questioning the appointments. Though relief was sought against the State to deny the benefit of regularisation to the appointed teachers, they were not even impleaded as party respondents. An Association was impleaded as third respondent but without furnishing any material to show that at least majority of appointees are members of such Association. So far as Primary Assistant Teachers Scheme of 2003, which was subject matter of Letters Patent Appeal arising out of C.W.P.No.3303 of 2012-A filed by Chander Mohan Negi and others, is concerned, the appellants in Civil Appeal No.2813 of 2017 except appellant nos.1, 2 and 4 have withdrawn the appeal and appellant nos.1 and 4 are already appointed as JBTs. Insofar as the only appellant, viz., appellant no.2 – Rajiv Chauhan – is concerned, it is stated that he is qualified and there are vacant posts and he can be considered if he applies to any of the existing vacancies. So far as Primary Assistant Teacher Scheme is concerned, same was notified as early as on 27 th August 2003. As is evident from the scheme itself, the object of the scheme appears to be to compulsorily enrol children in schools for elementary and primary education in the remote areas to achieve the goals as set by the Government while enacting The Himachal Pradesh Compulsory Primary Education Act, 1997 with a view to achieve the target of 100% enrolment to children. As per the scheme, the eligibility was 10+2 from a recognised Board/University and the candidates with higher qualifications were also eligible and candidates with professional qualifications were to be preferred. As per the regular Recruitment Rules the requisite qualification for the post of JBT teacher during the relevant time was 10+2 with 50% marks and JBT certificateIn that view of the matter, we are of the view that when the appointees appointed under the scheme have completed more than almost 15 years of service now and also have acquired the professional qualifications, they cannot be denied regularisation at this point of time. As the appointments were made as per the schemes notified by the Government such appointments cannot be treated as illegal, if at all they can be considered irregular. When it is the plea of the State that in view of the hard topography/tribal areas in the State, large number of vacancies were there even single teacher schools and to achieve the object of The Himachal Pradesh Primary Education Act, 1997 such steps were taken, there is no reason to disbelieve the same, more so, in absence of any affidavit by way of rejoinder by the writ petitioners before the High Court controverting the allegations in the reply filed on behalf of the State12. Even with regard to Para Teachers Policy under which various category of teachers were appointed in the year 2003 pursuant to policy notified on 17.09.2003 it is clear from the record placed before this Court that all the persons who were recruited as Para Teachers were fully qualified as per the Recruitment and Promotion Rules, i.e., The Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973. In view of the stand of the State that such policy was necessitated due to large number of vacant posts which have arisen year after year and which could not be filled since the State Selection Subodinate Board, Hamirpur which was responsible for the selection of teachers had come under a cloud and the selection process had come to a halt, such appointments cannot be rendered as illegal. Such aspect is also evident from the policy itself. Even in other category of Grant-in-Aid to Parent Teacher Association Rules, all teachers appointed under the scheme fulfil the educational qualifications prescribed in the Rules. For such kind of teachers, Cabinet has taken decision to take over the teachers on contract basis after completion of eight years of service which period was later reduced to seven years. It is also brought to our notice during the course of arguments that out of the total 6799 teachers, 5017 teachers were already taken over on contract basis by the State Government and only 1782 could not be taken over in view of the interim orders passed by this Court13. It is true that in the initial schemes notified by the Government there was a condition that such appointees should not seek regularisation/absorption but at the same time for no fault of them, they cannot be denied regularisation/absorption. It is in view of the requirement of the State, their services were extended from time to time and now all the appointees have completed more than 15 years of service. For majority of the appointed teachers under the various schemes benefit was already extended and some left over candidates were denied on account of interim orders passed by this Court. With regard to Primary Assistant Teachers, it is stated that all the candidates have completed Special Teacher Training Qualifying Condensed Course and also had obtained special JBT certificate after 5 years continuous service in terms of the Himachal Pradesh Education Code 1985. The judgments relied on by learned counsel Sri Prashant Bhushan also would not render any assistance to the case of the appellants herein for the reason that there was unexplained and inordinate delay on the part of the appellants in approaching the High Court and further having regard to explanation offered by the State about the need of framing such policies to meet the immediate requirement to fill up single teacher schools which were vacant for a very long time, having regard to topographical conditions, which is not even controverted by way of any rejoinder before the High Court. In such view of the matter, taking the totality of peculiar circumstances of these cases, we are of the that the view expressed by this Court in the judgments relied on cannot be applied to the facts of the case on hand. All the appointed candidates are working for the meagre salaries pursuant to schemes notified by the Government. Except the vague submission that such schemes were framed only to make back door entries, there is no material placed on record to buttress such submission. Further it is also to be noted that though such schemes were notified as early as in 2003, nobody has questioned such policies and appointments upto 2012 and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012 without even impleading the appointees as party respondents. In the writ petition there was no rejoinder filed by the writ petitioners disputing the averments of the State as stated in the reply affidavit. Having regard to nature of such appointments, appointments made as per policies cannot be termed as illegal. Having regard to material placed before this Court and having regard to reasons recorded in the impugned order by the High Court, we are of the view that no case is made out to interfere with the impugned judgment of the High Court | 0 | 3,901 | ### 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:
was 10+2 with 50% marks and JBT certificate. As submitted by learned senior counsel appearing for the State that initially though 3500 odd teachers were appointed, as of now there are only a total of 3294 teachers working in this category and out of this about 1866 had the qualification of 10+2 with more than 50% marks at the relevant point of engagement. Out of the balance of 1015 had 10+2 with less than 50% marks, but they had higher qualification such as B.A./M.A./M.Sc. or B.Ed. etc. Further, it is also brought to our notice that out of all the candidates 3294 candidates who are presently working have acquired the professional qualification of diploma in elementary education or have undergone Professional Development Programme for Elementary Teachers. In that view of the matter, we are of the view that when the appointees appointed under the scheme have completed more than almost 15 years of service now and also have acquired the professional qualifications, they cannot be denied regularisation at this point of time. As the appointments were made as per the schemes notified by the Government such appointments cannot be treated as illegal, if at all they can be considered irregular. When it is the plea of the State that in view of the hard topography/tribal areas in the State, large number of vacancies were there even single teacher schools and to achieve the object of The Himachal Pradesh Primary Education Act, 1997 such steps were taken, there is no reason to disbelieve the same, more so, in absence of any affidavit by way of rejoinder by the writ petitioners before the High Court controverting the allegations in the reply filed on behalf of the State. 12. Even with regard to Para Teachers Policy under which various category of teachers were appointed in the year 2003 pursuant to policy notified on 17.09.2003 it is clear from the record placed before this Court that all the persons who were recruited as Para Teachers were fully qualified as per the Recruitment and Promotion Rules, i.e., The Himachal Pradesh Education Department Class-III (School and Inspection Cadre) Service Rules, 1973. In view of the stand of the State that such policy was necessitated due to large number of vacant posts which have arisen year after year and which could not be filled since the State Selection Subodinate Board, Hamirpur which was responsible for the selection of teachers had come under a cloud and the selection process had come to a halt, such appointments cannot be rendered as illegal. Such aspect is also evident from the policy itself. Even in other category of Grant-in-Aid to Parent Teacher Association Rules, all teachers appointed under the scheme fulfil the educational qualifications prescribed in the Rules. For such kind of teachers, Cabinet has taken decision to take over the teachers on contract basis after completion of eight years of service which period was later reduced to seven years. It is also brought to our notice during the course of arguments that out of the total 6799 teachers, 5017 teachers were already taken over on contract basis by the State Government and only 1782 could not be taken over in view of the interim orders passed by this Court. 13. It is true that in the initial schemes notified by the Government there was a condition that such appointees should not seek regularisation/absorption but at the same time for no fault of them, they cannot be denied regularisation/absorption. It is in view of the requirement of the State, their services were extended from time to time and now all the appointees have completed more than 15 years of service. For majority of the appointed teachers under the various schemes benefit was already extended and some left over candidates were denied on account of interim orders passed by this Court. With regard to Primary Assistant Teachers, it is stated that all the candidates have completed Special Teacher Training Qualifying Condensed Course and also had obtained special JBT certificate after 5 years continuous service in terms of the Himachal Pradesh Education Code 1985. The judgments relied on by learned counsel Sri Prashant Bhushan also would not render any assistance to the case of the appellants herein for the reason that there was unexplained and inordinate delay on the part of the appellants in approaching the High Court and further having regard to explanation offered by the State about the need of framing such policies to meet the immediate requirement to fill up single teacher schools which were vacant for a very long time, having regard to topographical conditions, which is not even controverted by way of any rejoinder before the High Court. In such view of the matter, taking the totality of peculiar circumstances of these cases, we are of the that the view expressed by this Court in the judgments relied on cannot be applied to the facts of the case on hand. All the appointed candidates are working for the meagre salaries pursuant to schemes notified by the Government. Except the vague submission that such schemes were framed only to make back door entries, there is no material placed on record to buttress such submission. Further it is also to be noted that though such schemes were notified as early as in 2003, nobody has questioned such policies and appointments upto 2012 and 2013. The writ petition, i.e., C.W.P.No.3303 of 2012-A was filed in the year 2012 without even impleading the appointees as party respondents. In the writ petition there was no rejoinder filed by the writ petitioners disputing the averments of the State as stated in the reply affidavit. Having regard to nature of such appointments, appointments made as per policies cannot be termed as illegal. Having regard to material placed before this Court and having regard to reasons recorded in the impugned order by the High Court, we are of the view that no case is made out to interfere with the impugned judgment of the High Court.
### Response:
0
|
1,099 | Rashtriya Colliery Mazdoor Sangh Dhanbad Vs. Emp. In Relation To Mang. Of Kend.C.&Ors | the aid of the Appellant for the simple reason that in that case, the Union had challenged the judgment of the Division Bench of the High Court before this Court. In the present case, the judgment of the High Court dated 18 May 2004 modifying the Award of the Industrial Tribunal attained finality. In fact, in their writ petition of 2007 the workmen sought implementation of the judgment rendered on 18 May 2004. The entitlement that the workmen claim must hence flow out of the judgment of the High Court by which the workmen were entitled to the grant of a preference in future employment by the management by relaxing conditions of age and educational qualifications. This distinction has, in fact, been noted in a judgment recently delivered by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd. (C.A. 13953 of 2015). This Court while declining to grant reinstatement allowed compensation to fourteen workmen whose services were in issue, each in the amount of Rupees two lakhs in full and final settlement of all claims for compensation. The relevant part of the judgment rendered by this Court on 3 October 2016 is extracted below : "7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice.8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of LTwo lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal". 7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen. | 1[ds]7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen. | 1 | 1,923 | ### 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:
the aid of the Appellant for the simple reason that in that case, the Union had challenged the judgment of the Division Bench of the High Court before this Court. In the present case, the judgment of the High Court dated 18 May 2004 modifying the Award of the Industrial Tribunal attained finality. In fact, in their writ petition of 2007 the workmen sought implementation of the judgment rendered on 18 May 2004. The entitlement that the workmen claim must hence flow out of the judgment of the High Court by which the workmen were entitled to the grant of a preference in future employment by the management by relaxing conditions of age and educational qualifications. This distinction has, in fact, been noted in a judgment recently delivered by this Court on 3 October 2016, in Workmen Rastriya Colliery Mazdoor Sangh v. Bharat Coking Coal Ltd. (C.A. 13953 of 2015). This Court while declining to grant reinstatement allowed compensation to fourteen workmen whose services were in issue, each in the amount of Rupees two lakhs in full and final settlement of all claims for compensation. The relevant part of the judgment rendered by this Court on 3 October 2016 is extracted below : "7. The basic grievance of the workmen is that as a result of the position which has ensued, the workmen governed by the present proceedings of whom only 14 are left in the fray, are virtually without any relief or remedy in practical terms. The workmen were engaged between 1987 and 1989. Nearly 27 years have elapsed since then. Many of the 14 workmen would be on the verge of attaining the age of retirement. There is no occasion at present to grant them reinstatement since in any event, such relief has been denied in the judgment of the High Court dated 18 May 2004 which has not been challenged. However, the predicament of the workmen is real. Two sets of workmen in the same colliery under the same company have received unequal treatment. The present group of workmen has faced attrition in numbers and has been left with no practical relief. This situation should be remedied, to the extent that is now permissible in law, having regard to the above background. In order to render full, final and complete justice, we are of the view that an order for the payment of compensation in final settlement of all the claims, dues and outstandings payable to the 14 workmen in question would meet the ends of justice.8. We accordingly direct that the Respondents shall deposit with the Central Government Tribunal (No.2) at Dhanbad an amount of LTwo lakhs each towards compensation payable to each one of the 14 workmen. This amount shall be in full and final satisfaction of all the claims, demands and outstandings. Upon deposit of the amount, the Award of the Industrial Tribunal dated 9 September 1996, as modified by the High Court on 18 May 2004 shall be marked as satisfied. The Respondents shall deposit the amount as directed hereinabove, within a period of two months from today before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 26 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of identity by the Industrial Tribunal". 7. In the present case, the counter affidavit filed by the first respondent before this Court contains a specific admission that the eighty eight workmen governed by the reference were working as `Tyndals on surface as well as in underground mines through contractors at Kenduadih Colliery. The counter affidavit states that the reliance which is sought to be placed by the workmen on replies to queries under the Right to Information Act is misleading and that the appointments in those cases were made by the first respondent in category I whereas `Tyndals are appointed in category IV. We may note at this stage, that during the pendency of these proceedings an order was passed on 11 December 2015 to enable the respondents to ascertain the position with regard to the vacancies in the above category. A Committee was constituted by the first respondent which by its report dated 2 January 2016 has observed that there is no vacancy in the post of Tyndal, category IV either in respect of Kenduadih Colliery or the Pootkee Balihari area as a whole. Kenduadih Colliery is stated to be a closed mine. A statement has been annexed indicating the existence of surplus manpower.8. In the Judgment of this Court rendered on 3 October 2016, noted earlier, reasons have been indicated as to why it would not be practicable to grant reinstatement particularly since such relief was denied in the judgment of the High Court dated 18 May 2004, which has not been challenged. The workmen in that case were engaged between1987-1989. Nearly twenty seven years had elapsed and many of the workmen would have been on the verge of retirement. However, while taking note of the fact that two sets of workmen in the same colliery and under the same company have received unequal treatment, this Court ordered payment of compensation each in the amount of Rupees two lakhs to the workmen. The workmen in that case were employed as general mazdoors. The workmen in the present case belong to the skilled category of Tyndals which as noted earlier are comprised in category IV. Having due regard to this position, in the present case, it would be appropriate to direct that the first respondent shall in full and final settlement of all the claims and outstandings of the eighty eight workmen concerned in the reference deposit an amount of Rupees four lakhs each per workman before the Central Government Industrial Tribunal (No.2) Dhanbad in Reference 54 of 1993. The amount shall be disbursed to the workmen concerned subject to due verification of their identity by the Industrial Tribunal. This amount shall be in full and final satisfaction of all claims, demands and outstandings payable to the workmen.
### Response:
1
|
Subsets and Splits