Datasets:

L-NLProc

/

PredEx_Instruction-Tuning_Prediction

like 0

Follow

L-NLProc: Legal Natural Language Processing 3

Urmila Vs. Rashpal Kaur

Singhvi, J. 1. Leave granted. 2. Feeling dissatisfied with the enhancement granted by the Division Bench of the Chhattisgarh High Court in the amount of compensation awarded by Second Additional Motor Accident Claims Tribunal, Jagdalpur (for short, “the Tribunal”), the appellants have filed this appeal. 3. Shri Shivlal Verma (husband of appellant No.1, father of appellant Nos. 2 and 3 and son of Shri Swaminath and Smt. Tulsi Devi) died in an accident, which occurred on 23.4.1999 when he was hit by the truck belonging to respondent No.1. The appellants and the parents of the deceased (both of them died during the pendency of the case before the Tribunal) filed a petition under Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act) for award of compensation of Rs.28,45,000/- by asserting that the accident was caused due to rash and negligent driving of the truck by its driver-Shri Ashok Kumar Dass (respondent No.2). They claimed that at the time of death, Shri Shivlal Verma was 28 years old and was earning Rs.60,000/- per annum by doing agriculture.4. Respondent No.1 contested the claim by asserting that the accident was caused due to negligence and carelessness of the deceased. She also pleaded that the claim made by the appellants and the parents of the deceased was highly exaggerated.5. After considering the pleadings of the parties and evidence produced by them, the Tribunal held that the accident was caused due to rash and negligent driving of the truck by respondent No.2. The Tribunal then considered the issue relating to quantum of compensation, referred to the statements of appellant No.1-Smt. Urmila (P.W.1) and Swaminath Verma (P.W.3), both of whom deposed that the deceased was earning Rs.60,000/- per annum from agriculture, but assessed his income at Rs.50,000/- per annum. The Tribunal noted that family of the deceased consisted of six members and in terms of the judgment of this Court in U.P. State Road Transport Corporation v. Trilok Chandra (1996) 4 SCC 362 , the total number of units would be 9. The Tribunal then proceeded to make a deduction of Rs.1,500/- (Rs.911/- for 2 units of the deceased and Rs.589/- towards his personal expenses) and concluded that dependency of the claimants would be Rs.2,600/- per month. Finally, the Tribunal applied the multiplier of 8 and held that the claimants are entitled to compensation of Rs.2,59,000/- with interest at the rate of 12% per annum with a stipulation that if the amount is not paid within two months, then they would be entitled to receive interest at the rate of 18% per annum.6. The appellants challenged the award of the Tribunal by filing an appeal under Section 173 of the Act. They pleaded that the Tribunal had committed an error by applying the multiplier of 8 and that keeping in view the age of the deceased the multiplier of 17 should have been applied.7. The Division Bench of the High Court did not accept the plea of the appellants but applied the multiplier of 13 and held that the appellants are entitled to total compensation of Rs.4,20,600/-. The reasons assigned by the High Court for doing so are contained in paragraph 7 of the impugned judgment, which is extracted below: “So far as the multiplier is concerned, admittedly the deceased was aged about 28 years and, in our opinion, the Tribunal erred in selecting the multiplier of 8. The Tribunal has selected the multiplier of 8 on the basis of age of the father of the deceased, 60 years. The Tribunal completely lost sight of the fact that the Claim Petition was also filed by the widow and 2 minor children of the deceased who were aged about 25 years, 2 years and 15 days, respectively, on the date of the accident. In the facts and circumstances of the case, the Tribunal ought to have applied a higher multiplier than 8. Looking to the age of the deceased, his widow and minor children, we deem it appropriate to apply the multiplier of 13 in place of 8 applied by the Claims Tribunal.” 8. We have heard learned counsel for the parties and perused the record. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , a two-Judge Bench of this Court considered various issues relevant for determination of compensation payable in motor accident cases, noticed the judgments in G.M., Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 , U.P. State Road Transport Corporation v. Trilok Chandra (supra), T.N. State Transport Corporation Limited v. S. Rajapriya (2005) 6 SCC 236 , New India Assurance Company Limited v. Charlie (2005) 10 SCC 720 , Oriental Insurance Company Limited v. Meena Variyal (2007) 5 SCC 428 and held: “We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 9. Admittedly, at the time of accident the age of the deceased was 28 years. Therefore, in terms of the ratio of the judgment in Sarla Vermas case, the amount of compensation payable to the appellants is required to be determined by applying the multiplier of 17. By doing so, the appellants would become entitle to get compensation of Rs.5,30,400/-. If Rs.15,000/- is added to this amount under other permissible heads, as was done by the High Court, the total amount payable to the appellants would be Rs.5,45,400/-.

1[ds]9. Admittedly, at the time of accident the age of the deceased was 28 years. Therefore, in terms of the ratio of the judgment in Sarla Vermas case, the amount of compensation payable to the appellants is required to be determined by applying the multiplier of 17. By doing so, the appellants would become entitle to get compensation of Rs.is added to this amount under other permissible heads, as was done by the High Court, the total amount payable to the appellants would be Rs.

### 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: Singhvi, J. 1. Leave granted. 2. Feeling dissatisfied with the enhancement granted by the Division Bench of the Chhattisgarh High Court in the amount of compensation awarded by Second Additional Motor Accident Claims Tribunal, Jagdalpur (for short, “the Tribunal”), the appellants have filed this appeal. 3. Shri Shivlal Verma (husband of appellant No.1, father of appellant Nos. 2 and 3 and son of Shri Swaminath and Smt. Tulsi Devi) died in an accident, which occurred on 23.4.1999 when he was hit by the truck belonging to respondent No.1. The appellants and the parents of the deceased (both of them died during the pendency of the case before the Tribunal) filed a petition under Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act) for award of compensation of Rs.28,45,000/- by asserting that the accident was caused due to rash and negligent driving of the truck by its driver-Shri Ashok Kumar Dass (respondent No.2). They claimed that at the time of death, Shri Shivlal Verma was 28 years old and was earning Rs.60,000/- per annum by doing agriculture.4. Respondent No.1 contested the claim by asserting that the accident was caused due to negligence and carelessness of the deceased. She also pleaded that the claim made by the appellants and the parents of the deceased was highly exaggerated.5. After considering the pleadings of the parties and evidence produced by them, the Tribunal held that the accident was caused due to rash and negligent driving of the truck by respondent No.2. The Tribunal then considered the issue relating to quantum of compensation, referred to the statements of appellant No.1-Smt. Urmila (P.W.1) and Swaminath Verma (P.W.3), both of whom deposed that the deceased was earning Rs.60,000/- per annum from agriculture, but assessed his income at Rs.50,000/- per annum. The Tribunal noted that family of the deceased consisted of six members and in terms of the judgment of this Court in U.P. State Road Transport Corporation v. Trilok Chandra (1996) 4 SCC 362 , the total number of units would be 9. The Tribunal then proceeded to make a deduction of Rs.1,500/- (Rs.911/- for 2 units of the deceased and Rs.589/- towards his personal expenses) and concluded that dependency of the claimants would be Rs.2,600/- per month. Finally, the Tribunal applied the multiplier of 8 and held that the claimants are entitled to compensation of Rs.2,59,000/- with interest at the rate of 12% per annum with a stipulation that if the amount is not paid within two months, then they would be entitled to receive interest at the rate of 18% per annum.6. The appellants challenged the award of the Tribunal by filing an appeal under Section 173 of the Act. They pleaded that the Tribunal had committed an error by applying the multiplier of 8 and that keeping in view the age of the deceased the multiplier of 17 should have been applied.7. The Division Bench of the High Court did not accept the plea of the appellants but applied the multiplier of 13 and held that the appellants are entitled to total compensation of Rs.4,20,600/-. The reasons assigned by the High Court for doing so are contained in paragraph 7 of the impugned judgment, which is extracted below: “So far as the multiplier is concerned, admittedly the deceased was aged about 28 years and, in our opinion, the Tribunal erred in selecting the multiplier of 8. The Tribunal has selected the multiplier of 8 on the basis of age of the father of the deceased, 60 years. The Tribunal completely lost sight of the fact that the Claim Petition was also filed by the widow and 2 minor children of the deceased who were aged about 25 years, 2 years and 15 days, respectively, on the date of the accident. In the facts and circumstances of the case, the Tribunal ought to have applied a higher multiplier than 8. Looking to the age of the deceased, his widow and minor children, we deem it appropriate to apply the multiplier of 13 in place of 8 applied by the Claims Tribunal.” 8. We have heard learned counsel for the parties and perused the record. In Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 , a two-Judge Bench of this Court considered various issues relevant for determination of compensation payable in motor accident cases, noticed the judgments in G.M., Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 , U.P. State Road Transport Corporation v. Trilok Chandra (supra), T.N. State Transport Corporation Limited v. S. Rajapriya (2005) 6 SCC 236 , New India Assurance Company Limited v. Charlie (2005) 10 SCC 720 , Oriental Insurance Company Limited v. Meena Variyal (2007) 5 SCC 428 and held: “We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 9. Admittedly, at the time of accident the age of the deceased was 28 years. Therefore, in terms of the ratio of the judgment in Sarla Vermas case, the amount of compensation payable to the appellants is required to be determined by applying the multiplier of 17. By doing so, the appellants would become entitle to get compensation of Rs.5,30,400/-. If Rs.15,000/- is added to this amount under other permissible heads, as was done by the High Court, the total amount payable to the appellants would be Rs.5,45,400/-. ### Response: 1

M. Lachia Setty & Sons Ltd. Etc. Etc Vs. The Coffee Board, Bangalore

Vol. 22 para 33 (at pp. 55-56) contains the following statement of law:"33. The general doctrine of avoidable consequences applies to the measure of damages in actions for breach of contract. Thus, the damages awarded to the non-defaulting party to a contract will be determined and measured as though that party had made reasonable efforts to avoid the losses resulting from the default. Some courts have stated this doctrine in terms of a duty owing by the innocent party to the one in default; that is, that the person who is seeking damages for breach of contract has a duty to minimise those damages. However, on analysis, it is clear that in contract cases as well as generally, there is no duty to minimize damages, because no one has a right of action against the non-defaulting party if he does not reasonably avoid certain consequences arising from the default. Such a failure does not make the non-defaulting party liable to suit; it only indicate s that the damages actually suffered are greater than the law will compensate. Therefore, in contract actions, the doctrine of avoidable consequences is only a statement about how damages will be measured." (Emphasis supplied).13. From the above statement of law it will appear clear that the non-defaulting party is not expected to take steps which would injure innocent persons. If so, then steps taken by him in performance or discharge of his statutory duty also cannot be weighed against him. In substance the question in each case would be one of the reasonableness of action taken by the non-defaulting party.14. Here the material on record clearly shows that internal coffee prices in the year- 1952, particularly from March to October 1952, had soared very high on account of malpractices indulged in by coffee dealers and even the Government of India felt itself very much concerned about it and suggestions had been made by Government officials as well as by the Members of the Coffee Board to take steps to bring down the coffee prices at reasonable level in the interest of both the trade as well as the consumer and, in fact, several measures, including the step of accepting lower bids in preference to the higher bids, with a view to regulate coffee prices were taken by the Coffee Board pursuant to the Governments directive in that behalf. Clearly, these measures were being taken by the Board in discharge of their main function and duty to maintain the coffee prices at proper level in the interest of all concerned, particularly the consumer and were not directed against the defaulting dealers at the concerned pool auction. In fact, the evidence of Kuttalaingam Pillai (PW3), the Chief Coffee Marketing Officer, has been that before the commencement of the "pool auction" on that day he had issued oral warning to the bidders that Government of India was concerned about the increase in coffee prices and that they should not try to push up prices and corner stocks and M. L. Gopal Setty (D.W. 1) has admitted that Chief Coffee Marketing Officer had given a warning that the higher bids will not be accepted. Therefore, when in spite of such warning being issued unnecessarily higher bids were given exceeding the average prices prevailing in the month of September 1952, (which themselves were high), the Chief Coffee Marketing Officer decided to accept lower bids in preference to the higher ones. It was in these circumstances that at the re-sale held on December 23, 1952 the prices realised were lower than the appellants bids which had been accepted at the "pool auction" held on October 7, 1952. It must b e stated here that at the re-sale admittedly only the highest bids were accepted. So it is not as if at the re-sale lower bids were deliberately accepted to enhance the loss. It is impossible to subscribe to the proposition that the Board should have maintained the high price level at the cost of the consumers merely with a view to see that the defaulting bidders did not suffer any loss on re-sale. The loss arising on the resale, therefore, cannot be regarded as "unreal" loss. The attack of the appellants against the grant of damages to the respondent on this ground is clearly unsustainable.As regards the alleged delay in holding the re-sale it must be observed that both the trial court as well as the High Court have taken the view that the same was held within reasonable time at the next "pool auction" conducted in the normal course. The results of the concerned "pool auction" were declared some time after 2 P.M. on October 8, 1952. The period of 17 days (14 days initial period plus 3 days of grace for taking delivery) expired on October 26, 1952, but the evidence on record shows that there was a general request on behalf of the successful bidders for extension of time for making payment and taking delivery and such extension had been granted by the Board upto November 10, 1952 by issuing a circular. We have already held that there was no valid retraction of bids by the appellants and to their knowledge their retraction had been rejected by the Board on October 8, 1952 itself. That the appellants were interested in the extension granted by the Board becomes evident from their telegram dated October 22, 1952 (Ex. A - 129) seeking confirmation of the extension. After November 10, 1952. some reasonable notice of re-sale would have to be issued, so the defaulted coffee could not be put up for sale in the pool auction that was held in the month of November, 1952. The next pool auction was to be held in December, 1952 and, therefore, after issuing notice of re-sale on December 18, 1952 the re-sale was held by conducting a pool auction on December 23, 1952. In our view, both the Courts were right in taking the view that the re-sale had been held within the reasonable time.15.

0[ds]In the first place giving of telegraphic bids having been expressly barred in the earlier part of the Condition the phrase "telegraphic instructions regarding bidding" cannot again refer to instructions regarding the act of giving or making bids. Secondly, on the face of it "instructions regarding bidding" would mean any instructions, not merely instructions by way of clarification, modification, amplification of bids but also withdrawal or retraction of the b ids and such instructions by telegrams would be impermissible. Moreover having regard to the solemn procedure prescribed and followed by the Coffee Board in the matter of conducting its "pool auctions" submission of bids is required to be done in prescribed forms and telegraphic bids are prohibited it stands to reason that any instructions concerning such bids whether by way of clarification, amplification, modification, cancellation or retraction should not be permissible by telegrams which are more often cryptic and do not possess authenticity on their face. Further, the fact that nowhere else in the Conditions of Sale is the topic of withdrawal or retraction of bids dealt with would precisely be the reason why Condition No. 8 should be widely construed as including the topic of instructions regarding the withdrawal or retraction of bids. In our view, the High Court was right in coming to the conclusion that Condition No. 8 was wide enough t o bar withdrawal or retraction of bids by telegram.Turning to the oral retraction made by M. L. Gopal Setty on October 8, 1952, the High Court has taken the view that the case of oral retraction before the results were announced was not true, which may be difficult to sustain. But, even if the evidence about such oral retraction which consists of the testimony of Gopal Setty (D.W. 1) and Saldhana (PW 1) were to be accepted at its face value, the same would be of no avail to the appellants because, such oral retraction was made to Saldhana, the Assistant Coffee Marketing Officer, who had no authority in the matter. Under the procedure it is the Sale Conducting Officer who is in charge of the pool auctions. Therefore, retractions had to be made to either the Sale Conducting Officer or the Chief Coffee Marketing Officer, the executive head of the Board, and that is why the telegram Ex.was addressed on behalf of the appellants to the Chief Coffee Marketing Officer. In this case the Chief Coffee Marketing Officer himself was the Sale Conducting Officer and the oral retraction was not made to him but it was made to Saldhana, who had no authority. The oral retraction was, therefore, ineffective and of no consequence. In our view, therefore, it is not possible to accept the contention of the appellants that there were no concluded contracts between them on the one hand and the Coffee Board on the other on account of withdrawal or retraction of theirwill appear clear that the underlined portion of the statement of law is supported by the case of Blackbeard v. Lindigren referred to at footnote 3. [(1786) 1 Cox Eq Cas 205 = 29 English Reports Chancery) 1130]. It was a case where an Estate was sold before the Master for payment of debts and A was reported to be the best bidder at the sum of `13, 000 but before the report was confirmed it was discovered that A was insane at the time of the bidding. The Court was moved on behalf of all the parties in the cause that B the next best bidder might be reported to be the purchaser at the sum bidden by him. To this motion B consented but the Court thought it was irregular and directed the estat e to begenerally. Relying on this decision counsel for the appellants contended that the normal rule was that a lower bid lapses on the receipt of a higher bid, and if the highest bid was not to be accepted for any reason, the auction must be abandoned and fresh auction would be required to be held and, therefore, in the instant case the Chief Coffee Marketing Officer could not accept the lower bids of Giri Coffee Works in respect of fivecannot be disputed that an auctioneer can set his own terms and conditions for holding an auction and if he does so those conditions would govern the rights of the parties. The short question which arises for our consideration is whether Condition No. 6 includes a power to accept a lower bid in preference to any higher bid ?Condition No. 6 runsThe seller does not bind himself to accept the highest or any bi d. He is not bound to assign any reasons for his decision, and his decision shall be final andare not impressed by the submissions made by counsel for the appellants on the question of proper construction of Condition No. 6. It is true that Condition No. 6 is couched in a peculiar way but when it states that the seller is not bound to accept the highest bid it necessarily implies that he can accept any lower bid. The additio n of the words "or any bid" after the words "the highest" seems to us to be of some significance. We do not agree that these words are used merely for the purpose of emphasising the aspect that even the highest bid need not be accepted. We are o f the view that two separateto decline the highest bid and power to decline anydifferent consequences ensuing are intended to be conferred on the seller by this condition. The addition of the word "or any bid" would be superfluous if the same consequence (of holding a fresh auction) was to ensue in the event the highest bid being declined. Therefore, on construction of the condition it is clear that by necessary implication power had been conferred on Board or its Chief Coffee Marketing Officer to accept a lower bid in preference to any higher bid. Besides, at Ex.the respondent Board has produced a tabulated statement showing a number of instances where the highest bids were rejected and lower bids accepted at "pool auctions" conducted by it from 1949 toperiod long before the instant dispute arose which clearly shows that the parties to the pool auctions also understood Condition No. 6 as conferring a power on the Board or its Chief Coffee Marketing Officer to accept lower bids in preference to higher bids. Moreover, such construction of Condition No. 6 would accord with the accomplishment of the main function of the Board to control coffee prices by maintaining them a t proper level as the power to accept a lower bid in preference to any higher or the highest bid helps avoiding malpractices such as formation of rings or syndicates by coffee dealers, cornering of coffee by a few dealers, puffing up of prices by them, etc. In the view which we are taking of Condition No. 6, it is clear that the Chief Coffee Marketing Officer in the instant case was within his rights when he accepted the lower bids received from Giri Coffee Works in respect of 5 lots . The appellants contention in this behalf, therefore, mustthe Board was under an obligation to mitigate or minimise the loss arising from the failure on the part of the appellants to pay for and take delivery of the coffee allotted to them at the pool auction, but instead deliberate measures were taken by the Board to bring down the prices of coffee and then effected aon December 23, 1952 resulting in the alleged loss of Rs. 34,and Rs. 5, 917 respectively, which could not be regarded as a loss directly and naturally arising from the breach in the ordinary course of events, but was unreal, created and brought about by the respondent and, therefore, the same was not recoverable from the appellants. Secondly, thewas not held within reasonable time of breach but was inordinately delayed and, therefore, the appellants were not liable for the quantum claimed. It may be stated that the contention that the defaulted coffee ought to have been put up for sale at Export Auction and not at Pool Auction, though urged in the lower Courts, was not pressed before us. For the reasons which we shall indicate presently, we do not find substance in either of these two grounds ofthe outset it must be observed that the principle of mitigation of loss does not give any right to the party who is in breach of the contract but it is a concept that has to be borne in mind by the Court while awarding damages. The correct statement of law in this behalf is to be found i n Halsburys Laws of England (4th Edn.) Vol. 12, para 1193 at pagethe material on record clearly shows that internal coffee prices in the year1952, particularly from March to October 1952, had soared very high on account of malpractices indulged in by coffee dealers and even the Government of India felt itself very much concerned about it and suggestions had been made by Government officials as well as by the Members of the Coffee Board to take steps to bring down the coffee prices at reasonable level in the interest of both the trade as well as the consumer and, in fact, several measures, including the step of accepting lower bids in preference to the higher bids, with a view to regulate coffee prices were taken by the Coffee Board pursuant to the Governments directive in that behalf. Clearly, these measures were being taken by the Board in discharge of their main function and duty to maintain the coffee prices at proper level in the interest of all concerned, particularly the consumer and were not directed against the defaulting dealers at the concerned pool auction. In fact, the evidence of Kuttalaingam Pillai (PW3), the Chief Coffee Marketing Officer, has been that before the commencement of the "pool auction" on that day he had issued oral warning to the bidders that Government of India was concerned about the increase in coffee prices and that they should not try to push up prices and corner stocks and M. L. Gopal Setty (D.W. 1) has admitted that Chief Coffee Marketing Officer had given a warning that the higher bids will not be accepted. Therefore, when in spite of such warning being issued unnecessarily higher bids were given exceeding the average prices prevailing in the month of September 1952, (which themselves were high), the Chief Coffee Marketing Officer decided to accept lower bids in preference to the higher ones. It was in these circumstances that at theheld on December 23, 1952 the prices realised were lower than the appellants bids which had been accepted at the "pool auction" held on October 7, 1952. It must b e stated here that at theadmittedly only the highest bids were accepted. So it is not as if at thelower bids were deliberately accepted to enhance the loss. It is impossible to subscribe to the proposition that the Board should have maintained the high price level at the cost of the consumers merely with a view to see that the defaulting bidders did not suffer any loss onThe loss arising on the resale, therefore, cannot be regarded as "unreal" loss. The attack of the appellants against the grant of damages to the respondent on this ground is clearly unsustainable.As regards the alleged delay in holding theit must be observed that both the trial court as well as the High Court have taken the view that the same was held within reasonable time at the next "pool auction" conducted in the normal course. The results of the concerned "pool auction" were declared some time after 2 P.M. on October 8, 1952. The period of 17 days (14 days initial period plus 3 days of grace for taking delivery) expired on October 26, 1952, but the evidence on record shows that there was a general request on behalf of the successful bidders for extension of time for making payment and taking delivery and such extension had been granted by the Board upto November 10, 1952 by issuing a circular. We have already held that there was no valid retraction of bids by the appellants and to their knowledge their retraction had been rejected by the Board on October 8, 1952 itself. That the appellants were interested in the extension granted by the Board becomes evident from their telegram dated October 22, 1952 (Ex. A129) seeking confirmation of the extension. After November 10, 1952. some reasonable notice ofwould have to be issued, so the defaulted coffee could not be put up for sale in the pool auction that was held in the month of November, 1952. The next pool auction was to be held in December, 1952 and, therefore, after issuing notice ofon December 18, 1952 thewas held by conducting a pool auction on December 23, 1952. In our view, both the Courts were right in taking the view that thehad been held within the reasonable time.

### 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: Vol. 22 para 33 (at pp. 55-56) contains the following statement of law:"33. The general doctrine of avoidable consequences applies to the measure of damages in actions for breach of contract. Thus, the damages awarded to the non-defaulting party to a contract will be determined and measured as though that party had made reasonable efforts to avoid the losses resulting from the default. Some courts have stated this doctrine in terms of a duty owing by the innocent party to the one in default; that is, that the person who is seeking damages for breach of contract has a duty to minimise those damages. However, on analysis, it is clear that in contract cases as well as generally, there is no duty to minimize damages, because no one has a right of action against the non-defaulting party if he does not reasonably avoid certain consequences arising from the default. Such a failure does not make the non-defaulting party liable to suit; it only indicate s that the damages actually suffered are greater than the law will compensate. Therefore, in contract actions, the doctrine of avoidable consequences is only a statement about how damages will be measured." (Emphasis supplied).13. From the above statement of law it will appear clear that the non-defaulting party is not expected to take steps which would injure innocent persons. If so, then steps taken by him in performance or discharge of his statutory duty also cannot be weighed against him. In substance the question in each case would be one of the reasonableness of action taken by the non-defaulting party.14. Here the material on record clearly shows that internal coffee prices in the year- 1952, particularly from March to October 1952, had soared very high on account of malpractices indulged in by coffee dealers and even the Government of India felt itself very much concerned about it and suggestions had been made by Government officials as well as by the Members of the Coffee Board to take steps to bring down the coffee prices at reasonable level in the interest of both the trade as well as the consumer and, in fact, several measures, including the step of accepting lower bids in preference to the higher bids, with a view to regulate coffee prices were taken by the Coffee Board pursuant to the Governments directive in that behalf. Clearly, these measures were being taken by the Board in discharge of their main function and duty to maintain the coffee prices at proper level in the interest of all concerned, particularly the consumer and were not directed against the defaulting dealers at the concerned pool auction. In fact, the evidence of Kuttalaingam Pillai (PW3), the Chief Coffee Marketing Officer, has been that before the commencement of the "pool auction" on that day he had issued oral warning to the bidders that Government of India was concerned about the increase in coffee prices and that they should not try to push up prices and corner stocks and M. L. Gopal Setty (D.W. 1) has admitted that Chief Coffee Marketing Officer had given a warning that the higher bids will not be accepted. Therefore, when in spite of such warning being issued unnecessarily higher bids were given exceeding the average prices prevailing in the month of September 1952, (which themselves were high), the Chief Coffee Marketing Officer decided to accept lower bids in preference to the higher ones. It was in these circumstances that at the re-sale held on December 23, 1952 the prices realised were lower than the appellants bids which had been accepted at the "pool auction" held on October 7, 1952. It must b e stated here that at the re-sale admittedly only the highest bids were accepted. So it is not as if at the re-sale lower bids were deliberately accepted to enhance the loss. It is impossible to subscribe to the proposition that the Board should have maintained the high price level at the cost of the consumers merely with a view to see that the defaulting bidders did not suffer any loss on re-sale. The loss arising on the resale, therefore, cannot be regarded as "unreal" loss. The attack of the appellants against the grant of damages to the respondent on this ground is clearly unsustainable.As regards the alleged delay in holding the re-sale it must be observed that both the trial court as well as the High Court have taken the view that the same was held within reasonable time at the next "pool auction" conducted in the normal course. The results of the concerned "pool auction" were declared some time after 2 P.M. on October 8, 1952. The period of 17 days (14 days initial period plus 3 days of grace for taking delivery) expired on October 26, 1952, but the evidence on record shows that there was a general request on behalf of the successful bidders for extension of time for making payment and taking delivery and such extension had been granted by the Board upto November 10, 1952 by issuing a circular. We have already held that there was no valid retraction of bids by the appellants and to their knowledge their retraction had been rejected by the Board on October 8, 1952 itself. That the appellants were interested in the extension granted by the Board becomes evident from their telegram dated October 22, 1952 (Ex. A - 129) seeking confirmation of the extension. After November 10, 1952. some reasonable notice of re-sale would have to be issued, so the defaulted coffee could not be put up for sale in the pool auction that was held in the month of November, 1952. The next pool auction was to be held in December, 1952 and, therefore, after issuing notice of re-sale on December 18, 1952 the re-sale was held by conducting a pool auction on December 23, 1952. In our view, both the Courts were right in taking the view that the re-sale had been held within the reasonable time.15. ### Response: 0

State Of Gujarat Vs. Dr. R.B. Chandrachud

Now the Articles of the merger agreement may furnish valuable evidence of the affirmance of rights conferred by the predecessor State, see 1959 SCR 729 = (AIR 1958 SC 816 ) (supra) at p. 748 (of SCR) = (at p. 826 of AIR). In the State of M P. v. Shyam Lal a recognition of those rights was inferred from article in merger agreements providing for the continuance of the laws of the merging State and for the taking over its assets and liabilities by the new State. In the present case Article VIII of the merger agreement dated March 21, 1951 provided:-(1) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Baroda on conditions which will not be less advantageous than those on which they were serving before the date on which the administration of Baroda is made over to the Government of India or the payment of reasonable compensation. (2) The Government of India further guarantees the continuance of pensions and leave salaries sanctioned by His Highness the Maharaja to the members of its public services of the State who have refired or proceeded on leave preparatory to retirement, before the date on which the administration of Baroda is made over to the Government of India. Clause (2) of Article VIII applies to the respondent. He was a member of the public services of the Baroda State and he retired before the date of the merger.It guarantees the continuance of the pension and leave salary sanctioned to him by the Maharaja. Now what does the word "pension" in Cl. (2) of Art. VIII mean ? Ordinarily the word "pension" means a periodical allowance of money granted by the Government in consideration or recognition of meritorious services. The word "Pension" in the Pensions Act, 1871 Section 60 (1) (g) of the Code of Civil Procedure. 1908 and Section 6 (g) of the Transfer of Property Act, 1882 implies periodical payments of money by Government to the pensioner, see Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd. (l931) 58 Ind App 215 at pp. 219-20 = (AIR 1931 PC 160 at p. 161). Pension, gratuity and provident fund are three distinct types of retirement benefits. But the word "pension" (Pensionem payment) in its widest etymological sense can be construed as including all payments of every kind and description to a retiring Government servant, see Secy. of State v. Khemchand Jeychand, (1880) ILR 4 Bom 432 at p. 436.The term "pension" is frequently, particularly in recent years, used in the broad sense of retirement allowance or adjusted compensation for services rendered, see Corpus Juris Secundum, Vol. 67 Page 331, Vol. 70, page 425. It has received the wider connotation in the definition sections of many modern statutes. To give a few illustration, the word "pension" includes "any payment of a lump sum in respect of a persons employment", see Fatal Accidents Act, 1959 (7 and 8 Elis, 2 c, 65), Section 2 (2), "a superannuation allowance", see Midwives Act, 1936 (26 Geo. 5 and 1 Edw. 8 c 40), Section 2 (6) a "gratuity" and a return of contributions to a pension fund with or without interest thereon or any other addition thereto, see Transport Act, 1947, (10 and 11 Geo. 6 c. 49), Section 125 (1), Gas Act, 1948 (11 and 12 Geo. 6 c. 67), Section 74 (1). 11. Now Clause (1) of Article VIII of the merger agreement guarantees payment of reasonable compensation to officials whose services are dispensed with by the new Government Clause 2 guarantees the continuance of pensions and leave salaries sanctioned by the Maharaja to officers who had retired before the date of the merger. Considering that the object of Article VIII is to guarantee payment of retirement benefits to retired public servants of the merged State, we are not inclined to give the word "pensions" a narrow interpretation. In our opinion, the word "pensions" in Clause 2 of Article VIII includes the lump sum payable to the respondent as compensation under the Huzur order dated February 8, 1948 as modified by the Huzur order dated July 22, 1948 In substance, the Huzur order directed that the respondent would get his full salary as his pension from the date of his Premature retirement up to the completion of his superannuation age and allowed him to draw immediately the entire allowance for the period in one lump sum. The allowance so payable to the respondent, a retiring Government servant, in recognition of his past services is "pension" within the meaning of Clause 2 of Article VIII of the merger agreement. 12. Article VIII of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948. We have also noticed that the successor Governments continued the old laws of the Baroda State until they were repealed or altered. The successor Governments resisted the respondents claim on the ground that the order of forfeiture passed by the Executive Council on April 22, 1949 was lawful. There was no question of their disclaiming liability under the Huzur order of February 8, 1948 in case it was found that the order of the Executive Council dated April 22, 1949 was invalid. In the circumstances, we hold that the successor Governments recognized and took over the liability under the Huzur order dated February 8, 1948. If so, it is not disputed that the liability has now devolved on the State of Gujarat. It follows that the Courts below rightly decreed the suit. 13. This conclusion is sufficient to dispose of the appeal and we express no opinion whether the liability was also recognized by paragraph 4 (1) (b) of the Administration of Baroda State Order, paragraph 5 (iii) (a) of the Baroda State (Application of Laws) Order, 1949 or Paragraph 7 (1) of the States Merger (Governors Provinces) Order, 1949.

0[ds]In view of Section 18 (d) of the Baroda Constitution Act, 1940 even a legislative bill affecting an order passed by the Maharaja in the exercise of his prerogative rights could not be moved in the Dhara Sabha without his previous sanction. Under Section 32 (f) pensions and gratuities sanctioned by the Maharaja were charged on the revenues of the State. The Huzur order was passed by the Maharaja on February 8, 1948 in the exercise of his prerogative and inherent powers. The order was executed and the monies were paid under it to the respondent. The Executive Council had no authority to revoke the Huzur order and to forfeit the monies. We hold that the order of the Executive Council dated April 22, 1949 was ultra vires its powers and was illegal and not binding upon the respondent6. It is now conceded that the direction in the order dated April 22, 1949 for the recovery of the monies under Section 148 of the Baroda Land Revenue Code was illegal. That section did not allow recovery of moneys payable under an order of the Executive Council. The attachment levied on the respondents properties was unlawful. The recovery of Rs. 65,000/- from the respondent under the invalid order of the Executive Council cannot be justified as an act of State.The Courts below rightly found that the respondent was compelled to pay Rs. 65,000/- under coercion. The result of the illegal recovery was that to the extent of Rs. 65,000/- the liability of the Baroda Government under the Huzur Order dated February 8,1948 remained outstanding12. Article VIII of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948. We have also noticed that the successor Governments continued the old laws of the Baroda State until they were repealed or altered. The successor Governments resisted the respondents claim on the ground that the order of forfeiture passed by the Executive Council on April 22, 1949 was lawful. There was no question of their disclaiming liability under the Huzur order of February 8, 1948 in case it was found that the order of the Executive Council dated April 22, 1949 was invalid. In the circumstances, we hold that the successor Governments recognized and took over the liability under the Huzur order dated February 8, 1948. If so, it is not disputed that the liability has now devolved on the State of Gujarat. It follows that the Courts below rightly decreed the suit13. This conclusion is sufficient to dispose of the appeal and we express no opinion whether the liability was also recognized by paragraph 4 (1) (b) of the Administration of Baroda State Order, paragraph 5 (iii) (a) of the Baroda State (Application of Laws) Order, 1949 or Paragraph 7 (1) of the States Merger (Governors Provinces) Order, 1949.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Now the Articles of the merger agreement may furnish valuable evidence of the affirmance of rights conferred by the predecessor State, see 1959 SCR 729 = (AIR 1958 SC 816 ) (supra) at p. 748 (of SCR) = (at p. 826 of AIR). In the State of M P. v. Shyam Lal a recognition of those rights was inferred from article in merger agreements providing for the continuance of the laws of the merging State and for the taking over its assets and liabilities by the new State. In the present case Article VIII of the merger agreement dated March 21, 1951 provided:-(1) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Baroda on conditions which will not be less advantageous than those on which they were serving before the date on which the administration of Baroda is made over to the Government of India or the payment of reasonable compensation. (2) The Government of India further guarantees the continuance of pensions and leave salaries sanctioned by His Highness the Maharaja to the members of its public services of the State who have refired or proceeded on leave preparatory to retirement, before the date on which the administration of Baroda is made over to the Government of India. Clause (2) of Article VIII applies to the respondent. He was a member of the public services of the Baroda State and he retired before the date of the merger.It guarantees the continuance of the pension and leave salary sanctioned to him by the Maharaja. Now what does the word "pension" in Cl. (2) of Art. VIII mean ? Ordinarily the word "pension" means a periodical allowance of money granted by the Government in consideration or recognition of meritorious services. The word "Pension" in the Pensions Act, 1871 Section 60 (1) (g) of the Code of Civil Procedure. 1908 and Section 6 (g) of the Transfer of Property Act, 1882 implies periodical payments of money by Government to the pensioner, see Nawab Bahadur of Murshidabad v. Karnani Industrial Bank Ltd. (l931) 58 Ind App 215 at pp. 219-20 = (AIR 1931 PC 160 at p. 161). Pension, gratuity and provident fund are three distinct types of retirement benefits. But the word "pension" (Pensionem payment) in its widest etymological sense can be construed as including all payments of every kind and description to a retiring Government servant, see Secy. of State v. Khemchand Jeychand, (1880) ILR 4 Bom 432 at p. 436.The term "pension" is frequently, particularly in recent years, used in the broad sense of retirement allowance or adjusted compensation for services rendered, see Corpus Juris Secundum, Vol. 67 Page 331, Vol. 70, page 425. It has received the wider connotation in the definition sections of many modern statutes. To give a few illustration, the word "pension" includes "any payment of a lump sum in respect of a persons employment", see Fatal Accidents Act, 1959 (7 and 8 Elis, 2 c, 65), Section 2 (2), "a superannuation allowance", see Midwives Act, 1936 (26 Geo. 5 and 1 Edw. 8 c 40), Section 2 (6) a "gratuity" and a return of contributions to a pension fund with or without interest thereon or any other addition thereto, see Transport Act, 1947, (10 and 11 Geo. 6 c. 49), Section 125 (1), Gas Act, 1948 (11 and 12 Geo. 6 c. 67), Section 74 (1). 11. Now Clause (1) of Article VIII of the merger agreement guarantees payment of reasonable compensation to officials whose services are dispensed with by the new Government Clause 2 guarantees the continuance of pensions and leave salaries sanctioned by the Maharaja to officers who had retired before the date of the merger. Considering that the object of Article VIII is to guarantee payment of retirement benefits to retired public servants of the merged State, we are not inclined to give the word "pensions" a narrow interpretation. In our opinion, the word "pensions" in Clause 2 of Article VIII includes the lump sum payable to the respondent as compensation under the Huzur order dated February 8, 1948 as modified by the Huzur order dated July 22, 1948 In substance, the Huzur order directed that the respondent would get his full salary as his pension from the date of his Premature retirement up to the completion of his superannuation age and allowed him to draw immediately the entire allowance for the period in one lump sum. The allowance so payable to the respondent, a retiring Government servant, in recognition of his past services is "pension" within the meaning of Clause 2 of Article VIII of the merger agreement. 12. Article VIII of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948. We have also noticed that the successor Governments continued the old laws of the Baroda State until they were repealed or altered. The successor Governments resisted the respondents claim on the ground that the order of forfeiture passed by the Executive Council on April 22, 1949 was lawful. There was no question of their disclaiming liability under the Huzur order of February 8, 1948 in case it was found that the order of the Executive Council dated April 22, 1949 was invalid. In the circumstances, we hold that the successor Governments recognized and took over the liability under the Huzur order dated February 8, 1948. If so, it is not disputed that the liability has now devolved on the State of Gujarat. It follows that the Courts below rightly decreed the suit. 13. This conclusion is sufficient to dispose of the appeal and we express no opinion whether the liability was also recognized by paragraph 4 (1) (b) of the Administration of Baroda State Order, paragraph 5 (iii) (a) of the Baroda State (Application of Laws) Order, 1949 or Paragraph 7 (1) of the States Merger (Governors Provinces) Order, 1949. ### Response: 0

Commr. of Income Tax-II, Chandigarh Vs. M/s. Swaraj Engines Ltd

1. Leave granted. 2. This Civil Appeal is filed by the Revenue against the order passed by the Punjab & Haryana High Court in I.T.A.No.131/2004. The impugned decision is dated 18th May, 2006. M/s. Swaraj Engines Ltd. (respondent herein) entered into an agreement of transfer of technology know-how and trade mark with Kirloskar Oil Engines Ltd. under which royalty was payable it. The claim for deduction in respect of the said payment was made by the respondent. It is important to note that during the relevant Assessment Year 1995-96, royalty was paid by the assessee as a percentage of net selling price of the licensed goods products. 3. Two questions arise for determination in this Civil Appeal. Firstly, whether the question regarding applicability of Section 35AB of Income Tax Act, 1961 was ever raised by the AO in this case? The second question which arises for determination in this case is whether the expenditure incurred is revenue expenditure or whether it is an expenditure which is capital in nature and depending on the answer to the said question, the applicability of Section 35AB of the Income Tax Act needs to be considered. 4. On the first question, it has been vehemently urged by Shri Iyer, learned senior counsel on behalf of the respondent-assessee, that the High Court was right in dismissing the Departments appeal in limine following its earlier judgment in the case of C.I.T. vs. M/s. J.C.T. Electronics Ltd. in I.T.A. No.383/2004. On the first question, there is considerable amount of confusion. It appears that prior to Assessment Year 1995-96, the Department has been contending that the royalty expenditure comes within the ambit of Section 35AB. However, there is some doubt as to whether the said contention regarding applicability of Section 35AB was at all raised. In this regard, the order of AO is not clear principally because it has focused only on one point, viz., whether such expenditure is revenue or capital in nature. At the same time, it is important to note that even for the applicability of Section 35AB, the nature of expenditure is required to be decided at the threshold because if the expenditure is found to be revenue in nature, then Section 35AB may not apply. However, if it is found to be capital in nature, then the question of amortization and spread over, as contemplated by Section 35AB, would certainly come into play. Therefore, in our view, it would not be correct to say that in this case, interpretation of Section 35AB was not in issue. Our above reasoning is further fortified by the question framed by the High Court in the impugned judgment which reads as under: Whether on the facts and in the circumstances of the case, the Honble ITAT is right in upholding the decision of the Commissioner of Income-Tax (Appeals) that the payment of royalty made by the assessee company to M/s. Kirloskar Oil Engine Ltd. to acquire technology know- how under the agreement dated 19.10.89, is a revenue expenditure and does not come within the ambit of provisions of Section 35AB of the Income Tax Act, 1961, whereas the payment is a capital expenditure in view of the following judgments. A. Femmur Woodruf & Co. Ltd. V. CIT 102 ITR 665 (Mad) B. Ram Kumar Pharmaceuticals Works V CIT 119 ITR 33 (All). C. CIT V. Warmar Hindustan Ltd. 160 ITR 217 (AP) D. CIT V. Southern Switch Gears ltd. 148 ITR 272 (Mad) 5. On bare reading of the said question, it is clear that applicability of Section 35AB in the context of royalty paid to Kirloskar as a percentage of the net sale price being revenue or capital in nature and depending on the answer to that question, the applicability of Section 35AB also arose for determination before the High Court. Be that as it may, the said question needs to be decided authoritatively by the High Court as it is an important question of law, particularly, after insertion of Section 35AB. Therefore, we are required to remit the matter to the High Court for fresh consideration in accordance with law. On the second question, we do not wish to express any opinion. It is for the High Court to decide, after construing the agreement between the parties, whether the expenditure is revenue or capital in nature and, depending on the answer to that question, the High Court will have to decide the applicability of Section 35AB of the Income Tax Act. On this aspect we keep all contentions on both sides expressly open.

1[ds]5. On bare reading of the said question, it is clear that applicability of Section 35AB in the context of royalty paid to Kirloskar as a percentage of the net sale price being revenue or capital in nature and depending on the answer to that question, the applicability of Section 35AB also arose for determination before the High Court. Be that as it may, the said question needs to be decided authoritatively by the High Court as it is an important question of law, particularly, after insertion of Section 35AB. Therefore, we are required to remit the matter to the High Court for fresh consideration in accordance with law. On the second question, we do not wish to express any opinion. It is for the High Court to decide, after construing the agreement between the parties, whether the expenditure is revenue or capital in nature and, depending on the answer to that question, the High Court will have to decide the applicability of Section 35AB of the Income Tax Act. On this aspect we keep all contentions on both sides expressly open.On the first question, there is considerable amount of confusion. It appears that prior to Assessment Year 1995-96, the Department has been contending that the royalty expenditure comes within the ambit of Section 35AB. However, there is some doubt as to whether the said contention regarding applicability of Section 35AB was at all raised. In this regard, the order of AO is not clear principally because it has focused only on one point, viz., whether such expenditure is revenue or capital in nature. At the same time, it is important to note that even for the applicability of Section 35AB, the nature of expenditure is required to be decided at the threshold because if the expenditure is found to be revenue in nature, then Section 35AB may not apply. However, if it is found to be capital in nature, then the question of amortization and spread over, as contemplated by Section 35AB, would certainly come into play. Therefore, in our view, it would not be correct to say that in this case, interpretation of Section 35AB was not in issue. Our above reasoning is further fortified by the question framed by the High Court in the impugned judgment which reads as under:Whether on the facts and in the circumstances of the case, the Honble ITAT is right in upholding the decision of the Commissioner of Income-Tax (Appeals) that the payment of royalty made by the assessee company to M/s. Kirloskar Oil Engine Ltd. to acquire technology know- how under the agreement dated 19.10.89, is a revenue expenditure and does not come within the ambit of provisions of Section 35AB of the Income Tax Act, 1961, whereas the payment is a capital expenditure in view of the following judgmentsA. Femmur Woodruf & Co. Ltd. V. CIT 102 ITR 665 (Mad)B. Ram Kumar Pharmaceuticals Works V CIT 119 ITR 33 (All)C. CIT V. Warmar Hindustan Ltd. 160 ITR 217 (AP)D. CIT V. Southern Switch Gears ltd. 148 ITR 272 (Mad)5. On bare reading of the said question, it is clear that applicability of Section 35AB in the context of royalty paid to Kirloskar as a percentage of the net sale price being revenue or capital in nature and depending on the answer to that question, the applicability of Section 35AB also arose for determination before the High Court. Be that as it may, the said question needs to be decided authoritatively by the High Court as it is an important question of law, particularly, after insertion of Section 35AB. Therefore, we are required to remit the matter to the High Court for fresh consideration in accordance with law. On the second question, we do not wish to express any opinion. It is for the High Court to decide, after construing the agreement between the parties, whether the expenditure is revenue or capital in nature and, depending on the answer to that question, the High Court will have to decide the applicability of Section 35AB of the Income Tax Act. On this aspect we keep all contentions on both sides expressly open.

### 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. Leave granted. 2. This Civil Appeal is filed by the Revenue against the order passed by the Punjab & Haryana High Court in I.T.A.No.131/2004. The impugned decision is dated 18th May, 2006. M/s. Swaraj Engines Ltd. (respondent herein) entered into an agreement of transfer of technology know-how and trade mark with Kirloskar Oil Engines Ltd. under which royalty was payable it. The claim for deduction in respect of the said payment was made by the respondent. It is important to note that during the relevant Assessment Year 1995-96, royalty was paid by the assessee as a percentage of net selling price of the licensed goods products. 3. Two questions arise for determination in this Civil Appeal. Firstly, whether the question regarding applicability of Section 35AB of Income Tax Act, 1961 was ever raised by the AO in this case? The second question which arises for determination in this case is whether the expenditure incurred is revenue expenditure or whether it is an expenditure which is capital in nature and depending on the answer to the said question, the applicability of Section 35AB of the Income Tax Act needs to be considered. 4. On the first question, it has been vehemently urged by Shri Iyer, learned senior counsel on behalf of the respondent-assessee, that the High Court was right in dismissing the Departments appeal in limine following its earlier judgment in the case of C.I.T. vs. M/s. J.C.T. Electronics Ltd. in I.T.A. No.383/2004. On the first question, there is considerable amount of confusion. It appears that prior to Assessment Year 1995-96, the Department has been contending that the royalty expenditure comes within the ambit of Section 35AB. However, there is some doubt as to whether the said contention regarding applicability of Section 35AB was at all raised. In this regard, the order of AO is not clear principally because it has focused only on one point, viz., whether such expenditure is revenue or capital in nature. At the same time, it is important to note that even for the applicability of Section 35AB, the nature of expenditure is required to be decided at the threshold because if the expenditure is found to be revenue in nature, then Section 35AB may not apply. However, if it is found to be capital in nature, then the question of amortization and spread over, as contemplated by Section 35AB, would certainly come into play. Therefore, in our view, it would not be correct to say that in this case, interpretation of Section 35AB was not in issue. Our above reasoning is further fortified by the question framed by the High Court in the impugned judgment which reads as under: Whether on the facts and in the circumstances of the case, the Honble ITAT is right in upholding the decision of the Commissioner of Income-Tax (Appeals) that the payment of royalty made by the assessee company to M/s. Kirloskar Oil Engine Ltd. to acquire technology know- how under the agreement dated 19.10.89, is a revenue expenditure and does not come within the ambit of provisions of Section 35AB of the Income Tax Act, 1961, whereas the payment is a capital expenditure in view of the following judgments. A. Femmur Woodruf & Co. Ltd. V. CIT 102 ITR 665 (Mad) B. Ram Kumar Pharmaceuticals Works V CIT 119 ITR 33 (All). C. CIT V. Warmar Hindustan Ltd. 160 ITR 217 (AP) D. CIT V. Southern Switch Gears ltd. 148 ITR 272 (Mad) 5. On bare reading of the said question, it is clear that applicability of Section 35AB in the context of royalty paid to Kirloskar as a percentage of the net sale price being revenue or capital in nature and depending on the answer to that question, the applicability of Section 35AB also arose for determination before the High Court. Be that as it may, the said question needs to be decided authoritatively by the High Court as it is an important question of law, particularly, after insertion of Section 35AB. Therefore, we are required to remit the matter to the High Court for fresh consideration in accordance with law. On the second question, we do not wish to express any opinion. It is for the High Court to decide, after construing the agreement between the parties, whether the expenditure is revenue or capital in nature and, depending on the answer to that question, the High Court will have to decide the applicability of Section 35AB of the Income Tax Act. On this aspect we keep all contentions on both sides expressly open. ### Response: 1

State Of Gujarat Versus Vora Salebhai Gulamali And Others (Civil Appeal No. 2283 Of 1968) State Of Gujarat And Another Versus Vora Akbarali Ibrahim And Others (Civil Appeal No. 2284 Of 1968) Vs.

in respect of certain trees in 80 survey numbers situated in village Sanada in the same taluka and district; the transaction in this case is evidenced by two documents dated May 25, 1953 and June 25, 1954. Respondents 1 and 2 in C. A. 2283 instituted a suit in the court of the Joint Civil Judge, Senior Division, Baroda, on October 16, 1954 for a declaration of their title to the trees purchased from the jagirdars and for permanent injunction restraining the State of Gujarat from obstructing the plaintiffs from cutting, felling and removing the said trees. The predecessor of the respondents in C. A. 284 filed a suit in the same court on January 7, 1957 for similar reliefs in respect of the trees he had purchased. The State of Gujarat filed a written statement in each case contending that the plaintiffs vendors had no title to the trees because of the Jagir Abolition Act, 1954 and the plaintiffs therefore had acquired no right by their purchase. In the suit out of which C. A. 2283 arises the trial Court found that by virtue of Section 5 of the said Act the Jagirdars had become occupants of 9 of the survey numbers and the plaintiffs had acquired by transfer a valid right to cut the trees standing on these survey numbers. The claim as regards survey No. 200 and also in respect of the other 23 survey numbers was dismissed. In the other suit the plaintiffs title to the trees standing on 20 out of the 80 survey numbers was declared and the claim regarding the other 60 survey numbers was dismissed. The plaintiffs in the two suits preferred appeals to the District Judge, Baroda, against the decision of the trial Court. The defendant, State of Gujarat, did not file any appeal or cross-objection against the part of the judgments that was adverse to it. The District Judge in the appeal giving rise to C. A. 2283 affirmed the finding of the trial Court as regards survey No. 200 but reversed the decision as regards the remaining 23 survey numbers and declared the plaintiffs title to the trees in all the 32 survey numbers. According to the District Judge the jagirdars continued to have the right to the trees in these survey numbers in view of Section 8 of the Jagir Abolition Act. The District Judge also allowed the other appeal upholding the plaintiffs claim with the regard to the 60 survey numbers which was rejected by the trial Court. The State of Gujarat preferred two second appeals to the High Court of Bombay challenging the decision of the District Judge in regard to 23 survey numbers in one case and 60 survey numbers in the other. A single Judge of the High Court held that the documents executed by the jagirdars in favour of the plaintiffs in the two suits required registration and, not being registered, these documents were not admissible in evidence and did not create any title in favour of the plaintiffs. From the decision of the learned single Judge the plaintiffs in the two suits preferred two appeals under Clause 15 of the Letters Patent Act. The Division Bench of the High Court disposed of the appeals by a common judgment allowing the same holding that the State of Gujarat not having appealed against the part of the decision of the trial Court which was adverse to it, was debarred from raising the question of the registrability of the documents. It was held that the partial success of the plaintiffs in the trial Court was based on these very documents and as the defendant had not challenged the validity of the documents on the ground of want of registration, the question sought to be raised in the second appeals before the High Court was barred by the principle of constructive res judicata. 2. In the appeals before us it is contended on behalf of the appellant, State of Gujarat, that the Division Bench of the High Court was in error in holding that the question whether the documents required registration was barred by the principle of res judicata. for the respondents in these appeals besides trying to support the decision of the Division Bench on the question of res judicata, contends that the documents were not compulsorily registrable. A document creating an interest in immovable property of the value of Rs. 100 or more requires registration under Section 17 of the Registration Act and, if unregistered, such a document will not affect any immovable property and will not be received as evidence of any transaction affecting such property in view of Section 49 of that Act. Immovable property as defined in Section 2(6) of the Registration Act includes "things attached to the earth", which will take in trees, but excludes standing timber. According to Counsel for the respondents the trees covered by the documents in question were standing timber and therefore the documents did not require registration for their validity. The question of registration cannot be decided without an enquiry as to the nature of the trees concerned. Whether or not the trees in question were immovable property or could be regarded as standing timber is a question of fact. As the question was raised for the first time at the second appeal stage, this aspect of the matter was not investigated. On the material on record it is not possible to reach any conclusion as to the nature of the trees and, therefore, we are not able to agree that the impugned documents were void for want of registration. We think that the learned single Judge of the High Court was not right in allowing the question which is not a pure question of law to be raised at that stage. If the issue as to the registrability of the documents does not arise, the question of res judicata also does not arise for decision and we express no opinion on the points. 3.

0[ds]The question of registration cannot be decided without an enquiry as to the nature of the trees concerned. Whether or not the trees in question were immovable property or could be regarded as standing timber is a question of fact. As the question was raised for the first time at the second appeal stage, this aspect of the matter was not investigated. On the material on record it is not possible to reach any conclusion as to the nature of the trees and, therefore, we are not able to agree that the impugned documents were void for want of registration. We think that the learned single Judge of the High Court was not right in allowing the question which is not a pure question of law to be raised at that stage. If the issue as to the registrability of the documents does not arise, the question of res judicata also does not arise for decision and we express no opinion on the pointsThe question of registration cannot be decided without an enquiry as to the nature of the trees concerned. Whether or not the trees in question were immovable property or could be regarded as standing timber is a question of fact. As the question was raised for the first time at the second appeal stage, this aspect of the matter was not investigated. On the material on record it is not possible to reach any conclusion as to the nature of the trees and, therefore, we are not able to agree that the impugned documents were void for want of registration. We think that the learned single Judge of the High Court was not right in allowing the question which is not a pure question of law to be raised at that stage. If the issue as to the registrability of the documents does not arise, the question of res judicata also does not arise for decision and we express no opinion on the

### 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: in respect of certain trees in 80 survey numbers situated in village Sanada in the same taluka and district; the transaction in this case is evidenced by two documents dated May 25, 1953 and June 25, 1954. Respondents 1 and 2 in C. A. 2283 instituted a suit in the court of the Joint Civil Judge, Senior Division, Baroda, on October 16, 1954 for a declaration of their title to the trees purchased from the jagirdars and for permanent injunction restraining the State of Gujarat from obstructing the plaintiffs from cutting, felling and removing the said trees. The predecessor of the respondents in C. A. 284 filed a suit in the same court on January 7, 1957 for similar reliefs in respect of the trees he had purchased. The State of Gujarat filed a written statement in each case contending that the plaintiffs vendors had no title to the trees because of the Jagir Abolition Act, 1954 and the plaintiffs therefore had acquired no right by their purchase. In the suit out of which C. A. 2283 arises the trial Court found that by virtue of Section 5 of the said Act the Jagirdars had become occupants of 9 of the survey numbers and the plaintiffs had acquired by transfer a valid right to cut the trees standing on these survey numbers. The claim as regards survey No. 200 and also in respect of the other 23 survey numbers was dismissed. In the other suit the plaintiffs title to the trees standing on 20 out of the 80 survey numbers was declared and the claim regarding the other 60 survey numbers was dismissed. The plaintiffs in the two suits preferred appeals to the District Judge, Baroda, against the decision of the trial Court. The defendant, State of Gujarat, did not file any appeal or cross-objection against the part of the judgments that was adverse to it. The District Judge in the appeal giving rise to C. A. 2283 affirmed the finding of the trial Court as regards survey No. 200 but reversed the decision as regards the remaining 23 survey numbers and declared the plaintiffs title to the trees in all the 32 survey numbers. According to the District Judge the jagirdars continued to have the right to the trees in these survey numbers in view of Section 8 of the Jagir Abolition Act. The District Judge also allowed the other appeal upholding the plaintiffs claim with the regard to the 60 survey numbers which was rejected by the trial Court. The State of Gujarat preferred two second appeals to the High Court of Bombay challenging the decision of the District Judge in regard to 23 survey numbers in one case and 60 survey numbers in the other. A single Judge of the High Court held that the documents executed by the jagirdars in favour of the plaintiffs in the two suits required registration and, not being registered, these documents were not admissible in evidence and did not create any title in favour of the plaintiffs. From the decision of the learned single Judge the plaintiffs in the two suits preferred two appeals under Clause 15 of the Letters Patent Act. The Division Bench of the High Court disposed of the appeals by a common judgment allowing the same holding that the State of Gujarat not having appealed against the part of the decision of the trial Court which was adverse to it, was debarred from raising the question of the registrability of the documents. It was held that the partial success of the plaintiffs in the trial Court was based on these very documents and as the defendant had not challenged the validity of the documents on the ground of want of registration, the question sought to be raised in the second appeals before the High Court was barred by the principle of constructive res judicata. 2. In the appeals before us it is contended on behalf of the appellant, State of Gujarat, that the Division Bench of the High Court was in error in holding that the question whether the documents required registration was barred by the principle of res judicata. for the respondents in these appeals besides trying to support the decision of the Division Bench on the question of res judicata, contends that the documents were not compulsorily registrable. A document creating an interest in immovable property of the value of Rs. 100 or more requires registration under Section 17 of the Registration Act and, if unregistered, such a document will not affect any immovable property and will not be received as evidence of any transaction affecting such property in view of Section 49 of that Act. Immovable property as defined in Section 2(6) of the Registration Act includes "things attached to the earth", which will take in trees, but excludes standing timber. According to Counsel for the respondents the trees covered by the documents in question were standing timber and therefore the documents did not require registration for their validity. The question of registration cannot be decided without an enquiry as to the nature of the trees concerned. Whether or not the trees in question were immovable property or could be regarded as standing timber is a question of fact. As the question was raised for the first time at the second appeal stage, this aspect of the matter was not investigated. On the material on record it is not possible to reach any conclusion as to the nature of the trees and, therefore, we are not able to agree that the impugned documents were void for want of registration. We think that the learned single Judge of the High Court was not right in allowing the question which is not a pure question of law to be raised at that stage. If the issue as to the registrability of the documents does not arise, the question of res judicata also does not arise for decision and we express no opinion on the points. 3. ### Response: 0

SUBRAMANI Vs. STATE BY INSPECTOR OF POLICE

considered the arguments of the learned counsel and pursued the records. We do notice the fact that the prosecution case is based on circumstantial evidence. The circumstances relied on by the prosecution are- (i) Accused was seen on the fateful day standing near the place where the deceased was playing. (ii) She was never seen alive thereafter. (iii) Her body was found at place close to the spot where both deceased and accused were last seen together. (iv) The body of the deceased contained number of injuries some of which were bleeding injuries. (v) Accused was not seen in his house or the village after the incident. (vi) Accused had no acceptable explanation for his absence. (vii) Accuseds lungi contained blood and he had no explanation for the same. (viii) Accused had no explanation for when and in what circumstances he separated company of the deceased. 6. We will now analyse whether the prosecution has proved beyond reasonable doubt whether the above circumstances have been established, and if so a reasonable inference could be drawn from such proved circumstances that the accused and the accused alone was guilty of the charge of murder leveled against him. 7. The prosecution from the evidence of PWs.4 to 7 in our opinion has established the afternoon of 15.1.1996 deceased Vaishnavi was playing near the tamarind tree and the accused was standing close by which is spoken to by PW-4 who is also a girl of almost the same age as that of the deceased. She has stated that she played with the deceased for sometime. Almost about the same time PWs.5 and 6 were travelling in a bus which passed the place where tamarind tree was, also noticed the deceased playing near the tamarind free and the accused standing there. Similar is the evidence of PW-7 who says when he passed through that place, he saw the deceased and the accused and on return the deceased had asked for a ride in his cycle which he refused. From this evidence it is clear that the accused was the only person who was last seen near Vaishnavi when she was alive. Learned counsel for the appellant has of course pointed out certain discrepancies in the evidence of those witnesses mainly pertaining to then on mentioning of the name of the accused in the complaint even though PW-1 was told about accuseds presence at the place when deceased was playing. We do notice this omission but as contended on behalf of the State it is very much possible that at that point of time though it had come to the knowledge of PW-1 that the accused was last seen near about where the deceased was playing, he might not have thought that accused would have committed such a ghastly crime, this omission does not in any manner discredit the evidence of PWs.4 to 7 that they did see the deceased alive at a point of time when accused was standing close to her and that she never seen alive thereafter. Therefore we think the courts below were justified in coming to the conclusion that from the evidence of PWs.4 to 7 the prosecution has established that the deceased and the accused were found at the same spot in the afternoon of 15.1.96. It goes unchallenged that the deceased was never seen alive thereafter and her dead body was found from a place close to where she and the accused were found by PWs.4 to 7. 8. The fact that the deceased met with a homicidal death which is primarily caused by strangulation and also because of other injuries suffered by her including to her private parts and that she was raped is not challenged before us. The defence of the appellant has been one of total denial. The prosecution having proved beyond doubt that the appellant was found in the company of the deceased in the afternoon of 15.1.1996 the burden shifts to the accused to prove when and in what manner he parted company with her since she was never seen alive thereafter. In our opinion that burden has not been discharged by the accused. As noted above and as seen from the mahazar deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained blood stains. The serologist has opined that the blood stains are of human being but was not able to establish the blood stains are of human being but was not able to establish the blood group. As noted above, learned counsel for the appellants had contended in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungi belongs to him and was seized from him, for that matter he says he gave the lungi to the investigating officer but he has not explained how the blood stains which are at least proved to be human blood came to be there on the lungi. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungi at the time of the attack on the deceased. It is also to be noted from the conduct of the accused immediately after the incident in question he disappeared from his house and the village, and in regard to this disappearance also no satisfactory explanation has been given. It is also to be noticed that no motive whatsoever has been attributed to the prosecution witness PWs.4 to 7 to falsely depose against this accused. These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased, in our considered opinion leads to the one and the only conclusion that the charged of rape and murder of Vaishavi leveled against the appellant stands proved.

0[ds]5. We have considered the arguments of the learned counsel and pursued the records. We do notice the fact that the prosecution case is based on circumstantial evidence. The circumstances relied on by the prosecution are-(i) Accused was seen on the fateful day standing near the place where the deceased was playing.(ii) She was never seen alive thereafter.(iii) Her body was found at place close to the spot where both deceased and accused were last seen together.(iv) The body of the deceased contained number of injuries some of which were bleeding injuries.(v) Accused was not seen in his house or the village after the incident.(vi) Accused had no acceptable explanation for his absence.(vii) Accuseds lungi contained blood and he had no explanation for the same.(viii) Accused had no explanation for when and in what circumstances he separated company of the deceased.7. The prosecution from the evidence of PWs.4 to 7 in our opinion has established the afternoon of 15.1.1996 deceased Vaishnavi was playing near the tamarind tree and the accused was standing close by which is spoken to by PW-4 who is also a girl of almost the same age as that of the deceased. She has stated that she played with the deceased for sometime. Almost about the same time PWs.5 and 6 were travelling in a bus which passed the place where tamarind tree was, also noticed the deceased playing near the tamarind free and the accused standing there. Similar is the evidence of PW-7 who says when he passed through that place, he saw the deceased and the accused and on return the deceased had asked for a ride in his cycle which he refused. From this evidence it is clear that the accused was the only person who was last seen near Vaishnavi when she was alive. Learned counsel for the appellant has of course pointed out certain discrepancies in the evidence of those witnesses mainly pertaining to then on mentioning of the name of the accused in the complaint even though PW-1 was told about accuseds presence at the place when deceased was playing. We do notice this omission but as contended on behalf of the State it is very much possible that at that point of time though it had come to the knowledge of PW-1 that the accused was last seen near about where the deceased was playing, he might not have thought that accused would have committed such a ghastly crime, this omission does not in any manner discredit the evidence of PWs.4 to 7 that they did see the deceased alive at a point of time when accused was standing close to her and that she never seen alive thereafter. Therefore we think the courts below were justified in coming to the conclusion that from the evidence of PWs.4 to 7 the prosecution has established that the deceased and the accused were found at the same spot in the afternoon of 15.1.96. It goes unchallenged that the deceased was never seen alive thereafter and her dead body was found from a place close to where she and the accused were found by PWs.4 to 7.8. The fact that the deceased met with a homicidal death which is primarily caused by strangulation and also because of other injuries suffered by her including to her private parts and that she was raped is not challenged before us. The defence of the appellant has been one of total denial. The prosecution having proved beyond doubt that the appellant was found in the company of the deceased in the afternoon of 15.1.1996 the burden shifts to the accused to prove when and in what manner he parted company with her since she was never seen alive thereafter. In our opinion that burden has not been discharged by the accused. As noted above and as seen from the mahazar deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained blood stains. The serologist has opined that the blood stains are of human being but was not able to establish the blood stains are of human being but was not able to establish the blood group. As noted above, learned counsel for the appellants had contended in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungi belongs to him and was seized from him, for that matter he says he gave the lungi to the investigating officer but he has not explained how the blood stains which are at least proved to be human blood came to be there on the lungi. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungi at the time of the attack on the deceased. It is also to be noted from the conduct of the accused immediately after the incident in question he disappeared from his house and the village, and in regard to this disappearance also no satisfactory explanation has been given. It is also to be noticed that no motive whatsoever has been attributed to the prosecution witness PWs.4 to 7 to falsely depose against this accused. These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased, in our considered opinion leads to the one and the only conclusion that the charged of rape and murder of Vaishavi leveled against the appellant stands proved.

### 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: considered the arguments of the learned counsel and pursued the records. We do notice the fact that the prosecution case is based on circumstantial evidence. The circumstances relied on by the prosecution are- (i) Accused was seen on the fateful day standing near the place where the deceased was playing. (ii) She was never seen alive thereafter. (iii) Her body was found at place close to the spot where both deceased and accused were last seen together. (iv) The body of the deceased contained number of injuries some of which were bleeding injuries. (v) Accused was not seen in his house or the village after the incident. (vi) Accused had no acceptable explanation for his absence. (vii) Accuseds lungi contained blood and he had no explanation for the same. (viii) Accused had no explanation for when and in what circumstances he separated company of the deceased. 6. We will now analyse whether the prosecution has proved beyond reasonable doubt whether the above circumstances have been established, and if so a reasonable inference could be drawn from such proved circumstances that the accused and the accused alone was guilty of the charge of murder leveled against him. 7. The prosecution from the evidence of PWs.4 to 7 in our opinion has established the afternoon of 15.1.1996 deceased Vaishnavi was playing near the tamarind tree and the accused was standing close by which is spoken to by PW-4 who is also a girl of almost the same age as that of the deceased. She has stated that she played with the deceased for sometime. Almost about the same time PWs.5 and 6 were travelling in a bus which passed the place where tamarind tree was, also noticed the deceased playing near the tamarind free and the accused standing there. Similar is the evidence of PW-7 who says when he passed through that place, he saw the deceased and the accused and on return the deceased had asked for a ride in his cycle which he refused. From this evidence it is clear that the accused was the only person who was last seen near Vaishnavi when she was alive. Learned counsel for the appellant has of course pointed out certain discrepancies in the evidence of those witnesses mainly pertaining to then on mentioning of the name of the accused in the complaint even though PW-1 was told about accuseds presence at the place when deceased was playing. We do notice this omission but as contended on behalf of the State it is very much possible that at that point of time though it had come to the knowledge of PW-1 that the accused was last seen near about where the deceased was playing, he might not have thought that accused would have committed such a ghastly crime, this omission does not in any manner discredit the evidence of PWs.4 to 7 that they did see the deceased alive at a point of time when accused was standing close to her and that she never seen alive thereafter. Therefore we think the courts below were justified in coming to the conclusion that from the evidence of PWs.4 to 7 the prosecution has established that the deceased and the accused were found at the same spot in the afternoon of 15.1.96. It goes unchallenged that the deceased was never seen alive thereafter and her dead body was found from a place close to where she and the accused were found by PWs.4 to 7. 8. The fact that the deceased met with a homicidal death which is primarily caused by strangulation and also because of other injuries suffered by her including to her private parts and that she was raped is not challenged before us. The defence of the appellant has been one of total denial. The prosecution having proved beyond doubt that the appellant was found in the company of the deceased in the afternoon of 15.1.1996 the burden shifts to the accused to prove when and in what manner he parted company with her since she was never seen alive thereafter. In our opinion that burden has not been discharged by the accused. As noted above and as seen from the mahazar deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained blood stains. The serologist has opined that the blood stains are of human being but was not able to establish the blood stains are of human being but was not able to establish the blood group. As noted above, learned counsel for the appellants had contended in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungi belongs to him and was seized from him, for that matter he says he gave the lungi to the investigating officer but he has not explained how the blood stains which are at least proved to be human blood came to be there on the lungi. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungi at the time of the attack on the deceased. It is also to be noted from the conduct of the accused immediately after the incident in question he disappeared from his house and the village, and in regard to this disappearance also no satisfactory explanation has been given. It is also to be noticed that no motive whatsoever has been attributed to the prosecution witness PWs.4 to 7 to falsely depose against this accused. These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased, in our considered opinion leads to the one and the only conclusion that the charged of rape and murder of Vaishavi leveled against the appellant stands proved. ### Response: 0

M/s Eastern Coalfields Ltd Vs. Anil Badyakar & Others

such appointment is considered by this court in the case of Union of India vs. Bhagwan Singh, (1995) 6 SCC 436, it was held as follows : "It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable." (Para 8) 14) In the case of Haryana State Electricity Board vs. Naresh Tanwar, (1996) 8 SCC 23 , it was stated that :- "It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." (Para 9) 15) In the case of State of U.P. vs. Paras Nath, (1998) 2 SCC 412 , the court has held that :- "The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case." (Para 5) 16) In the case of Haryana SEB vs. Krishna Devi, (2002) 10 SCC 246 , the court has observed that :- "As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and allowed the writ petition relying on an earlier decision of the High Court." (Para 7) 17) In the case of National Hydroelectric Power Corpn. vs. Nanak Chand, (2004) 12 SCC 487 , the court has stated that :- "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." (Para 5) 18) In the case of State of J&K vs. Sajad Ahmed Mir, (2006) 5 SCC 766 , the court has held that :- "Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution." (Para 11) 19) The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P) , who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpals case and the same should not have been interfered with by the High Court.

1[ds]19) The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P) , who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpals case and the same should not have been interfered with by the High Court

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: such appointment is considered by this court in the case of Union of India vs. Bhagwan Singh, (1995) 6 SCC 436, it was held as follows : "It is evident, that the facts in this case point out, that the plea for compassionate employment is not to enable the family to tide over the sudden crisis or distress which resulted as early as September 1972. At the time Ram Singh died on 12-9-1972 there were two major sons and the mother of the children who were apparently capable of meeting the needs in the family and so they did not apply for any job on compassionate grounds. For nearly 20 years, the family has pulled on, apparently without any difficulty. In this background, we are of the view that the Central Administrative Tribunal acted illegally and wholly without jurisdiction in directing the Authorities to consider the case of the respondent for appointment on compassionate grounds and to provide him with an appointment, if he is found suitable." (Para 8) 14) In the case of Haryana State Electricity Board vs. Naresh Tanwar, (1996) 8 SCC 23 , it was stated that :- "It has been indicated in the decision of Umesh Kumar Nagpal that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in Jagdish Prasad case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years." (Para 9) 15) In the case of State of U.P. vs. Paras Nath, (1998) 2 SCC 412 , the court has held that :- "The purpose of providing employment to a dependant of a government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case." (Para 5) 16) In the case of Haryana SEB vs. Krishna Devi, (2002) 10 SCC 246 , the court has observed that :- "As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and allowed the writ petition relying on an earlier decision of the High Court." (Para 7) 17) In the case of National Hydroelectric Power Corpn. vs. Nanak Chand, (2004) 12 SCC 487 , the court has stated that :- "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises." (Para 5) 18) In the case of State of J&K vs. Sajad Ahmed Mir, (2006) 5 SCC 766 , the court has held that :- "Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution." (Para 11) 19) The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over. In the instant case the employee died in harness in the year 1981 and after a long squabble by the dependents of the deceased, they arrived at a settlement that the son-in-law of the second daughter who is unemployed may request for appointment on compassionate grounds. The request so made was accepted by the Personal Manager of the Company subject to the approval of the Director of the Company. The Director (P) , who is the competent authority for post facto approval, keeping in view the object and purpose of providing compassionate appointment has cancelled the provisional appointment on the ground that nearly after 12 years from the date of death of the employee such an appointment could not have been offered to the so called dependent of the deceased employee. In our considered view, the decision of the employer was in consonance with Umesh Kumar Nagpals case and the same should not have been interfered with by the High Court. ### Response: 1

Hindustan Petroleum Corporation Vs. Raja D. V. Appa Rao Bahadur

1. We have have heard both the learned counsel at length 2. We are clearly of the opinion that the judgment under appeal cannot be supported in law. For arriving at this decision, a few facts are required to be stated 3. On 1-11-1954, the property forming the subject-matter of civil appeal was leased in favour of Caltex (India) Limited (a foreign company). On 19-10-1976, the landlord filed a suit for ejectment against the said foreign company. On 30-12-1976, Ordinance No. 15 of 1976 came to be promulgated the Caltex [Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited] Ordinance, 1976. This Ordinance came to be replaced by Act 17 of 1977 on identical provisions. That need not concern us very much. However, which is important to notice is clause 7 of the said Ordinance is as under"7. (1) Every right or interest in respect of any property in India (including a right under any lease or under any right of tenancy or any right under any arrangement to secure any premises for any purpose) which Caltex (India) held immediately before the appointed day, shall, notwithstanding anything contained in any other law or in any agreement or instrument relating to such right or interest, vest in, and be held by, the Central Government on and after the appointed day on the same terms and conditions on which Caltex (India) would have held it, if no negotiations had taken place for the acquisition by the Central Government of the Undertakings of Caltex (India) in India or, as the ease may be, if this Ordinance had not been promulgated." * 4. On 24-1-1977, the defendants namely Caltex (India) Refinery (Indian Co.) came to be served with the suit summons. On 14-2-1977, the said Indian Company filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act for purchase of the property over which the superstructure had been put. The trial court allowed the application. On further appeal, that application was dismissed holding that the Indian Company was a transferee. Such a transferee could not get the right to purchase under Section 9. That judgment of the appellate court came to be confirmed in revision by the High Court 5. Mr Bhatt, learned counsel for the appellant justifiably argues that the learned Judge had gone wrong in his action. In fact he has in the decision reported in Bharat Petroleum Corpn. Ltd. v. D.X. Francis [(1989) 2 LW 261] under similar circumstances had allowed the successor-in-interest the benefit of Section 96. That apart, this Court in Hindustan Petroleum Corpn. Ltd. v. Shyam Coop. Housing Society has held that the successor-in-interest, namely, the tenant could avail itself of all the benefits which the tenant had7. In opposing this, Mr K. Ram Kumar, learned counsel for the respondent contended that the right of tenant to purchase the property would not amount of an interest in the property as held by this Court in Swami Motor Transport (P) Ltd. v. Sri Sankaraswamigal Mutt If that be so, clause 7 of the Ordinance cannot confer any right on the Indian Company. The High Court as in the decision reported in Bharat Petroleum Corpn. Ltd. v. D.X. Francis [(1989) 2 LW 261] has referred to the impugned judgment itself which is distinguished on facts. That distinction is valid. Hindustan Petroleum Corpn. Ltd. v. Shyam Coop. Housing Society will have no application to the facts of the case8. We do not think we need labour very much because clause 7 clearly points to the rights of the Indian Company. First of all, it contains a non obstante clause. Therefore, one will have to look at this clause and clause alone. Consequently, the statutory succession is not only in respect of the right or interest in any property but also their right under any lease or under right of tenancy which the foreign company had. Therefore, qua tenant, if the foreign company had a right to purchase the property that right will certainly enure to the benefit of the Indian Company. There cannot be denial of such a right. Of course, that will be subject to satisfying the condition laid down under the Madras City Tenants Protection Act, 1976 (sic 1922) particularly Section 9. In this case, there is no dispute that it fulfils all the qualifications so as to entitle the foreign company to purchase under Section 9 of the City Tenants Protection Act. From this point of view, we are unable to see as to how Swami Motor could be pressed into it. Once this conclusion is arrived at, it matters very little as to how the distinction is sought to be made by the High Court in Bharat Petroleum Corpn. Ltd. [(1989) 2 LW 261]. The distinction is without any difference. Accordingly, we hold the appellant is entitled to succeed.

1[ds]8. We do not think we need labour very much because clause 7 clearly points to the rights of the Indian Company. First of all, it contains a non obstante clause. Therefore, one will have to look at this clause and clause alone. Consequently, the statutory succession is not only in respect of the right or interest in any property but also their right under any lease or under right of tenancy which the foreign company had. Therefore, qua tenant, if the foreign company had a right to purchase the property that right will certainly enure to the benefit of the Indian Company. There cannot be denial of such a right. Of course, that will be subject to satisfying the condition laid down under the Madras City Tenants Protection Act, 1976 (sic 1922) particularly Section 9. In this case, there is no dispute that it fulfils all the qualifications so as to entitle the foreign company to purchase under Section 9 of the City Tenants Protection Act. From this point of view, we are unable to see as to how Swami Motor could be pressed into it. Once this conclusion is arrived at, it matters very little as to how the distinction is sought to be made by the High Court in Bharat Petroleum Corpn. Ltd. [(1989) 2 LW 261]. The distinction is without any difference. Accordingly, we hold the appellant is entitled to succeed.

### 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: 1. We have have heard both the learned counsel at length 2. We are clearly of the opinion that the judgment under appeal cannot be supported in law. For arriving at this decision, a few facts are required to be stated 3. On 1-11-1954, the property forming the subject-matter of civil appeal was leased in favour of Caltex (India) Limited (a foreign company). On 19-10-1976, the landlord filed a suit for ejectment against the said foreign company. On 30-12-1976, Ordinance No. 15 of 1976 came to be promulgated the Caltex [Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited] Ordinance, 1976. This Ordinance came to be replaced by Act 17 of 1977 on identical provisions. That need not concern us very much. However, which is important to notice is clause 7 of the said Ordinance is as under"7. (1) Every right or interest in respect of any property in India (including a right under any lease or under any right of tenancy or any right under any arrangement to secure any premises for any purpose) which Caltex (India) held immediately before the appointed day, shall, notwithstanding anything contained in any other law or in any agreement or instrument relating to such right or interest, vest in, and be held by, the Central Government on and after the appointed day on the same terms and conditions on which Caltex (India) would have held it, if no negotiations had taken place for the acquisition by the Central Government of the Undertakings of Caltex (India) in India or, as the ease may be, if this Ordinance had not been promulgated." * 4. On 24-1-1977, the defendants namely Caltex (India) Refinery (Indian Co.) came to be served with the suit summons. On 14-2-1977, the said Indian Company filed an application under Section 9 of the Tamil Nadu City Tenants Protection Act for purchase of the property over which the superstructure had been put. The trial court allowed the application. On further appeal, that application was dismissed holding that the Indian Company was a transferee. Such a transferee could not get the right to purchase under Section 9. That judgment of the appellate court came to be confirmed in revision by the High Court 5. Mr Bhatt, learned counsel for the appellant justifiably argues that the learned Judge had gone wrong in his action. In fact he has in the decision reported in Bharat Petroleum Corpn. Ltd. v. D.X. Francis [(1989) 2 LW 261] under similar circumstances had allowed the successor-in-interest the benefit of Section 96. That apart, this Court in Hindustan Petroleum Corpn. Ltd. v. Shyam Coop. Housing Society has held that the successor-in-interest, namely, the tenant could avail itself of all the benefits which the tenant had7. In opposing this, Mr K. Ram Kumar, learned counsel for the respondent contended that the right of tenant to purchase the property would not amount of an interest in the property as held by this Court in Swami Motor Transport (P) Ltd. v. Sri Sankaraswamigal Mutt If that be so, clause 7 of the Ordinance cannot confer any right on the Indian Company. The High Court as in the decision reported in Bharat Petroleum Corpn. Ltd. v. D.X. Francis [(1989) 2 LW 261] has referred to the impugned judgment itself which is distinguished on facts. That distinction is valid. Hindustan Petroleum Corpn. Ltd. v. Shyam Coop. Housing Society will have no application to the facts of the case8. We do not think we need labour very much because clause 7 clearly points to the rights of the Indian Company. First of all, it contains a non obstante clause. Therefore, one will have to look at this clause and clause alone. Consequently, the statutory succession is not only in respect of the right or interest in any property but also their right under any lease or under right of tenancy which the foreign company had. Therefore, qua tenant, if the foreign company had a right to purchase the property that right will certainly enure to the benefit of the Indian Company. There cannot be denial of such a right. Of course, that will be subject to satisfying the condition laid down under the Madras City Tenants Protection Act, 1976 (sic 1922) particularly Section 9. In this case, there is no dispute that it fulfils all the qualifications so as to entitle the foreign company to purchase under Section 9 of the City Tenants Protection Act. From this point of view, we are unable to see as to how Swami Motor could be pressed into it. Once this conclusion is arrived at, it matters very little as to how the distinction is sought to be made by the High Court in Bharat Petroleum Corpn. Ltd. [(1989) 2 LW 261]. The distinction is without any difference. Accordingly, we hold the appellant is entitled to succeed. ### Response: 1

Pramodkumar Rasikbhai Jhaveri Vs. Karmasey Kunvargi Tak

saw that the truck coming at a high speed from the opposite direction was trying to overtake another car ahead of the truck and, secondly, the High Court found that there was a three feet width of the road on the left side of the car of the appellant and on seeing the oncoming truck, the appellant could have swerved his vehicle to the left side.(8) We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." (9) Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendants negligence is decided. The standard of reasonable man is as relevant in the case of plaintiffs contributory negligence as in the case of defendants negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting : "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owned may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." (10) It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper (1931) AC 1 at page 9, Lord Hailsham said : "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence; the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." (11) It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. The appellant-car driver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellants failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent.

1[ds](4) The High Court elaborately considered the matter and noticed that the appellant was under treatment for a period of 5 months and thereafter he started attending his business and had also gone abroad for business purposes. The appellant was doing the business of a commission agent. The Tribunal had earlier held that there was a loss of income for a period of 34 months and the monthly income was fixed at Rs. 9000.00p.m. The High Court on the basis of average post accident monthly income, fixed the income at Rs. 4,100 p.m. and held that the appellant was entitled to Rs. 20,500.00 as actual loss of earning for a period of 5 months.(5) As regards the future loss of income, the Tribunal had made an award of Rs. 4,71,520, whereas the High Court fixed the future loss at Rs. 3,93,600.00. The High Court has given valid reasons for reduction of the amount. The High Court held that the monthly income of the appellant would have been Rs. 4,100 p.m. and by applying the multiplier of 8 years, the claim should be Rs. 3,93,600.00 towards the future loss of income. We do not think that the multiplier adopted by the High Court is wrong or the amount of compensation granted for the future loss of income is inadequate. We also do not think that the High Court erred in fixing the quantum ofThe High Court found that there was contributory negligence on the part of the appellant for two reasons. Firstly, the appellant who was driving the car did not slow down his vehicle when he saw that the truck coming at a high speed from the opposite direction was trying to overtake another car ahead of the truck and, secondly, the High Court found that there was a three feet width of the road on the left side of the car of the appellant and on seeing the oncoming truck, the appellant could have swerved his vehicle to the left side.(8) We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his ownIt has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of theIt is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. Thedriver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellants failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: saw that the truck coming at a high speed from the opposite direction was trying to overtake another car ahead of the truck and, secondly, the High Court found that there was a three feet width of the road on the left side of the car of the appellant and on seeing the oncoming truck, the appellant could have swerved his vehicle to the left side.(8) We do not think that these two reasons given by the High Court fully justify the accepted principles of contributory negligence. The question of contributory negligence arises when there has been some act or omission on the claimants part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as negligence. Negligence ordinarily means breach of a legal duty to care, but when used in the expression "contributory negligence" it does not mean breach of any duty. It only means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an "author of his own wrong." (9) Subject to non-requirement of the existence of duty, the question of contributory negligence is to be decided on the same principle on which the question of defendants negligence is decided. The standard of reasonable man is as relevant in the case of plaintiffs contributory negligence as in the case of defendants negligence. But the degree of want of care which will constitute contributory negligence, varies with the circumstances and the factual situation of the case. The following observation of the High Court of Australia in Astley v. Austrust Ltd. (1999) 73 ALJR 403 is worthy of quoting : "A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. In many cases, it may be proper for a plaintiff to rely on the defendant to perform its duty. But there is no absolute rule. The duties and responsibilities of the defendant are a variable factor in determining whether contributory negligence exists and, if so, to what degree. In some cases, the nature of the duty owned may exculpate the plaintiff from a claim of contributory negligence; in other cases, the nature of the duty may reduce the plaintiffs share of responsibility for the damage suffered; and in yet other cases the nature of the duty may not prevent a finding that the plaintiff failed to take reasonable care for the safety of his or her person or property. Contributory negligence focuses on the conduct of the plaintiff. The duty owed by the defendant, although relevant, is one only of many factors that must be weighed in determining whether the plaintiff has so conducted itself that it failed to take reasonable care for the safety of its person or property." (10) It has been accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of the difficulty. In Swadling v. Cooper (1931) AC 1 at page 9, Lord Hailsham said : "Mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence; the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances." (11) It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the respondents to contend that the driver of the car was trying to overtake a truck which was going ahead of the car. The appellant-car driver had also pleaded that the truck driven by the second respondent was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 feet and there were mud shoulders on either side having a width of three feet. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a three feet width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the second respondent almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellants failure to swerve to the extreme left of the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the second respondent, the truck driver had no case that the appellant was negligent. ### Response: 1

Faqir Chand Vs. Shri Ram Rattan Bhanot

condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situate notwithstanding previous notice. The anxiety of the legislature is to prevent unauthorized user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, alter the Development Authority takes over the building use it for a commercial purpose. We thus reach the conclusion that the lease in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him. Neither the clear words of the section as in Waman Shriniwas Kini v. Rati Lal Bhagwandas, AIR 1959 SC 689 nor a consideration of the policy of the Act lead us to the conclusion that the lease was void in its inception if it was for an unauthorized user.11.We are also of the opinion that the High Court was not justified in leaving to the Controller no option but to pass an order for eviction. That would make the alternative provided in sub-section (11) of Section 14 useless. The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to the plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to the Delhi Development Authority. This is in effect nullifying part of the provisions contained in sub-section (11) of Section 14. The High Court has arrived at its conclusion on the basis that Section 14 of the Delhi Development Act applies to this case. We shall presently show that that section has no relevance to the decision of this case.12. What has been done in Delhi is only a preparation of the master plan for Delhi under Section 7 of the Delhi Development Act 1957. The High Court seems to have misread the provisions of the master plan because Karol Bagh is one of the areas mentioned in page 56 of the book containing thhe master plan for Delhi. The same list contains the built-up residential areas of Daryaganj, Jama Masjid, Chandni Chowk and Fatehpuri. Nobody can say that there are no buildings in these areas used for commercial purposes. This list is at page 56 found in Chapter II which has the main heading Zoning and Sub-Divisional Regulations and sub-headings "Provisions regarding uses in use zones", "Provision regarding requirements in use zones : Density, coverage, floor area ratio, setback and other requirements of use zones". A careful reading of that section which deals with individual plots; minimum plot size, plot coverage, floors, frontage of plots set back lines, front set back, rear set back line, side set back line, service lanes, show that these are concerned with construction of buildings. The provision regarding requirement in use zones can come in only if the zonal development plans are prepared under Section 8 of the Delhi Development Act, 1957. It is that section which provides for a Zonal development plan containing a site plan and use plan for the development of the Zone. No such Zonal Development Plan has been prepared. The High Court was, therefore, in error in proceeding on the basis that there was a plan in relation to this area which prohibits the use of this building under Section 14. It is under the terms of the lease granted by the Delhi Improvement Trust that the use of this building for commercial purpose is prohibited and not under the Delhi Development Act.13. Moreover, Section 14 deals with prevention of the use of any land or building in the zone otherwise than in conformity with the zonal plan. Furthermore it applies to lands leased by authorities like the Delhi Development Authority containing conditions against unauthorised user as well as to lands which do not belong to that category. Its provisions are not intended to enforce the conditions in those leases. The proviso to that section deals with the use to which a land or building may continue to be put even after the coming into force of the zonal plan subject to such terms and conditions as may be prescribed by regulations, provided that building or land had been used for that purpose prior to the coming into force of the zonal plan. The section, therefore, does not contemplate complete prohibition of the use of a land or building for purposes other than that permitted in the zonal plan. Such uses can be continued subject to terms and conditions prescribed by the regulations provided it had been there even before the zonal plan. It is admitted that no such regulations have even been framed. Therefore, even if a zonal plan had come into operation in this area (we have already shown such a zonal plan has not come into force in this area) the previous use can be continued till the regulations are framed and after the regulations are framed they will be subject to the terms and conditions of those regulations. That zonal plans have not been prepared has been recognised by this Court in its decision in Municipal Corpn. v. Kishan, (1969) 2 SCR 166 = (AIR 1969 SC 386 ). We are of opinion, therefore, that S. 14 of the Delhi Development Act has no relevance in deciding the question at issue in these two appeals.

1[ds]While the argument appears to be plausible we are of opinion that there is no substance in this argument. If it is a case where the tenant has contrary to the terms of his tenancy used the building for a commercial purpose the landlord could take action under clause (c). He need not depend upon clause (k) at all. These two clauses are intended to meet different situations. There was no need for an additional provision in clause (k) to enable a landlord to get possession where the tenant has used the building for a commercial purpose contrary to the terms of the tenancy. An intention to put in an useless provision in a statute cannot be imputed to the Legislature. Some meaning would have to be given to that provision. The only situation in which it can take effect is where the lease is for a commercial purpose agreed upon by both the landlord and the tenant but that is contrary to the terms of the lease of the land in favour of the landlord. That clause does not come into operation where there is no provision in the lease of the land in favour of the landlord, prohibiting its use for a commercial purpose.9. The legislature has clearly taken note of the fact that enormous extents of land have been leased by the three authorities mentioned in that clause, and has expressed by means of this clause its anxiety to see that these lands are used for the purpose for which they were leased. The policy of the legislature seems to be to put an end to unauthorised use of the leased lands rather than merely to enable the authorities of get back possession of the leased lands. This conclusion is further fortified by a reference to sub-section (11) of Section 14. The lease is not forfeited merely because the building put upon the leased land is put to an unauthorised use. The tenant is given an opportunity to comply with the conditions imposed on the landlord by any of the authorities referred to in Cl. (k) of the proviso to sub-section (1). As long as the condition imposed is complied with there is no forfeiture. It even enables the controller to direct compensation to be paid to the authority for a breach of the conditions. Of course, the Controller cannot award the payment of compensation to the authority except in the presence of the authority. The authority may not be prepared to accept compensation but might insist upon cessation of the unauthorized use. The sub-section does not also say who is to pay the compensation, whether it is the landlord or the tenant. Apparently in awarding compensation the Controller will have to apportion the responsibility for the breach between the lessor and the tenant.10. The provision of Clause (k) of the proviso to sub-section (1) of Section 14 is something which has to be given effect to whatever the original contract between the landlord and the tenant. The leases were granted in 1940, and the buildings might have been put up even before the Delhi and Ajmer Rent Control Act 1952 came into force. It was that Act that for the first time provided the kind of remedy which is found in Clause (k). The relevant provision in that Act enabled the landlord to get possession where the tenant whether before or after the commencement of the Act used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situate notwithstanding previous notice. The anxiety of the legislature is to prevent unauthorized user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, alter the Development Authority takes over the building use it for a commercial purpose. We thus reach the conclusion that the lease in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased toare also of the opinion that the High Court was not justified in leaving to the Controller no option but to pass an order for eviction. That would make the alternative provided in sub-section (11) of Section 14 useless. The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to the plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to the Delhi Development Authority. This is in effect nullifying part of the provisions contained in sub-section (11) of Section 14. The High Court has arrived at its conclusion on the basis that Section 14 of the Delhi Development Act applies to thiscareful reading of that section which deals with individual plots; minimum plot size, plot coverage, floors, frontage of plots set back lines, front set back, rear set back line, side set back line, service lanes, show that these are concerned with construction of buildings. The provision regarding requirement in use zones can come in only if the zonal development plans are prepared under Section 8 ofthe Delhi Development Act, 1957. It is that section which provides for a Zonal development plan containing a site plan and use plan for the development of the Zone. No such Zonal Development Plan has been prepared. The High Court was, therefore, in error in proceeding on the basis that there was a plan in relation to this area which prohibits the use of this building under Section 14. It is under the terms of the lease granted by the Delhi Improvement Trust that the use of this building for commercial purpose is prohibited and not under the Delhi Developmenteven if a zonal plan had come into operation in this area (we have already shown such a zonal plan has not come into force in this area) the previous use can be continued till the regulations are framed and after the regulations are framed they will be subject to the terms and conditions of those regulations. That zonal plans have not been prepared has been recognised by this Court in its decision in Municipal Corpn. v. Kishan, (1969) 2 SCR 166 = (AIR 1969 SC 386 ). We are of opinion, therefore, that S. 14 of the Delhi Development Act has no relevance in deciding the question at issue in these two appeals.

### 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: condition imposed on the landlord by the Government or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situate notwithstanding previous notice. The anxiety of the legislature is to prevent unauthorized user rather than protection of the tenant or strengthening the hands of Development Authority in effecting forfeiture. The Development Authority can always resort to the terms of the lease. There is no estoppel here because both the landlord and the tenant knew that the tenancy was not one permitted under the terms of the lease of the land. In any case there can be no estoppel against the statute. It would not benefit the tenant even if it is held that the landlord cannot, under the circumstances, evict him. The landlord will lose his property and the tenant also will lose. He cannot, alter the Development Authority takes over the building use it for a commercial purpose. We thus reach the conclusion that the lease in its inception was not void nor is the landlord estopped from claiming possession because he himself was a party to the breach of the conditions under which the land was leased to him. Neither the clear words of the section as in Waman Shriniwas Kini v. Rati Lal Bhagwandas, AIR 1959 SC 689 nor a consideration of the policy of the Act lead us to the conclusion that the lease was void in its inception if it was for an unauthorized user.11.We are also of the opinion that the High Court was not justified in leaving to the Controller no option but to pass an order for eviction. That would make the alternative provided in sub-section (11) of Section 14 useless. The High Court is not correct in saying that since the Authority has no power to legalize the misuser of land contrary to the plans by acceptance of compensation under the Development Act, the Controller cannot order the payment of compensation by the tenant to the Delhi Development Authority. This is in effect nullifying part of the provisions contained in sub-section (11) of Section 14. The High Court has arrived at its conclusion on the basis that Section 14 of the Delhi Development Act applies to this case. We shall presently show that that section has no relevance to the decision of this case.12. What has been done in Delhi is only a preparation of the master plan for Delhi under Section 7 of the Delhi Development Act 1957. The High Court seems to have misread the provisions of the master plan because Karol Bagh is one of the areas mentioned in page 56 of the book containing thhe master plan for Delhi. The same list contains the built-up residential areas of Daryaganj, Jama Masjid, Chandni Chowk and Fatehpuri. Nobody can say that there are no buildings in these areas used for commercial purposes. This list is at page 56 found in Chapter II which has the main heading Zoning and Sub-Divisional Regulations and sub-headings "Provisions regarding uses in use zones", "Provision regarding requirements in use zones : Density, coverage, floor area ratio, setback and other requirements of use zones". A careful reading of that section which deals with individual plots; minimum plot size, plot coverage, floors, frontage of plots set back lines, front set back, rear set back line, side set back line, service lanes, show that these are concerned with construction of buildings. The provision regarding requirement in use zones can come in only if the zonal development plans are prepared under Section 8 of the Delhi Development Act, 1957. It is that section which provides for a Zonal development plan containing a site plan and use plan for the development of the Zone. No such Zonal Development Plan has been prepared. The High Court was, therefore, in error in proceeding on the basis that there was a plan in relation to this area which prohibits the use of this building under Section 14. It is under the terms of the lease granted by the Delhi Improvement Trust that the use of this building for commercial purpose is prohibited and not under the Delhi Development Act.13. Moreover, Section 14 deals with prevention of the use of any land or building in the zone otherwise than in conformity with the zonal plan. Furthermore it applies to lands leased by authorities like the Delhi Development Authority containing conditions against unauthorised user as well as to lands which do not belong to that category. Its provisions are not intended to enforce the conditions in those leases. The proviso to that section deals with the use to which a land or building may continue to be put even after the coming into force of the zonal plan subject to such terms and conditions as may be prescribed by regulations, provided that building or land had been used for that purpose prior to the coming into force of the zonal plan. The section, therefore, does not contemplate complete prohibition of the use of a land or building for purposes other than that permitted in the zonal plan. Such uses can be continued subject to terms and conditions prescribed by the regulations provided it had been there even before the zonal plan. It is admitted that no such regulations have even been framed. Therefore, even if a zonal plan had come into operation in this area (we have already shown such a zonal plan has not come into force in this area) the previous use can be continued till the regulations are framed and after the regulations are framed they will be subject to the terms and conditions of those regulations. That zonal plans have not been prepared has been recognised by this Court in its decision in Municipal Corpn. v. Kishan, (1969) 2 SCR 166 = (AIR 1969 SC 386 ). We are of opinion, therefore, that S. 14 of the Delhi Development Act has no relevance in deciding the question at issue in these two appeals. ### Response: 1

Automobile Products Of India Employees Union Vs. Association Of Engineering Workers, Bombayand Ors

certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended. Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union. The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of the Act are given the special privilege. It is not necessary to deal with the other provisions of the Act. 18. It is thus clear that the recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a recognised union under the Act merely because it satisfies membership qualification. The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an application for recognition of a new union is entertained. A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh application for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the court. In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant-Union is not disentitled to recognition or to apply for recognition, under the other provisions of the Act. 19. As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant-Union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-Union seeks recognition for itself by displacing the existing recognised union, the applicant-Union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately precediately the calender months in which it made its application but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superiority in it over a continuous specified period. What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act. 20. The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the Union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the Court ignored in particular the mandatory provisions of Section 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership being ignored. 21. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. 22. Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant-Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union 1983 MLJ 147).

0[ds]18. It is thus clear that the recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a recognised union under the Act merely because it satisfies membership qualification. The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an application for recognition of a new union is entertained. A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh application for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the court. In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant-Union is not disentitled to recognition or to apply for recognition, under the other provisions of theAs regards the membership qualification itself, the Act enjoins that for being recognised, the applicant-Union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-Union seeks recognition for itself by displacing the existing recognised union, the applicant-Union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately precediately the calender months in which it made its application but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superiority in it over a continuous specified period. What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to theThe facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the Union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the Court ignored in particular the mandatory provisions of Section 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership beingThe consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of theHence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant-Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union 1983 MLJ 147).

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended. Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union. The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of the Act are given the special privilege. It is not necessary to deal with the other provisions of the Act. 18. It is thus clear that the recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members. It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general. No union is entitled to be registered as a recognised union under the Act merely because it satisfies membership qualification. The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(5) and 12(6) or does not satisfy the conditions mentioned in Section 19. A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an application for recognition of a new union is entertained. A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh application for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the court. In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant-Union is not disentitled to recognition or to apply for recognition, under the other provisions of the Act. 19. As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant-Union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months preceding the month in which the application for recognition is made. When the applicant-Union seeks recognition for itself by displacing the existing recognised union, the applicant-Union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately precediately the calender months in which it made its application but had also a larger membership during the said period than the membership of the recognised union. Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superiority in it over a continuous specified period. What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the union its representative character. It is its representative character determined by such membership that gives a union a right to make the application for recognition. However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act. The recognition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act. 20. The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the Union as a recognised one by a method which was clearly alien to the Act. The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the Court ignored in particular the mandatory provisions of Section 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership being ignored. 21. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. 22. Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant-Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union 1983 MLJ 147). ### Response: 0

Rampyari Devi Saraogi Vs. Commissioner of Income Tax, West Bengal, and Others

1958-59 to 1960-61 are erroneous and prejudicial to the interests of revenue, I cancel the said assessments and direct the Income-tax Officer to do fresh assessments according to law, after making proper enquiries and investigation in regard to the jurisdiction, carrying on of the business, possession of initial capital, gifts received and the sources of the moneys invested in the name of the assessee. "The assessee filed a writ petition under article 226 of the Constitution on April 11, 1963, praying, inter alia, that the order dated March 15, 1963, be quashed. The Division Bench overruled the contention of the assessee that she was denied opportunity of showing cause against the grounds and material on which the Commissioner proceeded for the purpose of taking action under section 33B5. In our view, the High Court was right in overruling the contention of the assessee. The order of the Commissioner is a detailed order. There is no doubt that he does mention some facts which were not indicated or communicated to the assessee and which the assessee had had no opportunity of meeting. For instance, in paragraph 9 it is stated : " It has been ascertained that the Income-tax Officer, D Ward, Howrah, had no jurisdiction over the assessee and hence all the assessments made by him are ab initio null and void. It has also been learnt from local enquiries that the assessee never resided nor carried on any business from 7, Haragenj Road, Salkia, Howrah, and that the assessees father-in-law, Shri Sangarmall Saraogi, and his sons have been doing business of foodgrains, besides owning a rice factory and flour grinding machine from 90, Fidder Road, Belgharia, 24-Parganas. " He further observed : " Moreover, the name of the assessee is Rampiyari Devi Saraogi, and as the Income-tax Officer, D Ward, Howrah, who has made the assessments, had only jurisdiction over cases of new assessees, whose names began with the alphabetical letters from S to Z, with a view to camouflage the name and make it appear to fall within the jurisdiction of the Income-tax Officer, the name has been given in the reverse order by putting the surname first and her own name afterwards, as will be apparent from the returns filed. In the return of income for the assessment year 1961-62, the assessee has given her residential address as 90, Feeder Road, Belgharia, Calcutta, while in that for 1962-63, the office address has been given as 90, Feeder Road, Belgharia, Calcutta. He then concluded : " It is apparent that with a view to fall within the jurisdiction of this particular Income-tax Officer, i.e., Income-tax Officer, D-Ward, Howrah, a fictitious address was given and the order of the names reversed. Hence, all the assessments made are without jurisdiction ab initio null and void. " We agree with the High Court that all this material was supporting material and did not constitute the basic grounds on which the orders under section 33B were passed by the Commissioner. There was ample material to show that the Income-tax Officer made the assessments in undue hurry. The assessee was a new assessee and filed voluntary returns in respect of a number of years, i.e., from assessment years 1952-53 to 1960-61. The return for the assessment year 1953-54 is undated. The returns for the assessment years 1952-53 and 1954-55 to 1957-58 are dated March 21, 1961, and those for the assessment years 1958-59 to 1960-61 are dated April 26, 1961. On March 21, 1961, the assessee made a declaration giving the facts regarding initial capital, the ornaments and presents received at the time of marriage, other gifts received from her father-in-law, etc., which should have put any Income-tax Officer on his guard. But the Income-tax Officer without making any enquiries to satisfy himself passed the assessment order on March 30, 1961, for the assessment years 1952-53 to 1957-58, and on April 26, 1961, for the assessment years 1958-59 to 1960-61. No bank account or any proper books of account were maintained by the assessee or produced before the Income-tax Officer. A short stereotyped assessment order was made for each assessment year. As a simple, the Commissioner has reproduced the assessment order for the assessment year 1952-53 in his order. Profit from speculation was shown as Rs. 3, 085 and interest Rs. 600, and Rs. 500 was added for want of books of account and evidence. No evidence whatsoever was produced in respect of the money-lending business done and interest income, shown to have been received by the assessee. No names were given as to the parties to whom the loans were advanced, with amounts and rate of interest and as to when the interest income was receivedIt is not necessary to further detail the reasons given by the Commissioner because on the face of the record the orders were prejudicial to the interest of the revenue, and even if the facts which the Commissioner introduced regarding the enquiries made by him had been indicated to the assessee, the result would have been the same. The assessee, in our view, has not in any way suffered from the failure of the Commissioner to indicate the results of the enquiries, mentioned above. Moreover, the assessee will have full opportunity of showing to the Income-tax Officer whether he had jurisdiction or not and whether the income assessed in the assessment orders which were originally passed was correct or not6. It may be further mentioned that the assessee did not appeal to the Appellate Tribunal against the order passed under section 33B. The reason given by the learned counsel for not filing an appeal was that he could not raise before the Appellate Tribunal the constitutional question which was raised before the High Court and he could not pursue two remedies concurrently. But, in our view, there was nothing to prevent the assessee from filing the appeal and asking the Appellate Tribunal to go only into the question of the lack of opportunity given to the assessee

0[ds]5. In our view, the High Court was right in overruling the contention of the assessee. The order of the Commissioner is a detailed order. There is no doubt that he does mention some facts which were not indicated or communicated to the assessee and which the assessee had had no opportunity ofagree with the High Court that all this material was supporting material and did not constitute the basic grounds on which the orders under section 33B were passed by the Commissioner. There was ample material to show that theOfficer made the assessments in undue hurry. The assessee was a new assessee and filed voluntary returns in respect of a number of years, i.e., from assessment years1. The return for the assessment yearis undated. The returns for the assessment years55 toare dated March 21, 1961, and those for the assessment years61 are dated April 26, 1961. On March 21, 1961, the assessee made a declaration giving the facts regarding initial capital, the ornaments and presents received at the time of marriage, other gifts received from heretc., which should have put anyOfficer on his guard. But theOfficer without making any enquiries to satisfy himself passed the assessment order on March 30, 1961, for the assessment years8, and on April 26, 1961, for the assessment years1. No bank account or any proper books of account were maintained by the assessee or produced before theOfficer. A short stereotyped assessment order was made for each assessmentassessee, in our view, has not in any way suffered from the failure of the Commissioner to indicate the results of the enquiries, mentioned above. Moreover, the assessee will have full opportunity of showing to theOfficer whether he had jurisdiction or not and whether the income assessed in the assessment orders which were originally passed was correct or not6. It may be further mentioned that the assessee did not appeal to the Appellate Tribunal against the order passed under section 33B. The reason given by the learned counsel for not filing an appeal was that he could not raise before the Appellate Tribunal the constitutional question which was raised before the High Court and he could not pursue two remedies concurrently. But, in our view, there was nothing to prevent the assessee from filing the appeal and asking the Appellate Tribunal to go only into the question of the lack of opportunity given to the assessee

### 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: 1958-59 to 1960-61 are erroneous and prejudicial to the interests of revenue, I cancel the said assessments and direct the Income-tax Officer to do fresh assessments according to law, after making proper enquiries and investigation in regard to the jurisdiction, carrying on of the business, possession of initial capital, gifts received and the sources of the moneys invested in the name of the assessee. "The assessee filed a writ petition under article 226 of the Constitution on April 11, 1963, praying, inter alia, that the order dated March 15, 1963, be quashed. The Division Bench overruled the contention of the assessee that she was denied opportunity of showing cause against the grounds and material on which the Commissioner proceeded for the purpose of taking action under section 33B5. In our view, the High Court was right in overruling the contention of the assessee. The order of the Commissioner is a detailed order. There is no doubt that he does mention some facts which were not indicated or communicated to the assessee and which the assessee had had no opportunity of meeting. For instance, in paragraph 9 it is stated : " It has been ascertained that the Income-tax Officer, D Ward, Howrah, had no jurisdiction over the assessee and hence all the assessments made by him are ab initio null and void. It has also been learnt from local enquiries that the assessee never resided nor carried on any business from 7, Haragenj Road, Salkia, Howrah, and that the assessees father-in-law, Shri Sangarmall Saraogi, and his sons have been doing business of foodgrains, besides owning a rice factory and flour grinding machine from 90, Fidder Road, Belgharia, 24-Parganas. " He further observed : " Moreover, the name of the assessee is Rampiyari Devi Saraogi, and as the Income-tax Officer, D Ward, Howrah, who has made the assessments, had only jurisdiction over cases of new assessees, whose names began with the alphabetical letters from S to Z, with a view to camouflage the name and make it appear to fall within the jurisdiction of the Income-tax Officer, the name has been given in the reverse order by putting the surname first and her own name afterwards, as will be apparent from the returns filed. In the return of income for the assessment year 1961-62, the assessee has given her residential address as 90, Feeder Road, Belgharia, Calcutta, while in that for 1962-63, the office address has been given as 90, Feeder Road, Belgharia, Calcutta. He then concluded : " It is apparent that with a view to fall within the jurisdiction of this particular Income-tax Officer, i.e., Income-tax Officer, D-Ward, Howrah, a fictitious address was given and the order of the names reversed. Hence, all the assessments made are without jurisdiction ab initio null and void. " We agree with the High Court that all this material was supporting material and did not constitute the basic grounds on which the orders under section 33B were passed by the Commissioner. There was ample material to show that the Income-tax Officer made the assessments in undue hurry. The assessee was a new assessee and filed voluntary returns in respect of a number of years, i.e., from assessment years 1952-53 to 1960-61. The return for the assessment year 1953-54 is undated. The returns for the assessment years 1952-53 and 1954-55 to 1957-58 are dated March 21, 1961, and those for the assessment years 1958-59 to 1960-61 are dated April 26, 1961. On March 21, 1961, the assessee made a declaration giving the facts regarding initial capital, the ornaments and presents received at the time of marriage, other gifts received from her father-in-law, etc., which should have put any Income-tax Officer on his guard. But the Income-tax Officer without making any enquiries to satisfy himself passed the assessment order on March 30, 1961, for the assessment years 1952-53 to 1957-58, and on April 26, 1961, for the assessment years 1958-59 to 1960-61. No bank account or any proper books of account were maintained by the assessee or produced before the Income-tax Officer. A short stereotyped assessment order was made for each assessment year. As a simple, the Commissioner has reproduced the assessment order for the assessment year 1952-53 in his order. Profit from speculation was shown as Rs. 3, 085 and interest Rs. 600, and Rs. 500 was added for want of books of account and evidence. No evidence whatsoever was produced in respect of the money-lending business done and interest income, shown to have been received by the assessee. No names were given as to the parties to whom the loans were advanced, with amounts and rate of interest and as to when the interest income was receivedIt is not necessary to further detail the reasons given by the Commissioner because on the face of the record the orders were prejudicial to the interest of the revenue, and even if the facts which the Commissioner introduced regarding the enquiries made by him had been indicated to the assessee, the result would have been the same. The assessee, in our view, has not in any way suffered from the failure of the Commissioner to indicate the results of the enquiries, mentioned above. Moreover, the assessee will have full opportunity of showing to the Income-tax Officer whether he had jurisdiction or not and whether the income assessed in the assessment orders which were originally passed was correct or not6. It may be further mentioned that the assessee did not appeal to the Appellate Tribunal against the order passed under section 33B. The reason given by the learned counsel for not filing an appeal was that he could not raise before the Appellate Tribunal the constitutional question which was raised before the High Court and he could not pursue two remedies concurrently. But, in our view, there was nothing to prevent the assessee from filing the appeal and asking the Appellate Tribunal to go only into the question of the lack of opportunity given to the assessee ### Response: 0

Kanade Anand Udyog Private Limited Vs. Indiana Gratings Private Limited & Others

Plaintiffs original artistic work in the drawings. The Plaintiff averred that Defendant No.24 has been awarded six contracts of the value of Rs.4.7 crores by Bharat Heavy Electricals Ltd. Essentially, in the fresh motion three reliefs were sought by the Plaintiff – (i) Action under Order 39 Rule 2A for breach of the order of injunction; (ii) The striking out of the defence of the Defendants; and (iii) The appointment of a Receiver of electroforged grating machines manufactured from parts based on the drawings of the Plaintiff.6. Defendant No.24 filed an affidavit in response to the Notice of Motion on 9 June 2009. In the affidavit, it was stated that the brochures which are relied upon by the Plaintiff pertain to a machine which was imported by the Defendant from a South African supplier against an order placed on 15 January 2008. Defendant No.24 stated that the Company had commissioned the electroforged machine imported from the South African supplier and has been conducting its business from the said machine. What Defendant No.24 did not disclose in his affidavit is that besides the machine imported from South Africa, the Company was in possession of two additional machines which were sourced indigenously.7. A rejoinder was filed by the Plaintiff on 29 August 2009. Exhibit ‘A to the rejoinder contains a statement of the orders obtained by Defendant No.24, many of which were prior to the date of the import of the machine from South Africa. This was relied upon by the Plaintiff in order to establish the case that Defendant No.24 was in possession not only of an imported machine, but other machines which were based on the use of the parts made in infringement of the copyright of the Plaintiff.8. On 22 June 2010, in a statement made on behalf of Defendant No.24 before the Learned Single Judge, the Company conceded that it had three electroforged grating machines one of which was imported from South Africa. The Learned Single Judge directed Defendant No.24 to show how and when these three electroforged grating machines or parts thereof had been purchased. In response to those directions, an affidavit was filed by Defendant No.24 on 28 June 2010. In the affidavit, it was stated that Defendant No.24 has three machines, one of them being sourced from South Africa and for the other two machines, parts were purchased locally in India from diverse manufacturers. Documents were disclosed by Defendant No.24.9. The Plaintiff filed an affidavit before the Learned Single Judge on 6 July 2010. The affidavit buttressed the case of the Plaintiff that the two indigenous machines which were in the custody of Defendant No.24 had been assembled from the use of parts which were made in infringement of the copyright of the Plaintiff in its artistic work. For instance, in respect of the first machine, the Plaintiff pointed out that Defendant No.24 was incorporated only on 12 July 2005 and hence the company could not have procured or acquired the parts of that machine. Most of the purchase orders corresponding to the invoices were prior to the date of incorporation of Defendant No.24. None of the invoices were raised on Defendant No.24. Of the total payment of Rs.72.52 lakhs, Defendant No.24 made a payment of Rs.2.84 lakhs. Significantly, Defendant No.24 failed to produce even a single drawing to establish that the two indigenous machines had been assembled on the basis of drawings other than the drawings of the Plaintiff. The Plaintiff also highlighted various invoices which pertain to specific machine parts for which drawings were necessarily required. Exhibit ‘A to the affidavit filed by the Plaintiff is titled Illustrative invoices exposing Infringement. Exhibit ‘A contains a list of orders placed by Defendant No.24 on parties from whom drawings pertaining to the particular part were recovered. For instance, in Sr.No.1 of Exhibit ‘A which relates to Defendant No.20, the drawings of the Plaintiff were recovered from that Defendant and from the workshop of the First Defendant. Exhibit ‘D to the affidavit contains a statement of invoices produced by Defendant No.24 which as a matter of fact referred to drawings. Despite being called upon to produce the drawings by the Plaintiff, Defendant No.24 failed to produce any drawings.10. The principal contention which has been urged on behalf of the Appellant, original Defendant No.24, is that no comparison was made by the Learned Single Judge of the machines in the custody of Defendant No.24 with the artistic drawings of the Plaintiff and it is only on that basis that a case for infringement could have been made out. In our view, the Learned Single Judge has carefully evaluated the documents which were produced on the record and the surrounding circumstances of the case before entering a finding that the two indigenous machines in the custody of Defendant No.24 were assembled on the basis of parts which in turn had utilized drawings of the Plaintiff. Significantly, Defendant No.24 did not produce any drawings at all. The case of the Plaintiff was that the machines were assembled on the basis of the parts sourced from various fabricators to whom the Plaintiffs drawings had been supplied in the past by its employees who had since resigned from service and joined the First Defendant. A prima facie case was made out for the grant of interim relief. The balance of convenience clearly lay in favour of the grant of relief as sought. Despite an order of injunction that was granted by the Learned Single Judge in the earlier motion, a device was created to defeat the order by setting up a case that Defendant No.24 was now in custody of the electroforged machine sourced from South Africa which is producing electroforged gratings. In these circumstances, the Learned Single Judge was entirely justified in appointing a Receiver in respect of the two indigenous electroforged grating machines and in directing the Receiver to seal the two machines. The Defendants have been permitted to use the machine which has been imported from Sough Africa.

0[ds]In our view, the Learned Single Judge has carefully evaluated the documents which were produced on the record and the surrounding circumstances of the case before entering a finding that the two indigenous machines in the custody of Defendant No.24 were assembled on the basis of parts which in turn had utilized drawings of the Plaintiff. Significantly, Defendant No.24 did not produce any drawings at all. The case of the Plaintiff was that the machines were assembled on the basis of the parts sourced from various fabricators to whom the Plaintiffs drawings had been supplied in the past by its employees who had since resigned from service and joined the First Defendant. A prima facie case was made out for the grant of interim relief. The balance of convenience clearly lay in favour of the grant of relief as sought. Despite an order of injunction that was granted by the Learned Single Judge in the earlier motion, a device was created to defeat the order by setting up a case that Defendant No.24 was now in custody of the electroforged machine sourced from South Africa which is producing electroforged gratings. In these circumstances, the Learned Single Judge was entirely justified in appointing a Receiver in respect of the two indigenous electroforged grating machines and in directing the Receiver to seal the two machines. The Defendants have been permitted to use the machine which has been imported from Sough Africa.

### 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: Plaintiffs original artistic work in the drawings. The Plaintiff averred that Defendant No.24 has been awarded six contracts of the value of Rs.4.7 crores by Bharat Heavy Electricals Ltd. Essentially, in the fresh motion three reliefs were sought by the Plaintiff – (i) Action under Order 39 Rule 2A for breach of the order of injunction; (ii) The striking out of the defence of the Defendants; and (iii) The appointment of a Receiver of electroforged grating machines manufactured from parts based on the drawings of the Plaintiff.6. Defendant No.24 filed an affidavit in response to the Notice of Motion on 9 June 2009. In the affidavit, it was stated that the brochures which are relied upon by the Plaintiff pertain to a machine which was imported by the Defendant from a South African supplier against an order placed on 15 January 2008. Defendant No.24 stated that the Company had commissioned the electroforged machine imported from the South African supplier and has been conducting its business from the said machine. What Defendant No.24 did not disclose in his affidavit is that besides the machine imported from South Africa, the Company was in possession of two additional machines which were sourced indigenously.7. A rejoinder was filed by the Plaintiff on 29 August 2009. Exhibit ‘A to the rejoinder contains a statement of the orders obtained by Defendant No.24, many of which were prior to the date of the import of the machine from South Africa. This was relied upon by the Plaintiff in order to establish the case that Defendant No.24 was in possession not only of an imported machine, but other machines which were based on the use of the parts made in infringement of the copyright of the Plaintiff.8. On 22 June 2010, in a statement made on behalf of Defendant No.24 before the Learned Single Judge, the Company conceded that it had three electroforged grating machines one of which was imported from South Africa. The Learned Single Judge directed Defendant No.24 to show how and when these three electroforged grating machines or parts thereof had been purchased. In response to those directions, an affidavit was filed by Defendant No.24 on 28 June 2010. In the affidavit, it was stated that Defendant No.24 has three machines, one of them being sourced from South Africa and for the other two machines, parts were purchased locally in India from diverse manufacturers. Documents were disclosed by Defendant No.24.9. The Plaintiff filed an affidavit before the Learned Single Judge on 6 July 2010. The affidavit buttressed the case of the Plaintiff that the two indigenous machines which were in the custody of Defendant No.24 had been assembled from the use of parts which were made in infringement of the copyright of the Plaintiff in its artistic work. For instance, in respect of the first machine, the Plaintiff pointed out that Defendant No.24 was incorporated only on 12 July 2005 and hence the company could not have procured or acquired the parts of that machine. Most of the purchase orders corresponding to the invoices were prior to the date of incorporation of Defendant No.24. None of the invoices were raised on Defendant No.24. Of the total payment of Rs.72.52 lakhs, Defendant No.24 made a payment of Rs.2.84 lakhs. Significantly, Defendant No.24 failed to produce even a single drawing to establish that the two indigenous machines had been assembled on the basis of drawings other than the drawings of the Plaintiff. The Plaintiff also highlighted various invoices which pertain to specific machine parts for which drawings were necessarily required. Exhibit ‘A to the affidavit filed by the Plaintiff is titled Illustrative invoices exposing Infringement. Exhibit ‘A contains a list of orders placed by Defendant No.24 on parties from whom drawings pertaining to the particular part were recovered. For instance, in Sr.No.1 of Exhibit ‘A which relates to Defendant No.20, the drawings of the Plaintiff were recovered from that Defendant and from the workshop of the First Defendant. Exhibit ‘D to the affidavit contains a statement of invoices produced by Defendant No.24 which as a matter of fact referred to drawings. Despite being called upon to produce the drawings by the Plaintiff, Defendant No.24 failed to produce any drawings.10. The principal contention which has been urged on behalf of the Appellant, original Defendant No.24, is that no comparison was made by the Learned Single Judge of the machines in the custody of Defendant No.24 with the artistic drawings of the Plaintiff and it is only on that basis that a case for infringement could have been made out. In our view, the Learned Single Judge has carefully evaluated the documents which were produced on the record and the surrounding circumstances of the case before entering a finding that the two indigenous machines in the custody of Defendant No.24 were assembled on the basis of parts which in turn had utilized drawings of the Plaintiff. Significantly, Defendant No.24 did not produce any drawings at all. The case of the Plaintiff was that the machines were assembled on the basis of the parts sourced from various fabricators to whom the Plaintiffs drawings had been supplied in the past by its employees who had since resigned from service and joined the First Defendant. A prima facie case was made out for the grant of interim relief. The balance of convenience clearly lay in favour of the grant of relief as sought. Despite an order of injunction that was granted by the Learned Single Judge in the earlier motion, a device was created to defeat the order by setting up a case that Defendant No.24 was now in custody of the electroforged machine sourced from South Africa which is producing electroforged gratings. In these circumstances, the Learned Single Judge was entirely justified in appointing a Receiver in respect of the two indigenous electroforged grating machines and in directing the Receiver to seal the two machines. The Defendants have been permitted to use the machine which has been imported from Sough Africa. ### Response: 0

State of Uttar Pradesh and Others Vs. Anghalia Housing Private Limited and Others

notification.9. The findings of primary facts recorded in the judgment of the third learned Judge, and which could not be materially challenged before us are the following :(i) It had prepared (not submitted) the layout plan long ago. On December 31, 1965, it had submitted a working plan which was approved by the U. P. Government on December 25, 1968.(ii) It had entered into agreements with several persons for the sale of plots in the colony.(iii) It had written to the appropriate authorities and actually obtained sanction for water and electricity connections.(iv) It had got the land surveyed in accordance with the agreement entered into with the Government in 1964.(v) It had taken the soil conservation measures, as contemplated by the 1964 agreement.(vi) It had constructed roads in the colony.10. The question for consideration is whether the land in question had "actually been utilized in execution of a housing scheme" within the meaning of the expression used in the notification dated September 1, 1969. Facts mentioned in items (i), (ii) and (iii) above were the steps taken by the company long before the agreement dated September 28, 1964. Perhaps the construction of roads, if any, was also done before. But facts in items (iv) and (v) were the steps taken pursuant to the agreement aforesaid. One major step taken after removal of the ban under the Forest Act was the felling of trees and the clearing of the jungle well within the extended time allowed under the licence. The point for consideration is whether by the acts aforesaid the land had been actually utilized in execution of the housing scheme. If the answer be in the affirmative then the land remained outside the operation of the Act and was not covered by the notification dated September 1, 1969. On the other hand, if the answer be in the negative then the land was so covered.11. It was pointed out on behalf of the Government that the company had applied on September 20, 1966 to the prescribed authority under Section 6 of the U. P. (Regulation of Building Operations) Act, 1958 for undertaking or carrying out the development of the site in the area which was regulated area under this Act. The prescribed authority had asked the company to do certain things in its letter dated December 16, 1966. The company slept over the matter and did not resubmit anything until December 26, 1969, three months after the issuance of the notification withdrawing the exemption. On the other hand for the company submitted that it had taken several steps before, it was still prepared to stick to the agreements entered with various persons for allotment and sale of plots in the colony, before the clearing of the jungle, no further development of the site was possible and permission under Section 6 of the U. P. Act of 1958 became necessary only after the clearance of the jungle. It was, therefore, contended on behalf of the respondents that whatever was possible to be done in execution of housing scheme until the notification dated September 1, 1969 was issued had been done and land had been actually utilized in execution of such a scheme. In our opinion the contentions put forward on behalf of the respondents is well-founded and must be accepted as correct.12. Until the ban in the way of the clearing of the forest was removed and the land was made free from it, no further development such as laying out plan, carving out plots etc. etc. was possible to be done. It seems that the company had not undertaken the construction of any building or house. The business of the company was to make the land fit for building purposes, carve out plots, construct roads, sell the plots to various allottees or intending purchasers who were to build their own houses on the plots. The questions of taking sanction under the U. P. Act of 1958 arose only after the clearing of the jungle. The act of clearing the forest by felling the tree from the land and some other acts done by the company before September 1, 1969 were the only acts which were possible to be done in order to make the land useful for the purpose of the housing scheme. In out opinion, therefore, the land had been actually utilized in execution of a housing scheme. According to Shorter Oxford English Dictionary, 3rd edition, the word utilize means "to make useful". Viewed in the light of the said meaning it is clear to us that the land was made useful in execution of the housing scheme, that is to say in the process of the execution of the housing scheme. The question of further development of the land arose only after clearance of the forest. The Collector of Dehra Dun by the impugned order held that the provisions of the Act were applicable to the land. The company could not, therefore take permission under the U. P. Act of 1958 from the prescribed authority nor could any further act for fully implementing the housing scheme be done. The felling of the trees was complete within the time allowed and, therefore, actual utilization of the land in the process of the housing scheme was made, in the sense of utilizing the land to the extent it was possible to utilize it. In our judgment the High Court was right in holding that the land in question is not covered by the notification dated September 1, 1969 and in quashing the order of the Collector dated March 22, 1970. We may, however observe that of the housing scheme is not fully implemented within a reasonable time for today and actual utilization of the land by full and complete implementation of the housing scheme is unnecessarily delayed then it will be open to the Government to take further steps for the application of provisions of the Act to the land in question or any portion thereof in accordance with law.

0[ds]Facts mentioned in items (i), (ii) and (iii) above were the steps taken by the company long before the agreement dated September 28, 1964. Perhaps the construction of roads, if any, was also done before. But facts in items (iv) and (v) were the steps taken pursuant to the agreement aforesaid. One major step taken after removal of the ban under the Forest Act was the felling of trees and the clearing of the jungle well within the extended time allowed under the licence. The point for consideration is whether by the acts aforesaid the land had been actually utilized in execution of the housing scheme. If the answer be in the affirmative then the land remained outside the operation of the Act and was not covered by the notification dated September 1, 1969. On the other hand, if the answer be in the negative then the land was soour opinion the contentions put forward on behalf of the respondents isand must be accepted as correct.12. Until the ban in the way of the clearing of the forest was removed and the land was made free from it, no further development such as laying out plan, carving out plots etc. etc. was possible to be done. It seems that the company had not undertaken the construction of any building or house. The business of the company was to make the land fit for building purposes, carve out plots, construct roads, sell the plots to various allottees or intending purchasers who were to build their own houses on the plots. The questions of taking sanction under the U. P. Act of 1958 arose only after the clearing of the jungle. The act of clearing the forest by felling the tree from the land and some other acts done by the company before September 1, 1969 were the only acts which were possible to be done in order to make the land useful for the purpose of the housing scheme. In out opinion, therefore, the land had been actually utilized in execution of a housing scheme. According to Shorter Oxford English Dictionary, 3rd edition, the word utilize means "to make useful". Viewed in the light of the said meaning it is clear to us that the land was made useful in execution of the housing scheme, that is to say in the process of the execution of the housing scheme. The question of further development of the land arose only after clearance of the forest. The Collector of Dehra Dun by the impugned order held that the provisions of the Act were applicable to the land. The company could not, therefore take permission under the U. P. Act of 1958 from the prescribed authority nor could any further act for fully implementing the housing scheme be done. The felling of the trees was complete within the time allowed and, therefore, actual utilization of the land in the process of the housing scheme was made, in the sense of utilizing the land to the extent it was possible to utilize it. In our judgment the High Court was right in holding that the land in question is not covered by the notification dated September 1, 1969 and in quashing the order of the Collector dated March 22, 1970. We may, however observe that of the housing scheme is not fully implemented within a reasonable time for today and actual utilization of the land by full and complete implementation of the housing scheme is unnecessarily delayed then it will be open to the Government to take further steps for the application of provisions of the Act to the land in question or any portion thereof in accordance with law.We do not propose to enter into the question of estoppel in this case, as in our opinion, the judgment of the High Court is sustainable on the first ground alone.

### 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: notification.9. The findings of primary facts recorded in the judgment of the third learned Judge, and which could not be materially challenged before us are the following :(i) It had prepared (not submitted) the layout plan long ago. On December 31, 1965, it had submitted a working plan which was approved by the U. P. Government on December 25, 1968.(ii) It had entered into agreements with several persons for the sale of plots in the colony.(iii) It had written to the appropriate authorities and actually obtained sanction for water and electricity connections.(iv) It had got the land surveyed in accordance with the agreement entered into with the Government in 1964.(v) It had taken the soil conservation measures, as contemplated by the 1964 agreement.(vi) It had constructed roads in the colony.10. The question for consideration is whether the land in question had "actually been utilized in execution of a housing scheme" within the meaning of the expression used in the notification dated September 1, 1969. Facts mentioned in items (i), (ii) and (iii) above were the steps taken by the company long before the agreement dated September 28, 1964. Perhaps the construction of roads, if any, was also done before. But facts in items (iv) and (v) were the steps taken pursuant to the agreement aforesaid. One major step taken after removal of the ban under the Forest Act was the felling of trees and the clearing of the jungle well within the extended time allowed under the licence. The point for consideration is whether by the acts aforesaid the land had been actually utilized in execution of the housing scheme. If the answer be in the affirmative then the land remained outside the operation of the Act and was not covered by the notification dated September 1, 1969. On the other hand, if the answer be in the negative then the land was so covered.11. It was pointed out on behalf of the Government that the company had applied on September 20, 1966 to the prescribed authority under Section 6 of the U. P. (Regulation of Building Operations) Act, 1958 for undertaking or carrying out the development of the site in the area which was regulated area under this Act. The prescribed authority had asked the company to do certain things in its letter dated December 16, 1966. The company slept over the matter and did not resubmit anything until December 26, 1969, three months after the issuance of the notification withdrawing the exemption. On the other hand for the company submitted that it had taken several steps before, it was still prepared to stick to the agreements entered with various persons for allotment and sale of plots in the colony, before the clearing of the jungle, no further development of the site was possible and permission under Section 6 of the U. P. Act of 1958 became necessary only after the clearance of the jungle. It was, therefore, contended on behalf of the respondents that whatever was possible to be done in execution of housing scheme until the notification dated September 1, 1969 was issued had been done and land had been actually utilized in execution of such a scheme. In our opinion the contentions put forward on behalf of the respondents is well-founded and must be accepted as correct.12. Until the ban in the way of the clearing of the forest was removed and the land was made free from it, no further development such as laying out plan, carving out plots etc. etc. was possible to be done. It seems that the company had not undertaken the construction of any building or house. The business of the company was to make the land fit for building purposes, carve out plots, construct roads, sell the plots to various allottees or intending purchasers who were to build their own houses on the plots. The questions of taking sanction under the U. P. Act of 1958 arose only after the clearing of the jungle. The act of clearing the forest by felling the tree from the land and some other acts done by the company before September 1, 1969 were the only acts which were possible to be done in order to make the land useful for the purpose of the housing scheme. In out opinion, therefore, the land had been actually utilized in execution of a housing scheme. According to Shorter Oxford English Dictionary, 3rd edition, the word utilize means "to make useful". Viewed in the light of the said meaning it is clear to us that the land was made useful in execution of the housing scheme, that is to say in the process of the execution of the housing scheme. The question of further development of the land arose only after clearance of the forest. The Collector of Dehra Dun by the impugned order held that the provisions of the Act were applicable to the land. The company could not, therefore take permission under the U. P. Act of 1958 from the prescribed authority nor could any further act for fully implementing the housing scheme be done. The felling of the trees was complete within the time allowed and, therefore, actual utilization of the land in the process of the housing scheme was made, in the sense of utilizing the land to the extent it was possible to utilize it. In our judgment the High Court was right in holding that the land in question is not covered by the notification dated September 1, 1969 and in quashing the order of the Collector dated March 22, 1970. We may, however observe that of the housing scheme is not fully implemented within a reasonable time for today and actual utilization of the land by full and complete implementation of the housing scheme is unnecessarily delayed then it will be open to the Government to take further steps for the application of provisions of the Act to the land in question or any portion thereof in accordance with law. ### Response: 0

Management Of Wenger & Co Vs. Their Workmen(And Vice Versa)

by the gratuity scheme. One is to capitalise the burden on actuarial basis and that would naturally show theoretically that the burden would be very heavy; the other is to look at the scheme in its practical aspect and this would show that that speaking broadly, no more than 3 to 4 per cent of the employees retire every year. It is desirable that in assessing the impact of the gratuity scheme on the financial position of the employer this practical approach should be taken into account.Thus considered, we see no reason to accept Mr. Pathaks argument that the financial position of the employers would be unable to bear the practical burden which the gratuity scheme would impose on them, vide Sone Valley Portland Cement Co. v. Its Workmen, 1962-1 Lab LJ 218 : (AIR 1963 SC 495 ). 26. Turning then to the merits of the scheme we are satisfied that some modifications must be made. The scheme made by the Tribunal provides as under; For service of less than two years. Nil. For continuous service of two years and more, on termination of service of the workman for whatever reason except by way of dismissal for misconduct, involving moral turpitude. Fifteen days basic pay for every year of completed service subject to a maximum of twelve months basic pay The first criticism which Mr. Pathak has made against this provision is that the clause about misconduct involving moral turpitude is unusual and would create complications,. This position is not disputed by the learned Attorney-General. We would, therefore, delete the words "involving moral turpitude" from the said provision. The second criticism made by Mr. Pathak against the provision is that the limit of two years imposed by the provision is unduly liberal. We think this criticism also is well founded. Besides, a distinction must be made between the termination of service caused by the employer and the termination resulting from the resignation given by the employee. We would, therefore, provide that for termination of service cause by the employer the minimum period of service for payment of gratuity should be five years, and in regard to this category of termination of service, we would like to add that if the termination is the result of misconduct which has caused financial loss to the employer, that loss should be first compensated from the gratuity payable to the employee and the balance, if any, should be paid to him. In regard to resignation., we would like to provide that if the employee resigns he would be entitled to get gratuity only if he has completed ten years service or more. The rate prescribed by the Tribunal for the payment of gratuity and the ceiling placed by it in that behalf would remain the same. 26A. There is one more point which still remains to be considered, and that is in regard to the claim for a share in the service charges in respect of the Claridges Hotel. We have already indicted the nature of the directions issued by the Tribunal in that behalf. The Tribunal has held that no direction need the issued in respect of the employees claim for a share in the service charges for a period prior to the date of the award. It has however, purported to issue a direction in respect of the division of the service charges in future, and Mr. Pathak contends that this direction is outside the jurisdiction of the Tribunal because this was not a matter referred to it for its adjudication. Paragraph 1(d) of the reference clearly supports Mr. Pathaks contention. This clause is worded thus:"Are the workmen entitled to share the service charges collected previously by different managements up to the date of reference of this dispute? If so, what should be the percentage and what directions are necessary in this respect? It is plain that the claim which has been referred to the Tribunal for adjudication does not cover a period subsequent to the date of reference. This position is not disputed. We must accordingly set aside the direction issued by the Tribunal in respect of the division of service charges in future." 27. Mr. Pathak no doubt attempted to argue that the directions given by the award in respect of uniforms and holidays should be serviced. We are not impressed by Mr. Pathaks argument on these points. These are matters of detail which it was for the Tribunal to consider on the merits and the grievance made by Mr. Pathak raises no question of law on which we can interfere with the decision of the Tribunal. 28. The last point urged by Mr. Pathak is in regard to what he characterised as retrospective operation of the award. It appears that the present demands were made by the employees on October 1, 1958 and the references were made on September 9, 1959 and December 12, 1959 respectively. The award was pronounced on March 16, 1962 and it has directed that its directions should take effect from January 1, 1961. Technically speaking, this direction cannot be said to be retrospective because it takes effect from a date subsequent to the date of the reference. Under S. 17A(4) of the Industrial Disputes Act. 1947 (No 14 of 1947), it is open to the Industrial Tribunal to name the date from which it should come into operation and in cases where the Industrial Tribunal thinks that it is fair and just that its award should come into force from a date prior to the date of reference, it is authorised to issue such direction. When such a direction is issued, it may be said appropriately that the award takes effect retrospectively. Apart from this technical aspect of the matter, is, in the circumstances of this case, the Tribunal held that the award should take effect not from the date of reference but from a later date which was January 1, 1961, we see no reason why we should interfere with its direction.

1[ds]But the test of functional integrality or the test whether one unit can exit without the other, though important in some cases, cannot be stressed in every case without having regard to the relevant facts of that case, and so, we are not prepared to accede to the argument that the absence of functional integrality and the fact that the two units can exist one without the other necessarily show that where they exist they are necessarily separate units and do not amount to one establishmentIt is true that many establishments keep separate accounts and independent balance-sheets for wine shops and restaurants; but that clearly is not decisive because it may be that the establishments want to determine from stage to stage which line of business is yielding more profit. Ultimately, the profits and losses are usually pooled together. Thus generally stated, there is unity of ownership unity of finance, unity of management and unity of labour; employees from the restaurant can be transferred to the wine shop and vice versa. Besides, it is significant that in no case has the establishment registered the wine shops and the restaurants separately under S. 5 of the Delhi Shops and Establishments Act 1954 (No. VII of 1954).In fact, when Mr. Nirula the Secretary of the Employers Association was called upon to register his wine shop separately, he protested and urged that separate registration of the several departments was unnecessary; and that clearly indicated that wine shop was treated by the establishment as one of its departments and nothing more. The failure to register a wine shop as a separate establishment is, in our opinion not consistent with the employers case that wine shops are separate and independent units. Having regard to all the facts to which we have just referred we do not think it would be possible to accept Mr. Pathaks argument that the Tribunal was in error in holding that the wine shops and restaurants form part of the same industrial establishmentsThe Tribunal has carefully examined the relevant balance-sheets and considered the profit and loss position of each establishment for the three years in respect of which bonus was claimed; they are 1956-57, 57-58 and 58-59.In constructing a wage structure, industrial adjudication has undoubtedly to take into account the overall financial position of the employer because a scheme of wage structure including scales of increment is a long-term scheme and before it is framed, the Tribunal must be satisfied that the burden imposed by the scheme would not be beyond the means of the employer. In regard to the minimum wage no such consideration arises because it is the duty of industrial employer to pay the basic minimum to his employees. But when a wage structure is constructed and it provides for increments, the financial position of the employer has to be borne in mind.The Tribunal has recognised this principle and on examining the accounts produced before it, it has come to the conclusion that the establishments in questions have shown uniform prosperity and all of them, except the Delhi Restaurant, can be properly characterised as established concerns. Besides, it has referred to the fact that in the Delhi region, there are various establishments which have pay scales for workmen, though, except for the award made by Mr. Dulat, there were no previous instances of pay scales having been introduced restaurants in the awards or settlements cited before the Tribunal. It was however urged before the Tribunal and the same plea has been repeated before us that the possibility of the introduction of total prohibition in New Delhi should have been borne in mind in considering the problem of wage structure in the present proceedings. We do not think that the award made by the Tribunal in this case can be validly attacked on the ground that the Tribunal refused to attach due importance to the apprehension expressed before it by the employers that total prohibition may soon be introduced in New Delhi and that may impair the prosperity of the trade. The Tribunal has noticed that even after the partial introduction of prohibition the profits of the trade have not shown any adverse effect. On the contrary, they show an upward tendency, and the Tribunal was not satisfied that there was any evidence adduced before it to justify the contention that in the every near future total prohibition would be introduced in New Delhi. It was urged by the employees that all indications pointed to the fact that total prohibition may not be introduced in New Delhi and the Tribunal thought, and we think rightly, that it would be idle to speculate in this matter; if in course of time, total prohibition is introduced and it materially affects the prosperity of the trade, it would be open to the employers to raise a dispute for the reduction in the wage structure and in case they are able to show that as a result of the introduction of total prohibition their financial position is weakened to such an extent that they cannot bear the burden of the wage structure directed by the present award, the matter may have to be examined on the merits. Therefore, we do not think that the hypothetical consideration that total prohibition may be introduced in the near future, can play any part in the decision of the wage problem in the present proceedingsThe decisions of Industrial Tribunals on questions of fact and their conclusions in matters within their discretion are not usually revised by this Court under Art. 136. Besides, the claim made by the employers by way of remuneration to the partners has not been properly established by adequate evidence. That is the conclusion of the Tribunal, and on the record it seems to be well founded. It also appears that in some cases, the amounts of remuneration claimed are not debited in the books of account; but the present claim is made for the purpose of working the Full Bench Formula. Therefore, on a question of this kind, we do not think Mr. Pathak is justified in making a grievance before us under Art. 136It is true that the employees claim additional bonus on this ground; but we are not satisfied that the difference made by a fresh calculation of the Income-tax according to the decision to the amount already awarded by the Tribunal by way of bonus for the respective years in questionAs we have already pointed out the employers conceded that the wage packet in the case of Hotels should be Rs. 70/- p. m. including service charges and in the case of the Restaurants should be Rs. 60/- and the Tribunal has fixed the minimum content of the wage packet at Rs. 65/- p.m. We see no reason to interfere with this decision. The Tribunal has fixed Rs. 35/- as a flat rate for dearness allowance and has provided for appropriate deductions from the said amount for amenities like food residence and tea which the employers provide to some of their employees. We see no reason to interfere with this part of the award as well. The categories of workers into unskilled, semi-skilled and skilled also appear to us to be fully justified, and on the material adduced on the record, no case has been made out against the said categories either23. In our opinion, in dealing with this question, it would not be appropriate to adopt an academic or a doctrinaire approach. In considering the problem of wage structure in regard to hotels and restaurants industrial adjudication has necessarily to adopt a pragmatic approach and in fixing the wage structure and the D. A. it has to take care to see that the legitimate demand of the employees is met without doing in justice to the employer and without acting unfairly by him. If the object of D. A. is to neutralise the rise in the cost of living, it would be purely doctrinaire to ignore altogether the fact that as waiters working in their respective establishments they invariably get some amount of tips from the customs, and so, we think it would not be right to treat the tips received by the waiters as being wholly irrelevant to the decision of the question about the matter of D. A. Similarly, it would not be right to make a calculation about the tips received and treat the said amount as a substitute either whole or partial, for the D. A. itself. All that we can do is to bear in mind the fact that tips are received and make some suitable adjustment in that behalf. It would, of course, not be right to treat these tips as substantially amounting to payments made by or on behalf of the employers, for if that were so, logically, it may be open to the employers to say that the said tips may be taken into account even while fixing a basic wage. That clearly is not and cannot be the employers case. It is true that the amount of tips may vary and in that sense be uncertain,. But if evidence adduced by the parties satisfactorily proves that each waiter would invariably receive a certain amount of tips in the minimum it would not be unfair or unjust to take such a minimum amount into account in determining the quantum of D. A. at a flat rate. Such an approach, we think, would do no injustice to the employees claim for D. A. and would be fair to the employers as well24. We have, therefore, examined the evidence to find out what amount can be reasonably taken to be the minimum which a waiter is bound to get in each one of the establishments before us. As often happens, the witnesses examined by the managements have made overstatements on the point and witnesses examined by the Union have made under-statements. According to the former set of witnesses more than Rs. 50/- are received by the waiter by way of tips every month, whereas according to the latter, between Rs. 10/- to Rs. 15/- are received per month. Some employers claimed that if their waiters were sent out for service, they themselves compensated the waiters for the loss of their tips caused by outside service and paid appropriate amounts to them in that behalf and in support of this claim, evidence, documentary and oral, was adduced. We are satisfied that the said evidence is not reliable and the claim based on it is untenable. Tips are paid by the customers and not by employers in any case. It is common ground that since the introduction of prohibition, tips paid to the employees in the restaurants and hotels have gone down. But it seems to us that there is no difficulty whatever in holding that each one of the waiters gets at least Rs. 10/- p.m. by way of tips. This conclusion may amount to an under-estimate in regard to some of the establishments before us because it is likely that waiters employed in the more prosperous establishments must be receiving by way of tips amounts very much larger than Rs.10/- p.m., but in the absence of adequate and satisfactory evidence in respect of each one of the establishments with which we are concerned. It would not be safe or advisable to make a definite finding that more than Rs. 10/- are received by waiters in each one of these establishments. That being the state of evidence adduced by the employers in the present proceedings, we would content ourselves with accepting the principle that in fixing D. A., a reasonable deduction may be made in respect of waiters on the ground that they receive a certain amount of minimum tips from the customers every day. We are, therefore, inclined to think that in the case of waiters who receive tips, it would not be unfair or unjust to direct that a deduction of Rs. 10/- should be made from Rs. 35/- per month. In the case of waiters who receive food, tea and accommodation from their employers, Rs. 27/- p.m. are already ordered to be deducted from the D. A. In respect of these waiters we direct that only Rs. 8/- should be further deducted on account of tips, because we have no doubt that no deduction can be made on account of these considerations from the basic wageBesides, a distinction must be made between the termination of service caused by the employer and the termination resulting from the resignation given by the employee. We would, therefore, provide that for termination of service cause by the employer the minimum period of service for payment of gratuity should be five years, and in regard to this category of termination of service, we would like to add that if the termination is the result of misconduct which has caused financial loss to the employer, that loss should be first compensated from the gratuity payable to the employee and the balance, if any, should be paid to him. In regard to resignation., we would like to provide that if the employee resigns he would be entitled to get gratuity only if he has completed ten years service or more. The rate prescribed by the Tribunal for the payment of gratuity and the ceiling placed by it in that behalf would remain the same27. Mr. Pathak no doubt attempted to argue that the directions given by the award in respect of uniforms and holidays should be serviced. We are not impressed by Mr. Pathaks argument on these points. These are matters of detail which it was for the Tribunal to consider on the merits and the grievance made by Mr. Pathak raises no question of law on which we can interfere with the decision of the TribunalIt appears that the present demands were made by the employees on October 1, 1958 and the references were made on September 9, 1959 and December 12, 1959 respectively. The award was pronounced on March 16, 1962 and it has directed that its directions should take effect from January 1, 1961. Technically speaking, this direction cannot be said to be retrospective because it takes effect from a date subsequent to the date of the reference. Under S. 17A(4) of the Industrial Disputes Act. 1947 (No 14 of 1947), it is open to the Industrial Tribunal to name the date from which it should come into operation and in cases where the Industrial Tribunal thinks that it is fair and just that its award should come into force from a date prior to the date of reference, it is authorised to issue such direction. When such a direction is issued, it may be said appropriately that the award takes effect retrospectively. Apart from this technical aspect of the matter, is, in the circumstances of this case, the Tribunal held that the award should take effect not from the date of reference but from a later date which was January 1, 1961, we see no reason why we should interfere with its direction.

### 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: by the gratuity scheme. One is to capitalise the burden on actuarial basis and that would naturally show theoretically that the burden would be very heavy; the other is to look at the scheme in its practical aspect and this would show that that speaking broadly, no more than 3 to 4 per cent of the employees retire every year. It is desirable that in assessing the impact of the gratuity scheme on the financial position of the employer this practical approach should be taken into account.Thus considered, we see no reason to accept Mr. Pathaks argument that the financial position of the employers would be unable to bear the practical burden which the gratuity scheme would impose on them, vide Sone Valley Portland Cement Co. v. Its Workmen, 1962-1 Lab LJ 218 : (AIR 1963 SC 495 ). 26. Turning then to the merits of the scheme we are satisfied that some modifications must be made. The scheme made by the Tribunal provides as under; For service of less than two years. Nil. For continuous service of two years and more, on termination of service of the workman for whatever reason except by way of dismissal for misconduct, involving moral turpitude. Fifteen days basic pay for every year of completed service subject to a maximum of twelve months basic pay The first criticism which Mr. Pathak has made against this provision is that the clause about misconduct involving moral turpitude is unusual and would create complications,. This position is not disputed by the learned Attorney-General. We would, therefore, delete the words "involving moral turpitude" from the said provision. The second criticism made by Mr. Pathak against the provision is that the limit of two years imposed by the provision is unduly liberal. We think this criticism also is well founded. Besides, a distinction must be made between the termination of service caused by the employer and the termination resulting from the resignation given by the employee. We would, therefore, provide that for termination of service cause by the employer the minimum period of service for payment of gratuity should be five years, and in regard to this category of termination of service, we would like to add that if the termination is the result of misconduct which has caused financial loss to the employer, that loss should be first compensated from the gratuity payable to the employee and the balance, if any, should be paid to him. In regard to resignation., we would like to provide that if the employee resigns he would be entitled to get gratuity only if he has completed ten years service or more. The rate prescribed by the Tribunal for the payment of gratuity and the ceiling placed by it in that behalf would remain the same. 26A. There is one more point which still remains to be considered, and that is in regard to the claim for a share in the service charges in respect of the Claridges Hotel. We have already indicted the nature of the directions issued by the Tribunal in that behalf. The Tribunal has held that no direction need the issued in respect of the employees claim for a share in the service charges for a period prior to the date of the award. It has however, purported to issue a direction in respect of the division of the service charges in future, and Mr. Pathak contends that this direction is outside the jurisdiction of the Tribunal because this was not a matter referred to it for its adjudication. Paragraph 1(d) of the reference clearly supports Mr. Pathaks contention. This clause is worded thus:"Are the workmen entitled to share the service charges collected previously by different managements up to the date of reference of this dispute? If so, what should be the percentage and what directions are necessary in this respect? It is plain that the claim which has been referred to the Tribunal for adjudication does not cover a period subsequent to the date of reference. This position is not disputed. We must accordingly set aside the direction issued by the Tribunal in respect of the division of service charges in future." 27. Mr. Pathak no doubt attempted to argue that the directions given by the award in respect of uniforms and holidays should be serviced. We are not impressed by Mr. Pathaks argument on these points. These are matters of detail which it was for the Tribunal to consider on the merits and the grievance made by Mr. Pathak raises no question of law on which we can interfere with the decision of the Tribunal. 28. The last point urged by Mr. Pathak is in regard to what he characterised as retrospective operation of the award. It appears that the present demands were made by the employees on October 1, 1958 and the references were made on September 9, 1959 and December 12, 1959 respectively. The award was pronounced on March 16, 1962 and it has directed that its directions should take effect from January 1, 1961. Technically speaking, this direction cannot be said to be retrospective because it takes effect from a date subsequent to the date of the reference. Under S. 17A(4) of the Industrial Disputes Act. 1947 (No 14 of 1947), it is open to the Industrial Tribunal to name the date from which it should come into operation and in cases where the Industrial Tribunal thinks that it is fair and just that its award should come into force from a date prior to the date of reference, it is authorised to issue such direction. When such a direction is issued, it may be said appropriately that the award takes effect retrospectively. Apart from this technical aspect of the matter, is, in the circumstances of this case, the Tribunal held that the award should take effect not from the date of reference but from a later date which was January 1, 1961, we see no reason why we should interfere with its direction. ### Response: 1

Arvind Kumar Mishra Vs. New India Assurance Co. Ltd.

calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.”17. The multiplier represents the number of years’ purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs. 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000 would be 20. Then the multiplier, i.e., the number of years’ purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last, etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up.” 9. The principles laid down in Susamma Thomas still hold the field; the only variation has been in respect of maximum multiplier. In the present case the Tribunal as well as the High Court seriously erred in not assessing the compensation for personal injury to the appellant in accord with the recognized mode i.e., by taking an appropriate multiplier of an appropriate multiplicand.10. The appellant at the time of accident was a final year engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of mechanical engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident.11. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join Government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000/- per annum. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr., VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000/- by a multiplier of 18 comes to Rs. 7,56,000/-. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000/-. The Tribunal awarded him Rs. 1,50,000/- towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000/- .12. Before we close, we must notice in all fairness to the learned Counsel for the insurer his submission that the appellant is entitled to compensation in accordance with the Second Schedule appended to the 1988 Act only. This submission overlooks the fact that the appellant made his claim under Section 166 of the 1988 Act and not under Section 163A. It is true that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2009) 13 SCC 422 a two-Judge Bench of this Court has referred the question whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under Section 166 to the larger bench and the said question is not yet authoritatively decided. However, in a case such as the present case, we find no justification to await decision of the larger bench on the aforenoticed question as there are already few decisions of this Court taking a view that the Second Schedule has no application to the claim petition made under Section 166 of the 1988 Act.

1[ds]9. The principles laid down in Susamma Thomas still hold the field; the only variation has been in respect of maximum multiplier. In the present case the Tribunal as well as the High Court seriously erred in not assessing the compensation for personal injury to the appellant in accord with the recognized mode i.e., by taking an appropriate multiplier of an appropriate multiplicand.10. The appellant at the time of accident was a final year engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of mechanical engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident.11. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join Government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000/- per annum. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr., VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000/- by a multiplier of 18 comes to Rs. 7,56,000/-. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000/-. The Tribunal awarded him Rs. 1,50,000/- towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000/- .12. Before we close, we must notice in all fairness to the learned Counsel for the insurer his submission that the appellant is entitled to compensation in accordance with the Second Schedule appended to the 1988 Act only. This submission overlooks the fact that the appellant made his claim under Section 166 of the 1988 Act and not under Section 163A. It is true that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2009) 13 SCC 422 a two-Judge Bench of this Court has referred the question whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under Section 166 to the larger bench and the said question is not yet authoritatively decided. However, in a case such as the present case, we find no justification to await decision of the larger bench on the aforenoticed question as there are already few decisions of this Court taking a view that the Second Schedule has no application to the claim petition made under Section 166 of the 1988 Act.

### 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: calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.”17. The multiplier represents the number of years’ purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs. 10,000. If a sum of Rs. 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs. 10,000 would be 20. Then the multiplier, i.e., the number of years’ purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last, etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up.” 9. The principles laid down in Susamma Thomas still hold the field; the only variation has been in respect of maximum multiplier. In the present case the Tribunal as well as the High Court seriously erred in not assessing the compensation for personal injury to the appellant in accord with the recognized mode i.e., by taking an appropriate multiplier of an appropriate multiplicand.10. The appellant at the time of accident was a final year engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of mechanical engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident.11. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join Government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000/- per annum. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr., VI (2009) SLT 663=162 (2009) DLT 278 (SC)=III (2009) ACC 708 (SC)=(2009) 6 SCC 121 , the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000/- by a multiplier of 18 comes to Rs. 7,56,000/-. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000/-. The Tribunal awarded him Rs. 1,50,000/- towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000/- .12. Before we close, we must notice in all fairness to the learned Counsel for the insurer his submission that the appellant is entitled to compensation in accordance with the Second Schedule appended to the 1988 Act only. This submission overlooks the fact that the appellant made his claim under Section 166 of the 1988 Act and not under Section 163A. It is true that in Reshma Kumari & Ors. v. Madan Mohan & Anr., (2009) 13 SCC 422 a two-Judge Bench of this Court has referred the question whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under Section 166 to the larger bench and the said question is not yet authoritatively decided. However, in a case such as the present case, we find no justification to await decision of the larger bench on the aforenoticed question as there are already few decisions of this Court taking a view that the Second Schedule has no application to the claim petition made under Section 166 of the 1988 Act. ### Response: 1

State of Gujarat Vs. Sardarabegum and Others

SARKARIA, J. 1. This appeal on certificate granted under Article 133(1)(b) of the Constitution is directed against a judgment of the Gujarat High Court. 2. The facts are : One Sardar Shermia Bapumia was the holder of what he alleged to be a political pension. He was paid such a pension till July 31, 1953 at the rate of Rs. 500 per month. On the coming into force of the Bombay Personal Inams Abolition Act, 1953 (to be hereinafter referred to as the Act), from August 1, 1953, payment of this pension was discontinued. 3. Bapumiya thereupon filed an application under Article 226 of the Constitution in the High Court praying for a writ of mandamus or any other appropriate writ or direction ordering the respondent State and its officers to pay to the petitioner and his heirs in perpetuity, a sum of Rs. 500 with effect from August 1, 1953. It was contended that the pension was a political pension and not a personal inam and consequently, the pension did not fall within the definition of personal inam in the Inams Abolition Act and could not be abolished thereunder. Subsequently, at the instance of writ applicant, the High Court by its order, dated February 27, 1963, deleted the words in perpetuity at end of the prayer clause (A) in the writ application. By the same order in view of the statement made by the Additional Government Pleader on behalf of the respondent State to the effect, that the pension that was being paid to the petitioner was not a personal inam and as such, could not be abolished under the Act, the High Court passed an order directing the respondents, their servants and agents to pay to the writ applicant and his heirs the sum of Rs. 500 p.m. as and by way of political pension with effect from August 1, 1953. 4. Being aggrieved by this order, dated February 27, 1963, the appellant herein filed on April 10, 1064, a review petition, which was subsequently amended on December 21, 1965, for a review of the said order on the ground that there was an error on the face of its. It was stated that the appellant had committed a bona fide mistake due to the ignorance of the authorities in not taking up the defence that the aforesaid political pension stood resumed under the provisions of the Bombay Saramjams Jahagirs and other Inams of Political Nature Resumption Rules, 1952 made in exercise of powers under the Bombay Rent Free Estate Act, 1852 and the Land Revenue Acts 1 and 2 of 1863 with effect from 1952. 5. The appellants also filed an application No. 570 of 1964 for substituting the legal heirs of the deceased writ applicant in the main petition. The review application and this application (570 of 1964) were heard together, and rejected by the High Court as per order, dated December 8, 1966. 6. The High Court has declined the review application mainly on the ground that it was timebarred under Article 124 of the Limitation Act and no sufficient ground for condonation of the delay had been alleged or made out. 7. Mr. Dhebar, appearing for the appellant, contends that the order under appeal suffers from patent error, which the High Court should have suo motu rectified in the exercise of its inherent jurisdiction. These errors, according to the Counsel, are : First no mandamus could have been validly issued to enforce the claim to arrears of political pension. Secondly, in any case, the High Court has granted the writ applicant relief in excess of what he had asked for. It is stressed that by getting the words in perpetuity in the prayer clause (A) of the writ application detected, the writ applicant had limited his claim to his lifetime and consequently, the High Court was not justified to direct the State to pay pension, at the same rate, to the heirs of the deceased for the period beyond the latters lifetime. 8. Although it is not usual for the High Court to issued a writ of mandamus for enforcing a claim for arrears of such a pension, yet we cannot lose sight of the fact that this order was made pursuant to the concession made by the applicant, herein. It is therefore, not fair to allow the appellant to back out of that confession, particularly after the death of the pensioner. 9. There is however a good deal of force in the second limb of the argument. The order of the High Court, in so far as it directs payment of pension to the heirs of the deceased pensioner also, as distinguished from the arrears of pension due to the deceased himself, goes beyond the mutual concession made or agreed to by the parties. While the State conceded the writ applicants claim to the pension at the rate of Rs. 500, the writ applicant also by way of a reciprocal concession, gave up his claim to get the pension in perpetuity and got these words deleted from the prayer clause of his writ application. The inevitable implication of such deletion was that the claim of the writ applicant had become limited to pension payable for the lifetime of the writ applicant. The High Court therefore manifestly erred inasmuch as it directed the State to pay pension at the rate of Rs. 500 per month, even to the heirs of the deceased in their own right. This patent error - which was perhaps due to inadvertence - could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation. If any, prescribed for a review application.

1[ds]8. Although it is not usual for the High Court to issued a writ of mandamus for enforcing a claim for arrears of such a pension, yet we cannot lose sight of the fact that this order was made pursuant to the concession made by the applicant, herein. It is therefore, not fair to allow the appellant to back out of that confession, particularly after the death of the pensioner9. There is however a good deal of force in the second limb of the argument. The order of the High Court, in so far as it directs payment of pension to the heirs of the deceased pensioner also, as distinguished from the arrears of pension due to the deceased himself, goes beyond the mutual concession made or agreed to by the parties. While the State conceded the writ applicants claim to the pension at the rate of Rs. 500, the writ applicant also by way of a reciprocal concession, gave up his claim to get the pension in perpetuity and got these words deleted from the prayer clause of his writ application. The inevitable implication of such deletion was that the claim of the writ applicant had become limited to pension payable for the lifetime of the writ applicant. The High Court therefore manifestly erred inasmuch as it directed the State to pay pension at the rate of Rs. 500 per month, even to the heirs of the deceased in their own right. This patent error - which was perhaps due to inadvertence - could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation. If any, prescribed for a review application.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: SARKARIA, J. 1. This appeal on certificate granted under Article 133(1)(b) of the Constitution is directed against a judgment of the Gujarat High Court. 2. The facts are : One Sardar Shermia Bapumia was the holder of what he alleged to be a political pension. He was paid such a pension till July 31, 1953 at the rate of Rs. 500 per month. On the coming into force of the Bombay Personal Inams Abolition Act, 1953 (to be hereinafter referred to as the Act), from August 1, 1953, payment of this pension was discontinued. 3. Bapumiya thereupon filed an application under Article 226 of the Constitution in the High Court praying for a writ of mandamus or any other appropriate writ or direction ordering the respondent State and its officers to pay to the petitioner and his heirs in perpetuity, a sum of Rs. 500 with effect from August 1, 1953. It was contended that the pension was a political pension and not a personal inam and consequently, the pension did not fall within the definition of personal inam in the Inams Abolition Act and could not be abolished thereunder. Subsequently, at the instance of writ applicant, the High Court by its order, dated February 27, 1963, deleted the words in perpetuity at end of the prayer clause (A) in the writ application. By the same order in view of the statement made by the Additional Government Pleader on behalf of the respondent State to the effect, that the pension that was being paid to the petitioner was not a personal inam and as such, could not be abolished under the Act, the High Court passed an order directing the respondents, their servants and agents to pay to the writ applicant and his heirs the sum of Rs. 500 p.m. as and by way of political pension with effect from August 1, 1953. 4. Being aggrieved by this order, dated February 27, 1963, the appellant herein filed on April 10, 1064, a review petition, which was subsequently amended on December 21, 1965, for a review of the said order on the ground that there was an error on the face of its. It was stated that the appellant had committed a bona fide mistake due to the ignorance of the authorities in not taking up the defence that the aforesaid political pension stood resumed under the provisions of the Bombay Saramjams Jahagirs and other Inams of Political Nature Resumption Rules, 1952 made in exercise of powers under the Bombay Rent Free Estate Act, 1852 and the Land Revenue Acts 1 and 2 of 1863 with effect from 1952. 5. The appellants also filed an application No. 570 of 1964 for substituting the legal heirs of the deceased writ applicant in the main petition. The review application and this application (570 of 1964) were heard together, and rejected by the High Court as per order, dated December 8, 1966. 6. The High Court has declined the review application mainly on the ground that it was timebarred under Article 124 of the Limitation Act and no sufficient ground for condonation of the delay had been alleged or made out. 7. Mr. Dhebar, appearing for the appellant, contends that the order under appeal suffers from patent error, which the High Court should have suo motu rectified in the exercise of its inherent jurisdiction. These errors, according to the Counsel, are : First no mandamus could have been validly issued to enforce the claim to arrears of political pension. Secondly, in any case, the High Court has granted the writ applicant relief in excess of what he had asked for. It is stressed that by getting the words in perpetuity in the prayer clause (A) of the writ application detected, the writ applicant had limited his claim to his lifetime and consequently, the High Court was not justified to direct the State to pay pension, at the same rate, to the heirs of the deceased for the period beyond the latters lifetime. 8. Although it is not usual for the High Court to issued a writ of mandamus for enforcing a claim for arrears of such a pension, yet we cannot lose sight of the fact that this order was made pursuant to the concession made by the applicant, herein. It is therefore, not fair to allow the appellant to back out of that confession, particularly after the death of the pensioner. 9. There is however a good deal of force in the second limb of the argument. The order of the High Court, in so far as it directs payment of pension to the heirs of the deceased pensioner also, as distinguished from the arrears of pension due to the deceased himself, goes beyond the mutual concession made or agreed to by the parties. While the State conceded the writ applicants claim to the pension at the rate of Rs. 500, the writ applicant also by way of a reciprocal concession, gave up his claim to get the pension in perpetuity and got these words deleted from the prayer clause of his writ application. The inevitable implication of such deletion was that the claim of the writ applicant had become limited to pension payable for the lifetime of the writ applicant. The High Court therefore manifestly erred inasmuch as it directed the State to pay pension at the rate of Rs. 500 per month, even to the heirs of the deceased in their own right. This patent error - which was perhaps due to inadvertence - could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation. If any, prescribed for a review application. ### Response: 1

Cref Finance Ltd Vs. Shree Shanthi Homes Pvt. Ltd. &Anr

on behalf of the respondents submitted that it may be that the Magistrate need not in express words record the fact that he has taken cognizance, but the record must show that he had applied his mind to the contents of the complaint before proceeding further in the matter. He supported the view of the High Court and submitted that even if it be held that cognizance was taken, this Court must hold that cognizance was taken improperly, without application of mind. 9. In Ajit Kumar Palit vs. State of West Bengal, (1963) Supp. 1 SCR 953, this Court observed:- "The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat. 245 ) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh (1951 SCR 312 , 320) that the word, cognizance was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty (1910 ILR 37 Cal. 412, 416) , "taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled." 10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertain able by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the Inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. 11. Counsel for the respondents submitted that the cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the company itself and the respondent No.2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of respondent No.2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken properly after application of mind. The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the respondents took the matter to the High Court.

1[ds]10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertain able by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the Inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal11. Counsel for the respondents submitted that the cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the company itself and the respondent No.2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of respondent No.2, he could not be prosecuted, and the Magistrate had erroneously issued process against him.We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken properly after application of mind. The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the respondents took the matter to the High Court

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: on behalf of the respondents submitted that it may be that the Magistrate need not in express words record the fact that he has taken cognizance, but the record must show that he had applied his mind to the contents of the complaint before proceeding further in the matter. He supported the view of the High Court and submitted that even if it be held that cognizance was taken, this Court must hold that cognizance was taken improperly, without application of mind. 9. In Ajit Kumar Palit vs. State of West Bengal, (1963) Supp. 1 SCR 953, this Court observed:- "The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat. 245 ) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh (1951 SCR 312 , 320) that the word, cognizance was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty (1910 ILR 37 Cal. 412, 416) , "taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled." 10. In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of statement of the complainant on 01.06.2000. Even if we assume, though that is not the case that the words "cognizance taken" were not to be found in the order recorded by him on that date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the Court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertain able by that court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority etc. etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the Inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. 11. Counsel for the respondents submitted that the cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the company itself and the respondent No.2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of respondent No.2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken properly after application of mind. The Magistrate issued process only after considering the material placed before him. We, therefore, find that the judgment and order of the High Court is unsustainable and must be set aside. This appeal is accordingly allowed and the impugned judgment and order of the High Court is set aside. The trial court will now proceed with the complaint in accordance with law from the stage at which the respondents took the matter to the High Court. ### Response: 1

M/S. Co-Operative Company Ltd Vs. Commnr. Trade Tax, U.P

tax would be on the total turnover, assuming that the prices of the bottles were to be included in the price of the country liquor, provided one is leviable. If an exemption has been granted, it would be on sale of the articles in a deliverable form. There exists a serious dispute as to whether for the purpose of levying sales tax, a part of the commodity which is sold as a composite whole would come within the purview of the Act when sale of two different commodities can be bifurcated for levy of tax. 24. Containers of the principal commodity which is the subject matter of the contract of sale may have to be taken into consideration for the purpose of arriving at the total turnover, but even for that purpose there has to be an element of ad idem of mind between the purchaser and seller. If by reason of express contract or implied contract, the containers are also sold, indisputably the same would be exigible to tax, as has been held in Commissioner of Taxes Assam v. Prabhat Marketing Co. Ltd., Gauhati [AIR 1967 SC 602 ], but it is difficult to accept the contention of Mr. Dwivedi that even in absence of such a contract, sales tax would be leviable. Reliance has been placed by Mr. Dwivedi on Jamana Four and Oil Mills (P) Ltd. v. State of Bihar [(1987) 3 SCC 404] , wherein this Court was not dealing with a situation of the present nature. It was held: "3. The dealer filed a revision before the Tribunal and contended that the demand of Sales Tax payable at different rates on the calculated turnover of gunny bags was not at all warranted as no price had been charged for the containers. The Tribunal found:(1) The dealer transferred the property in the gunny bags, the packing material, to the purchasers for price.(2) The price of the gunny bags was included in the consolidated rates of price charged by the dealer.(3) There was an implied agreement for the sale of gunny bags between the dealer and the different purchasers to whom the wheat products were supplied.(4) The transfer of gunny bags was impliedly covered by the contract of sale with regard to the wheat products.On these findings the Tribunal held:We hold that the learned lower courts were justified in levying tax at a different rate on the turnover on account of sale of gunny bags in which the wheat products were sold.It further found:The learned Deputy Commissioner has given a direction for determination of the turnover on account of sale of gunny bags. On being asked the applicant accepted that the accounts maintained by him would reveal the exact number of gunny bags used in the transaction of sale under consideration as also the price of the same. Hence we direct in modification of the orders passed by the learned Deputy Commissioner in this behalf that the learned Assessing Officer should ascertain from the accounts, the turnover on account of sale of gunny bags as container of wheat products during the period under consideration and assess tax thereon at the prescribed rate of 4=per cent The balance turnover shall be assessed at 2 per cent." 25. Reliance has also been placed by Mr. Dwivedi on M/s Chhatta Sugar Company Ltd., Mathura v. Commissioner of Sales Tax [1991 UPTC 341], wherein a learned Single Judge of the Allahabad High Court, without any discussion, opined that the containers would also be taxed. 26. Inclusion of bottles as a separate item in the notification dated 07.09.1981, in our opinion, is not relevant. Appellant is not a dealer of bottles. Had it been a dealer of the bottles, he might have been exigible to sales tax in terms of the said provision. 27. Thus, without adverting to the question as to whether there had been an implied sale, Entry 20 will have no role to play.28. We may also consider the matter from another angle. A tax may be leviable at different rates. Definition of turnover having undergone an amendment and being expansive in nature, would it be permissible to segregate it to make different commodities for the purpose of imposition of tax at a higher rate, would, in our opinion, merit consideration. We are not oblivious of the fact that if the sale is in relation to two different commodities, it may be permissible to levy tax at different rates, but not when the definition of turnover includes a wide range of subjects including the package. Only for the purpose, the concept of implied contract of sale would assume significance.29. We, however, are not impressed with the arguments of Mr. Radhakrishnan that Section 3AB of the Act introduced in the statute by reason of the U.P. Trade Tax (Amendment) Act, 1991 is clarificatory in nature. The said amendment came into force with effect from 25.04.1990. The assessment year, as noticed hereinbefore, is 01.04.1989 to 31.03.1990. The Act having been brought into force from a particular date, no retrospective operation thereof can be contemplated prior thereto. The said provision furthermore contains a substantive provision which is itself a pointer to the fact that for the earlier period packing materials would not be exempted merely because main commodity is exempted from tax, but albeit subject to the condition that there was an agreement to sell in respect thereof. The amendment sought to deal with a matter which created some problem in implementation of the Act.30. We, therefore, are of the opinion that the matter requires reconsideration by the High Court. The High Court must on the basis of the materials available on records arrive at a finding as to whether there existed any implied contract for sale and/or whether in effect and substance keeping in view the fixation of price of different materials by the excise authorities in terms of the U.P. Excise Act and/or rules framed thereunder any separate charges have been levied for prices of the bottles separately or not.

1[ds]14. There is no finding by the High Court that there was an implied condition of sale in regard to sale of bottles. The High Court while arriving at the said finding did not deal with the question as to whether the charges levied by Appellant from its customers, which admittedly stand approved by the Excise Authority, represent bottling charges or sale of bottles.The High Court, in our opinion, failed to take into consideration the fact that the question as to whether there had been an implied contract for sale of bottles and any amount has separately been charged therefor was required to be determined. Each case is required to be determined on consideration of the relevant materials placed on record by the parties.18. The Assessing Officer proceeded on the basis that the assessee admitted to have levied charged for the bottles. It, however, failed to make a distinction between bottling charges and the price of bottles. When the excise articles are sold in a bottle, it must have a label containing the requisiteas envisaged under the Excise Act and the Rules framed thereunder or the terms and conditions of licence authorising the dealer to deal with in the commodity in question. The Assessing Officer did not proceed on the basis that the price of bottles form a part of the turnover as contended by Mr. Dwivedi.Thus, without adverting to the question as to whether there had been an implied sale, Entry 20 will have no role to play.28. We may also consider the matter from another angle. A tax may be leviable at different rates. Definition of turnover having undergone an amendment and being expansive in nature, would it be permissible to segregate it to make different commodities for the purpose of imposition of tax at a higher rate, would, in our opinion, merit consideration. We are not oblivious of the fact that if the sale is in relation to two different commodities, it may be permissible to levy tax at different rates, but not when the definition of turnover includes a wide range of subjects including the package. Only for the purpose, the concept of implied contract of sale would assume significance.29. We, however, are not impressed with the arguments of Mr. Radhakrishnan that Section 3AB of the Act introduced in the statute by reason of the U.P. Trade Tax (Amendment) Act, 1991 is clarificatory in nature. The said amendment came into force with effect from 25.04.1990. The assessment year, as noticed hereinbefore, is 01.04.1989 to 31.03.1990. The Act having been brought into force from a particular date, no retrospective operation thereof can be contemplated prior thereto. The said provision furthermore contains a substantive provision which is itself a pointer to the fact that for the earlier period packing materials would not be exempted merely because main commodity is exempted from tax, but albeit subject to the condition that there was an agreement to sell in respect thereof. The amendment sought to deal with a matter which created some problem in implementation of the Act.30. We, therefore, are of the opinion that the matter requires reconsideration by the High Court. The High Court must on the basis of the materials available on records arrive at a finding as to whether there existed any implied contract for sale and/or whether in effect and substance keeping in view the fixation of price of different materials by the excise authorities in terms of the U.P. Excise Act and/or rules framed thereunder any separate charges have been levied for prices of the bottles separately or not.

### 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: tax would be on the total turnover, assuming that the prices of the bottles were to be included in the price of the country liquor, provided one is leviable. If an exemption has been granted, it would be on sale of the articles in a deliverable form. There exists a serious dispute as to whether for the purpose of levying sales tax, a part of the commodity which is sold as a composite whole would come within the purview of the Act when sale of two different commodities can be bifurcated for levy of tax. 24. Containers of the principal commodity which is the subject matter of the contract of sale may have to be taken into consideration for the purpose of arriving at the total turnover, but even for that purpose there has to be an element of ad idem of mind between the purchaser and seller. If by reason of express contract or implied contract, the containers are also sold, indisputably the same would be exigible to tax, as has been held in Commissioner of Taxes Assam v. Prabhat Marketing Co. Ltd., Gauhati [AIR 1967 SC 602 ], but it is difficult to accept the contention of Mr. Dwivedi that even in absence of such a contract, sales tax would be leviable. Reliance has been placed by Mr. Dwivedi on Jamana Four and Oil Mills (P) Ltd. v. State of Bihar [(1987) 3 SCC 404] , wherein this Court was not dealing with a situation of the present nature. It was held: "3. The dealer filed a revision before the Tribunal and contended that the demand of Sales Tax payable at different rates on the calculated turnover of gunny bags was not at all warranted as no price had been charged for the containers. The Tribunal found:(1) The dealer transferred the property in the gunny bags, the packing material, to the purchasers for price.(2) The price of the gunny bags was included in the consolidated rates of price charged by the dealer.(3) There was an implied agreement for the sale of gunny bags between the dealer and the different purchasers to whom the wheat products were supplied.(4) The transfer of gunny bags was impliedly covered by the contract of sale with regard to the wheat products.On these findings the Tribunal held:We hold that the learned lower courts were justified in levying tax at a different rate on the turnover on account of sale of gunny bags in which the wheat products were sold.It further found:The learned Deputy Commissioner has given a direction for determination of the turnover on account of sale of gunny bags. On being asked the applicant accepted that the accounts maintained by him would reveal the exact number of gunny bags used in the transaction of sale under consideration as also the price of the same. Hence we direct in modification of the orders passed by the learned Deputy Commissioner in this behalf that the learned Assessing Officer should ascertain from the accounts, the turnover on account of sale of gunny bags as container of wheat products during the period under consideration and assess tax thereon at the prescribed rate of 4=per cent The balance turnover shall be assessed at 2 per cent." 25. Reliance has also been placed by Mr. Dwivedi on M/s Chhatta Sugar Company Ltd., Mathura v. Commissioner of Sales Tax [1991 UPTC 341], wherein a learned Single Judge of the Allahabad High Court, without any discussion, opined that the containers would also be taxed. 26. Inclusion of bottles as a separate item in the notification dated 07.09.1981, in our opinion, is not relevant. Appellant is not a dealer of bottles. Had it been a dealer of the bottles, he might have been exigible to sales tax in terms of the said provision. 27. Thus, without adverting to the question as to whether there had been an implied sale, Entry 20 will have no role to play.28. We may also consider the matter from another angle. A tax may be leviable at different rates. Definition of turnover having undergone an amendment and being expansive in nature, would it be permissible to segregate it to make different commodities for the purpose of imposition of tax at a higher rate, would, in our opinion, merit consideration. We are not oblivious of the fact that if the sale is in relation to two different commodities, it may be permissible to levy tax at different rates, but not when the definition of turnover includes a wide range of subjects including the package. Only for the purpose, the concept of implied contract of sale would assume significance.29. We, however, are not impressed with the arguments of Mr. Radhakrishnan that Section 3AB of the Act introduced in the statute by reason of the U.P. Trade Tax (Amendment) Act, 1991 is clarificatory in nature. The said amendment came into force with effect from 25.04.1990. The assessment year, as noticed hereinbefore, is 01.04.1989 to 31.03.1990. The Act having been brought into force from a particular date, no retrospective operation thereof can be contemplated prior thereto. The said provision furthermore contains a substantive provision which is itself a pointer to the fact that for the earlier period packing materials would not be exempted merely because main commodity is exempted from tax, but albeit subject to the condition that there was an agreement to sell in respect thereof. The amendment sought to deal with a matter which created some problem in implementation of the Act.30. We, therefore, are of the opinion that the matter requires reconsideration by the High Court. The High Court must on the basis of the materials available on records arrive at a finding as to whether there existed any implied contract for sale and/or whether in effect and substance keeping in view the fixation of price of different materials by the excise authorities in terms of the U.P. Excise Act and/or rules framed thereunder any separate charges have been levied for prices of the bottles separately or not. ### Response: 1

Bar Council Of Uttar Pradesh Vs. State Of U.P. & Another

of stamp duty on a document which gives a person the privilege or the right to plead and act on behalf of the suitors was considered to fall within the taxing power of the State. It is difficult to escape the conclusion that the levy of stamp duty by means of the Stamp Amendment Acts in the State of Uttar Pradesh was not covered by any of the Entries in List I and therefore it could not be said that the State was incompetent to levy the duty and prescribe the rate under Entry 44 of List III and Entry 63 of List II in the Seventh Schedule to the Constitution. Any argument on the basis of legislative incompetence, has, therefore, to be repelled.15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises; See Prem Nath Kaul v. State of Jammu and Kashmir, (1959) Supp 2 SCR 270 = (AIR 1959 SC 749 ).Moreover in the present case the provisions of cl. (2) of Article 254 of the Constitution have been complied with inasmuch as the assent of the President has been taken while enacting the impugned Amending Acts. The rule laid down in the State of Jammu and Kashmir v. M. S. Farooqui, C. A. No. 1572 of 1968, D/- 17-3-1972 = (reported in AIR 1972 SC 1738 ), which has been invoked on behalf of the appellant cannot be applied. It is true that it was laid down therein that where the Parliament had occupied the field and had given clear indication of the manner in which any disciplinary action should be taken against the members of the All India Services it was not open to the State Legislature to deal with infliction of disciplinary punishments in respect of those persons. Article 254 was applied although there was no repugnancy arising out of legislation under the Concurrent List. So far as the Constitution applicable to the State of Jammu and Kashmir was concerned at the relevant time there was no Concurrent List. It was in that situation that Article 254 was applied as it existed in respect of the State of Jammu and Kashmir. Decisions of this Court that under Article 254 (1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same filed in respect of matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Article 254 as applicable to Jammu and Kashmir was different.16. Lastly we may deal with the point of discrimination which has also been raised on behalf of the appellant. It is based on the provisions contained in the Act which entitle an advocate on the roll of one State Bar Council to get his name transferred to the roll of another State Bar Council without payment of any additional fee. It has been urged that if an advocate whose name is borne on the roll of the Bar Council of a State where no duty is leviable on the certificate of enrolment wishes to get his name transferred to the roll of the Bar Council of Uttar Pradesh he shall have to pay the duty prescribed by the Stamp Amendment Acts. If, however, he wishes to have his name transferred to the roll of some other State where no duty is leviable he will have to pay no duty at all. Discrimination thus is stated to arise in two ways : (1) the advocate in one State has to pay only the enrolment fee of Rs. 250/- and no more; whereas in Uttar Pradesh an advocate has to pay not only Rs. 250/- as enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Acts. Secondly, in the matter of transfer also discrimination arises as has been indicated above. Such an argument can have no substance because Article 14 can have no application where the sources of authority of the Parliamentary and State legislation are different. See the State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 SCR 599 = (AIR 1954 SC 493 ).17. We are certainly not happy with the result. As we look at the provisions of the Act and the entire scheme and purpose underlying it we have no doubt that it was intended to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. The advocates were to have complete facilities for enrolment and practising as advocates throughout the country once they had fulfilled the conditions laid down by Section 24. But no provision having been made that apart from the enrolment fee no stamp duty would be leviable on the certificate of enrolment or that the same will be exempt from stamp duty it has been left to the State Legislature to amend the relevant schedules in the Stamp Act and impose such duties as they choose to levy on the certificate of enrolment. That has been done by the State of Uttar Pradesh and Mysore. We have not been informed about such legislation by other States. In order to achieve uniformity it is for the States to refrain from levying any stamp duty on the certificate of enrolment or the Parliament to enact proper legislation so as to do away with a feature which is certainly derogatory of the ultimate aim and goal of the Act of having a common Bar for the whole country with uniformity in all material respects.18

0[ds]11. Now Entries 77 and 78 in List I in the Seventh Schedule to the Constitution are as followsConstitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before High91 relates to rates of stamp duty in respect of certain instruments which do not cover an instrument or a document with which we are concerned, namely, certificate of enrolment issued under Section 22 of the Act. Entry 96 in the same list relates to fees in respect of any of the matters in the List but not including the fee taken in any Court. Entry 63 in List II relates to rates of stamp duty in respect of documents other than those specified in List I i.e. Entry 91. In the same List Entry 66 relates to fees in respect of any of the matters in that List but not including fee taken in any court. The following Entries in List III may be reproducedLegal, medical and other professions"."44. Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stampis no dispute that the Act was enacted under Entries 77 and 78 in List I. It is equally clear that the words "persons entitled to practise" would include determining or prescribing the qualifications and conditions that a person should possess and satisfy before becoming entitled to practise as an advocate before the Supreme Court or the High Courts. So far as persons entitled to practise before these courts are concerned "the power to legislate in regard to them is carved out from the general power relating to the provision in Entry 26 in List III and is made the exclusive field for Parliament".In other words the power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is altogether excluded from Entry 26 in List III.(See O. N. Mohindroo v. The Bar Council of Delhi, (1968) 2 SCR 709 = (AIR 1968 SC 888 )).From the entries the following scheme with regard to persons entitled to practise will appear to emerge; (1) The Parliament has the exclusive power under Entry 77 and Entry 78 in List I to prescribe, inter alia, the qualifications and conditions on the fulfilment of which persons would be entitled to practise before the Supreme Court or the High Courts. Any fee which may be payable by such persons before they can claim to be entitled to practise would fall under Entry 96 of that List; (2) Entry 44 of List III enables legislation with regard to its levy but the rates of the stamp duty can be prescribed by the Parliament only with regard to instruments falling within Entry 96 of List I and by the State Legislature under Entry 63 of ListS. Ananthakrishnan v. State of Madras, ILR (1952) Mad 933 = (AIR 1952 Mad 395 ), the levy of stamp duty on a document which gives a person the privilege or the right to plead and act on behalf of the suitors was considered to fall within the taxing power of the State. It is difficult to escape the conclusion that the levy of stamp duty by means of the Stamp Amendment Acts in the State of Uttar Pradesh was not covered by any of the Entries in List I and therefore it could not be said that the State was incompetent to levy the duty and prescribe the rate under Entry 44 of List III and Entry 63 of List II in the Seventh Schedule to the Constitution. Any argument on the basis of legislative incompetence, has, therefore, to be repelled.15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises; See Prem Nath Kaul v. State of Jammu and Kashmir, (1959) Supp 2 SCR 270 = (AIR 1959 SC 749 ).Moreover in the present case the provisions of cl. (2) of Article 254 of the Constitution have been complied with inasmuch as the assent of the President has been taken while enacting the impugned Amending Acts. The rule laid down in the State of Jammu and Kashmir v. M. S. Farooqui, C. A. No. 1572 of 1968, D/- 17-3-1972 = (reported in AIR 1972 SC 1738 ), which has been invoked on behalf of the appellant cannot be applied. It is true that it was laid down therein that where the Parliament had occupied the field and had given clear indication of the manner in which any disciplinary action should be taken against the members of the All India Services it was not open to the State Legislature to deal with infliction of disciplinary punishments in respect of those persons. Article 254 was applied although there was no repugnancy arising out of legislation under the Concurrent List. So far as the Constitution applicable to the State of Jammu and Kashmir was concerned at the relevant time there was no Concurrent List. It was in that situation that Article 254 was applied as it existed in respect of the State of Jammu and Kashmir. Decisions of this Court that under Article 254 (1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same filed in respect of matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Article 254 as applicable to Jammu and Kashmir was different.16. Lastly we may deal with the point of discrimination which has also been raised on behalf of the appellant. It is based on the provisions contained in the Act which entitle an advocate on the roll of one State Bar Council to get his name transferred to the roll of another State Bar Council without payment of any additional fee. It has been urged that if an advocate whose name is borne on the roll of the Bar Council of a State where no duty is leviable on the certificate of enrolment wishes to get his name transferred to the roll of the Bar Council of Uttar Pradesh he shall have to pay the duty prescribed by the Stamp Amendment Acts. If, however, he wishes to have his name transferred to the roll of some other State where no duty is leviable he will have to pay no duty at all. Discrimination thus is stated to arise in two ways : (1) the advocate in one State has to pay only the enrolment fee of Rs. 250/- and no more; whereas in Uttar Pradesh an advocate has to pay not only Rs. 250/- as enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Acts. Secondly, in the matter of transfer also discrimination arises as has been indicated above. Such an argument can have no substance because Article 14 can have no application where the sources of authority of the Parliamentary and State legislation are different. See the State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 SCR 599 = (AIR 1954 SC 493 ).

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: of stamp duty on a document which gives a person the privilege or the right to plead and act on behalf of the suitors was considered to fall within the taxing power of the State. It is difficult to escape the conclusion that the levy of stamp duty by means of the Stamp Amendment Acts in the State of Uttar Pradesh was not covered by any of the Entries in List I and therefore it could not be said that the State was incompetent to levy the duty and prescribe the rate under Entry 44 of List III and Entry 63 of List II in the Seventh Schedule to the Constitution. Any argument on the basis of legislative incompetence, has, therefore, to be repelled.15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises; See Prem Nath Kaul v. State of Jammu and Kashmir, (1959) Supp 2 SCR 270 = (AIR 1959 SC 749 ).Moreover in the present case the provisions of cl. (2) of Article 254 of the Constitution have been complied with inasmuch as the assent of the President has been taken while enacting the impugned Amending Acts. The rule laid down in the State of Jammu and Kashmir v. M. S. Farooqui, C. A. No. 1572 of 1968, D/- 17-3-1972 = (reported in AIR 1972 SC 1738 ), which has been invoked on behalf of the appellant cannot be applied. It is true that it was laid down therein that where the Parliament had occupied the field and had given clear indication of the manner in which any disciplinary action should be taken against the members of the All India Services it was not open to the State Legislature to deal with infliction of disciplinary punishments in respect of those persons. Article 254 was applied although there was no repugnancy arising out of legislation under the Concurrent List. So far as the Constitution applicable to the State of Jammu and Kashmir was concerned at the relevant time there was no Concurrent List. It was in that situation that Article 254 was applied as it existed in respect of the State of Jammu and Kashmir. Decisions of this Court that under Article 254 (1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same filed in respect of matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Article 254 as applicable to Jammu and Kashmir was different.16. Lastly we may deal with the point of discrimination which has also been raised on behalf of the appellant. It is based on the provisions contained in the Act which entitle an advocate on the roll of one State Bar Council to get his name transferred to the roll of another State Bar Council without payment of any additional fee. It has been urged that if an advocate whose name is borne on the roll of the Bar Council of a State where no duty is leviable on the certificate of enrolment wishes to get his name transferred to the roll of the Bar Council of Uttar Pradesh he shall have to pay the duty prescribed by the Stamp Amendment Acts. If, however, he wishes to have his name transferred to the roll of some other State where no duty is leviable he will have to pay no duty at all. Discrimination thus is stated to arise in two ways : (1) the advocate in one State has to pay only the enrolment fee of Rs. 250/- and no more; whereas in Uttar Pradesh an advocate has to pay not only Rs. 250/- as enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Acts. Secondly, in the matter of transfer also discrimination arises as has been indicated above. Such an argument can have no substance because Article 14 can have no application where the sources of authority of the Parliamentary and State legislation are different. See the State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 SCR 599 = (AIR 1954 SC 493 ).17. We are certainly not happy with the result. As we look at the provisions of the Act and the entire scheme and purpose underlying it we have no doubt that it was intended to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. The advocates were to have complete facilities for enrolment and practising as advocates throughout the country once they had fulfilled the conditions laid down by Section 24. But no provision having been made that apart from the enrolment fee no stamp duty would be leviable on the certificate of enrolment or that the same will be exempt from stamp duty it has been left to the State Legislature to amend the relevant schedules in the Stamp Act and impose such duties as they choose to levy on the certificate of enrolment. That has been done by the State of Uttar Pradesh and Mysore. We have not been informed about such legislation by other States. In order to achieve uniformity it is for the States to refrain from levying any stamp duty on the certificate of enrolment or the Parliament to enact proper legislation so as to do away with a feature which is certainly derogatory of the ultimate aim and goal of the Act of having a common Bar for the whole country with uniformity in all material respects.18 ### Response: 0

State of Uttar Pradesh Vs. Babboo and Others

also, and it will be sufficient to say that it has been considered by the trial Judge at length and has been rejected for satisfactory reasons based on the evidence on record.10. It may also be mentioned that the High Court has taken the view that the persons who were examined as eye witnesses of the incident could not give any satisfactory explanation for their presence and were chance witnesses. In the same breath, the High Court has taken note of the fact that they were persons who were living in the neighbourhood. The witnesses have explained the circumstances in which they came to the place of the incident, and there is no evidence on the record to justify the High Courts conclusion that they were chance witnesses. It appears that the High Court realised the infirmity of its argument, and thought it necessary to reiterate its earlier view that the statements of the witnesses were unbelievable because the deceased could not have received the injuries if the assailants had been on his right side. As has been shown, we have not found it possible to accept that reasoning, and we have no doubt that it could not be used for the purpose of dubbing the witnesses as chance witnesses. They were persons living in the neighbourhood, and reached the place of occurrence in the circumstances mentioned by them.11. The High Court has stated further that the murder was committed by someone stealthily, and that the residents of the locality would have come to the place of occurrence if an alarm had been raised at all. In taking that view the High Court however lost sight of the statement of Babu Lal (PW 6) that while he was at his house in the village, he heard a noise, came out of his house, and saw that a crowd including Tikam Chand (PW 2) and Narayan (PW 5) had assembled at the place of the incident and the two witnesses narrated the incident to him. The High Court also did not take note of the statement of Tikam Chand (PW 2) in which he clearly stated that he raised an alarm when he saw the respondents catching hold of the deceased and assaulting him. The High Court therefore again misread the evidence in not taking notice of all this evidence and in rejecting the prosecution evidence on a hypothetical ground.12. The High Court has distrusted the prosecution evidence because Tulsi Prasad (PW 1) did not name the boy of his village who, according to him, first came and told him about the murder, and also because the alleged eye witnesses did not send a man to inform him of the murder. Tulsi Prasad has stated that he did not remember the name of the boy who gave him the information about the murder of his son and his statement could not be rejected merely because he did not name him in the first information report, or because the eye witnesses did not send a man to inform him of what had happened. On the other hand, we find that Tulsi Prasad did not try to fill the omission by naming the boy during the course of the trial.13. Lastly, the High Court has rejected the prosecution evidence on the ground of enmity of Tulsi Prasad (PW 1) with the respondents because of their working against him at the election. Here again, the High Court has misread the evidence. As has been pointed out by the trial Judge, there were as many as 11 candidates at the municipal election, including Tulsi Prasad, Ram Babu Sharma and Babu Lal (PW 6). It was Babu Lal (PW 6) who came out successful, while the others were defeated. The result of the election could not therefore have given rise to enmity on the part of Tulsi Prasad against Ram Babu Sharma, and much less against his nephew respondent Ram Prakash who was alleged to have worked for Ram Babu Sharma at the election. The High Court also lost sight of the fact that it had been brought out in the cross-examination of Nathi Lal (PW 4) that a case under Section 107, Cr. P.C. had been started in which Tulsi Prasad and Ram Prakashs another uncle Jai Narain were arrayed on the one side, while the prosecution witnesses Nathi Lal, Dal Chand and Narayan were arrayed on the other side.14. It would thus appear that the High Court has misread the evidence on the record in several important particulars, and it is no wonder that it has arrived at the incorrect conclusion that the statements of Tikam Chand (PW 2), Dal Chand(PW 3), Nathi Lal(PW 4) and Narayan (PW 5) were unreliable. We have gone through their statements and we are fully satisfied that the prosecution case has been fully established by the prosecution evidence, including the statement of Dr. B. P. Kacker (PW 10). As has been stated, the names of Tikam Chand, Dal Chand, Nathi Lal and Narayan were mentioned in the first information report soon after the incident and their testimony has not been shaken during the course of the cross-examination. The order of the Sessions Judge convicting the respondents of the offence under Sections 302/34, IPC was therefore correct and must be restored.15. As has been stated, Dr. B. P. Kacker has stated that the injuries found on the dead body were sufficient in the normal of nature to cause the death of Chandrapal. Two of those injuries were punctured wounds which were chest cavity deep and the left pleura and the left lung had been punctured. The injury to the lung was in the entire thickness of the lower lobe, and there can be no doubt that the act by which the death was caused was done with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death within the meaning of Section 300, IPC.

1[ds]The High Court also lost sight of the fact that it had been brought out in theof Nathi Lal (PW 4) that a case under Section 107, Cr. P.C. had been started in which Tulsi Prasad and Ram Prakashs another uncle Jai Narain were arrayed on the one side, while the prosecution witnesses Nathi Lal, Dal Chand and Narayan were arrayed on the other side.14. It would thus appear that the High Court has misread the evidence on the record in several important particulars, and it is no wonder that it has arrived at the incorrect conclusion that the statements of Tikam Chand (PW 2), Dal Chand(PW 3), Nathi Lal(PW 4) and Narayan (PW 5) were unreliable. We have gone through their statements and we are fully satisfied that the prosecution case has been fully established by the prosecution evidence, including the statement of Dr. B. P. Kacker (PW 10). As has been stated, the names of Tikam Chand, Dal Chand, Nathi Lal and Narayan were mentioned in the first information report soon after the incident and their testimony has not been shaken during the course of theThe order of the Sessions Judge convicting the respondents of the offence under Sections 302/34, IPC was therefore correct and must be restored.

### 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: also, and it will be sufficient to say that it has been considered by the trial Judge at length and has been rejected for satisfactory reasons based on the evidence on record.10. It may also be mentioned that the High Court has taken the view that the persons who were examined as eye witnesses of the incident could not give any satisfactory explanation for their presence and were chance witnesses. In the same breath, the High Court has taken note of the fact that they were persons who were living in the neighbourhood. The witnesses have explained the circumstances in which they came to the place of the incident, and there is no evidence on the record to justify the High Courts conclusion that they were chance witnesses. It appears that the High Court realised the infirmity of its argument, and thought it necessary to reiterate its earlier view that the statements of the witnesses were unbelievable because the deceased could not have received the injuries if the assailants had been on his right side. As has been shown, we have not found it possible to accept that reasoning, and we have no doubt that it could not be used for the purpose of dubbing the witnesses as chance witnesses. They were persons living in the neighbourhood, and reached the place of occurrence in the circumstances mentioned by them.11. The High Court has stated further that the murder was committed by someone stealthily, and that the residents of the locality would have come to the place of occurrence if an alarm had been raised at all. In taking that view the High Court however lost sight of the statement of Babu Lal (PW 6) that while he was at his house in the village, he heard a noise, came out of his house, and saw that a crowd including Tikam Chand (PW 2) and Narayan (PW 5) had assembled at the place of the incident and the two witnesses narrated the incident to him. The High Court also did not take note of the statement of Tikam Chand (PW 2) in which he clearly stated that he raised an alarm when he saw the respondents catching hold of the deceased and assaulting him. The High Court therefore again misread the evidence in not taking notice of all this evidence and in rejecting the prosecution evidence on a hypothetical ground.12. The High Court has distrusted the prosecution evidence because Tulsi Prasad (PW 1) did not name the boy of his village who, according to him, first came and told him about the murder, and also because the alleged eye witnesses did not send a man to inform him of the murder. Tulsi Prasad has stated that he did not remember the name of the boy who gave him the information about the murder of his son and his statement could not be rejected merely because he did not name him in the first information report, or because the eye witnesses did not send a man to inform him of what had happened. On the other hand, we find that Tulsi Prasad did not try to fill the omission by naming the boy during the course of the trial.13. Lastly, the High Court has rejected the prosecution evidence on the ground of enmity of Tulsi Prasad (PW 1) with the respondents because of their working against him at the election. Here again, the High Court has misread the evidence. As has been pointed out by the trial Judge, there were as many as 11 candidates at the municipal election, including Tulsi Prasad, Ram Babu Sharma and Babu Lal (PW 6). It was Babu Lal (PW 6) who came out successful, while the others were defeated. The result of the election could not therefore have given rise to enmity on the part of Tulsi Prasad against Ram Babu Sharma, and much less against his nephew respondent Ram Prakash who was alleged to have worked for Ram Babu Sharma at the election. The High Court also lost sight of the fact that it had been brought out in the cross-examination of Nathi Lal (PW 4) that a case under Section 107, Cr. P.C. had been started in which Tulsi Prasad and Ram Prakashs another uncle Jai Narain were arrayed on the one side, while the prosecution witnesses Nathi Lal, Dal Chand and Narayan were arrayed on the other side.14. It would thus appear that the High Court has misread the evidence on the record in several important particulars, and it is no wonder that it has arrived at the incorrect conclusion that the statements of Tikam Chand (PW 2), Dal Chand(PW 3), Nathi Lal(PW 4) and Narayan (PW 5) were unreliable. We have gone through their statements and we are fully satisfied that the prosecution case has been fully established by the prosecution evidence, including the statement of Dr. B. P. Kacker (PW 10). As has been stated, the names of Tikam Chand, Dal Chand, Nathi Lal and Narayan were mentioned in the first information report soon after the incident and their testimony has not been shaken during the course of the cross-examination. The order of the Sessions Judge convicting the respondents of the offence under Sections 302/34, IPC was therefore correct and must be restored.15. As has been stated, Dr. B. P. Kacker has stated that the injuries found on the dead body were sufficient in the normal of nature to cause the death of Chandrapal. Two of those injuries were punctured wounds which were chest cavity deep and the left pleura and the left lung had been punctured. The injury to the lung was in the entire thickness of the lower lobe, and there can be no doubt that the act by which the death was caused was done with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death within the meaning of Section 300, IPC. ### Response: 1

(Ex) Capt. Randhir Singh Dhull Vs. S.D. Bhambri and Others

which is a part of the Tahsildari Rules does not survive the Constitution. We do not feel called upon to decide this point in this case as the petitioner cannot be allowed to raise the point for two reasons:- (i) The basis of the petitioners case all throughout, at all stages, was Annexure P. 5 based on the Tahsildari Rules and Standing Order No. 12. Even now he does not claim his appointment on any other basis; (ii) Secondly, if the Tahsildari Rules and the Standing Order No. 12 are held to be ultra vires, the letter of acceptance (or letter of appointment as the petitioner erroneously calls it) which was issued under the provisions of the said Rules, will disappear and the petitioner will have no legs to stand on. 11. Rule 11 of the Tahsildari Rules has been quoted above. It provides for the seniority of the members of the service. It is to be determined by the date of the substantive appointment in the post. The petitioner however claims that he is entitled to get the benefit of h is service in the army during the Emergency, under the provisions of the Emergency (Concession) Rules; Sub-rule (ii) of Rule 4 of the Emergency Concession Rules reads:"4 (ii) Seniority:-The period of military service mentioned in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service." Military service is defined in rule 2 thus:"For the purpose of these rules, the expression "military service" means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made b y the President under Art. 352 of the Constitution of India on the 26th October, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service. A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from 31.10.1968 to 22.9.1974 was n ot during the operation of emergency in question. Further the petitioners service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the following terms:"In pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh Dhull, a Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the A class Tahsildars. His date of appointment as Tahs ildar will be 27th May 1973. 2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his next increment rai sing his pay to Rs. 475/-P.M. is 1.2.79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.1978.3. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authorities. 12. The petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated 13.9.74. 13. The petitioners further grievance is that the military service of the Captain K. Phool Singh, Captain Khem Singh Lathar, Shri Inder Singh, Captain A. R. Kohar and Captain B. K. Batra mentioned in para 8 of the petition have been counted for the benefit of their seniority etc. The petitioners grievance is baseless. Their cases were different. None of them was given the benefit of his service from the date he joined as a Candidate. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of military service from the date of acceptance as class A Tahsildar candidate. 14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The petition has no merit and is dismissed. We however leave the parties to bear their own costs. 15. Mr. Bhagat, the learned Counsel appearing for the Respondent, submitted that the Writ Petition was barred by res judicata and in support of his submission he cited a decision of this Court reported in AIR 1970 S. C. 898. We need not examine the submission for two reasons: (i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. 1) 16.

0[ds]8. A perusal of the letter as per Annexure P. 5 alongwith sub-rules 2 and 3 of rule 5 and rule 11 of the Tahsildari Rules clearly show that by letter Annexure P. 5 the petitioner was merely accepted as a candidate for the post of Tahsildar. Annexure P. 5 itself has mentioned the terms and conditions of the service namely training, passing of departmental examination and probation to be governed by the Tahsildari Rules and Standing Order No. 12 as amended from time to time. A candidate had to fulfil the terms and conditions named in the letter before his appointment to the post of Tahsildar. The terms and conditions) to undergo a period of training(ii) to pass a departmental examination(iii) to undergo a period of probation, etcFulfillments of these terms and conditions by a candidate were conditions precedent to his appointment. Annexure P. 5 has nowhere mentioned that the petitioner was appointed as a TahsildarWe therefore have no hesitation in holding that he was not appointed to, but accepted as candidate for, the post of Tahsildar, by Annexure P. 5A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from 31.10.1968 to 22.9.1974 was n ot during the operation of emergency in question. Further the petitioners service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the followingn pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh Dhull, a Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the A class Tahsildars. His date of appointment as Tahs ildar will be 27th May 1973.2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his next increment rai sing his pay to Rs. 475/-P.M. is 1.2.79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.19783. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authoritiesThe petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated 13.9.74. The petitionersgrievance is baseless. Their cases were different. None of them was given the benefit of his service from the date he joined as a Candidate. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of military service from the date of acceptance as class A Tahsildar candidate14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The petition has no merit and is dismissed. We however leave the parties to bear their own costsWe need not examine the submission for two reasons:(i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. 1)

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: which is a part of the Tahsildari Rules does not survive the Constitution. We do not feel called upon to decide this point in this case as the petitioner cannot be allowed to raise the point for two reasons:- (i) The basis of the petitioners case all throughout, at all stages, was Annexure P. 5 based on the Tahsildari Rules and Standing Order No. 12. Even now he does not claim his appointment on any other basis; (ii) Secondly, if the Tahsildari Rules and the Standing Order No. 12 are held to be ultra vires, the letter of acceptance (or letter of appointment as the petitioner erroneously calls it) which was issued under the provisions of the said Rules, will disappear and the petitioner will have no legs to stand on. 11. Rule 11 of the Tahsildari Rules has been quoted above. It provides for the seniority of the members of the service. It is to be determined by the date of the substantive appointment in the post. The petitioner however claims that he is entitled to get the benefit of h is service in the army during the Emergency, under the provisions of the Emergency (Concession) Rules; Sub-rule (ii) of Rule 4 of the Emergency Concession Rules reads:"4 (ii) Seniority:-The period of military service mentioned in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service." Military service is defined in rule 2 thus:"For the purpose of these rules, the expression "military service" means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made b y the President under Art. 352 of the Constitution of India on the 26th October, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service. A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." The military service of the petitioner from January 11, 1962 to July 1, 1968 and again from 31.10.1968 to 22.9.1974 was n ot during the operation of emergency in question. Further the petitioners service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces." During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14.12.78 of the Financial Commissioner, Revenue, Haryana in the following terms:"In pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh Dhull, a Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the A class Tahsildars. His date of appointment as Tahs ildar will be 27th May 1973. 2. Further his pay is fixed at Rs. 450/- P.M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8.2.78 (his actual date of appointment to the post of Tahsildar) and his next increment rai sing his pay to Rs. 475/-P.M. is 1.2.79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8.2.1978.3. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authorities. 12. The petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. In fact none of them was accepted alongwith him by letter dated 13.9.74. 13. The petitioners further grievance is that the military service of the Captain K. Phool Singh, Captain Khem Singh Lathar, Shri Inder Singh, Captain A. R. Kohar and Captain B. K. Batra mentioned in para 8 of the petition have been counted for the benefit of their seniority etc. The petitioners grievance is baseless. Their cases were different. None of them was given the benefit of his service from the date he joined as a Candidate. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of military service from the date of acceptance as class A Tahsildar candidate. 14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The petition has no merit and is dismissed. We however leave the parties to bear their own costs. 15. Mr. Bhagat, the learned Counsel appearing for the Respondent, submitted that the Writ Petition was barred by res judicata and in support of his submission he cited a decision of this Court reported in AIR 1970 S. C. 898. We need not examine the submission for two reasons: (i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5.9.79 in S. L. P. No. 4475 of 1979 (Annexure P. 1) 16. ### Response: 0

Employers in relation to the Management of Sudamdih Colliery of M/s. Bharat Coking Coal Ltd Vs. Their workmen represented by Rashtriya Colliery Mazdoor Sangh

it was noted at paragraph 6 as follows: "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since heel) settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under that circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent." 13. In S.M. Nilajkar and others vs. Telecom District Manager, Karnataka (2003) (4) SCC 27 ) the position was reiterated as follows: (at para 17) "17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. vs. Their Workmen (supra) (AIR 1959 SC 1217 ), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited vs. Their Workmen (supra) (AIR 1959 SC 1217 ), in Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others (supra) AIR 2000 SC 839 , a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others vs. Union of India and others (supra) (1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees Under P & T Department vs. Union of India (supra) (AIR 1987 SC 2342 ), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16.1.1990 they were refused to be accommodated in the scheme. On 28.12.1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal deserve to be non suited on the ground of delay." 14. It appears that the Tribunal and the High Court did not consider the factual position in the background of the legal position as noted above. Of course at the point of time when the matter was decided Air Indias case (supra) held the field. But, in view of the pronouncement of the Constitution Bench in Steel Authoritys case (supra) the matter needs to be re-examined by the High Court. Though it was submitted by Mr. Upadhyay that there is a finding about the appellant having adopted a camouflage, there is no definite finding by the Tribunal and/ or the High Court in this regard. Mere reference to certain observations of this Court would not suffice without examination of the factual position. Additionally, the effect of omitting the names of the claimants whose cause was being espoused by the Union has not been considered by the High Court in the proper perspective. Similar is the position regarding purported settlement. In these peculiar circumstances, it would be appropriate for the learned Single Judge of the High Court to re-consider the matter. Accordingly, the matter is remitted to the High Court so that learned Single Judge can consider the matter afresh taking into account the principles set out above and consider their applicability to the background facts on the issues raised by the appellant. As the matter is pending since long, learned Chief Justice of the High Court is requested to allot the matter to a learned Single Judge who shall make an effort to dispose of the matter afresh within a period of six months from the date the matter is allotted by the learned Chief Justice.

1[ds]It appears that the Tribunal and the High Court did not consider the factual position in the background of the legal position as noted above. Of course at the point of time when the matter was decided Air Indias case (supra) held the field. But, in view of the pronouncement of the Constitution Bench in Steel Authoritys case (supra) the matter needs to be re-examined by the High Court. Though it was submitted by Mr. Upadhyay that there is a finding about the appellant having adopted a camouflage, there is no definite finding by the Tribunal and/ or the High Court in this regard. Mere reference to certain observations of this Court would not suffice without examination of the factual position. Additionally, the effect of omitting the names of the claimants whose cause was being espoused by the Union has not been considered by the High Court in the proper perspective. Similar is the position regarding purported settlement. In these peculiar circumstances, it would be appropriate for the learned Single Judge of the High Court to re-consider the matter. Accordingly, the matter is remitted to the High Court so that learned Single Judge can consider the matter afresh taking into account the principles set out above and consider their applicability to the background facts on the issues raised by the appellant. As the matter is pending since long, learned Chief Justice of the High Court is requested to allot the matter to a learned Single Judge who shall make an effort to dispose of the matter afresh within a period of six months from the date the matter is allotted by the learned Chief Justice

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: it was noted at paragraph 6 as follows: "6. Law does not prescribe any time-limit for the appropriate Government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since heel) settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under that circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex-facie bad and incompetent." 13. In S.M. Nilajkar and others vs. Telecom District Manager, Karnataka (2003) (4) SCC 27 ) the position was reiterated as follows: (at para 17) "17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in M/s. Shalimar Works Ltd. vs. Their Workmen (supra) (AIR 1959 SC 1217 ), that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefor. There is no limitation prescribed for reference of disputes to an industrial tribunal, even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in M/s. Shalimar Works Limited vs. Their Workmen (supra) (AIR 1959 SC 1217 ), in Nedungadi Bank Ltd. vs. K.P. Madhavankutty and others (supra) AIR 2000 SC 839 , a delay of 7 years was held to be fatal and disentitled to workmen to any relief. In Ratan Chandra Sammanta and others vs. Union of India and others (supra) (1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself, lapse of time results in losing remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available. However, we do not think that the delay in the case at hand has been so culpable as to disentitle the appellants for any relief. Although the High Court has opined that there was a delay of 7 to 9 years in raising the dispute before the Tribunal but we find the High Court factually not correct. The employment of the appellants was terminated sometime in 1985-86 or 1986-87. Pursuant to the judgment in Daily Rated Casual Employees Under P & T Department vs. Union of India (supra) (AIR 1987 SC 2342 ), the department was formulating a scheme to accommodate casual labourers and the appellants were justified in awaiting the outcome thereof. On 16.1.1990 they were refused to be accommodated in the scheme. On 28.12.1990 they initiated the proceedings under the Industrial Disputes Act followed by conciliation proceedings and then the dispute was referred to the Industrial Tribunal deserve to be non suited on the ground of delay." 14. It appears that the Tribunal and the High Court did not consider the factual position in the background of the legal position as noted above. Of course at the point of time when the matter was decided Air Indias case (supra) held the field. But, in view of the pronouncement of the Constitution Bench in Steel Authoritys case (supra) the matter needs to be re-examined by the High Court. Though it was submitted by Mr. Upadhyay that there is a finding about the appellant having adopted a camouflage, there is no definite finding by the Tribunal and/ or the High Court in this regard. Mere reference to certain observations of this Court would not suffice without examination of the factual position. Additionally, the effect of omitting the names of the claimants whose cause was being espoused by the Union has not been considered by the High Court in the proper perspective. Similar is the position regarding purported settlement. In these peculiar circumstances, it would be appropriate for the learned Single Judge of the High Court to re-consider the matter. Accordingly, the matter is remitted to the High Court so that learned Single Judge can consider the matter afresh taking into account the principles set out above and consider their applicability to the background facts on the issues raised by the appellant. As the matter is pending since long, learned Chief Justice of the High Court is requested to allot the matter to a learned Single Judge who shall make an effort to dispose of the matter afresh within a period of six months from the date the matter is allotted by the learned Chief Justice. ### Response: 1

Nylon Net Manufacturing Company Vs. Additional Sales Tax Officer

S.P. BHARUCHA, J. Special leave in SLP (C) No. 1832 of 1991 granted 2. The order under appeal was made by a Division Bench of the High Court of Kerala. The question for consideration was whether nylon fishing nets were, for the purposes of sales tax under the provisions of the Kerala General Sales Tax Act, 1963, properly classifiable under Entry 7 of Schedule III, as contended by the assessee, or under Entry 100 of Schedule I, as contended by the Sales Tax authorities 3. Entry 7 of Schedule III reads thus 7. Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in Items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises & Salt Act, 1944."Entry 100 of Schedule I reads thus"100. Bonded fibre fabrics other than those made of coir."4. The High Court took the view that nylon fishing nets fell under both the aforesaid entries, but that Entry 100 of Schedule I being of a specific nature, they were taxable thereunder. The High Court noted the averments In the writ petition and that they had not been controverted by the Sales Tax authorities. It noted that it had been averred"Bonded fibre is totally different .... It will be seen therefore that bonding is holding together of fibres by adhesive substance. There is no element of bonding involved in the making of fish net yarns or in the weaving thereof in the fish nets." * The High Court also noted that a government order issued under the provisions of Section 59-A of the Act had noted that nylon nets were manufactured out of the nylon twines by the process of weaving, and that twine was the product obtained by twisting two or more nylon fibres. The High Court referred to literature that stated that the term "bonding" was applied to the process of lamination by an adhesive. It, however, rejected the contention on behalf of the assessee that there being no bonded fibre in a nylon fishing net, it could not be a bonded fibre fabric within the meaning of Entry 100 of Schedule I. The High Court said that Entry 100 of Schedule I applied to "bonded fibre fabrics other than those made of coir" coir yarn fabrics would not satisfy the bonding process if that process was given the restrictive and narrow meaning referred to in the literature relied upon by the assessee. If not expressly, at least by clear implication, there was a demonstration of the legislative will that a bonding process with adhesion or fusion of other substances was not indispensable for the process of bonding as visualised in Entry 100 of Schedule I. That which had been bound together was the meaning attributed by the legislature to the word "bonded" in the context of Entry 100 of Schedule I5. We are of the opinion that the High Court was in error. Bonding has a clear technical significance, which the High Court noted. The assessee averred in its writ petition that the process of bonding was not carried out in making nylon fishing nets. There was no affidavit to counter the averment. The High Court ought to have proceeded on this basis and not on some assumption about coir fabrics to come to the conclusion that Entry 100 of Schedule I should be so read as not to give the word "bonded" its ordinary technical meaning but the meaning "bound together". The conclusion, therefore, that nylon fishing nets fell within Entry 100 of Schedule I cannot be upheld6. This brings us to Entry 7 of Schedule III which applies, inter alia, to "rayon or artificial silk fabrics". The High Court relied upon the Division Bench judgment of the Madras High Court in Kishinchand Chellaram v. Jt. CTO (Mad) to come to the conclusion that nylon fishing nets were classifiable as rayon or artificial silk fabrics. The Madras High Court considered literature about artificial silk, now known as rayon. It found that nylon fabrics were covered by the descriptive rayon or artificial silk fabrics. Having regard to the fact that the Sales Tax authorities had placed no material before the High Court to indicate any possible alternative classification, the High Court cannot be faulted for relying upon the Madras High Court judgment to come to the conclusion that nylon fishing nets fell within the ambit of Entry 7 of Schedule III

1[ds]5. We are of the opinion that the High Court was in error. Bonding has a clear technical significance, which the High Court noted. The assessee averred in its writ petition that the process of bonding was not carried out in making nylon fishing nets. There was no affidavit to counter the averment. The High Court ought to have proceeded on this basis and not on some assumption about coir fabrics to come to the conclusion that Entry 100 of Schedule I should be so read as not to give the word "bonded" its ordinary technical meaning but the meaning "bound together". The conclusion, therefore, that nylon fishing nets fell within Entry 100 of Schedule I cannot be upheld6. This brings us to Entry 7 of Schedule III which applies, inter alia, to "rayon or artificial silk fabrics". The High Court relied upon the Division Bench judgment of the Madras High Court in Kishinchand Chellaram v. Jt. CTO (Mad) to come to the conclusion that nylon fishing nets were classifiable as rayon or artificial silk fabrics. The Madras High Court considered literature about artificial silk, now known as rayon. It found that nylon fabrics were covered by the descriptive rayon or artificial silk fabrics. Having regard to the fact that the Sales Tax authorities had placed no material before the High Court to indicate any possible alternative classification, the High Court cannot be faulted for relying upon the Madras High Court judgment to come to the conclusion that nylon fishing nets fell within the ambit of Entry 7 of Schedule III

### 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: S.P. BHARUCHA, J. Special leave in SLP (C) No. 1832 of 1991 granted 2. The order under appeal was made by a Division Bench of the High Court of Kerala. The question for consideration was whether nylon fishing nets were, for the purposes of sales tax under the provisions of the Kerala General Sales Tax Act, 1963, properly classifiable under Entry 7 of Schedule III, as contended by the assessee, or under Entry 100 of Schedule I, as contended by the Sales Tax authorities 3. Entry 7 of Schedule III reads thus 7. Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in Items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises & Salt Act, 1944."Entry 100 of Schedule I reads thus"100. Bonded fibre fabrics other than those made of coir."4. The High Court took the view that nylon fishing nets fell under both the aforesaid entries, but that Entry 100 of Schedule I being of a specific nature, they were taxable thereunder. The High Court noted the averments In the writ petition and that they had not been controverted by the Sales Tax authorities. It noted that it had been averred"Bonded fibre is totally different .... It will be seen therefore that bonding is holding together of fibres by adhesive substance. There is no element of bonding involved in the making of fish net yarns or in the weaving thereof in the fish nets." * The High Court also noted that a government order issued under the provisions of Section 59-A of the Act had noted that nylon nets were manufactured out of the nylon twines by the process of weaving, and that twine was the product obtained by twisting two or more nylon fibres. The High Court referred to literature that stated that the term "bonding" was applied to the process of lamination by an adhesive. It, however, rejected the contention on behalf of the assessee that there being no bonded fibre in a nylon fishing net, it could not be a bonded fibre fabric within the meaning of Entry 100 of Schedule I. The High Court said that Entry 100 of Schedule I applied to "bonded fibre fabrics other than those made of coir" coir yarn fabrics would not satisfy the bonding process if that process was given the restrictive and narrow meaning referred to in the literature relied upon by the assessee. If not expressly, at least by clear implication, there was a demonstration of the legislative will that a bonding process with adhesion or fusion of other substances was not indispensable for the process of bonding as visualised in Entry 100 of Schedule I. That which had been bound together was the meaning attributed by the legislature to the word "bonded" in the context of Entry 100 of Schedule I5. We are of the opinion that the High Court was in error. Bonding has a clear technical significance, which the High Court noted. The assessee averred in its writ petition that the process of bonding was not carried out in making nylon fishing nets. There was no affidavit to counter the averment. The High Court ought to have proceeded on this basis and not on some assumption about coir fabrics to come to the conclusion that Entry 100 of Schedule I should be so read as not to give the word "bonded" its ordinary technical meaning but the meaning "bound together". The conclusion, therefore, that nylon fishing nets fell within Entry 100 of Schedule I cannot be upheld6. This brings us to Entry 7 of Schedule III which applies, inter alia, to "rayon or artificial silk fabrics". The High Court relied upon the Division Bench judgment of the Madras High Court in Kishinchand Chellaram v. Jt. CTO (Mad) to come to the conclusion that nylon fishing nets were classifiable as rayon or artificial silk fabrics. The Madras High Court considered literature about artificial silk, now known as rayon. It found that nylon fabrics were covered by the descriptive rayon or artificial silk fabrics. Having regard to the fact that the Sales Tax authorities had placed no material before the High Court to indicate any possible alternative classification, the High Court cannot be faulted for relying upon the Madras High Court judgment to come to the conclusion that nylon fishing nets fell within the ambit of Entry 7 of Schedule III ### Response: 1

HINDUSTAN CONSTRUCTION COMPANY LTD Vs. NHPC LTD. & ORS

R.F. Nariman, J. SPECIAL LEAVE PETITION (C) NO. 402/2020: 1. Leave granted. 2. We have heard learned counsel appearing for the parties. 3. By an order dated 14.11.2019 passed by the learned Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram in Arbitration Case No. 252 of 2018, the learned Judge on construing the arbitration clause in the agreement between the parties arrived at the finding that the seat of arbitration was at New Delhi. Yet, by virtue of Bharat Aluminium Company and Ors. vs. Kaiser Aluminium Technical Services, Inc. and Ors. (2012) 9 SCC 552 since both Delhi as well as the Faridabad Courts would have jurisdiction as the contract was executed between the parties at Faridabad, and part of the cause of action arose there, and since the Faridabad Court was invoked first on the facts of this case, Section 42 of the Arbitration Act would kick in as a result of which the Faridabad Court would have jurisdiction to decide all other applications. 4. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus: 61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 5. This was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courts. 6. Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction.

1[ds]This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus:61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruledThis was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courtsGiven the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: R.F. Nariman, J. SPECIAL LEAVE PETITION (C) NO. 402/2020: 1. Leave granted. 2. We have heard learned counsel appearing for the parties. 3. By an order dated 14.11.2019 passed by the learned Additional District Judge-cum-Presiding Judge, Special Commercial Court at Gurugram in Arbitration Case No. 252 of 2018, the learned Judge on construing the arbitration clause in the agreement between the parties arrived at the finding that the seat of arbitration was at New Delhi. Yet, by virtue of Bharat Aluminium Company and Ors. vs. Kaiser Aluminium Technical Services, Inc. and Ors. (2012) 9 SCC 552 since both Delhi as well as the Faridabad Courts would have jurisdiction as the contract was executed between the parties at Faridabad, and part of the cause of action arose there, and since the Faridabad Court was invoked first on the facts of this case, Section 42 of the Arbitration Act would kick in as a result of which the Faridabad Court would have jurisdiction to decide all other applications. 4. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs. NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus: 61. Equally incorrect is the finding in Antrix Corporation Ltd. (supra) that Section 42 of the Arbitration Act, 1996 would be rendered ineffective and useless. Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state …where with respect to an arbitration agreement any application under this Part has been made in a Court… It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no seat is designated by agreement, or the so-called seat is only a convenient venue, then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the seat of arbitration, and before such seat may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. 5. This was made in the backdrop of explaining para 96 of the Balco (supra), which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courts. 6. Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction. ### Response: 1

Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. Motor Industries Company, Ernakulam

benefit of popularisation of the assessees goods in the market. The discount so allowed is merely a percentage of the price of the goods sold which has nothing to do with any other goods supplied or other service rendered by the buyers to the assessee. The fact that the discount is not allowed at the time of sale but on a later d ate at the end of the month would not make it any-the-less a trade discount.We are, therefore, of the view that The High Court has rightly upheld the deduction of the service discount claimed in this case by the assessee from the total turnover. The appeal should, therefore, fail in so far as this part of the case in concerned.4. But on the second point which arises for consideration in this case, the case of the Department appears to be well founded. Rule 9 (b) (i) of the Rules provides that all amounts allowed to purchasers in respect of goods returned by them within a period of three months from the date of delivery of the goods to the dealer, when the goods are taxable on the amount for which they have been sold are deductible from the total turnover in determining the taxable turnover (provided the accounts show the relevant entries). The two important conditions which have to be satisfied for claiming the deduction under Rule 9 (b) (i) are that the goods in question must have been returned within three months from the date of delivery and that necessary entries are made in the accounts of the assessee. If these conditions are satisfied, the amount allowed to the purchaser for the returned goods would be deductible from the total turnover. The final assessment under the Act is always made in respect of one year i.e the financial year which commences on April I of every calendar year and ends with March 31 of-the succeeding calendar year. That is clear from the scheme of section 5 of the Act and Rules 11, 18, 20 and other rules found in the Rules. Any deduction that can be made under Rule 9 (b) (i) of the Rules can only be made from the total turnover of the assessment year in which the goods that are returned within three months of the date of delivery were actually sold. Such deduction cannot be claimed from the total turnover of the succeeding financial year. The reason is obvious and it can be easily demonstrated by taking the illustration of a dealer who ceases to be a dealer in the subsequent financial year. In his case unless deduction is allowed in the financial year in which the goods that are subsequently returned we re actually sold, he would have to pay tax on the amount for which the goods in question were sold in the assessment year in which they were sold and he would not be able to claim any deduction in the subsequent year as he has ceased to be a dealer in that year. There may also be difference in the tax liability if the rates of tax are varied in the subsequent assessment year. Further by such deduction the turnover relating to the subsequent financial year which is otherwise taxable under the statute would escape taxation to the extent of the deduction Such a result cannot be permitted to ensue. It is true that in the case of many sales which have taken place in the months of January, February and March in any financial year, the assessee would become aware of his right to claim the deduction under Rule 9 (b) (i) in his return pertaining to that assessment year during the subsequent financial year if such goods are returned within three months of the date of delivery. It is quite possible that in such cases the assessee would have filed his annual return under Rule 18 of the Rules without any opportunity to claim any deduction where the goods are returned subsequent to the filing of the return but before the expiry of three months from the date of their delivery This, however, need not present much difficulty as an assessee in that position can always file a revised return and claim the deduction or even if assessment is completed, demand adjustment or refund by preferring the claim in time. The learned counsel for the Department states that such an adjustment or refund , can be claimed by an assessee. The above statement made on behalf of the Department is in accordance with the scheme of the any Act and the Rules. In order to make the position clear the State 1, Government may take steps to introduce a suitable amendment in the Rules or in the Act. We are, however, of the view that even in p the absence of such an amendment, the deduction in respect of sales 7 , return has to be allowed in the assessment relating to the financial year in which the sales of the returned goods had taken place and even where assessment for that year is completed, the Department has to comply with the demand for adjustment or refund by making necessary rectification in the order of assessment, provided that other conditions are satisfied, as that is the inevitable consequence of Rule 9 (b) (i) which allows deduction of the value of the goods returned within three months from the date of their delivery from the total turnover of that assessment year. But in any view of the matter it is not possible to hold that such deduction in respect of returned goods can be claimed in the assessment proceedings for the financial year subsequent to the financial year in which the sales have taken place. We do not, therefore, agree with the contrary view expressed A by the High Court relying on its decision in The Jay Engineering Works Ltd. v. State of Kerala(l). The appeal of the Department has to be allowed to the above extent.

0[ds]We shall first deal with the claim made in respect of service discount. Under clause (a) of Rule 9 of the Rules all amounts allowed as discount where such discount is allowed in accordance with the regular practice of the dealer or is in accordance with the terms of contract or agreement entered into in a particular case have to be deducted from the total turnover in determining the taxable turnover provided the accounts of the assessee show that the purchaser has paid only the sum originally charged less the discount. In the instant case the service discount in respect of which - the deduction was claimed by the assessee was the additional trade discount allowed by it to its main distributors (purchasers) namely the T.V.S. group of companies which constitute a prestigious group of commercial concerns over and above the normal trade discount in consideration of the extra benefit derived by the assessee by reason of the marketing of its goods through them. This additional trade discount is allowed in accordance with the trade agreement subject to periodical variation depending upon the cost structure and changes in market conditions. It is not disputed that there were such agreements between the assessee and the purchasers and the accounts of the assessee truly reflected the actual discount allowed to the purchasers. What is however urged by the Department is that the said additional discount allowed by the assessee could not strictly be termed as discount as it was in lieu of services rendered by its main distributors by way of popularisation of the sales and consumption of the products sold by the assessee. We find it difficult to accept the submission made on behalf of the Department Rule A 9 (a) says that all amounts allowed as discount either in accordance with regular practice on in accordance with agreement would be deductible from the total turnover provided they are duly supported by the entries in the accounts of the assessee. Ordinarily any concession shown in the price of goods for any commercial reason would be a trade discount which can legitimately be claimed as a deduction under clause (a) of Rule 9 of the Rules. Such a concession is usually allowed by a manufacturer or a wholesale dealer in favour of another dealer with the object of improving prospects of his own business. It i s common experience that when goods are marketed through reputed companies, firms or other individual dealers the demand for such goods increases and correspondingly the business of the manufacturer or the wholesaler would become more and more pro sperous and its capacity to withstand competition from other manufacturers or other dealers dealing in similar goods would also improve. Hence any concession in price shown in such circumstances by way of an additional incentive with a view to promote ones own trade does qualify for deduction as a trade discount. It cannot be termed as a service charge as is attempted to be termed in this case In fact in this case apart from buying the products of the assessee, n o other service is being rendered by the T V.S. group of companies to the assessee. In the circumstances the additional discount or service discount as it is called in this case is no other than the discount referred to in Rule 9.(a) of the Rules.We are not inclined to accept the submission that the service discount in question is in the nature of a set-off on account of reciprocal promises or amounts to consideration for an agreement styled as trading-in. Trade-in contracts are those where P goods are transferred by the seller for consideration partly in money and partly in exchange of some other goods to be sold by the buyer tn the seller. In such cases there may be one contract of sale only of the principal goods coupled with a subsidiary agreement that if the buyer delivers to the seller the other goods an agreed allowance will be made. There may also be cases where the buyer may become - entitled to an extra allowance for some service unconnected with the sale of the goods in question being rendered to the seller. In such cases the allowance in they price of the goods sold given by the seller to the buyer either by way of consideration for the goods supplied by the buyer to the seller or for services rendered by the buyer lo the seller would not be a trade discount as such which would qualify for deduction in the determination of the taxable turnover. In the instant case the service said to have been rendered by the buyers for securing the service discount is an integral part of the transaction of sale itself which incidentally confers on the assessee the benefit of popularisation of the assessees goods in the market. The discount so allowed is merely a percentage of the price of the goods sold which has nothing to do with any other goods supplied or other service rendered by the buyers to the assessee. The fact that the discount is not allowed at the time of sale but on a later d ate at the end of the month would not make it any-the-less a trade discount.We are, therefore, of the view that The High Court has rightly upheld the deduction of the service discount claimed in this case by the assessee from the total turnover. The appeal should, therefore, fail in so far as this part of the case inon the second point which arises for consideration in this case, the case of the Department appears to be well founded. Rule 9 (b) (i) of the Rules provides that all amounts allowed to purchasers in respect of goods returned by them within a period of three months from the date of delivery of the goods to the dealer, when the goods are taxable on the amount for which they have been sold are deductible from the total turnover in determining the taxable turnover (provided the accounts show the relevant entries). The two important conditions which have to be satisfied for claiming the deduction under Rule 9 (b) (i) are that the goods in question must have been returned within three months from the date of delivery and that necessary entries are made in the accounts of the assessee. If these conditions are satisfied, the amount allowed to the purchaser for the returned goods would be deductible from the total turnover. The final assessment under the Act is always made in respect of one year i.e the financial year which commences on April I of every calendar year and ends with March 31 of-the succeeding calendar year. That is clear from the scheme of section 5 of the Act and Rules 11, 18, 20 and other rules found in the Rules. Any deduction that can be made under Rule 9 (b) (i) of the Rules can only be made from the total turnover of the assessment year in which the goods that are returned within three months of the date of delivery were actually sold. Such deduction cannot be claimed from the total turnover of the succeeding financial year. The reason is obvious and it can be easily demonstrated by taking the illustration of a dealer who ceases to be a dealer in the subsequent financial year. In his case unless deduction is allowed in the financial year in which the goods that are subsequently returned we re actually sold, he would have to pay tax on the amount for which the goods in question were sold in the assessment year in which they were sold and he would not be able to claim any deduction in the subsequent year as he has ceased to be a dealer in that year. There may also be difference in the tax liability if the rates of tax are varied in the subsequent assessment year. Further by such deduction the turnover relating to the subsequent financial year which is otherwise taxable under the statute would escape taxation to the extent of the deduction Such a result cannot be permitted to ensue. It is true that in the case of many sales which have taken place in the months of January, February and March in any financial year, the assessee would become aware of his right to claim the deduction under Rule 9 (b) (i) in his return pertaining to that assessment year during the subsequent financial year if such goods are returned within three months of the date of delivery. It is quite possible that in such cases the assessee would have filed his annual return under Rule 18 of the Rules without any opportunity to claim any deduction where the goods are returned subsequent to the filing of the return but before the expiry of three months from the date of their delivery This, however, need not present much difficulty as an assessee in that position can always file a revised return and claim the deduction or even if assessment is completed, demand adjustment or refund by preferring the claim in time. The learned counsel for the Department states that such an adjustment or refund , can be claimed by an assessee. The above statement made on behalf of the Department is in accordance with the scheme of the any Act and the Rules. In order to make the position clear the State 1, Government may take steps to introduce a suitable amendment in the Rules or in the Act. We are, however, of the view that even in p the absence of such an amendment, the deduction in respect of sales 7 , return has to be allowed in the assessment relating to the financial year in which the sales of the returned goods had taken place and even where assessment for that year is completed, the Department has to comply with the demand for adjustment or refund by making necessary rectification in the order of assessment, provided that other conditions are satisfied, as that is the inevitable consequence of Rule 9 (b) (i) which allows deduction of the value of the goods returned within three months from the date of their delivery from the total turnover of that assessment year. But in any view of the matter it is not possible to hold that such deduction in respect of returned goods can be claimed in the assessment proceedings for the financial year subsequent to the financial year in which the sales have taken place. We do not, therefore, agree with the contrary view expressed A by the High Court relying on its decision in The Jay Engineering Works Ltd. v. State of Kerala(l). The appeal of the Department has to be allowed to the above extent.

### 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: benefit of popularisation of the assessees goods in the market. The discount so allowed is merely a percentage of the price of the goods sold which has nothing to do with any other goods supplied or other service rendered by the buyers to the assessee. The fact that the discount is not allowed at the time of sale but on a later d ate at the end of the month would not make it any-the-less a trade discount.We are, therefore, of the view that The High Court has rightly upheld the deduction of the service discount claimed in this case by the assessee from the total turnover. The appeal should, therefore, fail in so far as this part of the case in concerned.4. But on the second point which arises for consideration in this case, the case of the Department appears to be well founded. Rule 9 (b) (i) of the Rules provides that all amounts allowed to purchasers in respect of goods returned by them within a period of three months from the date of delivery of the goods to the dealer, when the goods are taxable on the amount for which they have been sold are deductible from the total turnover in determining the taxable turnover (provided the accounts show the relevant entries). The two important conditions which have to be satisfied for claiming the deduction under Rule 9 (b) (i) are that the goods in question must have been returned within three months from the date of delivery and that necessary entries are made in the accounts of the assessee. If these conditions are satisfied, the amount allowed to the purchaser for the returned goods would be deductible from the total turnover. The final assessment under the Act is always made in respect of one year i.e the financial year which commences on April I of every calendar year and ends with March 31 of-the succeeding calendar year. That is clear from the scheme of section 5 of the Act and Rules 11, 18, 20 and other rules found in the Rules. Any deduction that can be made under Rule 9 (b) (i) of the Rules can only be made from the total turnover of the assessment year in which the goods that are returned within three months of the date of delivery were actually sold. Such deduction cannot be claimed from the total turnover of the succeeding financial year. The reason is obvious and it can be easily demonstrated by taking the illustration of a dealer who ceases to be a dealer in the subsequent financial year. In his case unless deduction is allowed in the financial year in which the goods that are subsequently returned we re actually sold, he would have to pay tax on the amount for which the goods in question were sold in the assessment year in which they were sold and he would not be able to claim any deduction in the subsequent year as he has ceased to be a dealer in that year. There may also be difference in the tax liability if the rates of tax are varied in the subsequent assessment year. Further by such deduction the turnover relating to the subsequent financial year which is otherwise taxable under the statute would escape taxation to the extent of the deduction Such a result cannot be permitted to ensue. It is true that in the case of many sales which have taken place in the months of January, February and March in any financial year, the assessee would become aware of his right to claim the deduction under Rule 9 (b) (i) in his return pertaining to that assessment year during the subsequent financial year if such goods are returned within three months of the date of delivery. It is quite possible that in such cases the assessee would have filed his annual return under Rule 18 of the Rules without any opportunity to claim any deduction where the goods are returned subsequent to the filing of the return but before the expiry of three months from the date of their delivery This, however, need not present much difficulty as an assessee in that position can always file a revised return and claim the deduction or even if assessment is completed, demand adjustment or refund by preferring the claim in time. The learned counsel for the Department states that such an adjustment or refund , can be claimed by an assessee. The above statement made on behalf of the Department is in accordance with the scheme of the any Act and the Rules. In order to make the position clear the State 1, Government may take steps to introduce a suitable amendment in the Rules or in the Act. We are, however, of the view that even in p the absence of such an amendment, the deduction in respect of sales 7 , return has to be allowed in the assessment relating to the financial year in which the sales of the returned goods had taken place and even where assessment for that year is completed, the Department has to comply with the demand for adjustment or refund by making necessary rectification in the order of assessment, provided that other conditions are satisfied, as that is the inevitable consequence of Rule 9 (b) (i) which allows deduction of the value of the goods returned within three months from the date of their delivery from the total turnover of that assessment year. But in any view of the matter it is not possible to hold that such deduction in respect of returned goods can be claimed in the assessment proceedings for the financial year subsequent to the financial year in which the sales have taken place. We do not, therefore, agree with the contrary view expressed A by the High Court relying on its decision in The Jay Engineering Works Ltd. v. State of Kerala(l). The appeal of the Department has to be allowed to the above extent. ### Response: 0

Prag Ice & Oil Mills & Anr. Etc Vs. Union Of India

direct deviation form the report of the Commission of inquiry appointed by it with the concurrence of the parties only when it is shown that there has been a departure from the established principles or the conclusions of the commission are shown to be demonstrably wrong or erroneous."In other words, that judgment was not to provide a precedent for anything similar to be done by Courts in other cases.35. In Saraswati Industrial Syndicate Ltd. v. Union of India 1975 1 SCR 956 : (AIR 1975 SC 460 ) the cases mentioned above were discussed by this Court in the context of Sugar Control Order, 1966, where Clause (7) laid down certain matters to be considered in determining fair price. It was held there :"Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable.The guiding factors laid down in Clause (7) of the Sugar Control Order, 1966, were held to afford only indicia to help the Government in fixing prices on the lines indicated in the Control Order."36. We think that unless, by the terms of a particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative measure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shewn between the order passed and the purposes for which it can be passed or, in other words by reasonableness judged by possible or probable consequences.37. It is true that even executive or legislative action must be confined to the limits within which it can operate. It must fall reasonably within the scope of the powers conferred. The scope of the powers conferred depends upon the terms of the empowering provision. As we have already mentioned, the empowering provision in the instant case is widely worded. The validity of Section 3 has not been challenged before us. As indicated above, it could not be challenged by reason of Article 31-B after its inclusion in the 9th Schedule of the Constitution. The result necessarily is that, in a case in which the Central Government is the judge of expediency and necessity to the extent that even the protection of guaranteed fundamental rights cannot stand in the way of its view or opinion of such necessity and expediency, a challenge on the grounds on which it was attempted before us could not succeed.38. We may also mention that the view we have taken of the dominant purpose of Section 3(1) of the Act is in accordance with the following elucidation of its purpose in Meenakshi Mills case (AIR 1974 SC 366 ) (supra) :"The question of fair price to the consumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is completely lost sight of if profit and the producers return are kept in the forefront. The maintenance or increase of supplies of the commodity or the equitable distribution and availability at fair prices are the fundamental purposes of the Act."39. We do not think that we need deal with American cases on price fixation such as Leo Nebbia v. People of the State of New York, 1933 291 US 502 : 78 L Ed 940 where the guarantee of due process against capricious action was involved. In this country, such guarantees in regard to rights of property or to carry on industry or trade or business could only arise by reason of Articles 14 and 19 of the Constitution which are excluded here because of the protection conferred upon Section 3 of the Act by the 9th Schedule of the Constitution. I may, however, mention that in Permian Basin Area Rate Cases, 1968 20 L Ed 2d 312 where the majority of learned judges of the U.S. Supreme Court laid down, inter alia, with regard to price fixation by a body of experts of Federal Power Commission required to proceed quasi-judicially, that in order to "over-turn the Commissions judgment" the petitioners must "undertake the heavy burden of making a convincing showing that it is invalid, because it is unjust and unreasonable in its consequences". That was a case in which a Commission was charged with a duty to fix rates in accordance with certain principle after taking evidence and hearing parties affected. Nevertheless, the duty of the petitioners was held to extend to demonstrating the unreasonableness and injustice of the consequences. A fortiori, patent injustice and unreasonable injury to the interests of consumers must be shewn if a measure of price control, in the nature of either legislative or purely administrative action, is assailed. So long as the action taken is not so patently unjust and unreasonable as to lead to the irresistible conclusion that it could not fall within Section 3(1) of the Act it cannot be set aside or declared invalid. The test has to be that of consequences on objects sought by Section 3(1) of the Act. Judged by this test we think that the Order of 30th September, 1977, fell within the purview of Section 3 of the Act and it has served its purposes.

0[ds]8. We need not consider Art. 301 of the Constitution as the petitions do not beyond citing the provision, set out any facts to show how this Article is involved. This Article is meant for protecting inter-State as well as intra-State "freedom of trade, commerce, andbe required in the public interest.Although, Art. 302 does not speak of "reasonable" restrictions, yet, it is evident that restrictions contemplated by it must bear a reasonable nexus with the need to serve "public interest". If the tests of Section 3 of the Act are satisfied by an Order, it could not fail to serve public interest. Hence, from this point of view also it is enough if we consider whether the Control Order fails within S. 3 of the Act. It was evidently for this reason that, beyond mentioning Art. 301, counsel for the petitioners did not, quite rightly, advance much argument to show how Art. 301 in involved here We will, therefore, not consider it any more here.It is evident that Art. 31B protects only Acts and Regulations specified in the Ninth Schedule from the Vice of invalidity for inconsistency with provisions of Part III of the Constitution but not anything done or to be done in future under any of the provisions of any Act so specified, such as an order passed under S. 3 of the Act.12. If Section 3 of the Act, which was held in Hari Shankar Bagla v. State of Madhya Pradesh 1955 1 SCR 380 : (AIR 1954 SC 465 ) to pass the tests of validity imposed by Arts. 14 and 19(1)(f) and (g), read with Art. 19(5) and (6), a Control Order passed under S. 3 would also be required to pass these tests as its scope could not be wider than that of the provision which authorises its promulgation. A delegated or derivative power could not rise higher or travel beyond the source of that power from which it derives its authority and force. If Gaglas case (supra) is good law (no party has questioned its correctness) Arts. 14 and 19(1)(f) and (g) could be deemed to be, if one may so put it, "Written into" S. 3 of the Act itself. They would control the scope of orders which could be passed under it. That is, undoubtedly, the way in which guarantees of fundamental rights could and should function if the Act containing Section 3 itself had not been placed in the Ninth Schedule so as to take away the guarantees of fundamental rights from the substance ofanswer to this question must necessarily depend upon the effect of such a change of the legal position upon the provisions of S. 3 itself which authorise control orders passed under it. If the effect was to widen the orbit of S. 3 of the Act or to remove the limitations put by Arts. 14 and 19 upon the exercise of powers under it, the logical and natural result would be to enlarge also the scope or sweep of the Orders passed under it. But, if it has no such effect upon S. 3 of the Act itself. Orders passed under it would continue to be subject to provisions of S. 3 of the Act as controlled by Arts. 14 and 19 of our Constitution so that they will have to satisfy what may be described as a "dual test" : firstly, that of provisions of Section 3 of the Act itself; and, secondly, that of provisions of Chap. III of the Constitution containing fundamental rights.In practice, it is the exercise of power which is generally assailed and not the mere conferment of it which raises the somewhat different question of legislative competence. Indeed, the Ninth Schedule does not provide any protection at all against attacks based upon either the vice of excessive delegation or want of legislative competence defects which could be said to vitiate the grant of powers despite their place in the Ninth Schedule. But, questions of conflict with fundamental rights and transgression of legitimate or reasonable limits upon their exercise arise when citizens complain of unreasonable impediments to the exercise of their fundamental rights. The distinction between protection to a mere grant of powers and to their exercise, therefore, seems specious in the context of the protection. It cannot explain why, if S. 3 is protected by the Ninth Schedule, the exercise of power granted by it, which manifests itself in control orders, is not protected. It would be so protected, if at all, not because the Orders to be made in future, as such, are protected, but because the power actually conterred and found in existence in S. 3 is protected. The protection is given to a power which is specified and in existence which has to be used for certain purposes and not to what may be specified in future.16. If orders passed under S. 3 of the Act also get a protection it would be what may be described as a "derivative" protection so long as the Orders are covered by Section 3 of the Act. It is available only so long as and because the source of their authority - Section 3 of the Act - is protected by the Ninth Schedule. Orders purporting to be made under S. 3 of the Act must, however, satisfy the tests found in S. 3 itself in every case. They can never escape the basic tests whether S. 3, the source of their authority, is protected by the Ninth Schedule or not. The further tests imported by Arts. 14 and 19 of the Constitution into Section 3 could be applied to these orders only so long as these added tests are attached to or can be read into S. 3 of the Act, but not after they have been deliberately delinked or removed from S. 3, if one may so describe the effect of the inclusion of the Act in the Ninthterm "skeleton" legislation is used sometimes for denoting the broad outlines of a particular scheme found in an Act of which details are to be filled in later by administrative orders of experts. It is doubtful whether the Essential Commodities Act, 1955, could be spoken of as a piece of "skeleton" legislation. Section 3, sub-section (1) of the Act provides for delegation of powers to the Central Government in order that it may carry out certain purposes by framing appropriate schemes and evolving policies which may meet the purposes of the Act. These schemes and policies to serve the stated purposes may differ as regards the nature of means adopted and even in the particular objectives sought at particular times to accord with changing circumstances.18. Orders passed under S. 3 of the Act, in pursuance of such schemes or policies, do not become parts of the Act for the purposes of the Ninth Schedule of the Constitution. On the strength of the views expressed by this Court in Godavari Sugar Mills Ltd. v. S. B. Kamble, 1975 3 SCR 885 ; (AIR 1975 SC 1193 ) with which we respectfully agree, the most one can say is that orders passed under the Act, before its inclusion in the Ninth Schedule, could also be said to be protected directly by the Ninth Schedule it mentioned there. But, there could be no independent and direct protection of this Schedule conferred upon orders passed under the Act before us just as none could be given to either the amendments of an Act or to regulations passed under the Act which were considered in Godavari Sugar Mills casecontrol order passed under S. 3 of the provisions of the Act before us, included in the Ninth schedule, is assailed on the ground that, although S. 3 of the Act may be protected by the 9th Schedule of the Act, yet, an order passed under this provision is not soit falls outside the empowering provision it would be invalid in any case. If it falls within the empowering provision but could be found to be struck by the provisions of Art. 19(1)(f) and (g) of the Constitution, an attack on the control order, by reason of Article 19(1)(f) or (g), would be really one against the empowering provision itself which is protected. The control order, therefore, enjoys what may be called a derivative protection. All that has to be shown by the Central Government is that it falls within the empowering provision. No further test, based on fundamental rights in Chapter III of the Constitution, can be applied to it in such a case.20. All the tests of validity of the impugned price control or fixation order are, therefore, to be found in S. 3 of the Act. A. 3 makes necessity or expediency of a control order for the purpose of maintaining or increasing supplies of an Essential Commodity or for securing its equitable distribution at fair price the criteria of validity. It is evident that an assessment of either the expediency or necessity of a measure, in the light of all the facts and circumstances which have a bearing on the subjects of price fixation, is essentially a subjective matter. It is true that objective criteria may enter into determinations of particular selling prices of each kilogram of mustard oil at various times. But, there is no obligation here to fix the price in such a way as to ensure reasonable profits to the producer or manufacturer. It has also to be remembered that the object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time. Hence, the most important objective fact in fixing the price of mustard oil, which is consumed generally by large masses of people of limited means. Is the playing capacity of the average purchaser orlast question could only be answered by waiting and watching the ultimate effects of a particular price fixation on prices of mustard seed and cost of production of mustered oil ultimately. If the object of price fixation suggested by this question is very necessary to take into account, from the point of view of availability of mustard oil at fair prices to consumers, as we think it is, the actual cost of production to the purchasers could certainly not be the sole or the decisive factor. It could only be one out of a number of relevant facts and circumstances.25. The net result of the mass of statistics placed before us on behalf of the petitioners is that the price fixed should have been about Rs. 3/- per kg. more, that is to say, about Rs. 13/- per kg. Even if we accept this to be a correct estimate for normal times, when fair and reasonable profits to the producers could be an important consideration, we think that a price fixed at Rs. 10/- per kg., as a part of an attempt to break the vicious inflationary circle, is not at all an unreasonable step.26. Students and observers of economic systems tell us that inflation is no problem in socialist countries because the whole economy is so completely controlled that there is no question of a rise in prices. Under our what is known as a "mixed economy" planning and price fixation are part of that social control which becomes inevitable under certain conditions. Indeed, it seems often quite unavoidable under any system which adopts socialistic measures to achieve the common good. The argument on behalf of the Union is that the result of this fixation, even below cost price, will necessarily produce desired effects upon the free sector in which price of mustard seed is still not controlled. The control imposed will make it impossible for producers to offer excessive prices for mustard oil seed demanded by the growers. Hence, it was argued that the cost of production was bound to come down in course of time if petitioners could only wait a little. Fixation at even uneconomic selling price implied temporary loss to the producers, so as to serve their own ultimate interests and those of general welfare. Such sacrifices ought, it was suggested, to be readily borne by producers of mustard oil in a system like ours. If they were not able to bear them, they could close down their factories. They could not claim a right to carry on business or manufature on their own terms. Such is not the right granted even by Art. 19(1)(g) of the Constitution. However, as we have already indicated, it seems that the Act was put in the Ninth Schedule to prevent the invocation of Articles 14, 19 and 31 for obstructing measures so necessary as price fixation of essential commodities is for promoting the objectives of a socialist welfare economy. This, in our opinion, would be a sufficient answer to all the arguments which had been put forward at considerable length before us on the unconstitutionality of fixing the price of mustard oil below what is claimed to be the cost price.27. It may be mentioned, en passant, that even during the interval between the passing of our order dismissing Writ Petitions for the enforcement of fundamental rights protected by Part III of the Constitution and the delivery of these reasons, so beneficial was the effect of the order of 30th September, 1977, that price of mustard oil has fallen in the neighbourhood of Rs. 7/- per kg. Apparently, this is enough to cover reasonable profits of producers as well as middlemen. We are informed that the impugned Control Order has itself been withdrawn by the Central Government. We can take judicial notice of these facts which illustrate the extreme inadvisability of any interference by any court with measures of economic control and planning directed at maximising general welfare. It is not the function of the Courts to obstruct or defeat such beneficial measures devised by the Govt. of the day. Courts cannot pass judgments on the wisdom of such actions, unless actions taken are so completely unreasonable that no law can be cited to sanction them.28. If the impugned order of 30th September, 1977, falls within this provision, as we think it does, no question of violating a fundamental right could arise. If an impugned order were to fall outside Section 3 of the Act, no question of applying any test of reasonableness contemplated by Article 19(6) need arise because it would then be a purely illegal restriction upon the right conferred by Article 19(1)(g) which would fail for lack of authority of any law to support it.29. We have also heard considerable argument on principles of fair fixation of price which, it was submitted, must take into account the cost of production as well as a reasonable amount of profit to the manufacturer and the middleman. As indicated above, such principles apply only in those cases where there is an obligation upon the price fixing authority to take certain matters into account which have a bearing on cost of production and are designed to secure fair share of profits to the producers. Section 3 of the Act set out above, as already indicated, has very different purposes in view. It may be that the cost of production and reasonable amount of profits to the manufacturers have an indirect bearing on matters set out in Section 3(1) of the Act. But, in cases where the effects of a policy or a measure adopted in achieving purposes set out in Section 3(1) are matters of guess work, after experimentation, the actual consequences can be indicated with a fair amount of certainty only by giving some time for a policy to work and reveal its results. Presence of such features in a case cannot invalidate price fixation of which the direct objects are set out in Section 3(1) of theprice fixation to meet the general purposes set out in Section 3(1) of the Act, aimed at reversing the vicious inflationary spiral of rising prices, may appear arbitrary or unreasonable judged by standards applicable to price fixation aimed at giving reasonable profits to producers which is not the object of Section 3(1) of the Act. The whole evidence of the petitioners is misdirected inasmuch as it proceeds on the assumption that what could be no more than a relevant consideration is the whole and sole object of Section 3(1) of the Act. About other matters there is practically no evidence so that we are left in the region ofwas rightly urged on behalf of the Union that the Control order is a temporary and experimental device for achieving a particular purpose, covered by Section 3(1) of the Act at a particular time, in a particular state of affairs. It was submitted that, after the purpose is achieved, the order could be and will be withdrawn by the Govt. of India. As already stated above, that order has been withdrawn because the purpose has been achieved. Even if that purpose had not been achieved, the order could be withdrawn if it became evident to the Government that such control would not achieve the desired object. It is extremely hazardous for Courts to enter the sphere of experimentation in matters of economic policy which must be left to the Government of the day.We think that unless, by the terms of a particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative measure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shewn between the order passed and the purposes for which it can be passed or, in other words by reasonableness judged by possible or probable consequences.37. It is true that even executive or legislative action must be confined to the limits within which it can operate. It must fall reasonably within the scope of the powers conferred. The scope of the powers conferred depends upon the terms of the empowering provision. As we have already mentioned, the empowering provision in the instant case is widely worded. The validity of Section 3 has not been challenged before us. As indicated above, it could not be challenged by reason of Article 31-B after its inclusion in the 9th Schedule of the Constitution. The result necessarily is that, in a case in which the Central Government is the judge of expediency and necessity to the extent that even the protection of guaranteed fundamental rights cannot stand in the way of its view or opinion of such necessity and expediency, a challenge on the grounds on which it was attempted before us could not succeed.We do not think that we need deal with American cases on price fixation such as Leo Nebbia v. People of the State of New York, 1933 291 US 502 : 78 L Ed 940 where the guarantee of due process against capricious action was involved. In this country, such guarantees in regard to rights of property or to carry on industry or trade or business could only arise by reason of Articles 14 and 19 of the Constitution which are excluded here because of the protection conferred upon Section 3 of the Act by the 9th Schedule of the Constitution. I may, however, mention that in Permian Basin Area Rate Cases, 1968 20 L Ed 2d 312 where the majority of learned judges of the U.S. Supreme Court laid down, inter alia, with regard to price fixation by a body of experts of Federal Power Commission required to proceed quasi-judicially, that in order to "over-turn the Commissions judgment" the petitioners must "undertake the heavy burden of making a convincing showing that it is invalid, because it is unjust and unreasonable in its consequences". That was a case in which a Commission was charged with a duty to fix rates in accordance with certain principle after taking evidence and hearing parties affected. Nevertheless, the duty of the petitioners was held to extend to demonstrating the unreasonableness and injustice of the consequences. A fortiori, patent injustice and unreasonable injury to the interests of consumers must be shewn if a measure of price control, in the nature of either legislative or purely administrative action, is assailed. So long as the action taken is not so patently unjust and unreasonable as to lead to the irresistible conclusion that it could not fall within Section 3(1) of the Act it cannot be set aside or declared invalid. The test has to be that of consequences on objects sought by Section 3(1) of the Act. Judged by this test we think that the Order of 30th September, 1977, fell within the purview of Section 3 of the Act and it has served its purposes.

### 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: direct deviation form the report of the Commission of inquiry appointed by it with the concurrence of the parties only when it is shown that there has been a departure from the established principles or the conclusions of the commission are shown to be demonstrably wrong or erroneous."In other words, that judgment was not to provide a precedent for anything similar to be done by Courts in other cases.35. In Saraswati Industrial Syndicate Ltd. v. Union of India 1975 1 SCR 956 : (AIR 1975 SC 460 ) the cases mentioned above were discussed by this Court in the context of Sugar Control Order, 1966, where Clause (7) laid down certain matters to be considered in determining fair price. It was held there :"Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable.The guiding factors laid down in Clause (7) of the Sugar Control Order, 1966, were held to afford only indicia to help the Government in fixing prices on the lines indicated in the Control Order."36. We think that unless, by the terms of a particular statute, or order, price fixation is made a quasi-judicial function for specified purposes or cases, it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation. A legislative measure does not concern itself with the facts of an individual case. It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. In the case before us, the Control Order applies to sales of mustard oil anywhere in India by any dealer. Its validity does not depend on the observance of any procedure to be complied with or particular types of evidence to be taken on any specified matters as conditions precedent to its validity. The test of validity is constituted by the nexus shewn between the order passed and the purposes for which it can be passed or, in other words by reasonableness judged by possible or probable consequences.37. It is true that even executive or legislative action must be confined to the limits within which it can operate. It must fall reasonably within the scope of the powers conferred. The scope of the powers conferred depends upon the terms of the empowering provision. As we have already mentioned, the empowering provision in the instant case is widely worded. The validity of Section 3 has not been challenged before us. As indicated above, it could not be challenged by reason of Article 31-B after its inclusion in the 9th Schedule of the Constitution. The result necessarily is that, in a case in which the Central Government is the judge of expediency and necessity to the extent that even the protection of guaranteed fundamental rights cannot stand in the way of its view or opinion of such necessity and expediency, a challenge on the grounds on which it was attempted before us could not succeed.38. We may also mention that the view we have taken of the dominant purpose of Section 3(1) of the Act is in accordance with the following elucidation of its purpose in Meenakshi Mills case (AIR 1974 SC 366 ) (supra) :"The question of fair price to the consumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is completely lost sight of if profit and the producers return are kept in the forefront. The maintenance or increase of supplies of the commodity or the equitable distribution and availability at fair prices are the fundamental purposes of the Act."39. We do not think that we need deal with American cases on price fixation such as Leo Nebbia v. People of the State of New York, 1933 291 US 502 : 78 L Ed 940 where the guarantee of due process against capricious action was involved. In this country, such guarantees in regard to rights of property or to carry on industry or trade or business could only arise by reason of Articles 14 and 19 of the Constitution which are excluded here because of the protection conferred upon Section 3 of the Act by the 9th Schedule of the Constitution. I may, however, mention that in Permian Basin Area Rate Cases, 1968 20 L Ed 2d 312 where the majority of learned judges of the U.S. Supreme Court laid down, inter alia, with regard to price fixation by a body of experts of Federal Power Commission required to proceed quasi-judicially, that in order to "over-turn the Commissions judgment" the petitioners must "undertake the heavy burden of making a convincing showing that it is invalid, because it is unjust and unreasonable in its consequences". That was a case in which a Commission was charged with a duty to fix rates in accordance with certain principle after taking evidence and hearing parties affected. Nevertheless, the duty of the petitioners was held to extend to demonstrating the unreasonableness and injustice of the consequences. A fortiori, patent injustice and unreasonable injury to the interests of consumers must be shewn if a measure of price control, in the nature of either legislative or purely administrative action, is assailed. So long as the action taken is not so patently unjust and unreasonable as to lead to the irresistible conclusion that it could not fall within Section 3(1) of the Act it cannot be set aside or declared invalid. The test has to be that of consequences on objects sought by Section 3(1) of the Act. Judged by this test we think that the Order of 30th September, 1977, fell within the purview of Section 3 of the Act and it has served its purposes. ### Response: 0

CHAIRMAN ADMINISTRATIVE COMMITTEE U.P. MILK UNION & DAIRY FEDERATION CENTRALIZED SERVICES Vs. JAGPAL SINGH

conferred under Regulation 106. 23. In Chandra Pal Singh, the finding of the Division Bench that the 1979 notification is not mentioned in the resolution of the Cadre Authority passed on 20.9.1984 is untenable in view of statutory rules contemplating the Appointing Authority. Therefore, the order of punishment passed by the Chairman of the Administrative Committee in terms of proviso to Rule 15 is by the competent Disciplinary Authority. 24. The Administrative Committee however passed an office order on 8.8.2016 that the Chairman shall seek prior approval of Dairy Milk Commissioner/Registrar prior to imposing penalty. Such decision of the Administrative Committee is self-regulatory and has been ap- plied by the Administrative Committee in the present case as well while seeking prior approval of the Milk Commissioner/Registrar. 25. As mentioned before, the 1975 Regulations were framed in exercise of power conferred under Section 122 of the 1965 Act. Till the time 1975 Regulations were framed, the entire statutory regime, in terms of which service conditions including disciplinary control of employees in a co-operative society or class of co- operative societies could be regulated, was in terms of Sections 121 and 122 of the 1965 Act. Regulation 87 of 1975 Regulations, therefore, has to be seen as part of such general statutory regime. 26. On 16.04.1976, Section 122-A was inserted in the 1965 Act which now provided for centralization of services. This Section opens with a non-obstante clause and thus, the intent is to give an overriding effect over the general regime contemplated by Sections 121 and 122 of the 1965 Act. Section 122-A of the 1965 Act empowers the Government, by rules, to provide for creation of one or more services of employees of such co-operative society or class of co-operative societies as the Government may think fit and prescribe inter alia conditions of service including appointment and removal of persons appointed to such service. 27. It was in exercise of power conferred under Section 122-A of the 1965 Act that 1984 Rules were framed. Rule 15 of the 1984 Rules stipulates that the appointing authority and the authority exercising disciplinary control over the members of the service shall be such as may be laid down in the Regulations and till such Regulations are brought in force, the Chairman of the Committee shall be the appointing authority and the authority exercising disciplinary control over them. 28. In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15 thus, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority. 29. It would, therefore, be incorrect to rely upon or import the principles of Rule 87 in substitution of clear intent and mandate of Rule 15 of 1984 Rules. 30. The Resolution dated 20.09.1984 or for that matter the Office Order dated 08.08.2016 which are pure departmental executive instructions cannot displace statutory Rule 15 and the process contemplated therein and import a requirement which would be in the teeth of Rule 15. 31. The learned Single Bench found that the Chairman of the Adminis- trative Committee and that the Milk Commissioner are one and the same person, which vitiates the order of punishment passed. We do not find any merit in the said finding. Sir William Wade in his Administrative Law stated: But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down. It was further stated: In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. 32. The Milk Commissioner has been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar is in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. The exercise of the powers under the Act are conferred by designation. The prior approval of the punishment is by the Registrar. If, incidentally, the person holding the post of Registrar is also Chairman of the Administrative Committee, it cannot be said to be illegal as he is exercising the powers of Registrar as well as of the Chairman of the Administrative Committee in terms of the Act or the Rules. 33. The Chairman is the Disciplinary Authority in terms of proviso to Rule 15 of the Dairy Service Rules. Though, the Administrative Committee has resolved that the approval of the Dairy Milk Commissioner/Registrar would be mandatory, but such Resolution has to be read in the context of proviso to Rule 15 which confers jurisdiction on the Chairman of the Administrative Committee to be a Disciplinary Authority. Since the Chairman of the Administrative Committee happens to be the Registrar, the decision to impose punishment may not require prior approval. However, if the prior approval has been sought from the office of Registrar, that will not vitiate the proceedings. 34. Viewed thus, the power exercised by the Chairman of the Committee in the instant case cannot be subject to Regulation 87. Therefore, there is nothing wrong in the exercise of power by the Chairman of the Committee in the present case.

1[ds]16. The High Court relied upon a judgment of Division Bench of the High Court in Chandra Pal Singh v. State of U.P. & Ors.(Writ-A No. 45263 of 2011 passed on 9.1.2018) wherein it was held that prior approval of the Board was not obtained as is required under Regulation 87 of the Service Regulations. It was noted that though in terms of notification dated 17.11.1979 Service Regulations ceased to apply, but provisions as were existing before the provisions of Service Regulations, would be applicable to the employees of the Centralised Services in terms of the resolution dated 20.9.1984. It was also held that the notification dated 17.11.1979 was not mentioned in the resolution dated 20.9.1984. Thus, it was concluded that the order of punishment without approval of the Board was not legal in terms of Regulation 87 of the Service Regulations. Hence, the order of punishment was quashed. The relevant extract from Chandra Pal Singh reads as under:Considered the submissions of learned counsel for the parties and perused the record. As far as the approval part is concerned, admittedly, no approval/concurrence was obtained by the Board before passing the order of dismissal from service. In view of the provision of Regulation 87 of U.P. Cooperative Societies Employees Service Regulation 1975, concurrence of the Board is required before passing the order of dismissal. According to notification dated 17.11.1979, Pradeshik Cooperative Dairy Federation Ltd. including the Primary Milk Cooperative Society were put out of purview of U.P. Cooperative Societies Employees Service Regulation 1975 with respect to the recruitment, training and disciplinary control and by the same notification, selection committee was constituted for category 1 and 2 employees of cooperative dairy federation. Hence, in case of the Centralised Services, the provision of Regulation 87 ceased to apply and whatever provision was applicable before the provision of Regulation 1975 was adopted, which will be applicable to the employees of Centralised Services. When the provision was adopted by the resolution of the Board dated 20.9.1984, the notification of 1979 was not mentioned in the same and the resolution regarding adoption of the provisions of Pradeshik Cooperative Society Employees Service Regulation 1979 were adopted till regulation for the Centralised Services was framed. Subsequently, it was clarified and approved vide order dated 31.1.2000 by the Dairy Commissioner/Registrar and the resolution dated 20.9.1984 was approved. Hence, till regulations are framed, the provisions of U.P. Cooperative Societies Employees Service Regulations 1975 are applicable.17. We find that the High Court in the impugned judgment and in Chandra Pal Singh proceeded on wrong assumptions of facts and law. Factually, in the present appeal, the disciplinary proceedings against the employee were initiated on 21.4.2015. The Inquiry Report was submitted on 13.6.2018 wherein the charges nos. 1 and 3 were found to be proved. Thus, there was no question of recording of any disagreement with the findings recorded by the Inquiry Officer. A show cause notice was subsequently served upon the employee enclosing a copy of the Inquiry Report on 25.6.2018. The employee was given an opportunity for personal hearing as well. Thereafter, an order of punishment was passed after obtaining approval from the Commissioner (Dairy Milk).19. The Administrative Committee exercises overall control and super- vision over the members of the Service in terms of Rule 10(i) of the Dairy Service Rules. Such Administrative Committee constituted under Rule 5 of the Dairy Service Rules is the Appointing Authority till the time Regulations are framed in terms of Rule 15 of the said Rules. Therefore, the Resolution dated 20.9.1984 will not deter- mine the Appointing or Disciplinary Authority, the same being cov- ered the Statutory Rule namely the Dairy Service Rules.20. The Dairy Service Rules have been framed in exercise of the juris- diction conferred under Section 122A of the Act. The Regulations can be framed by the Registrar or the State either under Section 121 or 122 of the Act or in terms of Rule 9 of the Dairy Service Rules. Such Rules would have precedence over the Regulations, which are framed or are required to be framed either by the Regis- trar or by the Authority entrusted with the task of recruitment, training and disciplinary control. Therefore, in terms of proviso to Rule 15, the Chairman of the Administrative Committee is the Ap- pointing and Disciplinary Authority. Hence, the Service Regulations would be inapplicable to determine the Appointing Authority and/or the Disciplinary Authority in respect of the employees of Co-opera- tive Milk Societies.21. The attention of the Division Bench in Chandra Pal Singh was not drawn to Rule 15 of the Dairy Service Rules. The proviso to the said Rule empowered the Administrative Committee constituted under Rule 5 as an Appointing Authority and the authority to exercise disciplinary control over the employees of the centralised services till the time regulations are framed. The resolution dated 20.9.1984 would thus be applicable in respect of other service conditions. However, with regard to disciplinary control, it would be the Dairy Service Rules which would be applicable.22. Regulation 106 of the Service Regulations empowers the State Government or the Registrar to pass such orders not inconsistent with the Regulations in respect of termination, dismissal or removal. The punishment imposed is of reversion and not of either termination, dismissal or removal. Therefore, Regulation 106 will not be applicable. There is also no inconsistency or difficulty which the State Government or Registrar is empowered to remove in exercise of powers conferred under Regulation 106.23. In Chandra Pal Singh, the finding of the Division Bench that the 1979 notification is not mentioned in the resolution of the Cadre Authority passed on 20.9.1984 is untenable in view of statutory rules contemplating the Appointing Authority. Therefore, the order of punishment passed by the Chairman of the Administrative Committee in terms of proviso to Rule 15 is by the competent Disciplinary Authority.24. The Administrative Committee however passed an office order on 8.8.2016 that the Chairman shall seek prior approval of Dairy Milk Commissioner/Registrar prior to imposing penalty. Such decision of the Administrative Committee is self-regulatory and has been ap- plied by the Administrative Committee in the present case as well while seeking prior approval of the Milk Commissioner/Registrar.25. As mentioned before, the 1975 Regulations were framed in exercise of power conferred under Section 122 of the 1965 Act. Till the time 1975 Regulations were framed, the entire statutory regime, in terms of which service conditions including disciplinary control of employees in a co-operative society or class of co- operative societies could be regulated, was in terms of Sections 121 and 122 of the 1965 Act. Regulation 87 of 1975 Regulations, therefore, has to be seen as part of such general statutory regime.28. In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15 thus, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority.29. It would, therefore, be incorrect to rely upon or import the principles of Rule 87 in substitution of clear intent and mandate of Rule 15 of 1984 Rules.30. The Resolution dated 20.09.1984 or for that matter the Office Order dated 08.08.2016 which are pure departmental executive instructions cannot displace statutory Rule 15 and the process contemplated therein and import a requirement which would be in the teeth of Rule 15.31. The learned Single Bench found that the Chairman of the Adminis- trative Committee and that the Milk Commissioner are one and the same person, which vitiates the order of punishment passed. We do not find any merit in the said finding.32. The Milk Commissioner has been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar is in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. The exercise of the powers under the Act are conferred by designation. The prior approval of the punishment is by the Registrar. If, incidentally, the person holding the post of Registrar is also Chairman of the Administrative Committee, it cannot be said to be illegal as he is exercising the powers of Registrar as well as of the Chairman of the Administrative Committee in terms of the Act or the Rules.33. The Chairman is the Disciplinary Authority in terms of proviso to Rule 15 of the Dairy Service Rules. Though, the Administrative Committee has resolved that the approval of the Dairy Milk Commissioner/Registrar would be mandatory, but such Resolution has to be read in the context of proviso to Rule 15 which confers jurisdiction on the Chairman of the Administrative Committee to be a Disciplinary Authority. Since the Chairman of the Administrative Committee happens to be the Registrar, the decision to impose punishment may not require prior approval. However, if the prior approval has been sought from the office of Registrar, that will not vitiate the proceedings.34. Viewed thus, the power exercised by the Chairman of the Committee in the instant case cannot be subject to Regulation 87. Therefore, there is nothing wrong in the exercise of power by the Chairman of the Committee in the present case.

### 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: conferred under Regulation 106. 23. In Chandra Pal Singh, the finding of the Division Bench that the 1979 notification is not mentioned in the resolution of the Cadre Authority passed on 20.9.1984 is untenable in view of statutory rules contemplating the Appointing Authority. Therefore, the order of punishment passed by the Chairman of the Administrative Committee in terms of proviso to Rule 15 is by the competent Disciplinary Authority. 24. The Administrative Committee however passed an office order on 8.8.2016 that the Chairman shall seek prior approval of Dairy Milk Commissioner/Registrar prior to imposing penalty. Such decision of the Administrative Committee is self-regulatory and has been ap- plied by the Administrative Committee in the present case as well while seeking prior approval of the Milk Commissioner/Registrar. 25. As mentioned before, the 1975 Regulations were framed in exercise of power conferred under Section 122 of the 1965 Act. Till the time 1975 Regulations were framed, the entire statutory regime, in terms of which service conditions including disciplinary control of employees in a co-operative society or class of co- operative societies could be regulated, was in terms of Sections 121 and 122 of the 1965 Act. Regulation 87 of 1975 Regulations, therefore, has to be seen as part of such general statutory regime. 26. On 16.04.1976, Section 122-A was inserted in the 1965 Act which now provided for centralization of services. This Section opens with a non-obstante clause and thus, the intent is to give an overriding effect over the general regime contemplated by Sections 121 and 122 of the 1965 Act. Section 122-A of the 1965 Act empowers the Government, by rules, to provide for creation of one or more services of employees of such co-operative society or class of co-operative societies as the Government may think fit and prescribe inter alia conditions of service including appointment and removal of persons appointed to such service. 27. It was in exercise of power conferred under Section 122-A of the 1965 Act that 1984 Rules were framed. Rule 15 of the 1984 Rules stipulates that the appointing authority and the authority exercising disciplinary control over the members of the service shall be such as may be laid down in the Regulations and till such Regulations are brought in force, the Chairman of the Committee shall be the appointing authority and the authority exercising disciplinary control over them. 28. In terms of the specific statutory regime referable to Section 122-A of the 1965 Act, Rule 15 thus, would be the governing principle rather than Regulation 87 framed in exercise of regulation making power referable to the general dispensation under Sections 121 and 122 of the 1965 Act. Rule 15 does not contemplate that the Chairman of the Committee is required to have any prior concurrence of any authority. 29. It would, therefore, be incorrect to rely upon or import the principles of Rule 87 in substitution of clear intent and mandate of Rule 15 of 1984 Rules. 30. The Resolution dated 20.09.1984 or for that matter the Office Order dated 08.08.2016 which are pure departmental executive instructions cannot displace statutory Rule 15 and the process contemplated therein and import a requirement which would be in the teeth of Rule 15. 31. The learned Single Bench found that the Chairman of the Adminis- trative Committee and that the Milk Commissioner are one and the same person, which vitiates the order of punishment passed. We do not find any merit in the said finding. Sir William Wade in his Administrative Law stated: But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down. It was further stated: In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. 32. The Milk Commissioner has been appointed as Registrar in exercise of the powers conferred on the State Government by the Act. The approval from the Registrar is in terms of the resolution of the Administrative Committee constituted in terms of Dairy Service Rules. The exercise of the powers under the Act are conferred by designation. The prior approval of the punishment is by the Registrar. If, incidentally, the person holding the post of Registrar is also Chairman of the Administrative Committee, it cannot be said to be illegal as he is exercising the powers of Registrar as well as of the Chairman of the Administrative Committee in terms of the Act or the Rules. 33. The Chairman is the Disciplinary Authority in terms of proviso to Rule 15 of the Dairy Service Rules. Though, the Administrative Committee has resolved that the approval of the Dairy Milk Commissioner/Registrar would be mandatory, but such Resolution has to be read in the context of proviso to Rule 15 which confers jurisdiction on the Chairman of the Administrative Committee to be a Disciplinary Authority. Since the Chairman of the Administrative Committee happens to be the Registrar, the decision to impose punishment may not require prior approval. However, if the prior approval has been sought from the office of Registrar, that will not vitiate the proceedings. 34. Viewed thus, the power exercised by the Chairman of the Committee in the instant case cannot be subject to Regulation 87. Therefore, there is nothing wrong in the exercise of power by the Chairman of the Committee in the present case. ### Response: 1

Daulat Singh Vs. Railway Emps.Co-Op.Banking Soc.Ltd.&Anr

aforesaid letter, the Division Bench has held that the new appointment was offered w.e.f. 20th July, 1992, and the earlier appointment under appointment letter dated 16th June, 1992 came to an end on 15th July, 1992 and, thus, there was a break of four days from 16th July to 19th July and, therefore, there is apparent error in the judgment of learned Single Judge and in the order of the prescribed authority in coming to the conclusion that the employees were in continuous employment for a period of not less than six months. The Division Bench, it is evident, lost sight of the second paragraph of the aforesaid letter which stipulates the confirmation of the services of the employees from the initial date of joining as casual labour provided there is no complaint and/ or adverse report against the employee during the period of 50 days. It is not in dispute that the initial date of joining as casual labour was 16th June, 1992. It has also been established that on completion of satisfactory work for 50 days, confirmation orders were issued. One such order dated 5th August, 1992 has been placed on record. The issue of the said letter is also not in dispute.8. The prescribed authority, on detailed examination of evidence, oral as also documentary including the appointments letters, the attendance register, payment of salary etc., came to the conclusion that the employer had failed to prove that the services of the employees have been terminated on 20th August, 1992 and that employees had proved that they continued in service upto December, 1992 and had completed services with the first respondent for a period of not less than six months. The issue whether applicant did not complete six months service continuously in non-applicant society, therefore, suit is not maintainable was answered by the prescribed authority in favour of the employees. The plea of the first respondent that the employees were reappointment in October, 1992 was not accepted by the prescribed authority. The complaint under Section 28-A was held to be maintainable and as earlier noticed, the writ petition of employer was dismissed. 9. At no stage, the first respondent took the plea that there was break of service of the appellants in July 1992. The only basis on which the order of the prescribed authority and the judgment of the Single Judge were reversed by the impugned judgment was break in service for four days in July, 1992. Apart from the fact that the plea that the employees being not in continuous service for six months was not based on break of their service for these four days, even otherwise the conclusion of the Division Bench was contrary to the terms of the letter of initial appointment, letter of appointment after selection and the letter of confirmation of service. According to the appointment letter dated 19th July, 1992, the employees were deemed to be in service from the date of their initial appointment as a casual labour, i.e. since 16th June, 1992. 10. Learned counsel for the respondent contends that in the complaint as also in evidence, the employees themselves stated that the first appointment was made on 19th July, 1992 and, therefore, it is evident that the employees had not completed six months continuous service. That is not the ground on which the Division Bench has reversed the judgment of learned Single Judge. Moreover, the pleadings and the evidence cannot be construed in a hyper technical manner as sought to be contended by learned counsel for the employees. True, the employees stated about their first appointment on 19th July, 1992 but a perusal of the appointment letter clearly shows that the reference by the employees to the appointment on 19th July is to their regular appointment after due selection. The stand of the parties was clear before the prescribed authority, the learned Single Judge as also the Division Bench. The stand of the employees in substance was that they were in continuous employment since 16th June, 1992 till December 1992. The stand of the employer was that there was a break for a period of two months from 20th August to October, 1992. On consideration of evidence the stand of employees was accepted and that of employer rejected. Under these circumstances, we are unable to sustain the conclusion of the Division Bench that there was break of service of four days and on that ground the complaint under Section 28-A of the Act was not maintainable since the said provision requires a continuous employment for six months and the continuity would be broken as a result of hiatus of four days. 11. Reliance has been placed by Mr. Jain, learned counsel for the employer on a decision of this Court in Sur Enamel and Stamping Works (P) Ltd. vs. Their Workmen (1964) 3 SCR 616 ) for the proposition that the service for the period prior to issue of appointment letter dated 19th July, 1992, could not be taken into consideration. In the cited decision, it was not disputed that the period of the former employment under the company could not be taken into consideration in computing the period because it was common ground that the reappointment of the employees was a fresh employment. The present case is just reverse. The appointment in terms of the letter of appointment dated 19th July, 1992 itself postulates continuity from 16th June, 1992. It was never the case of the employer that for computing six months service, the starting point of service was 20th July, 1992 and not 16th June, 1992. We cannot permit the employer to set up a new case at this stage. The cited decision has no applicability to the case in hand.12. Thus, the learned Division Bench committed serious illegality in a reversing the finding of fact recorded by the prescribed authority affirmed by the learned Single Judge on a point that was not pleaded by the employer at any stage and was even otherwise untenable.

1[ds]The case of the employer/first respondent before the prescribed authority was that the employees had not been in employment for a continuous period of six months as there was a break of about two months in their service, their services having been terminated on 20th August, 1992 and they were againin October, 1992. This case set up by the first respondent has not been accepted even by the Division Bench while coming to the conclusion that the employees have not been in continuous employment for a period of not less than six months. The Division Bench has reached the said conclusion by holding that there was a break of service for four days, namely from 16th July, 1992 to 19th July, 1992. The Division Bench held that their was hiatus of four days between employment under letter dated 16th June, 1992 and new appointment by letter dated 19th July, 1992.The case of the appellants before the prescribed authority was that they had been getting regular salary from June 1992 and worked continuously upto 31st December, 1992 on the post of Peon in the office of the first respondent; they marked their attendance upto 7th December, 1992 but thereafter though they worked upto 31st December but were not allowed to mark the attendance and on 1st January, 1993, the employer refused to take them on duty and terminated their services by an oral order without giving one months notice and compensation for retrenchment and that they worked for a period of more than six months from the date of their appointment. It is not in dispute that the appellant Daulat Singh was appointed as a casual labourer in terms of appointment dated 16th June, 1992. It was a temporary appointment for specific period of one month from 16th June, 1992 to 15th July, 1992. The Division Bench has noticed that the actual date of commencement of employment has not been disputed by the employer but the employer has alleged that the services came to an end on 20th August, 1992 and no attendance was marked after the said date. An appointment letter dated 19th July, 1992 in the case of appellant Daulat Singh was has been reproduced in the impugned judgment. Admittedly, the case of other two appellants isDivision Bench, it is evident, lost sight of the second paragraph of the aforesaid letter which stipulates the confirmation of the services of the employees from the initial date of joining as casual labour provided there is no complaint and/ or adverse report against the employee during the period of 50 days. It is not in dispute that the initial date of joining as casual labour was 16th June, 1992. It has also been established that on completion of satisfactory work for 50 days, confirmation orders were issued. One such order dated 5th August, 1992 has been placed on record. The issue of the said letter is also not in dispute.8. The prescribed authority, on detailed examination of evidence, oral as also documentary including the appointments letters, the attendance register, payment of salary etc., came to the conclusion that the employer had failed to prove that the services of the employees have been terminated on 20th August, 1992 and that employees had proved that they continued in service upto December, 1992 and had completed services with the first respondent for a period of not less than sixplea of the first respondent that the employees were reappointment in October, 1992 was not accepted by the prescribed authority. The complaint under Sectionwas held to be maintainable and as earlier noticed, the writ petition of employer wasfrom the fact that the plea that the employees being not in continuous service for six months was not based on break of their service for these four days, even otherwise the conclusion of the Division Bench was contrary to the terms of the letter of initial appointment, letter of appointment after selection and the letter of confirmation of service. According to the appointment letter dated 19th July, 1992, the employees were deemed to be in service from the date of their initial appointment as a casual labour, i.e. since 16th June, 1992.Learned counsel for the respondent contends that in the complaint as also in evidence, the employees themselves stated that the first appointment was made on 19th July, 1992 and, therefore, it is evident that the employees had not completed six months continuous service. That is not the ground on which the Division Bench has reversed the judgment of learned Single Judge. Moreover, the pleadings and the evidence cannot be construed in a hyper technical manner as sought to be contended by learned counsel for thepresent case is just reverse. The appointment in terms of the letter of appointment dated 19th July, 1992 itself postulates continuity from 16th June, 1992. It was never the case of the employer that for computing six months service, the starting point of service was 20th July, 1992 and not 16th June, 1992. We cannot permit the employer to set up a new case at this stage. The cited decision has no applicability to the case in hand.12. Thus, the learned Division Bench committed serious illegality in a reversing the finding of fact recorded by the prescribed authority affirmed by the learned Single Judge on a point that was not pleaded by the employer at any stage and was even otherwise untenable.

### 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: aforesaid letter, the Division Bench has held that the new appointment was offered w.e.f. 20th July, 1992, and the earlier appointment under appointment letter dated 16th June, 1992 came to an end on 15th July, 1992 and, thus, there was a break of four days from 16th July to 19th July and, therefore, there is apparent error in the judgment of learned Single Judge and in the order of the prescribed authority in coming to the conclusion that the employees were in continuous employment for a period of not less than six months. The Division Bench, it is evident, lost sight of the second paragraph of the aforesaid letter which stipulates the confirmation of the services of the employees from the initial date of joining as casual labour provided there is no complaint and/ or adverse report against the employee during the period of 50 days. It is not in dispute that the initial date of joining as casual labour was 16th June, 1992. It has also been established that on completion of satisfactory work for 50 days, confirmation orders were issued. One such order dated 5th August, 1992 has been placed on record. The issue of the said letter is also not in dispute.8. The prescribed authority, on detailed examination of evidence, oral as also documentary including the appointments letters, the attendance register, payment of salary etc., came to the conclusion that the employer had failed to prove that the services of the employees have been terminated on 20th August, 1992 and that employees had proved that they continued in service upto December, 1992 and had completed services with the first respondent for a period of not less than six months. The issue whether applicant did not complete six months service continuously in non-applicant society, therefore, suit is not maintainable was answered by the prescribed authority in favour of the employees. The plea of the first respondent that the employees were reappointment in October, 1992 was not accepted by the prescribed authority. The complaint under Section 28-A was held to be maintainable and as earlier noticed, the writ petition of employer was dismissed. 9. At no stage, the first respondent took the plea that there was break of service of the appellants in July 1992. The only basis on which the order of the prescribed authority and the judgment of the Single Judge were reversed by the impugned judgment was break in service for four days in July, 1992. Apart from the fact that the plea that the employees being not in continuous service for six months was not based on break of their service for these four days, even otherwise the conclusion of the Division Bench was contrary to the terms of the letter of initial appointment, letter of appointment after selection and the letter of confirmation of service. According to the appointment letter dated 19th July, 1992, the employees were deemed to be in service from the date of their initial appointment as a casual labour, i.e. since 16th June, 1992. 10. Learned counsel for the respondent contends that in the complaint as also in evidence, the employees themselves stated that the first appointment was made on 19th July, 1992 and, therefore, it is evident that the employees had not completed six months continuous service. That is not the ground on which the Division Bench has reversed the judgment of learned Single Judge. Moreover, the pleadings and the evidence cannot be construed in a hyper technical manner as sought to be contended by learned counsel for the employees. True, the employees stated about their first appointment on 19th July, 1992 but a perusal of the appointment letter clearly shows that the reference by the employees to the appointment on 19th July is to their regular appointment after due selection. The stand of the parties was clear before the prescribed authority, the learned Single Judge as also the Division Bench. The stand of the employees in substance was that they were in continuous employment since 16th June, 1992 till December 1992. The stand of the employer was that there was a break for a period of two months from 20th August to October, 1992. On consideration of evidence the stand of employees was accepted and that of employer rejected. Under these circumstances, we are unable to sustain the conclusion of the Division Bench that there was break of service of four days and on that ground the complaint under Section 28-A of the Act was not maintainable since the said provision requires a continuous employment for six months and the continuity would be broken as a result of hiatus of four days. 11. Reliance has been placed by Mr. Jain, learned counsel for the employer on a decision of this Court in Sur Enamel and Stamping Works (P) Ltd. vs. Their Workmen (1964) 3 SCR 616 ) for the proposition that the service for the period prior to issue of appointment letter dated 19th July, 1992, could not be taken into consideration. In the cited decision, it was not disputed that the period of the former employment under the company could not be taken into consideration in computing the period because it was common ground that the reappointment of the employees was a fresh employment. The present case is just reverse. The appointment in terms of the letter of appointment dated 19th July, 1992 itself postulates continuity from 16th June, 1992. It was never the case of the employer that for computing six months service, the starting point of service was 20th July, 1992 and not 16th June, 1992. We cannot permit the employer to set up a new case at this stage. The cited decision has no applicability to the case in hand.12. Thus, the learned Division Bench committed serious illegality in a reversing the finding of fact recorded by the prescribed authority affirmed by the learned Single Judge on a point that was not pleaded by the employer at any stage and was even otherwise untenable. ### Response: 1

Zora Singh Vs. J.M. Tandon & Others

allotted to him in Samundri.9. The High Court turned down the first two contentious outright. So far as the third contention was concerned, the High Court, on assessment of the evidence led before it, rejected that contention also and dismissed the writ petition.10. for the appellant raised the very same contentions before us which were raised before the High Court. As regards the first contention the judgement of the Division Bench clearly holds that in its earlier judgement the High Court did not conclude the question of genuineness of the said two copies, and that it remanded the case to the Commissioner only because the Commissioner, while considering the appellants case, had not called for the record of the Deputy Secretary (Rehabilitation) containing the copies which, according to the appellant, were copies endorsed to him by the Deputy Commissioner, Lyallpur. This is quite clear from the extract from its earlier judgement quoted earlier. There is, therefore, no substance in the first contention. The second contention also was rejected, and in our view rightly. The High Court was right in holding that even if there were, amongst the reasons given by the Commissioner, some which were extraneous, if the rest were relevant and could be considered sufficient, the Commissioners conclusions, would not be vitiated. The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfation if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid, or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can. be sustained on the evidence. The reason is that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of suf ficiency of evidence. There was, in our view, legal evidence before the Commissioner upon which he was entitled to rest his finding that the copies relied on by the appellant were not genuine.That takes us to the third contention which is now based on the addi tional evidence adduced before the High Court. It is amply clear from that evidence that whenever a gallantry award is granted it would be entered in the sheet-roll maintained by the company in which the awardee is serving, and the fact of such an award having been granted would be announced in the Government Gazette. There was no such entry and no such announcement in the Gazette in the case of the appellant. But apart from the gallantry award the military authorities also used to give awards for meritorious service. Realising that the appellants case for a gallantry award was unsustainable, counsel shifted his case and sought to argue that the appellant had been the recipient of an award for meritorious service and was granted the said land in Samundri in lieu thereof.11. There are, however, two major difficulties against such a contention. The first is that no record was produced showing such an award for meritorious service although the appellant got an opportunity to lead additional evidence before the High Court and some of the witness examined by him were military officers belonging to his company. The second difficulty is that according to the evidence of Lachhman Singh, the Senior Records Officer of the Sikh Regimental Centre of Meerut, whenever an award is given for meritorious service an entry regarding it would be made in the sheet-roll maintained by the company and a medal only, and not, land, is awarded. He was emphatic that no order withing his knowledge was ever passed during theWorld War II granting land to persons for meritorious service. Further, no award for meritorious service could have been granted to the appellant. Rule 543 of the Regulationd produceed by Subedar Mohan Singh of the Sikh Regimental Centre at Meerut lays down that an award for meritorious service can begiven only if the person to whom it is to be awarded has served for at least 18 years. The award in such a case is in the form of an annuity and not land. The appellant had not put in 18 years of service but only service for 14 years. That being so, no such award for meritorious service could have been granted to him. He could not produce any record because he could not have been granted such an award in view of the fact that he had not put in the requisite qualifying service. Besides, his service could not have been regarded as meritorious as the record of his service produced by Subedar Mohan Singh revealed that he had been given punishments on as many as seven occasions, some of which were on charges such as theft, insubbordination, absentism, etc.12. On this evidence, as also on the evidence that was before the Commissioner, it is clear that the appellant was not and could not have been a recipient either of a gallantry award or an award for meritorious service. Nor could be have been granted any land at Samundri in respect of which he had claimed land here after partition. The Commissioner, therefore, was right in cancelling the allotment made in his favour as also the permanent rights acquired by him in consequence of that allotment. The High Court consequently was right in refusing to quash the Commissioners order and dismissing the writ petition.

0[ds]10. for the appellant raised the very same contentions before us which were raised before the HighCourt. As regards the first contention the judgement of the Division Bench clearly holds that in its earlier judgement the High Court did not conclude the question of genuineness of the said two copies, and that it remanded the case to the Commissioner only because the Commissioner, while considering the appellants case, had not called for the record of the Deputy Secretary (Rehabilitation) containing the copies which, according to the appellant, were copies endorsed to him by the Deputy Commissioner, Lyallpur. This is quite clear from the extract from its earlier judgement quoted earlier. There is, therefore, no substance in the first contention. The second contention also was rejected, and in our view rightly. The High Court was right in holding that even if there were, amongst the reasons given by the Commissioner, some which were extraneous, if the rest were relevant and could be considered sufficient, the Commissioners conclusions, would not be vitiated. The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfation if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid, or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can. be sustained on the evidence. The reason is that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of suf ficiency of evidence. There was, in our view, legal evidence before the Commissioner upon which he was entitled to rest his finding that the copies relied on by the appellant were not genuine.That takes us to the third contention which is now based on the addi tional evidence adduced before the High Court. It is amply clear from that evidence that whenever a gallantry award is granted it would be entered in themaintained by the company in which the awardee is serving, and the fact of such an award having been granted would be announced in the Government Gazette. There was no such entry and no such announcement in the Gazette in the case of the appellant. But apart from the gallantry award the military authorities also used to give awards for meritorious service. Realisingthat the appellants case for a gallantry award was unsustainable, counsel shifted his case and sought to argue that the appellant had been the recipient of an award for meritorious service and was granted the said land in Samundri in lieu thereof.There are, however, two major difficulties against such a contention. The first is that no record was produced showing such an award for meritorious service although the appellant got an opportunity to lead additional evidence before the High Court and some of the witness examined by him were military officers belonging to his company. The second difficulty is that according to the evidence of Lachhman Singh, the Senior Records Officer of the Sikh Regimental Centre of Meerut, whenever an award is given for meritorious service an entry regarding it would be made in themaintained by the company and a medal only, and not, land, is awarded. He was emphatic that no order withing his knowledge was ever passed during theWorld War II granting land to persons for meritorious service. Further, no award for meritorious service could have been granted to the appellant. Rule 543 of the Regulationd produceed by Subedar Mohan Singh of the Sikh Regimental Centre at Meerut lays down that an award for meritorious service can begiven only if the person to whom it is to be awarded has served for at least 18 years. The award in such a case is in the form of an annuity and not land. The appellant had not put in 18 years of service but only service for 14 years. That being so, no such award for meritorious service could have been granted to him. He could not produce any record because he could not have been granted such an award in view of the fact that he had not put in the requisite qualifying service. Besides, his service could not have been regarded as meritorious as the record of his service produced by Subedar Mohan Singh revealed that he had been given punishments on as many as seven occasions, some of which were on charges such as theft, insubbordination, absentism, etc.12. On this evidence, as also on the evidence that was before the Commissioner, it is clear that the appellant was not and could not have been a recipient either of a gallantry award or an award for meritorious service. Nor could be have been granted any land at Samundri in respect of which he had claimed land here after partition. The Commissioner, therefore, was right in cancelling the allotment made in his favour as also the permanent rights acquired by him in consequence of that allotment. The High Court consequently was right in refusing to quash the Commissioners order and dismissing the writ petition.

### 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: allotted to him in Samundri.9. The High Court turned down the first two contentious outright. So far as the third contention was concerned, the High Court, on assessment of the evidence led before it, rejected that contention also and dismissed the writ petition.10. for the appellant raised the very same contentions before us which were raised before the High Court. As regards the first contention the judgement of the Division Bench clearly holds that in its earlier judgement the High Court did not conclude the question of genuineness of the said two copies, and that it remanded the case to the Commissioner only because the Commissioner, while considering the appellants case, had not called for the record of the Deputy Secretary (Rehabilitation) containing the copies which, according to the appellant, were copies endorsed to him by the Deputy Commissioner, Lyallpur. This is quite clear from the extract from its earlier judgement quoted earlier. There is, therefore, no substance in the first contention. The second contention also was rejected, and in our view rightly. The High Court was right in holding that even if there were, amongst the reasons given by the Commissioner, some which were extraneous, if the rest were relevant and could be considered sufficient, the Commissioners conclusions, would not be vitiated. The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfation if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid, or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can. be sustained on the evidence. The reason is that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of suf ficiency of evidence. There was, in our view, legal evidence before the Commissioner upon which he was entitled to rest his finding that the copies relied on by the appellant were not genuine.That takes us to the third contention which is now based on the addi tional evidence adduced before the High Court. It is amply clear from that evidence that whenever a gallantry award is granted it would be entered in the sheet-roll maintained by the company in which the awardee is serving, and the fact of such an award having been granted would be announced in the Government Gazette. There was no such entry and no such announcement in the Gazette in the case of the appellant. But apart from the gallantry award the military authorities also used to give awards for meritorious service. Realising that the appellants case for a gallantry award was unsustainable, counsel shifted his case and sought to argue that the appellant had been the recipient of an award for meritorious service and was granted the said land in Samundri in lieu thereof.11. There are, however, two major difficulties against such a contention. The first is that no record was produced showing such an award for meritorious service although the appellant got an opportunity to lead additional evidence before the High Court and some of the witness examined by him were military officers belonging to his company. The second difficulty is that according to the evidence of Lachhman Singh, the Senior Records Officer of the Sikh Regimental Centre of Meerut, whenever an award is given for meritorious service an entry regarding it would be made in the sheet-roll maintained by the company and a medal only, and not, land, is awarded. He was emphatic that no order withing his knowledge was ever passed during theWorld War II granting land to persons for meritorious service. Further, no award for meritorious service could have been granted to the appellant. Rule 543 of the Regulationd produceed by Subedar Mohan Singh of the Sikh Regimental Centre at Meerut lays down that an award for meritorious service can begiven only if the person to whom it is to be awarded has served for at least 18 years. The award in such a case is in the form of an annuity and not land. The appellant had not put in 18 years of service but only service for 14 years. That being so, no such award for meritorious service could have been granted to him. He could not produce any record because he could not have been granted such an award in view of the fact that he had not put in the requisite qualifying service. Besides, his service could not have been regarded as meritorious as the record of his service produced by Subedar Mohan Singh revealed that he had been given punishments on as many as seven occasions, some of which were on charges such as theft, insubbordination, absentism, etc.12. On this evidence, as also on the evidence that was before the Commissioner, it is clear that the appellant was not and could not have been a recipient either of a gallantry award or an award for meritorious service. Nor could be have been granted any land at Samundri in respect of which he had claimed land here after partition. The Commissioner, therefore, was right in cancelling the allotment made in his favour as also the permanent rights acquired by him in consequence of that allotment. The High Court consequently was right in refusing to quash the Commissioners order and dismissing the writ petition. ### Response: 0

Ram Nath & Others Vs. Union of India

violation of the provisions of the new Constitution but not when they are taken away by an Act in violation of Section 299 of the Government of India Act which has been repealed. The intention of the Constitution to protect each and everyone of the Acts specified in the Ninth Schedule from any challenge on the ground of violation of any of the fundamental rights secured under Part III of the Constitution, irrespective of whether they are pre-existing or new rights, placed beyond any doubt or question by the very emphatic language of article 13B which declares that none of the provisions of the specified Acts shall be deemed to be void or ever to have become void on the ground of the alleged violation of the rights indicated “notwithstanding any judgment, decree or order of any court or tribunal.” That intention is also emphasised by the positive declaration that “each of the said Acts or Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force.”11. This very question again surfaced in TheState of Uttar Pradesh and Others v. H.H.Maharaja Brijendra Singh, (1961) 1 SCR 362 in which constitutional validity of U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 was questioned. The title of the Act impugned in that case clearly shows that it was in pari materia with the 1948 Act, both being enacted with a view to acquire power to acquire land for rehabilitation of refugees and that too in the same year. It may as well be mentioned that U.P. Act XXVI of 1948 is also inserted in the Ninth Schedule. The entry just precedes the 1948 Act. The High Court while upholding the validity of Section 11 which is in pari materia with Section 7 of 1948 Act struck down the two provisos to Section 11 similarly worded as the two provisoes to Section 7(l)(e). Both the provisoes are in pari materia with the impugned provisoes. This Court, reversing the decision of the High Court and following the decision in Dhirubha Devisingh Gohil’s case (Supra) while upholding the constitutional validity of the Act held that the protection under Art. 13B against the violation of the fundamental rights mentioned therein must extend to the rights under Section 299 of the Government of India Act also. The reasons which weighed with the Constitution Bench of this Court while upholding the validity of the U.P. Act will mutatis mutandis apply here and we must uphold the validity of the two provisoes on parity of reasoning.12. It is thus satisfactorily established that in view of the insertion of the 1948 Act in Ninth Schedule it enjoys the umbrella of protection of Art. 13B and therefore it is immune from the challenge as violating any of the provisions in Part 111 of the Constitution. In fact this should end the contro­versy,13. Mr. Dua however urged that in view of the decision of this Court in N.B.Jeejeebhoy v. AssistantCollector, Thana Prant, Thana, (1965) 1 SCR 636 wherein this Court struck down the Land Acquisition (Bombay Amendment) Act, 1948 as constitutionally invalid, would necessitate re-examination of the decisions in Dhirubha Devisingh Gohil’s case and Maharaja Brijendra Singh’s case. It was submitted that the decision in Jeejeebhoy’s case comes later in point of time both to the decision in Dhirubha Gohil’s and Maharaja Brijendra Singh’s case, and therefore the later decision should prevail with this Court. In Jeejeebhoy’s case, this Court repelled the contention that the Amendment Act is saved by Art. 31-A of the Constitution. The argument of the learned Attorney General that Section 299 of the Government of India Act, 1935 declared a fundamental right of a citizen, that it is bodily lifted and introduced by the Constitution in Art. 31(2) thereof and that if Art. 31-A saved an attack against the Amending Act on the ground that it infringed Art. 31(2) thereof, it would equally save the attack based on the infringement of Section 299(2) of the Government of India Act, 1935 was disposed of by merely observing that the argument is far fetched. It may however be mentioned that in this later decision, the decisions of the Constitution Bench in Dhirubha Devinsingh Gohil’s case and the Maharaja Brijendra Singh’s case were merely referred to but not overruled. They were distinguished on the ground that the statutes impugned in those cases enjoyed the protection of Art. 13B. That is a fact and would make all the difference. The impugned Act in Jeejeebhoy’s case did not enjoy the protection of the Ninth Schedule and Art. 13B, and therefore the decision in Jeejeebhoy’s case is hardly of any assistance.It was lastly urged that the decision of the larger Bench in RustomCavasjee Cooper v. Unionof India,(1970) 3 SCR 530 would clearly show that the decision of this Court in Stateof Gujarat v. ShantilalMangaldas and Others., (1969) 3 SCR 341 is no more good law-and therefore it is open to the Court to examine whether compensation offered by the relevant provisions of the statute is illusory or prescribe principles well recognised for valuation of land. In our opinion, this aspect is hardly relevant because once the impugned statute of the impugned provisions of the statute enjoy the protection of Art. 13B, it is not open to the Court to examine whether the principles for valuation therein prescribed are relevant to the land valuation because that question arises where a complaint as to be contravention of fundamental rights enacted in repealed Art. 31 can be entertained and examined. That complaint has to be rejected at the threshold as soon as it is pointed out that the impugned statute or the impugned provisions of statute enjoy the protection of Art. 13B. It may be mentioned that in Smt. Mohinder Kaur’s case, a Full Bench of Delhi High Court examined and upheld the constitutional validity of the two provisoes to Section 7(l)(e) of the 1948 Act. We agree with the view taken by the High Court and upheld the same.

0[ds]It was lastly urged that the decision of the larger Bench in RustomCavasjee Cooper v. Unionof India,(1970) 3 SCR 530 would clearly show that the decision of this Court in Stateof Gujarat v. ShantilalMangaldas and Others., (1969) 3 SCR 341 is no more good law-and therefore it is open to the Court to examinewhether compensation offered by the relevant provisions of the statute is illusory or prescribe principles well recognised for valuation of land. In our opinion, this aspect is hardly relevant because once the impugned statute of the impugned provisions of the statute enjoy the protection of Art. 13B, it is not open to the Court to examine whether the principles for valuation therein prescribed are relevant to the land valuation because that question arises where a complaint as to be contravention of fundamental rights enacted in repealed Art. 31 can be entertained and examined.That complaint has to be rejected at the threshold as soon as it is pointed out that the impugned statute or the impugned provisions of statute enjoy the protection of Art. 13B. It may be mentioned that in Smt. Mohindercase, a Full Bench of Delhi High Court examined and upheld the constitutional validity of the two provisoes to Section 7(l)(e) of the 1948 Act. We agree with the view taken by the High Court and upheld the same.The 1948 Act is admittedly inserted in the Ninth Schedule by the Constitution (First Amendment) Act, 1951 which also simultaneously added Art. 13B. The Act finds its place at plecitum 16 in the Ninth Schedule. Once an Act is placed in the Ninth Schedule, Article 13B provides that either the act or any provision thereof shall not be deemed to be void or ever to have become void on the ground of such act or any provision thereof is inconsistent with, or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. Once the act is brought under the umbrella of protection of Art. 13B by inserting it in the Ninth Schedule, the act is not open to the challenge that it as a whole or any provision thereof violates or contravenes any of the fundamental rights contained in Part III of the Constitution. The allegation here is that the two provisoes violate the guarantee of fair compensation and therefore it constitutes deprivation of property without just compensation, a relic of Art 31(2) lifted from Section 299(2) ofthe Government of India Act, 1935.The 1948 Act is a pre-Constitution statute. It was therefore urged that it does not qualify for the protection of Art. 13B in as much as when enacted it was violative of Section 299(2) ofthe Government of India Act, 1935 and as it was void ab initio, it was not an existing law within the meaning of expression in Article 366(10) and therefore is not qualified for umbrella of protection enacted in Art. 13B.

### 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: violation of the provisions of the new Constitution but not when they are taken away by an Act in violation of Section 299 of the Government of India Act which has been repealed. The intention of the Constitution to protect each and everyone of the Acts specified in the Ninth Schedule from any challenge on the ground of violation of any of the fundamental rights secured under Part III of the Constitution, irrespective of whether they are pre-existing or new rights, placed beyond any doubt or question by the very emphatic language of article 13B which declares that none of the provisions of the specified Acts shall be deemed to be void or ever to have become void on the ground of the alleged violation of the rights indicated “notwithstanding any judgment, decree or order of any court or tribunal.” That intention is also emphasised by the positive declaration that “each of the said Acts or Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force.”11. This very question again surfaced in TheState of Uttar Pradesh and Others v. H.H.Maharaja Brijendra Singh, (1961) 1 SCR 362 in which constitutional validity of U.P. Land Acquisition (Rehabilitation of Refugees) Act, 1948 was questioned. The title of the Act impugned in that case clearly shows that it was in pari materia with the 1948 Act, both being enacted with a view to acquire power to acquire land for rehabilitation of refugees and that too in the same year. It may as well be mentioned that U.P. Act XXVI of 1948 is also inserted in the Ninth Schedule. The entry just precedes the 1948 Act. The High Court while upholding the validity of Section 11 which is in pari materia with Section 7 of 1948 Act struck down the two provisos to Section 11 similarly worded as the two provisoes to Section 7(l)(e). Both the provisoes are in pari materia with the impugned provisoes. This Court, reversing the decision of the High Court and following the decision in Dhirubha Devisingh Gohil’s case (Supra) while upholding the constitutional validity of the Act held that the protection under Art. 13B against the violation of the fundamental rights mentioned therein must extend to the rights under Section 299 of the Government of India Act also. The reasons which weighed with the Constitution Bench of this Court while upholding the validity of the U.P. Act will mutatis mutandis apply here and we must uphold the validity of the two provisoes on parity of reasoning.12. It is thus satisfactorily established that in view of the insertion of the 1948 Act in Ninth Schedule it enjoys the umbrella of protection of Art. 13B and therefore it is immune from the challenge as violating any of the provisions in Part 111 of the Constitution. In fact this should end the contro­versy,13. Mr. Dua however urged that in view of the decision of this Court in N.B.Jeejeebhoy v. AssistantCollector, Thana Prant, Thana, (1965) 1 SCR 636 wherein this Court struck down the Land Acquisition (Bombay Amendment) Act, 1948 as constitutionally invalid, would necessitate re-examination of the decisions in Dhirubha Devisingh Gohil’s case and Maharaja Brijendra Singh’s case. It was submitted that the decision in Jeejeebhoy’s case comes later in point of time both to the decision in Dhirubha Gohil’s and Maharaja Brijendra Singh’s case, and therefore the later decision should prevail with this Court. In Jeejeebhoy’s case, this Court repelled the contention that the Amendment Act is saved by Art. 31-A of the Constitution. The argument of the learned Attorney General that Section 299 of the Government of India Act, 1935 declared a fundamental right of a citizen, that it is bodily lifted and introduced by the Constitution in Art. 31(2) thereof and that if Art. 31-A saved an attack against the Amending Act on the ground that it infringed Art. 31(2) thereof, it would equally save the attack based on the infringement of Section 299(2) of the Government of India Act, 1935 was disposed of by merely observing that the argument is far fetched. It may however be mentioned that in this later decision, the decisions of the Constitution Bench in Dhirubha Devinsingh Gohil’s case and the Maharaja Brijendra Singh’s case were merely referred to but not overruled. They were distinguished on the ground that the statutes impugned in those cases enjoyed the protection of Art. 13B. That is a fact and would make all the difference. The impugned Act in Jeejeebhoy’s case did not enjoy the protection of the Ninth Schedule and Art. 13B, and therefore the decision in Jeejeebhoy’s case is hardly of any assistance.It was lastly urged that the decision of the larger Bench in RustomCavasjee Cooper v. Unionof India,(1970) 3 SCR 530 would clearly show that the decision of this Court in Stateof Gujarat v. ShantilalMangaldas and Others., (1969) 3 SCR 341 is no more good law-and therefore it is open to the Court to examine whether compensation offered by the relevant provisions of the statute is illusory or prescribe principles well recognised for valuation of land. In our opinion, this aspect is hardly relevant because once the impugned statute of the impugned provisions of the statute enjoy the protection of Art. 13B, it is not open to the Court to examine whether the principles for valuation therein prescribed are relevant to the land valuation because that question arises where a complaint as to be contravention of fundamental rights enacted in repealed Art. 31 can be entertained and examined. That complaint has to be rejected at the threshold as soon as it is pointed out that the impugned statute or the impugned provisions of statute enjoy the protection of Art. 13B. It may be mentioned that in Smt. Mohinder Kaur’s case, a Full Bench of Delhi High Court examined and upheld the constitutional validity of the two provisoes to Section 7(l)(e) of the 1948 Act. We agree with the view taken by the High Court and upheld the same. ### Response: 0

Ram Krissen Singh Vs. Divisional Forest Officerbankura Division & Others

of the words "together with" and the second the words "and held by an intermediary or any other person". Taking up, first, the word "together with" the submission was that it was only where the right to the trees constituted an integral part of the right to the land that a vesting was effected of the latter right and that where there had been a severance of the two rights it was only the land that remained in the intermediary that became vested and not the right to the trees. We feel unable to accept this argument. We consider that the expression "together" is obviously used to denote not the necessity for integrality between the land and the right to cut trees by way of common ownership but as merely an enumeration of the items of property which vest in the State. In the context, the word means no more than the expression "as well as" and imports no condition that the right to the trees should also belong to the owner of the land. It may be added that the words "or to the produce thereof" occurring next also emphasise what we have just now pointed out, for if these words are read disjunctively, as they must in view of the conjunction "or", the words would indicate that not merely lands in the estate and the right to the trees but independently of them the right to the produce of the trees on the land would also vest in the State.6. Coming next to the words "and held by an intermediary" learned Counsel could not justifiably submit an argument that both the land and the right to the trees should inhere in the intermediary to attract the operation of the clause, because the words "held by an intermediary" are followed by "any other person". Obviously, that other person i. e., person other than the intermediary, could have the right either to the land, a right to the trees or a right to the produce. By the use of the expression "or any other person" therefore the legislature could obviously have intended only a person like the appellant who might not have any right to the lands which are held by the intermediary but has a right to the trees in that land. Besides, it is not possible to read the words "held by an intermediary or any other person" to mean that they are applicable only to cases where the entirety of the interest-to the land, to the trees and to the produce--are vested in a single person--be he the intermediary or another person. These words would obviously apply equally to cases where the land belongs to an intermediary and the right to the trees or to the produce of the trees to another person.7. This apart, there is one further aspect of the matter to which also reference might be made. The amendment effected by the addition of cl. (aa) to S. 5 was admittedly necessitated by certain decisions of the High Court of Calcutta which held that where an intermediary had granted a right to cut trees or to forest produce, the rights so conferred were unaffected by the vesting provision in S. 5 of the Act as it stood before the amendment. If the argument now put forward by Mr. Chatterjee is accepted it would mean that the amendment has achieved no purpose. Undoubtedly, if the words of the amendment, on their plain reading, are insufficient to comprehend the case now on hand the fact that the legislature intended to overcome a decision of the High Court could not be any determining consideration but, if as we find, the words normally bear that construction, the circumstance that the amendment was effected with a view to overcome certain decisions rendered under the original enactment is not an irrelevant factor to be taken into account.8. Mr. Chatterjee next submitted that the scheme of the Act was the provision of compensation for every interest acquired by the State by virtue of the vesting under S. 5 and that as there was no provision in the Act for compensating the interest of persons like the appellant, the Court should hold that such an interest was not within the vesting section-S. 5(aa). This is, of course, a legitimate argument, and if there had been any ambiguity in the construction of S. 5(aa), the circumstance referred to by learned Counsel would certainly have great weight. But in view of the plain words of S 5(aa) which we have discussed earlier, we do not find it possible to accept the argument. The absence of a provision for compensation might render the vesting section unconstitutional, - and that indeed was the argument, addressed to the High Court and a matter which we shall immediately consider, but it cannot detract from the clear operation of the words used in S. 5(aa).9. A further point that was urged before the High Court was that the enactment was unconstitutional in that no provision was made for the award of compensation to persons in the position of the appellant whose rights to cut trees became vested in the state. Mr. Chatterjee pointed out that the learned Judges of the High Court had upheld the validity of the enactment by holding that compensation had, it fact, been provided. Learned Counsel drew our attention to the provisions quoted and submitted that the learned Judges erred in their construction of these provisions and that, in fact no compensation was provided, but this question about the constitutional validity of the amending Act does not really fall for consideration because learned Counsel for the appellant did not contest the position that after the enactment of the 17th Amendment to the Constitution, and the inclusion of West Bengal Act I of 1954 among, those specified in Schedule IX, the absence of a provision for compensation for the acquisition of the appellants rights would not render the West Bengal Act or the acquisition thereunder unconstitutional.10.

0[ds]We feel unable to accept this argument. We consider that the expression "together" is obviously used to denote not the necessity for integrality between the land and the right to cut trees by way of common ownership but as merely an enumeration of the items of property which vest in the State. In the context, the word means no more than the expression "as well as" and imports no condition that the right to the trees should also belong to the owner of the land. It may be added that the words "or to the produce thereof" occurring next also emphasise what we have just now pointed out, for if these words are read disjunctively, as they must in view of the conjunction "or", the words would indicate that not merely lands in the estate and the right to the trees but independently of them the right to the produce of the trees on the land would also vest in the State.Coming next to the words "and held by an intermediary" learned Counsel could not justifiably submit an argument that both the land and the right to the trees should inhere in the intermediary to attract the operation of the clause, because the words "held by an intermediary" are followed by "any other person". Obviously, that other person i. e., person other than the intermediary, could have the right either to the land, a right to the trees or a right to the produce. By the use of the expression "or any other person" therefore the legislature could obviously have intended only a person like the appellant who might not have any right to the lands which are held by the intermediary but has a right to the trees in that land. Besides, it is not possible to read the words "held by an intermediary or any other person" to mean that they are applicable only to cases where the entirety of the interest-to the land, to the trees and to the produce--are vested in a single person--be he the intermediary or another person. These words would obviously apply equally to cases where the land belongs to an intermediary and the right to the trees or to the produce of the trees to another person.This apart, there is one further aspect of the matter to which also reference might be made. The amendment effected by the addition of cl. (aa) to S. 5 was admittedly necessitated by certain decisions of the High Court of Calcutta which held that where an intermediary had granted a right to cut trees or to forest produce, the rights so conferred were unaffected by the vesting provision in S. 5 of the Act as it stood before the amendment. If the argument now put forward by Mr. Chatterjee is accepted it would mean that the amendment has achieved no purpose. Undoubtedly, if the words of the amendment, on their plain reading, are insufficient to comprehend the case now on hand the fact that the legislature intended to overcome a decision of the High Court could not be any determining consideration but, if as we find, the words normally bear that construction, the circumstance that the amendment was effected with a view to overcome certain decisions rendered under the original enactment is not an irrelevant factor to be taken intois, of course, a legitimate argument, and if there had been any ambiguity in the construction of S. 5(aa), the circumstance referred to by learned Counsel would certainly have great weight. But in view of the plain words of S 5(aa) which we have discussed earlier, we do not find it possible to accept the argument. The absence of a provision for compensation might render the vesting section unconstitutional, - and that indeed was the argument, addressed to the High Court and a matter which we shall immediately consider, but it cannot detract from the clear operation of the words used in S.this question about the constitutional validity of the amending Act does not really fall for consideration because learned Counsel for the appellant did not contest the position that after the enactment of the 17th Amendment to the Constitution, and the inclusion of West Bengal Act I of 1954 among, those specified in Schedule IX, the absence of a provision for compensation for the acquisition of the appellants rights would not render the West Bengal Act or the acquisition thereunder unconstitutional.

### 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: of the words "together with" and the second the words "and held by an intermediary or any other person". Taking up, first, the word "together with" the submission was that it was only where the right to the trees constituted an integral part of the right to the land that a vesting was effected of the latter right and that where there had been a severance of the two rights it was only the land that remained in the intermediary that became vested and not the right to the trees. We feel unable to accept this argument. We consider that the expression "together" is obviously used to denote not the necessity for integrality between the land and the right to cut trees by way of common ownership but as merely an enumeration of the items of property which vest in the State. In the context, the word means no more than the expression "as well as" and imports no condition that the right to the trees should also belong to the owner of the land. It may be added that the words "or to the produce thereof" occurring next also emphasise what we have just now pointed out, for if these words are read disjunctively, as they must in view of the conjunction "or", the words would indicate that not merely lands in the estate and the right to the trees but independently of them the right to the produce of the trees on the land would also vest in the State.6. Coming next to the words "and held by an intermediary" learned Counsel could not justifiably submit an argument that both the land and the right to the trees should inhere in the intermediary to attract the operation of the clause, because the words "held by an intermediary" are followed by "any other person". Obviously, that other person i. e., person other than the intermediary, could have the right either to the land, a right to the trees or a right to the produce. By the use of the expression "or any other person" therefore the legislature could obviously have intended only a person like the appellant who might not have any right to the lands which are held by the intermediary but has a right to the trees in that land. Besides, it is not possible to read the words "held by an intermediary or any other person" to mean that they are applicable only to cases where the entirety of the interest-to the land, to the trees and to the produce--are vested in a single person--be he the intermediary or another person. These words would obviously apply equally to cases where the land belongs to an intermediary and the right to the trees or to the produce of the trees to another person.7. This apart, there is one further aspect of the matter to which also reference might be made. The amendment effected by the addition of cl. (aa) to S. 5 was admittedly necessitated by certain decisions of the High Court of Calcutta which held that where an intermediary had granted a right to cut trees or to forest produce, the rights so conferred were unaffected by the vesting provision in S. 5 of the Act as it stood before the amendment. If the argument now put forward by Mr. Chatterjee is accepted it would mean that the amendment has achieved no purpose. Undoubtedly, if the words of the amendment, on their plain reading, are insufficient to comprehend the case now on hand the fact that the legislature intended to overcome a decision of the High Court could not be any determining consideration but, if as we find, the words normally bear that construction, the circumstance that the amendment was effected with a view to overcome certain decisions rendered under the original enactment is not an irrelevant factor to be taken into account.8. Mr. Chatterjee next submitted that the scheme of the Act was the provision of compensation for every interest acquired by the State by virtue of the vesting under S. 5 and that as there was no provision in the Act for compensating the interest of persons like the appellant, the Court should hold that such an interest was not within the vesting section-S. 5(aa). This is, of course, a legitimate argument, and if there had been any ambiguity in the construction of S. 5(aa), the circumstance referred to by learned Counsel would certainly have great weight. But in view of the plain words of S 5(aa) which we have discussed earlier, we do not find it possible to accept the argument. The absence of a provision for compensation might render the vesting section unconstitutional, - and that indeed was the argument, addressed to the High Court and a matter which we shall immediately consider, but it cannot detract from the clear operation of the words used in S. 5(aa).9. A further point that was urged before the High Court was that the enactment was unconstitutional in that no provision was made for the award of compensation to persons in the position of the appellant whose rights to cut trees became vested in the state. Mr. Chatterjee pointed out that the learned Judges of the High Court had upheld the validity of the enactment by holding that compensation had, it fact, been provided. Learned Counsel drew our attention to the provisions quoted and submitted that the learned Judges erred in their construction of these provisions and that, in fact no compensation was provided, but this question about the constitutional validity of the amending Act does not really fall for consideration because learned Counsel for the appellant did not contest the position that after the enactment of the 17th Amendment to the Constitution, and the inclusion of West Bengal Act I of 1954 among, those specified in Schedule IX, the absence of a provision for compensation for the acquisition of the appellants rights would not render the West Bengal Act or the acquisition thereunder unconstitutional.10. ### Response: 0

GOVERNMENT OF INDIA Vs. VEDANTA LIMITED (Formerly Cairn India Ltd.),RAVVA OIL (SINGAPORE) PTE. LTD.,VIDEOCON INDUSTRIES LIMITED

principles of justice… It was understood that the term public policy, which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. (emphasis supplied) This judgment has been recently affirmed by the Singapore High Court in Dongwoo Mann + Hummel Co. Ltd. v Mann + Hummel GmbH. [2008] SGHC 67. (c) The gravamen of the challenge of the Appellants is that the tribunal has given an erroneous interpretation of the terms of the PSC read with the Ravva Development Plan, which would amount to re-writing the contract. The view taken by the tribunal is based on an interpretation of Article 15.5 (c) read with the exceptions contained in Article 15.5 (e)(iii)(dd). The tribunal held that the exception came into play on account of the range of physical reservoir characteristics being materially different, from what was contemplated in the Ravva Development Plan. The tribunal relied upon the evidence of the Expert Witness produced by the Claimants who deposed that the enlarged reservoir known as Block A/D showed a range of physical characteristics, which were materially different from those of the Fault Blocks defined in Article 11.1 of the PSC, on which the Ravva Development Plan was based. Since there was a material change in the physical reservoir characteristics of the existing reserves, Article 15.5 (e)(iii)(dd) would get triggered, which would enable the Claimants to request for an increase in the capped figure of Base Development Costs under Article 15.5(e)(iii)(dd). The tribunal noted that the PSC was entered into for a period of 25 years and the parties envisaged the possibility that the Respondents may incur Development Costs greater than those anticipated when the Ravva Development Plan and the PSC were executed. Article 15.5(d) and (e) were events where the capped figure under Article 15.5 (c) could be increased by the Management Committee. The tribunal held that the cap on Base Development Costs under Article 15.5(c) was to be read with reference to the object of the Plan to achieve the production profile of 35,000 BOPD. The production profile of 35,000 BOPD was achieved on the drilling of 14 wells by about 31 st March 1999. The reference to 21 wells under Article 15.5(c)(xi) was interpreted as being an estimate of the number of wells contemplated by the parties in 1993, which would be required to achieve the object of achieving the production profile of 35,000 BOPD. It could not be construed to be an undertaking by the Claimants to drill 21 wells, even though the targeted production profile of 35,000 BOPD had been achieved by the drilling of 14 wells. The remaining 7 wells were drilled subsequently, not for the purposes of the Ravva Development Plan, but to take into account the changed physical characteristics of the existing reserves which were encountered. The costs of US $ 278 million was incurred by the Respondents as a result of events which fell within Article 15.5(e)(iii)(dd). In 1998-1999 when the complete extent of the reserves in the Ravva Field was known, the Management Committee, approved an increase in the production profile from 35,000 BOPD to 50,000 BOPD on 25 March 1998. The Respondents proceeded to develop the Ravva Field to enable a production rate of 50,000 BOPD, and drilled 7 wells. The Respondents incurred costs of $ 278,871,668 million towards the drilling of the 7 wells. (d) The Appellants herein filed a counter claim, seeking sums equivalent to the amount which the Respondents had claimed as Cost Petroleum, in excess of the agreed figure of US $ 198 million limit. On the interpretation of Article 15.5(c) of the PSC, and the circumstances in which the PSC and the Ravva Development Plan, were executed, the tribunal held that the Respondents were entitled to costs of US $ 278 million, in excess of the US $ 198 million. The counter claim of the Appellants to the extent of US $ 22 million was allowed by the tribunal. (e) The Appellants are aggrieved by the interpretation taken by the tribunal with respect to Article 15.5 (c) of the PSC and its other sub-clauses. The interpretation of the terms of the PSC lies within the domain of the tribunal. It is not open for the Appellants to impeach the award on merits before the enforcement court. The enforcement court cannot re-assess or re-appreciate the evidence led in the arbitration. Section 48 does not provide a de facto appeal on the merits of the award. The enforcement court exercising jurisdiction under Section 48, cannot refuse enforcement by taking a different interpretation of the terms of the contract. (f) We feel that the interpretation taken by the tribunal is a plausible view, and the challenge on this ground cannot be sustained, to refuse enforcement of the Award. (g) With respect to the submission made on behalf of the Appellants that the Production Sharing Contracts are special contracts pertaining to the exploration of natural resources, which concerns the public policy of India, we are of the view that the disputes raised by the Claimants emanate from the rights and obligations of the parties under the PSC. The Award is not contrary to the fundamental policy of Indian law, or in conflict with the notions of justice, as discussed hereinabove. The term of the PSC was for a period of 25 years from 28.10.1994, which ended on 27.10.2019. We have been informed that the term of the PSC has since been extended for a further period of 10 years, through the mutual agreement between the parties. This itself would reflect that the performance of the obligations under the PSC were not contrary to the interests of India. (xx) We conclude that the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.

0[ds]The issue of limitation for enforcement of foreign awards being procedural in nature, is subject to the lex fori i.e. the law of the forum (State) where the foreign award is sought to be enforced.(iii) It would be instructive to refer to the Report of the General Assembly of the United Nations Commission on International Trade Law in its 41 st Session dated 16 th June – 3rd July, 2008 with respect to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (UN Doc A/CN.9/656/Add.1), wherein it was noted that the Convention does not prescribe a time limit for making an application for recognition and enforcement of foreign awards. Article III of the Convention states that recognition and enforcement of arbitral awards should be done in accordance with the rules of procedure of the State where the award was to be enforced. The time limit may be specifically provided in the national legislation for recognition or enforcement of Convention awards, or it may be a general rule applicable to court proceedings.(iv) The limitation period for filing the enforcement / execution petition for enforcement of a foreign award in India, would be governed by Indian law. The Indian Arbitration Act, 1996 does not specify any period of limitation for filing an application for enforcement / execution of a foreign award. Section 43 however provides that the Limitation Act, 1963 shall apply to arbitrations, as it applies to proceedings in court.(v) The Limitation Act, 1963 does not contain any specific provision for enforcement of a foreign award. Articles 136 and 137 fall in the Third Division of the Schedule to the Limitation Act. Article 136 provides that the period of limitation for the execution of any decree or order of a civil court is twelve years from the date when the decree or order becomes enforceable.(vi) Article 137 is the residuary provision in the Limitation Act which provides that the period of limitation for any application where no period of limitation is provided in the Act, would be three years from when the right to apply accrues.(vii) Section 36 of the Arbitration Act, 1996 creates a statutory fiction for the limited purpose of enforcement of a domestic award as a decree of the court, even though it is otherwise an award in an arbitral proceeding Umesh Goyal v Himachal Pradesh Co-op Group Housing Society Ltd. (2016) 11 SCC 313. . By this deeming fiction, a domestic award is deemed to be a decree of the court Sundaram Finance Ltd. v Abdul Saman and Anr. (2018) 3 SCC 622. , even though it is as such not a decree passed by a civil court. The arbitral tribunal cannot be considered to be a court, and the arbitral proceedings are not civil proceedings. The deeming fiction is restricted to treat the award as a decree of the court for the purposes of execution, even though it is, as a matter of fact, only an award in an arbitral proceeding.(ix) In Bank of Baroda v Kotak Mahindra Bank, (2020) SCC OnLine 324. this Court took the view that Article 136 of the Limitation Act deals only with decrees passed by Indian courts. The Limitation Act was framed keeping in view the suits, appeals and applications to be filed in Indian courts. Wherever the need was felt to deal with an application / petition filed outside India, the Limitation Act specifically provided a time period for that situation. The legislature has omitted reference to foreign decrees under Article 136 of the Limitation Act. The intention of the legislature was to confine Article 136 to the decrees of a civil court in India. The application for execution of a foreign decree would be an application not covered under any other Article of the Limitation Act, and would be covered by Article 137 of the Limitation Act.(x) Foreign awards are not decrees of an Indian civil court. By a legal fiction, Section 49 provides that a foreign award, after it is granted recognition and enforcement under Section 48, would be deemed to be a decree of that Court for the limited purpose of enforcement. The phrase that Court refers to the Court which has adjudicated upon the petition filed under Sections 47 and 49 for enforcement of the foreign award.In our view, Article 136 of the Limitation Act would not be applicable for the enforcement / execution of a foreign award, since it is not a decree of a civil court in India.(xi) The enforcement of a foreign award as a deemed decree of the concerned High Court [as per the amended Explanation to Section 47 by Act 3 of 2016 confers exclusive jurisdiction on the High Court for execution of foreign awards] would be covered by the residuary provision i.e. Article 137 of the Limitation Act.In this background, the present Limitation Act, 1963 excludes any application filed under Order XXI from the purview of Section 5 of the Act, with the object that execution of decrees should be proceeded with as expeditiously as possible. The period of limitation for execution of the decree of a civil court is now uniformly fixed at the maximum period of 12 years for decrees of civil courts.(xiv) In view of the aforesaid discussion, we hold that the period of limitation for filing a petition for enforcement of a foreign award under Sections 47 and 49, would be governed by Article 137 of the Limitation Act, 1963 which prescribes a period of three years from when the right to apply accrues.(xv) The application under Sections 47 and 49 for enforcement of the foreign award, is a substantive petition filed under the Arbitration Act, 1996. It is a well- settled position that the Arbitration Act is a self-contained code. The application under Section 47 is not an application filed under any of the provisions of Order XXI of the CPC, 1908. The application is filed before the appropriate High Court for enforcement, which would take recourse to the provisions of Order XXI of the CPC only for the purposes of execution of the foreign award as a deemed decree. The bar contained in Section 5, which excludes an application filed under any of the provisions of Order XXI of the CPC, would not be applicable to a substantive petition filed under the Arbitration Act, 1996. Consequently, a party may file an application under Section 5 for condonation of delay, if required in the facts and circumstances of the case.(xvi) In the facts of the present case, the Respondents submitted that after the Award dated 18.01.2011 was passed, the cost account statements were revised, and an amount of US $ 22 million was paid to the Government of India.On 10.07.2014, a show cause notice was issued to the respondents, raising a demand of US $ 77 million, being the Governments share of Profit Petroleum under the PSC. It was contended that the cause of action for filing the enforcement petition under Sections 47 and 49 arose on 10.07.2014. The enforcement petition was filed on 14.10.2014 i.e. within 3 months from the date when the right to apply accrued.We hold that the petition for enforcement of the foreign award was filed within the period of limitation prescribed by Article 137 of the Limitation Act, 1963.In any event, there are sufficient grounds to condone the delay, if any, in filing the enforcement / execution petition under Sections 47 and 49, on account of lack of clarity with respect to the period of limitation for enforcement of a foreign award.(i) In paragraph 20.5 of the judgment, the High Court has taken the view that a foreign award which passes the gateway of Section 47, is at that stage, treated as being equivalent to a foreign decree whose enforcement can be refused at the request of the party against whom it is invoked, if it falls within the provisions of Section 48 of the 1996 Act.In paragraphs 20.7 and 20.8 of the impugned judgment, it has been held that:20.7 A plain reading of Section 49 would show that does not contain anything which would relate it to Section 48 of the 1996 Act. Pertinently, Section 48 of the 1996 Act opens with the express Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that20.8 The provision, to my mind, pre-supposes that a foreign award is a decree whose execution can only be impeded by a party against whom it is sought to be executed if it is able to discharge its burden that its objections can be sustained under one or more clauses of sub-section (1)sub- section (2) of Section 48 of the 1996 Act.In paragraph 21, it has been held that a foreign award is enforceable on its own strength, and is not necessarily dependent on whether or not it goes through the process of Section 48 proceedings.(ii) The aforesaid findings are contrary to the scheme of the Act, since a foreign award does not become a foreign decree at any stage of the proceedings. The foreign award is enforced as a deemed decree of the Indian Court which has adjudicated upon the petition filed under Section 47, and the objections raised under Section 48 by the party which is resisting enforcement of the award.A foreign award is not a decree by itself, which is executable as such under Section 49 of the Act. The enforcement of the foreign award takes place only after the court is satisfied that the foreign award is enforceable under Chapter 1 in Part II of the 1996 Act. After the stages of Sections 47 and 48 are completed, the award becomes enforceable as a deemed decree, as provided by Section 49. The phrase that court refers to the Indian court which has adjudicated on the petition filed under Section 47, and the application under Section 48.In contrast, the procedure for enforcement of a foreign decree is not covered by the 1996 Act, but is governed by the provisions of Section 44A read with Section 13 of the CPC.Under the 1996 Act, there is no requirement for the foreign award to be filed before the seat court, and obtain a decree thereon, after which it becomes enforceable as a foreign decree. This was referred to as the double exequatur, which was a requirement under the Geneva Convention, 1927 and was done away with by the New York Convention, which superseded it. .There is a paradigm shift under the 1996 Act. Under the 1996 Act, a party may apply for recognition and enforcement of a foreign award, after it is passed by the arbitral tribunal. The applicant is not required to obtain leave from the court of the seat in which, or under the laws of which, the award was made.(f) The award holder is entitled to apply for recognition and enforcement of the foreign award by way of a common petition.In a recent judgment rendered in LMJ International Ltd. v. Sleepwell Industries (2019) 5 SCC 302. , this Court held that given the legislative intent of expeditious disposal of arbitration proceedings, and limited interference of the courts, the maintainability of the enforcement petition, and the adjudication of the objections filed, are required to be decided in a common proceeding.(g) The enforcement / execution petition is required to be filed before the concerned High Court, as per the amendment to Section 47 by Act 3 of 2016 (which came into force on 23.10.2015).(h) Section 48 replicates Article V of the New York Convention, and sets out the limited conditions on which the enforcement of a foreign award may be refused.Sub-sections (1) and (2) of Sections 48 contain seven grounds for refusal to enforce a foreign award. Sub-section (1) contains five grounds which may be raised by the losing party for refusal of enforcement of the foreign award, while sub-section (2) contains two grounds which the court may ex officio invoke to refuse enforcement of the award, (Malhotras Commentary on the Law of Arbitration, 4th Edition, Vol. 2, Pg. 1163-1164, Wolters Kluwer.) i.e. non-arbitrability of the subject-matter of the dispute under the laws of India; and second, the award is in conflict with the public policy of India.(i) The enforcement Court cannot set aside a foreign award, even if the conditions under Section 48 are made out. The power to set aside a foreign award vests only with the court at the seat of arbitration, since the supervisory or primary jurisdiction is exercised by the curial courts at the seat of arbitration.The enforcement court may refuse enforcement of a foreign award, if the conditions contained in Section 48 are made out. This would be evident from the language of the Section itself, which provides that enforcement of a foreign award may be refused only if the applicant furnishes proof of any of the conditions contained in Section 48 of the Act.(j) The opening words of Section 48 use permissive, rather than mandatory language, that enforcement may be refused. (Refer to Vijay Karia & Ors. v Prysmian Cavi E Sistemi SRL & Ors., 2020 SCC OnLine 177.) The use of the words may be indicate that even if the party against whom the award is passed, proves the existence of one or more grounds for refusal of enforcement, the court would retain a residual discretion to overrule the objections, if it finds that overall justice has been done between the parties, and may direct the enforcement of the award.This is generally done where the ground for refusal concerns a minor violation of the procedural rules applicable to the arbitration, or if the ground for refusal was not raised in the arbitration. A court may also take the view that the violation is not such as to prevent enforcement of the award in international relations.(Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, 1981, Kluwer Law and Taxation Publishers at page 265.).(k) The grounds for refusing enforcement of foreign awards contained in Section 48 are exhaustive, which is evident from the language of the Section, which provides that enforcement may be refused only if the applicant furnishes proof of any of the conditions contained in that provision. (Cruz City I Mauritius Holdings v. Unitech Ltd. (2017) 239 DLT 649.).(l) The enforcement court is not to correct the errors in the award under Section 48, or undertake a review on the merits of the award, but is conferred with the limited power to refuse enforcement, if the grounds are made out.(m) If the Court is satisfied that the application under Section 48 is without merit, and the foreign award is found to be enforceable, then under Section 49, the award shall be deemed to be a decree of that Court. The limited purpose of the legal fiction is for the purpose of the enforcement of the foreign award. The concerned High Court would then enforce the award by taking recourse to the provisions of Order XXI of the CPC.(i) In the present case, the law governing the agreement to arbitrate was the English law as per Article 34.12 of the PSC, which provides that the arbitration agreement shall be governed by the laws of England. Even though there seems to have been some confusion in the application of the law governing the agreement to arbitrate by the seat courts, as pointed out by the learned Amicus, we will not dwell on this issue, since the enforcement court does not sit in appeal over the findings of the seat court. Furthermore, in view of the principles of comity of nations, this Court would not comment on the judgments passed by Courts in other jurisdictions.The enforcement of the award is a subsequent and distinct proceeding from the setting aside proceedings at the seat. The enforcement court would independently determine the issue of recognition and enforceability of the foreign award in India, in accordance with the provisions of Chapter 1 Part II of the Indian Arbitration Act, 1996.(ii) The courts having jurisdiction to annul or suspend a New York Convention award are the courts of the State where the award was made, or is determined to have been made i.e. at the seat of arbitration. The seat of the arbitration is a legal concept i.e. the juridical home of the arbitration. The legal seat must not be confused with a geographically convenient venue chosen to conduct some of the hearings in the arbitration. The courts at the seat of arbitration are referred to as the courts which exercise supervisory or primary jurisdiction over the award. The laws under which the award was made used in Article V (1)(e) of the New York Convention, is mirrored in Section 48(1)(e) of the Indian Arbitration Act, which refers to the country of the seat of the arbitration, and not the State whose laws govern the substantive contract.(iii) The courts before which the foreign award is brought for recognition and enforcement would exercise secondary or enforcement jurisdiction over the award, to determine the recognition and enforceability of the award in that jurisdiction.(iv) We will now briefly touch upon the four types of laws which are applicable in an international commercial arbitration, and court proceedings arising therefrom. These are :a) The governing law determines the substantive rights and obligations of the parties in the underlying commercial contract. The parties normally make a choice of the governing law of the substantive contract; in the absence of a choice of the governing law, it would be determined by the tribunal in accordance with the conflict of law rules, which are considered to be applicable.b) The law governing the arbitration agreement must be determined separately from the law applicable to the substantive contract. (Collins, in Lew (ed.), Contemporary Problems in International Arbitration (1986) p.126 at 127-131) The arbitration agreement constitutes a separate and autonomous agreement, which would determine the validity and extent of the arbitration agreement; limits of party autonomy, the jurisdiction of the tribunal, etc.c) The curial law of the arbitration is determined by the seat of arbitration. In an international commercial arbitration, it is necessary that the conduct of the arbitral proceedings are connected with the law of the seat of arbitration, which would regulate the various aspects of the arbitral proceedings. The parties have the autonomy to determine the choice of law, which would govern the arbitral procedure, which is referred to as the lex arbitri, and is expressed in the choice of the seat of arbitration. The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 1, Chapter 16, paragraph 16-035, p. 843.The curial law governs the procedure of the arbitration, the commencement of the arbitration, appointment of arbitrator/s in exercise of the default power by the court, grant of provisional measures, collection of evidence, hearings, and challenge to the award.The courts at the seat of arbitration exercise supervisory or primary jurisdiction over the arbitral proceedings, except if the parties have made an express and effective choice of a different lex arbitri, in which event, the role of the courts at the seat will be limited to those matters which are specified to be internationally mandatory and of a non- derogable nature. (Russel on Arbitration, Sweet & Maxwell (24th Edition, 2015).)d) The lex fori governs the proceedings for recognition and enforcement of the award in other jurisdictions. Article III of the New York Convention provides that the national courts apply their respective lex fori regarding limitation periods applicable for recognition and enforcement proceedings; the date from which the limitation period would commence, whether there is power to extend the period of limitation. The lex fori determines the court which is competent and has the jurisdiction to decide the issue of recognition and enforcement of the foreign award, and the legal remedies available to the parties for enforcement of the foreign award.(v) In view of the above-mentioned position, the Malaysian Courts being the seat courts were justified in applying the Malaysian Act to the public policy challenge raised by the Government of India.The enforcement court would, however, examine the challenge to the award in accordance with the grounds available under Section 48 of the Act, without being constrained by the findings of the Malaysian Courts. Merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India under Section 48 of the Indian Arbitration Act, 1996. If the award is found to be violative of the public policy of India, it would not be enforced by the Indian courts. The enforcement court would however not second-guess or review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award.(vi) In our view, the observation made in paragraph 76.4 of the Reliance ((2014) 7 SCC 603 ) judgment does not have any precedential value, since it is an observation made in the facts of that case, which arose out of a challenge to a final partial award on the issue of arbitrability of certain disputes. The last sentence in paragraph 76.4 is not the ratio of that judgment, which is contained in paragraphs76.1 to 76.3.(vii) In the present case, the Appellants have challenged the Award inter alia on the ground of excess of jurisdiction, and as being contrary to the public policy of India. The observations made in paragraph 76.4 in the Reliance judgment, would not be applicable to the present case, since the issue of arbitrability has not been raised, and cannot be relied upon by the Appellants in the present case.(i) This issue is required to be determined in accordance with the conditions laid down in Section 48 of the 1996 Act,(iii) In Renusagar Power Co. v General Electric Co. 1994 Supp (1) SCC 644. ( Renusagar), this Court held that public policy comprised of (1) the fundamental policy of Indian law; (2) interests of India; and (3) justice or morality. It was held that :37. In our opinion, therefore, in proceedings for enforcement of a foreign award under the Foreign Awards Act, 1961, the scope of enquiry before the court in which award is sought to be enforced is limited to grounds mentioned in Section 7 of the Act and does not enable a party to the said proceedings to impeach the award on merit.x x x66. Article V(2)(b) of the New York Convention of 1958 and Section 7(1)(b)(ii) of the Foreign Awards Act do not postulate refusal of recognition and enforcement of a foreign award on the ground that it is contrary to the law of the country of enforcement and the ground of challenge is confined to the recognition and enforcement being contrary to the public policy of the country in which the award is set to be enforced. There is nothing to indicate that the expression public policy in Article V(2)(b) of the New York Convention and Section 7(1)(b)(ii) of the Foreign Awards Act is not used in the same sense in which it was used in Article 1(c) of the Geneva Convention of 1927 and Section 7(1) of the Protocol and Convention Act of 1937. This would mean that public policy in Section 7(1)(b)(ii) has been used in a narrower sense and in order to attract to bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression public policy in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.(emphasis supplied)The enforceability of the foreign award will be decided in accordance with the parameters laid down in Renusagar i.e. whether the award is contrary to the (i) fundamental policy of Indian law, or (ii) interests of India, or (iii) justice or morality.(vii) Section 48 was amended by Act 3 of 2016. By this amendment, the public policy ground was given a narrow and specific construction by statute, by the insertion of two Explanations. The amended Section 48 reads as :48. Conditions for enforcement of foreign awards. –(1) …(2) Enforcement of an arbitral award may also be refused if the Court finds that—(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or(b) the enforcement of the award would be contrary to the public policy of India.Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—(i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or(ii) it is in contravention with the fundamental policy of Indian law; or(iii) it is in conflict with the most basic notions of morality or justice.Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.(emphasis supplied)(viii) The highlighted portions show the amendments made to Section 48 by the 2016 Amendment Act. We find that these are substantive amendments, which have been incorporated to make the definition of public policy narrow by statute. It is relevant to note that the 2016 Amendment has dropped the clause interests of India, which was expounded by the Renusagar judgment.The newly inserted Explanation 2 provides that the examination of whether the enforcement of the award is in conflict with the fundamental policy of Indian law, shall not entail a review on the merits of the dispute.(ix) The two Explanations in Section 48 begin with the words For the avoidance of any doubt. It cannot, however, be presumed to be clarificatory and retrospective, since the substituted Explanation 1 has introduced new sub-clauses, which have brought about a material and substantive change in the section. A new Explanation 2 has been inserted which states that the test as to whether there is a contravention with the fundamental policy of Indian law, shall not entail a review on the merits of the dispute. Since the amendments have introduced specific criteria for the first time, it must be considered to be prospective, irrespective of the usage of the phrase for the removal of doubts. Reliance is placed on the judgment of this Court in Sedco Forex International Drill v Commissioner of Income Tax, Dehradun (2005) 12 SCC 717. wherein it was held that an Explanation if it changes the law, it cannot be presumed to be retrospective, irrespective of the fact that the phrases used are it is declared or for the removal of doubts. In Ssangyong Engineering & Construction Co. Ltd. v NHAI, (2019) 15 SCC 131. this Court was considering the amendments made to Section 34, wherein two Explanations to Section 34 had been inserted, which are identically worded with the two Explanations to Section 48. In that case, a similar ground of retrospectivity had been urged. This Court held that since the Explanations had been introduced for the first time, it is the substance of the amendment which has to be looked at, rather than the form. Even in cases where for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot have retrospective effect, if the earlier law has been changed substantially.(xi) Section 26 of the Amendment Act came up for consideration before this Court in BCCI v. Kochi Cricket Pvt Ltd. 2018 6 SCC 287 . ( BCCI). This Court held that the Amendment Act would apply prospectively to:(a) arbitral proceedings initiated on or after 23.10.2015 i.e. the date on which the 2015 Amendment Act came into force;(b) court proceedings commenced on or after 23.10.2015, irrespective of whether such court proceedings arise out of, or relate to arbitration proceedings which were commenced prior to, or after the commencement of the Amendment Act.(xii) The 2019 Amendment Act (to the Arbitration Act of 1996) inserted Section 87 as a clarificatory amendment, to provide that arbitral proceedings and court proceedings arising out of, or in relation to such proceedings shall constitute a single set of proceedings, for the applicability of the 2016 Amendment Act. Section 87 was inserted with retrospective effect from 23.10.2015 i.e. the date of coming into force of the 2016 Amendment Act. Section 15 of the 2019 Amendment Act provided that Section 26 of the 2015 Amendment Act stood deleted.(xiii) In Hindustan Construction Co. Ltd v. Union of India & Ors., 2019 (6) Arb LR 171 (SC). the Supreme Court struck down Section 87 of the 2019 Amendment Act, and restored Section 26 of the 2016 Amendment Act to the statute book. It was held in paragraph 54 that :54. The result is that the BCCI judgment will, therefore, continue to apply so as to make applicable salutary amendments made by the 2015 Amendment Act to all court proceedings initiated after 23.10.2015.(emphasis supplied)(xiv) In view of the aforesaid discussion, we hold that the amended Section 48 would not be applicable to the present case, since the court proceedings for enforcement were filed by the Respondents-Claimants on 14.10.2014 i.e. prior to the 2016 Amendment having come into force on 23.10.2015.Applying the unamended Section 48 to the present case, this Court in the Renusagar judgment had placed reliance on the enunciation of the law on international public policy in the judgment of the U.S. Court of Appeals for the 2 nd Circuit in Parsons & Whittemore Overseas Co. Inc. v. Societe Generale De Lindustrie du Papier (RAKTA), 508 F. 2d 969 (2nd Cir 1974). wherein it was held that :7. Article V(2)(b) of the Convention allows the court in which enforcement of a foreign arbitral award is sought to refuse enforcement, on the defendants motion or sua sponte, if enforcement of the award would be contrary to the public policy of (the forum) country. The legislative history of the provision offers no certain guidelines to its construction. Its precursors in the Geneva Convention and the 1958 Conventions ad hoc committee draft extended the public policy exception to, respectively, awards contrary to principles of the law and awards violative of fundamental principles of the law. In one commentators view, the Conventions failure to include similar language signifies a narrowing of the defense [Contini, International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Am J Comp L at p. 304]. On the other hand, another noted authority in the field has seized upon this omission as indicative of an intention to broaden the defense [Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1070-71 (1961)].8. Perhaps more probative, however, are the inferences to be drawn from the history of the Convention as a whole. The general pro-enforcement bias informing the Convention and explaining its supersession of the Geneva Convention points toward a narrow reading of the public policy defense. An expansive construction of this defense would vitiate the Conventions basic effort to remove preexisting obstacles to enforcement. [See Straus, Arbitration of Disputes between Multinational Corporations, in New Strategies for Peaceful Resolution of International Business Disputes 114-15 (1971); Digest of Proceedings of International Business Disputes Conference, April 14, 1971, at 191 (remarks of Professor W. Reese)]. Additionally, considerations of reciprocity – considerations given express recognition in the Convention itself – counsel courts to invoke the public policy defense with caution lest foreign courts frequently accept it as a defense to enforcement of arbitral awards rendered in the United States.9. We conclude, therefore, that the Conventions public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum states most basic notions of morality and justice.x x x…To read the public policy defence as a parochial device protective of national political interests would seriously undermine the Conventions utility. This provision is not meant to enshrine the vagaries of international politics under the rubric of public policy. Rather, a circumscribe public policy doctrine was contemplated by the Conventions framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to this supranational emphasis. Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct.2449. 41L.Ed. 2d 270, 42 U.S.L.W., 4911, 4915-16 n. 15(1974)(emphasis supplied)The judgment in Parsons has been followed in various other jurisdictions.(xvii) It would be useful to refer to the recommendations of the International Law Association in the 70 th Conference of the ILA held in New Delhi on 2-6 April 2002, known as the ILA Recommendations, 2002 on Public Policy, which have been regarded as reflective of best international practices.Clause 1 (a) of the General recommendations of the ILA provides that the finality of awards in international commercial arbitration should be respected, save in exceptional circumstances, and that such exceptional circumstances are found if recognition or enforcement of the international arbitral award would be contrary to international public policy.Clause 1(d) of the Recommendations state that the expression international public policy is used to designate the body of principles and rules, which are : (i) fundamental principles, pertaining to justice or morality, that the State wishes to protect even when it is not directly concerned, (ii) rules designed to serve the essential political, social or economic interests of the State, these being known as lois de police or public policy rules and (iii) the duty of the State to respect its obligations towards other States or international organisations. Clause 3(a) states that the violation of a mere mandatory rule (i.e. a rule that is mandatory, but does not form part of the States international public policy), should not bar its recognition and enforcement, even when said rule forms part of the law of the forum, the law governing the contract, the law of the place of performance of the contract, or the law of the seat of the arbitration.(xviii) The International Council for Commercial Arbitration (ICCA) Guide to the Interpretation of the 1958 New York Convention : A Handbook for Judges (2011), states that while considering the grounds for refusal of a foreign award, the Court must be guided by the following principles (i) no review on merits; (ii) narrow interpretation of the grounds for refusal; and (iii) limited discretionary power.The merits of the arbitral award are not open to review by the enforcement court, which lies within the domain of the seat courts. Accordingly, errors of judgment, are not a sufficient ground for refusing enforcement of a foreign award.

### 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: principles of justice… It was understood that the term public policy, which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. (emphasis supplied) This judgment has been recently affirmed by the Singapore High Court in Dongwoo Mann + Hummel Co. Ltd. v Mann + Hummel GmbH. [2008] SGHC 67. (c) The gravamen of the challenge of the Appellants is that the tribunal has given an erroneous interpretation of the terms of the PSC read with the Ravva Development Plan, which would amount to re-writing the contract. The view taken by the tribunal is based on an interpretation of Article 15.5 (c) read with the exceptions contained in Article 15.5 (e)(iii)(dd). The tribunal held that the exception came into play on account of the range of physical reservoir characteristics being materially different, from what was contemplated in the Ravva Development Plan. The tribunal relied upon the evidence of the Expert Witness produced by the Claimants who deposed that the enlarged reservoir known as Block A/D showed a range of physical characteristics, which were materially different from those of the Fault Blocks defined in Article 11.1 of the PSC, on which the Ravva Development Plan was based. Since there was a material change in the physical reservoir characteristics of the existing reserves, Article 15.5 (e)(iii)(dd) would get triggered, which would enable the Claimants to request for an increase in the capped figure of Base Development Costs under Article 15.5(e)(iii)(dd). The tribunal noted that the PSC was entered into for a period of 25 years and the parties envisaged the possibility that the Respondents may incur Development Costs greater than those anticipated when the Ravva Development Plan and the PSC were executed. Article 15.5(d) and (e) were events where the capped figure under Article 15.5 (c) could be increased by the Management Committee. The tribunal held that the cap on Base Development Costs under Article 15.5(c) was to be read with reference to the object of the Plan to achieve the production profile of 35,000 BOPD. The production profile of 35,000 BOPD was achieved on the drilling of 14 wells by about 31 st March 1999. The reference to 21 wells under Article 15.5(c)(xi) was interpreted as being an estimate of the number of wells contemplated by the parties in 1993, which would be required to achieve the object of achieving the production profile of 35,000 BOPD. It could not be construed to be an undertaking by the Claimants to drill 21 wells, even though the targeted production profile of 35,000 BOPD had been achieved by the drilling of 14 wells. The remaining 7 wells were drilled subsequently, not for the purposes of the Ravva Development Plan, but to take into account the changed physical characteristics of the existing reserves which were encountered. The costs of US $ 278 million was incurred by the Respondents as a result of events which fell within Article 15.5(e)(iii)(dd). In 1998-1999 when the complete extent of the reserves in the Ravva Field was known, the Management Committee, approved an increase in the production profile from 35,000 BOPD to 50,000 BOPD on 25 March 1998. The Respondents proceeded to develop the Ravva Field to enable a production rate of 50,000 BOPD, and drilled 7 wells. The Respondents incurred costs of $ 278,871,668 million towards the drilling of the 7 wells. (d) The Appellants herein filed a counter claim, seeking sums equivalent to the amount which the Respondents had claimed as Cost Petroleum, in excess of the agreed figure of US $ 198 million limit. On the interpretation of Article 15.5(c) of the PSC, and the circumstances in which the PSC and the Ravva Development Plan, were executed, the tribunal held that the Respondents were entitled to costs of US $ 278 million, in excess of the US $ 198 million. The counter claim of the Appellants to the extent of US $ 22 million was allowed by the tribunal. (e) The Appellants are aggrieved by the interpretation taken by the tribunal with respect to Article 15.5 (c) of the PSC and its other sub-clauses. The interpretation of the terms of the PSC lies within the domain of the tribunal. It is not open for the Appellants to impeach the award on merits before the enforcement court. The enforcement court cannot re-assess or re-appreciate the evidence led in the arbitration. Section 48 does not provide a de facto appeal on the merits of the award. The enforcement court exercising jurisdiction under Section 48, cannot refuse enforcement by taking a different interpretation of the terms of the contract. (f) We feel that the interpretation taken by the tribunal is a plausible view, and the challenge on this ground cannot be sustained, to refuse enforcement of the Award. (g) With respect to the submission made on behalf of the Appellants that the Production Sharing Contracts are special contracts pertaining to the exploration of natural resources, which concerns the public policy of India, we are of the view that the disputes raised by the Claimants emanate from the rights and obligations of the parties under the PSC. The Award is not contrary to the fundamental policy of Indian law, or in conflict with the notions of justice, as discussed hereinabove. The term of the PSC was for a period of 25 years from 28.10.1994, which ended on 27.10.2019. We have been informed that the term of the PSC has since been extended for a further period of 10 years, through the mutual agreement between the parties. This itself would reflect that the performance of the obligations under the PSC were not contrary to the interests of India. (xx) We conclude that the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice. ### Response: 0

Board Of Muslim Wakfs, Rajasthan Vs. Radha Krishna & Ors

if no such s uit is filed, the list would be final and conclusive between them.The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence ove r all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other re ligneous denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub sec. (2) of Sec. 5.The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Singularly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub-section (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person."We are in agreement with this reasoning of the High Court.32. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of s. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of s. S scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.Incidentally, the High Court also dealt with s. 27 of the Act, and observed."S. 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property. To ac kept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and strangers and thus to make the Boards decision final unless it is changed by a Civil Co urt of competent jurisdiction. If a dispute is raised by a non Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil CourtIn our judgment, the High Court was clear ly in error in dealing with s. 27 or s. 36B of the Act. It appears from the writ petition field the High Court that no relief was as sought in respect of any action under s. 27. The observations of the High Court were, therefore, strictly n ot called for in regard to s. 27. It should have left the question open. The question may arise if and when, action under s. 27 is taken. We, therefore, refrain from expressing any opinion as to the scope of s. 27 of the Act.Likewise, the Hi gh Court went on to consider the impact of s. 36B, and observed:"In our opinion, this section cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act, sim ply because the Board happens to enter the property in its register. In a case like the present one, where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur- their claim their title and possession as vendees over the same property from the year 1954, the Board of Wakfs cannot, by simply entering the property in the list of wakfs or registering it in the register of wakfs, drive them to file a suit to establish their title or retain their possession. It cannot also seek to dispossess them from the property by resorting to section 36B. It is for the Board to file a civil suit for a declaration that the property in dispute is a wakf property and to obtain its possession."It was really not necessary for the High Court to decide whether s. 36B of the Act was attracted or not, in the facts and circumstances of the case.33. We must accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property. It must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the list of wakfs published under sub-s. (2) of s. S of the Act. We must also hold, on a construction of sub-s. (1) of s. 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of s. 6 against the respondents Nos. l and 2 due to their failure to bring a suit within one year as contemplated by sub s. (1) of s. 6.34.

1[ds]It was really not necessary for the High Court to decide whether s. 36B of the Act was attracted or not, in the facts and circumstances of themust accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property. It must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the list of wakfs published under sub-s. (2) of s. S of the Act. We must also hold, on a construction of sub-s. (1) of s. 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of s. 6 against the respondents Nos. l and 2 due to their failure to bring a suit within one year as contemplated by sub s. (1) of s.next stage is that of registration of wakfs. That subject is dealt with in Chapter IV. Section 25 lays down that every wakf, whether created before or after the commencement of the Act, shall be registered at the office of the Board. Section 26 requires the Board to maintain a register of wakfs. Under s. 27, the Board is invested with the power to decide whether a certain property is wakf property and reads asthird stage then arises. After completing the survey and finalising the registration of wakfs, the Board which is an administrative body, is empowered to supervise and administer wakf property. Chapter V deals with mutawallis and wakf accounts. This chapter provides in detail as to how mutawalli shall submit budget and the accounts and in what manner the Board will be exercising its control over the wakf properties. Section 36A relates to transfer of immovable property of wakfs. According to this section, no transfer of the wakf property is valid without the previous sanction of the Board. Section 36B empowers `the Board to recover certain wakf properties transferred without the previous sanction of the Board by sending a requisition to the Collector. Chapter VI relates to the finance of the Board. Chapter VII to judicial proceedings and Chapter VIII to miscellaneous matters. It would thus appear that the Act is a complete code dealing with the better administration and supervision of wakfsHigh Court, in its considered opinion, in the light of the historical background and precedents,present Act No. 29 of 1954 is, no doubt an improvement onthe Mussalman Wakf Act, 1923, but in our view, this also does not empower the Board of Wakfs to decide the question whether a particular property is wakf property or not, if such a dispute is raised by a person who is a stranger tois a considerable body of authority interpreting s. 10 of the Mussalman Wakf Act 1923, in favour of the view that where the existence of a wakf was itself in dispute, the District Judge had no jurisdiction to inquire into its existence, and the matter could be settled only by instituting a regular suit. The question came up for consideration before several High Courts in India as will appear from Nasrulla Khan v. Wajid Ali, (I.L.R. 52 All. 167.) Wahid Hasan v. Abdul Rahman, (I.L.R. 57 All. 754.) Syed Ali Mohammed v. Collector ff Bhagalpur, (A.I.R. 1927 Pat. 189 .) Mohammad Baqar v. Mohammed Qasim, (I.L.R. 7 Luck. 601 (F.B.)) Nanha Shah v. Abdul Hasan, (A.I.R. 1938 Pat. 137 .) and Abdul Hussain v. Mohmmad Ebrahim Riza.(I.L.R. (1 939) Nag. 564.) The general trend of opinion was that the District Judge in dealing with in application under s. 10) of that Act had, in the absence of a clear provision in that behalf, no jurisdiction to try an issue as to whether certain property was wakf property. It was pointed out that if the legislature had the intention to confer such power, there would have been a provision like s. S of Charitable and Religious Trusts Act, 1920. In Abdul Hussain v. Mohmmad Riza (supra) it wasthe terms of the enactment and the scope and purpose of the Act is clear that the legislature intended of income of wakf properties for the purpose of providing some control on the management of properties which are admittedly wakf. It could not have intended to include hl its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in possession of it is a mutwalli, which are questions of fundamental character such as could be theof a suit. (3) of s. 4 of the Act is rather unhappily worded, ofthe Wakf Act, 1954.The Wakf Act, 1954 does, in our opinion, furnish a complete machinery for the better administration and supervision of wakfs. Though(3) of s. 4 of the Act is rather unhappily worded, it is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia. Further, when there is no ambiguity in the statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions renderedis needless to stress that the whole purpose of the survey of wakfs by the Commissioner of Wakfs under subs. (1) of s. 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs.While the High Court was, in our view, right in determining the scope of(1) of s. 6 of the Act, it was clearly in error in cur tailing the ambit and scope of an enquiry by the Commissioner of Wakfs under(3) of s. 4 and that by the Board of Wakfs under s. 27 of the ActIn dealing with the scope of enquiry by the Commissioner of Wakfs: under(3) of s. 4, the High Court adverts to the, . heading of Chapter II and the marginal note of(1) of s. 4. Itheading of section 4 with which this chapter started was Preliminary survey of wakfs. The use of the word Preliminary in the heading is one ofweight of authority is in favour of the view that the margin al note upended to a section cannot be used for construing the section. Lord Macnaghten in Balraj Kunwar v. Jagatpal Singh(ILR 26 All. 393 (P.C.)) considered it well settled that marginal notes cannot be referred to for the purposes of construction. This Court after referring to the above case with approval, said in Commissioner ofv. Ahmedbhai Umedbhai Umarbhai &Co.([1950]; S.C.R.notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construe theexplained by Lord Macnaghten in the Privy Council, marginal notes A are not part of an Act ofvery heading of Chapter II and the caption to s. 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding, the character of the property. That is to say, the making of survey is only an administrative act and not aact. But, on a closer examination, it is, clear that while making a survey of the existing wakfs in a State under(1) of 5. 4, the Commissioner is required by(3) to submit a report to the State Government in regard to the serval matters referred to in cls. (a) to (f) thereof. There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i.e. whether a particular property is wakf property, (b) whether it is a Shia wakf or a Sunni wakf, (c) extent of the property attached to the wakf, (d) the nature and object of the wakf, etc. While making such an enquiry, the Commissioner is invested by(4) with the powers vested in a civil court under theCode of Civil Procedure, 1908 in respect of the summoning and examining of any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation etc. In view of these comprehensive provisions, it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under(3)? while making a survey of existing wakfs in the Estate under(1), is not purely of an administration nature but partakes of ain character, in respect of the persons falling within the scope of(1) of s. 6.It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under(1) of s. 4, should have no power to enquire whether a particular property is wakf property or not. If we may refer to(1) of s. 4, so far as material, itState Government may, by notification in the official Gazette, appoint for the State a Commissioner of Wakfs... for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of thiswill be clear that the words "for the purpose of making a survey of wakf properties" is a key to the construction of the section The ordinary meaning of the word "survey", as given in the Random House Dictionary of English Language, is to take a general or comprehensive view of or appraise, as a situation. If the Commissioner of Wakfs has the power to make a survey, it is but implicit that in the exercise of such power he should en quire whether a wakf exists. The making o such an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error inn (5) there is nothing in section 4 or in the rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises, whether a particular property is a wakf property orare of the opinion that the power of the Commissioner to survey wakf properties under(1) or to enquire and investigate into the several matters set out in cls. (e) to (f) of(3) cannot be curtailed by taking recourse to(5). The High Court was wholly wrong in understa nding the true implication of(5) of s. 4. It only lays down that if, during any such enquiry, any dispute arises as to whether a particular wakf is a Shia wakf or a Sunni wakf, and th ere are clear indications in the deed of wakf as to its natur e, the dispute shall be decided on the basis of such deed. It, therefore, makes the wakf deed conclusive as to the nature of the wakf, i.e. whether it is a Shia or a Sunni wakf. In our view, sub s.(5) of s. 4 cannot be projected into(1) f or determining the question whether a certain property is a wakf property or not. Nor does it enter into an enquiry as to several of the matters adverted into some of the clause of sub s. (3).The matter can also be viewed from another angle. If sections 4, 5 and 6 are parts of an integrated scheme, as asserted, then it follows as a necessary corollary that the enquiry envisaged by(1) and (3) of s. 4 must cover the field defined by(1) of s. 6. The opening words of the sectionany question arises whether a particular property specified as wakf property in a list of wakfs published under sub section (2) of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf ....clearly envisage that the enquiry by the Commissioner is not con fined to the question as to whether a particular wakf is Shia wakf or Sunni wakf. It may also embrace within itself a dispute as to whether a wakf exists. This is a conduction which(1) of s.4 must, in its context and setting, bear. Any other construction would, indeed, make the Actit is true that under the guise of judicial interpretation the court cannot supply casus omissus, it is equally true that the courts in construing an Act of Parliament must always try to give effect to the intention of the legislature. InCrawford v. Spooner([1846] 6 Moors P.C. 1.)the Judicial Committeecannot aid the legislatures defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are leftdo so would be to usurp the function of the legislation. At th e same time, it is well settled that in construing the provisions of a statute the course should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective. Thus, an attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute.It would certainly have been better if theinserted a provision like sectionhe Mussalman Wakf Act, 1923 by the Mussalman Wakf ( Bombay Amendment) Act, 1935, which was in force in the States of Maharashtra and Gujarat,Power of the Court to enquire: (1) The court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an enquiry in the prescribed manner act any time towhether a wakfthe present case, the respondents Nos. 1 and 2 who are non Muslims, contended that they are outside the scope of(1) of s. 6, and consequently, they have no right t o file the suit contemplated by thatand, therefore, the list of wakfs published by the Board of Wakfs undersubs. (2) ofS!. 5 cannot be final and conclusive against them under(4) of s.6, it was urged that respondents N os, . 1 and 2 were wholly outside the purview of(1) of s. 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by(1) of s. 4, as the provisions contained in sections 4, 5 and 6 form part of an integrated scheme. The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under(1) of s. 6 of the Act, and whether the list published undersubs. (2) ofS declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf.The answer to these questions must turn on the true meaning and construction of the word therein in the, expression any person interest ted therein appearing in(1) of s. 6. In order to understand the meaning of the word therein in our view, it is necessary to refer to the preceding words the Board or the mutawalli of the wakf. The wo rd therein must necessarily refer to the wakf which immediately pre cedes it. It cannot refer to the wakf property.(1) of s. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and any person interested therein, thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore., be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to instituten dealing with the question, the High Courtour opinion, the words "any person interested therein" appearing in(1) of section 6 mean no more than a person interested in a wakf as defined in clause (h) of section 3 of the Act.It is urged by learned counsel for the petitioners that the legislature has not used in section 6(1) the words "any person interested in a wakf" and, therefore, this meaning should not be given to the words "any person interested therein". This argument is not tenable because the words "any person interested therein" appear soon after "the mutawalli of the wakf" A and therefore the word therein has been used to avoid re petition of the words "in the wakf" and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in the wakf". The purpose of section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in thein our opinion, is the rightare fortified in That view by the decision of this Court in Sirajul Hag Khan &ors. v. The Sunni Central Board of Wakf , U.P. &ors([1959] S. C.R. 1287.) While construing s. 5(2) of the United Provinces Muslins Wakf Act, 1936, this Court interpreted the expression "any person interested in a wakf" as meaning any person interested in what is held to be a wakf, that is, in the dedication of a property for a pious, religious or charitable purpose. It will be noticed that(1) of s. 6 of the Act is based insubs. (2) ofs. 5 of the United Provinces Muslims Wakf Act, 1936, which runsmutawalli of a wakf or an y person interested in a wakf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of Wakfs to be a wakf is not a wakf, or any transaction held or assumed by him not to be a wakf, or that a wakf held by him to pertain to a particular sect does not belong to that sect, or that any wakf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any wakf held by him to be so exempted is subject to thisprovision to that section prescribed the period of one years limitation, as here, to a suit by a mutawalli or a person interested in thetwo provisions are practically similar in content except that the language of the main enacting part has been altered in(1) of s. 6 of the present Act and put in a proper form. In redrafting the section, the sequence, of t he different clauses has been changed, therefore, for the expression "any person interested in a wakf" the legislature had to use the expression "any person interested therein". The word therein appearing in(1) of s. 6 must, therefore, me an any person interested in a waker as defined in s. 3(h). The object of(1) of s 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in s. 3 (h)In this context, the scope of s. 6 was examined by the High Court and itpurpose of sec. 6 is to confine the dispute between the Wakf Board, the mutawalli and a person interested in the wakf. In other words, if there is a dispute whether a particular property is a wakf property or not, orwhether a wakfis a Shia wakf or a Sunni wakf, then the Board or the mutawa lli of the wakf or a person interested in the wakf as defined in sec. 3 may institute suit in a civil court of competent jurisdiction for the decision of the question. They can file such a suit within one year of the date of the publication of the list of wakfs and if no such s uit is filed, the list would be final and conclusive between them.The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence ove r all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who iswhether he be a Christian, a Hindu, a Sikh, a Parsi or of any other re ligneous denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub sec. (2) of Sec. 5.The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Singularly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion,(4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no otherare in agreement with this reasoning of the Highfollows that where a stranger who is aand is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of s. 6 is not applicable to him. In other words, the list published by the Board of Wakfs undersubs. (2) ofs. S scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.Incidentally, the High Court also dealt with s. 27 of the Act, and observed.27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property. To ac kept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and strangers and thus to make the Boards decision final unless it is changed by a Civil Co urt of competent jurisdiction. If a dispute is raised by a non Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil CourtIn our judgment, the High Court was clear ly in error in dealing with s. 27 or s. 36B of the Act. It appears from the writ petition field the High Court that no relief was as sought in respect of any action under s. 27. The observations of the High Court were, therefore, strictly n ot called for in regard to s. 27. It should have left the question open. The question may arise if and when, action under s. 27 is taken. We, therefore, refrain from expressing any opinion as to the scope of s. 27 of the Act.Likewise, the Hi gh Court went on to consider the impact of s. 36B, and observed:"In our opinion, this section cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act, sim ply because the Board happens to enter the property in its register. In a case like the present one, where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur

### 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: if no such s uit is filed, the list would be final and conclusive between them.The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence ove r all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other re ligneous denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub sec. (2) of Sec. 5.The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Singularly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub-section (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person."We are in agreement with this reasoning of the High Court.32. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of s. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of s. S scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.Incidentally, the High Court also dealt with s. 27 of the Act, and observed."S. 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property. To ac kept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and strangers and thus to make the Boards decision final unless it is changed by a Civil Co urt of competent jurisdiction. If a dispute is raised by a non Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil CourtIn our judgment, the High Court was clear ly in error in dealing with s. 27 or s. 36B of the Act. It appears from the writ petition field the High Court that no relief was as sought in respect of any action under s. 27. The observations of the High Court were, therefore, strictly n ot called for in regard to s. 27. It should have left the question open. The question may arise if and when, action under s. 27 is taken. We, therefore, refrain from expressing any opinion as to the scope of s. 27 of the Act.Likewise, the Hi gh Court went on to consider the impact of s. 36B, and observed:"In our opinion, this section cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act, sim ply because the Board happens to enter the property in its register. In a case like the present one, where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur- their claim their title and possession as vendees over the same property from the year 1954, the Board of Wakfs cannot, by simply entering the property in the list of wakfs or registering it in the register of wakfs, drive them to file a suit to establish their title or retain their possession. It cannot also seek to dispossess them from the property by resorting to section 36B. It is for the Board to file a civil suit for a declaration that the property in dispute is a wakf property and to obtain its possession."It was really not necessary for the High Court to decide whether s. 36B of the Act was attracted or not, in the facts and circumstances of the case.33. We must accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property. It must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the list of wakfs published under sub-s. (2) of s. S of the Act. We must also hold, on a construction of sub-s. (1) of s. 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of s. 6 against the respondents Nos. l and 2 due to their failure to bring a suit within one year as contemplated by sub s. (1) of s. 6.34. ### Response: 1

TALAT FATIMA HASAN THROUGH HER CONSTITUTED ATTORNEY SH. SYED MEHDI HUSAIN Vs. NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS

with the Government of India were simple documents relating to the accession and the integration and the assurances and guarantees given under those documents were only for the fixation of the privy purses and the recognition of the privileges. The guarantees and the assurances given under the Constitution were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private properties and privileges only by the force of the Constitution and in other respects they were only ordinary citizens of India like any other citizen; of course, this is an accident of history and with the concurrence of the Indian people in their Constituent Assembly. 75. Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant articles of the Constitution and no obligation flowed from those Agreements and Covenants but only from the Constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the Agreements and Covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words guaranteed or assured is without any force and absolutely untenable. 42. We are not stricto sensu dealing with this issue because the succession to the estate of Nawab Raza Ali Khan opened in the year 1966, prior to the 26 th Amendment Act. However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties. 43. Another argument raised on behalf of the contesting defendants is that Nawab Raza Ali Khan, knowing that his succession was governed by the rule of primogeniture, had created a trust named The Raza Trust for the welfare of his family members other than defendant no. 1. He had also made various other grants and gifts in favour of his children whereas the elder son was deprived of such benefits. It is contended that the plaintiff and the other defendants supporting the plaintiff had taken benefit of the said Trust and gifts and, therefore, cannot challenge the entitlement of defendant no. 1. This argument cannot be accepted. We have only to decide what was the legal entitlement of the legal heirs and in what manner the succession to the estate of late Nawab Raza Ali Khan was to be governed. We may also mention that the Trust, which has been referred to by the contesting defendants, was created in the year 1944, much before the Nawab ceded his property to the Dominion of India. At that time, there was no doubt that succession to the properties of the State of Rampur would be governed by the rule of primogeniture. Even after Nawab ceased to be the ruler, he gifted a number of extensive properties to the defendant no. 1 during his lifetime including a property known as Rafat Club in Rampur, which the defendant no. 1 sold to the State of U.P. in 1961. The erstwhile Nawab also gifted a property known as Kothi Bareilly and a house in Delhi to defendant no. 1. Both the Division Bench and the learned Single Judge held that these properties gifted by the erstwhile Nawab to the defendant no. 1 were given to him only to maintain his status as the ruler and, therefore, could not be taken into consideration while deciding the issue of succession of the erstwhile Nawab of Rampur. 44. We find a contradiction in the findings of the High Court in this regard. On the one hand, it is said that the plaintiff and the other family members cannot urge that the estate of the Nawab should be governed by personal law because they have derived benefits from the Raza Trust and gifts in their life time and, on the other hand, when it comes to the defendant no. 1, it is said that the gifts were made only with a view that defendant no. 1 should be able to maintain his status as the prospective heir. If he was to get all the properties of the Nawab, then why gifts would have to be made in his favour in his life time. Therefore, this contention is rejected. 45. There is no dispute between the parties that if personal law is to apply then the Muslim Personal Law (Shariat) Application Act, 1937 will apply and since Nawab Raza Ali Khan was a Shia, his estate will devolve upon his heirs under the Muslim personal law, as applicable to Shias. 46. During the pendency of the suit the plaint was amended from time to time because of the death of defendant no. 1, defendant no.1/1 and defendant no.3. After the amendment, the shares of all the legal heirs were worked out in para 9-F of the plaint. These shares have not been disputed by any one nor there is any dispute with regard to the manner in which the shares have been worked out. Therefore, these shares are accepted to be correct. The parties shall be entitled to the property as per the shares set out in para 9-F of the plaint which shall form a part of the decree.

1[ds]25. We are of the view that the observations made above run counter to what was held in the earlier part of the judgment where in the same judgment it was held that no distinction could be drawn between the public and private properties of the ruler. If no such distinction could be drawn, the question of any properties being recognised as the private properties of the ruler prior to the State ceding to the Dominion of India does not arise26. This Court held that both the properties at Shimla and Delhi were State properties and not the personal properties of Maharaja Ripudaman Singh and, therefore, governed by the rule of primogeniture27. At the outset, we may note that both in the Travancore case and the Nabha case, the suits had been filed in the lifetime of the rulers, who had ceded the State to the Indian Union. The collaterals of the rulers filed suits trying to establish their right on the property contending that the property had become a partible estate in the hands of the ruler. As far as the Travancore case is concerned, we find that the contesting defendants can get no benefit from this decision. It, in fact, supports the case of the appellants inasmuch as it held that the property in question was the personal property of the Maharaja of Travancore and, therefore, not subject to partition. As far as the Nabha case is concerned, we have given the facts of that case in detail to show that the main dispute was whether the properties were purchased by Maharaja Ripudaman Singh out of his own personal funds or from the funds of Nabha State. This Court held that there could be no distinction between the private or personal properties when the Maharaja was the sole sovereign. As Maharaja Ripudaman Singh was the Sovereign till his powers were taken away in 1923, and before he was finally deposed in 1928, both the properties at Shimla and Delhi were purchased when he was the Maharaja and it was a finding of fact that these properties were purchased out of the State funds. These properties also found mention in the list of properties declared to be the private properties of Maharaja Pratap Singh in the instrument of merger. The disputes arose when Maharaja Pratap Singh was still the ruler and was alive. The question of succession had not opened. The court held that the properties being the personal properties of the Maharaja, could not be subjected to partition. We may, however, observe that there is a fleeting remark that the property formed part of an impartible estate and therefore, would be governed by the rule of primogeniture. In our view, this question did not arise for consideration and this Court did not decide the question as to whether the impartible estate continued to exist after the ruler ceased to be a ruler31. In our view, the judgment in the Dholpur case cannot be said to have been set aside or upset in the Princes Privy Purses case. What was held was that use of the expression political power in the Dholpur case was inappropriate and the appropriate words should have been executive power. In fact, in the Dholpur case, the very next part of the sentence reads and is thus an instance of purely executive jurisdiction of the President. This clearly shows that the observations in the Princes Privy Purses case would have no impact on the ratio of the judgment in the Dholpur case32. The issue is whether the rulers continued to be rulers after executing the instruments of merger. They had agreed to merge their States with the Indian Union because they were to be paid privy purses and would enjoy certain privileges. They were also entitled to declare some properties to be their private properties. In case of disputes whether the property is private or State property, the Union could refer the dispute for decision to a committee headed by a judicial officer. The rulers were no longer sovereign. There was no paramountcy vested in the rulers. They had no land other than the private properties. They had no subjects. They were rulers only in name, left only with the recognition of their original title, a privy purse, some privileges, etc33. It is apparent that the rulers were rulers only in name. They held no land except the personal properties. There were no subjects. They were Maharajas or Rajas without a Praja; without any sovereignty; and without any territory34. The definition of ruler in clause (22) of Article 366 of the Constitution itself shows that the person who is defined as ruler is a former prince, chief or other person, who was, on or after 26.01.1950 recognised as a ruler having signed the covenant of accession. Necessarily, the ruler was a person who was recognised before independence by the British Crown and was the sovereign of his State. Such person, though defined as a Ruler, has no territory and exercises no sovereignty over any subjects. He has no attributes of a potentate nor does he enjoy all the powers and privileges which are normally exercised by a potentate. As Justice Shah in the Princes Privy Purses case judgment held, he is a citizen of India with certain privileges accorded to him because he or his predecessor had surrendered his territory, his powers and his sovereignty35. The President while exercising his powers under Article 366 (22) could not notify a ruler at his whims and fancy36. Examples were also given where in cases of disputes, the same were referred to committees comprising of the Chief Justices of the States and erstwhile rulers. However, it is clear that the declaration under clause (22) of Article 366 relates only to the Gaddi or the rulership and not to the properties which were declared to be private properties by the ruler37. It was contended by Mr. Ganguli that there could be no Gaddi without a property and the properties which were declared to be the private properties were, in fact, attached to the Gaddi and the properties would be of the ruler so declared. We find no force in this submission. These were rulers without any subjects. These were rulers without any territory. These were so called rulers enjoying certain privileges and privy purses. They had been given the choice of declaring certain properties to be their private properties and these private properties could not be said to be attached to the Gaddi. When they were actual sovereigns, their entire State was attached to the Gaddi and not any particular property. There are no specific properties which can be attached to the Gaddi. It has to be the entire State or nothing. Since, we have held that they were rulers only as a matter of courtesy, to protect their erstwhile titles, the properties which were declared to be their personal properties had to be treated as their personal properties and could not be treated as properties attached to the Gaddi37. It was contended by Mr. Ganguli that there could be no Gaddi without a property and the properties which were declared to be the private properties were, in fact, attached to the Gaddi and the properties would be of the ruler so declared. We find no force in this submission. These were rulers without any subjects. These were rulers without any territory. These were so called rulers enjoying certain privileges and privy purses. They had been given the choice of declaring certain properties to be their private properties and these private properties could not be said to be attached to the Gaddi. When they were actual sovereigns, their entire State was attached to the Gaddi and not any particular property. There are no specific properties which can be attached to the Gaddi. It has to be the entire State or nothing. Since, we have held that they were rulers only as a matter of courtesy, to protect their erstwhile titles, the properties which were declared to be their personal properties had to be treated as their personal properties and could not be treated as properties attached to the Gaddi39. A Gaddi or rulership and private property have two different connotations even in the merger agreement/instrument of accession. In Article 2 of the agreement, it is clearly mentioned that Nawab would continue to enjoy the same personal rights, privileges, immunities and dignities and other titles which he would have enjoyed prior to the agreement. Conspicuously, the word property or personal property is missing. Article 2 deals only with personal rights, privileges, dignities, etc. Article 3 deals with privy purse which would also be a part of the rulership or Gaddi. Article 6 which deals with succession, guarantees the succession according to law and custom to the Gaddi of the State and to the Nawabs personal rights, privileges, immunities, dignities and title.  Gaddi would be the throne or title of Nawab in the context in which it has been used and the personal rights, privileges, immunities, dignities and titles will be those referred to in Article 2. The word property is also conspicuously absent in Article 642. We are not stricto sensu dealing with this issue because the succession to the estate of Nawab Raza Ali Khan opened in the year 1966, prior to the 26 th Amendment Act. However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties43. Another argument raised on behalf of the contesting defendants is that Nawab Raza Ali Khan, knowing that his succession was governed by the rule of primogeniture, had created a trust named The Raza Trust for the welfare of his family members other than defendant no. 1. He had also made various other grants and gifts in favour of his children whereas the elder son was deprived of such benefits. It is contended that the plaintiff and the other defendants supporting the plaintiff had taken benefit of the said Trust and gifts and, therefore, cannot challenge the entitlement of defendant no. 1. This argument cannot be accepted. We have only to decide what was the legal entitlement of the legal heirs and in what manner the succession to the estate of late Nawab Raza Ali Khan was to be governed. We may also mention that the Trust, which has been referred to by the contesting defendants, was created in the year 1944, much before the Nawab ceded his property to the Dominion of India. At that time, there was no doubt that succession to the properties of the State of Rampur would be governed by the rule of primogeniture. Even after Nawab ceased to be the ruler, he gifted a number of extensive properties to the defendant no. 1 during his lifetime including a property known as Rafat Club in Rampur, which the defendant no. 1 sold to the State of U.P. in 1961. The erstwhile Nawab also gifted a property known as Kothi Bareilly and a house in Delhi to defendant no. 1. Both the Division Bench and the learned Single Judge held that these properties gifted by the erstwhile Nawab to the defendant no. 1 were given to him only to maintain his status as the ruler and, therefore, could not be taken into consideration while deciding the issue of succession of the erstwhile Nawab of Rampur44. We find a contradiction in the findings of the High Court in this regard. On the one hand, it is said that the plaintiff and the other family members cannot urge that the estate of the Nawab should be governed by personal law because they have derived benefits from the Raza Trust and gifts in their life time and, on the other hand, when it comes to the defendant no. 1, it is said that the gifts were made only with a view that defendant no. 1 should be able to maintain his status as the prospective heir. If he was to get all the properties of the Nawab, then why gifts would have to be made in his favour in his life time. Therefore, this contention is rejected45. There is no dispute between the parties that if personal law is to apply then the Muslim Personal Law (Shariat) Application Act, 1937 will apply and since Nawab Raza Ali Khan was a Shia, his estate will devolve upon his heirs under the Muslim personal law, as applicable to Shias46. During the pendency of the suit the plaint was amended from time to time because of the death of defendant no. 1, defendant no.1/1 and defendant no.3. After the amendment, the shares of all the legal heirs were worked out in para 9-F of the plaint. These shares have not been disputed by any one nor there is any dispute with regard to the manner in which the shares have been worked out. Therefore, these shares are accepted to be correct. The parties shall be entitled to the property as per the shares set out in para 9-F of the plaint which shall form a part of the decree.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: with the Government of India were simple documents relating to the accession and the integration and the assurances and guarantees given under those documents were only for the fixation of the privy purses and the recognition of the privileges. The guarantees and the assurances given under the Constitution were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private properties and privileges only by the force of the Constitution and in other respects they were only ordinary citizens of India like any other citizen; of course, this is an accident of history and with the concurrence of the Indian people in their Constituent Assembly. 75. Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant articles of the Constitution and no obligation flowed from those Agreements and Covenants but only from the Constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the Agreements and Covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words guaranteed or assured is without any force and absolutely untenable. 42. We are not stricto sensu dealing with this issue because the succession to the estate of Nawab Raza Ali Khan opened in the year 1966, prior to the 26 th Amendment Act. However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties. 43. Another argument raised on behalf of the contesting defendants is that Nawab Raza Ali Khan, knowing that his succession was governed by the rule of primogeniture, had created a trust named The Raza Trust for the welfare of his family members other than defendant no. 1. He had also made various other grants and gifts in favour of his children whereas the elder son was deprived of such benefits. It is contended that the plaintiff and the other defendants supporting the plaintiff had taken benefit of the said Trust and gifts and, therefore, cannot challenge the entitlement of defendant no. 1. This argument cannot be accepted. We have only to decide what was the legal entitlement of the legal heirs and in what manner the succession to the estate of late Nawab Raza Ali Khan was to be governed. We may also mention that the Trust, which has been referred to by the contesting defendants, was created in the year 1944, much before the Nawab ceded his property to the Dominion of India. At that time, there was no doubt that succession to the properties of the State of Rampur would be governed by the rule of primogeniture. Even after Nawab ceased to be the ruler, he gifted a number of extensive properties to the defendant no. 1 during his lifetime including a property known as Rafat Club in Rampur, which the defendant no. 1 sold to the State of U.P. in 1961. The erstwhile Nawab also gifted a property known as Kothi Bareilly and a house in Delhi to defendant no. 1. Both the Division Bench and the learned Single Judge held that these properties gifted by the erstwhile Nawab to the defendant no. 1 were given to him only to maintain his status as the ruler and, therefore, could not be taken into consideration while deciding the issue of succession of the erstwhile Nawab of Rampur. 44. We find a contradiction in the findings of the High Court in this regard. On the one hand, it is said that the plaintiff and the other family members cannot urge that the estate of the Nawab should be governed by personal law because they have derived benefits from the Raza Trust and gifts in their life time and, on the other hand, when it comes to the defendant no. 1, it is said that the gifts were made only with a view that defendant no. 1 should be able to maintain his status as the prospective heir. If he was to get all the properties of the Nawab, then why gifts would have to be made in his favour in his life time. Therefore, this contention is rejected. 45. There is no dispute between the parties that if personal law is to apply then the Muslim Personal Law (Shariat) Application Act, 1937 will apply and since Nawab Raza Ali Khan was a Shia, his estate will devolve upon his heirs under the Muslim personal law, as applicable to Shias. 46. During the pendency of the suit the plaint was amended from time to time because of the death of defendant no. 1, defendant no.1/1 and defendant no.3. After the amendment, the shares of all the legal heirs were worked out in para 9-F of the plaint. These shares have not been disputed by any one nor there is any dispute with regard to the manner in which the shares have been worked out. Therefore, these shares are accepted to be correct. The parties shall be entitled to the property as per the shares set out in para 9-F of the plaint which shall form a part of the decree. ### Response: 1

Ratan Lal Sharma Vs. Purshottam Harit

Single Judge refused to pronounce judgment in accordance with the award because (1) according to him the award was void for uncertainty, and (2) the award, which created rights in favour of the appellant over immovable property worth over Rs. 100/- required registration and was unregistered. Counsel for the appellant has advanced three arguments: (1) the award is not void for uncertainty; (2) the award seeks to assign the respondents share in the partnership to the appellant and so does not require registration; and (3) under Section 17 of the Arbitration Act, the Court was bound to pronounce judgment in accordance with the award after it had dismissed the respondents application for setting it aside.3. It is not necessary to express any opinion on the first argument as we are of opinion that the award requires registration and, not being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. So we pass on to the remaining two arguments of the appellant.4. It is well settled now that the share of a partner in the assets of the partnership which has also immovable properties is movable property and the assignment of the share does not require registration under Section 17, Registration Act. (see Ajudhia Pershad Ram Pershad v. Sham Sunder AIR 1947 Lah 13 at p. 20 (FB); Narayanappa v. Bhaskara Krishnappa, (1966) 3 SCR 400 at pp. 406 and 407 = (AIR 1966 SC 1300 ) and Commr. of Income-tax, West Bengal, Calcutta v. Juggilal Kamalapet) (1967) 1 SCR 784 at p. 790 = (AIR 1967 SC 401 ). But the award with which we are concerned does not seek to assign the share of the respondent to the appellant either in express words or by necessary implication. We set out the relevant portion of the award:"(We) make our award as follows:(1) The factory and all assets and properties of New Bengal Engineering Works are exclusively allotted to Dr. Ratan Lal Sharma, who is absolutely entitled to the same. He will pay all liabilities of the factory.(2) Dr. Ratan Lal Sharma shall have no claim for the receipts signed by Sri Purushottam Harit.(3) Payment of all cheques issued by Dr. Ratal Lal Sharma on behalf of Modern Processors to Shri Purshottam Harit shall be treated valid.(4) Dr. Ratan Lal Sharma shall pay Rs. 17,000/- (Rupees seventeen thousand only) to Shri Purshottam Hari.(5) Shri Purushottam Harit shall render all assistance to Dr. Ratan Lal Sharma for realising all the dues of the said firm as and when necessary and for transfer of tenancy right of the Factory in favour of Dr. Ratan Lal Sharma.(6) All papers and documents in respect of the said business shall be made over to Dr. Ratan Lal Sharma.(7) The following sums when realised shall be divided equally between Dr. Ratan Lal Sharma and Shri Purushottam Harit.Name of DebtorsAmount1.Associated Engineering Corpn.Rs. 284.172.Link Machinery Ltd.Rs.1079.283.Clendent ProductsRs. 47.254.Minerva Engineering WorksRs. 514.18TotalRs.1924.88N. B. (8) The factory should not be run by Dr. Ratan Lal Sharma until and unless the payment of the award is not made to Shri Purushottam Harit".5. The word "not" is slip here. The parties conceded before the learned Single Judge that the award deals with immovable property worth above Rs. 100/-. So if it is found by us that the award purports to create rights in the appellant over immovable property, it would require registration under Section 17, Registration Act. (See Satish Kumar v. Surinder Kumar, (1969) 2 SCR 244 at pp. 251-252 = (AIR 1970 SC 833 ). On the dissolution of the partnership or with the retirement of a partner from the partnership the share of the partner in the partnership assets is equal to the value of his share in the net partnership assets after deduction of all liabilities and prior charges. Even during the subsistence of the partnership, he may assign his share to another partner. In that event the assignee partner would get only the right to receive the share of profits of the assignor. (See Narayanappa (supra) at p. 407 (of 1966-3SCR 400 = AIR 1966 SC 1300 )).6.Now the award does not transfer the share of the respondent, interpreted in the aforesaid sense, to the appellant in express words. Nor such is the necessary intendment of the award. It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same" in consideration of a sum of Rs. 17000/- (See clause 4) plus half of the amount of Rs. 1924-88 to the respondent and the appellants renouncement of the right to share in the amounts already received by the respondent. So in express words it purports to create rights in immovable property worth above Rs. 100/- in favour of the appellant. It would accordingly require registration under S. 17, Registration Act. As it is unregistered, the Court could not look into it. If the Court could not, as we hold, look into it, the Court not pronounce judgment in accordance with it. Sec. 17, Arbitration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke Section 17.7.The award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immovable property. As already stated, various other relevant clauses constitute consideration for clause (1), that is, for the creation of absolute rights in the factory and other properties in favour of the appellant. This is perfectly clear from the note of the arbitrators appended to the award as clause 8. The appellant is not given a right to run the factory unless he has paid the awarded consideration to the respondent.8. For the reasons already discussed, we agree with the learned Single Judge that the award requires registration and not being registered, no judgment could be pronounced upon it. In the view that we have taken, the special leave petition cannot be admitted.

0[ds]2. We shall first take up the civil appeal. The Special Leave Petition will become infructuous or anaemic after our decision for or against the appellant.It is not necessary to express any opinion on the first argument as we are of opinion that the award requires registration and, not being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. So we pass on to the remaining two arguments of the appellant.4. It is well settled now that the share of a partner in the assets of the partnership which has also immovable properties is movable property and the assignment of the share does not require registration under Section 17, Registration Act. (see Ajudhia Pershad Ram Pershad v. Sham Sunder AIR 1947 Lah 13 at p. 20 (FB); Narayanappa v. Bhaskara Krishnappa, (1966) 3 SCR 400 at pp. 406 and 407 = (AIR 1966 SC 1300 ) and Commr. ofWest Bengal, Calcutta v. Juggilal Kamalapet) (1967) 1 SCR 784 at p. 790 = (AIR 1967 SC 401 ). But the award with which we are concerned does not seek to assign the share of the respondent to the appellant either in express words or by necessary implication.The word "not" is slip here. The parties conceded before the learned Single Judge that the award deals with immovable property worth above Rs.So if it is found by us that the award purports to create rights in the appellant over immovable property, it would require registration under Section 17, Registration Act. (See Satish Kumar v. Surinder Kumar, (1969) 2 SCR 244 at pp.= (AIR 1970 SC 833 ). On the dissolution of the partnership or with the retirement of a partner from the partnership the share of the partner in the partnership assets is equal to the value of his share in the net partnership assets after deduction of all liabilities and prior charges. Even during the subsistence of the partnership, he may assign his share to another partner. In that event the assignee partner would get only the right to receive the share of profits of the assignor. (See Narayanappa (supra) at p. 407 (of400 = AIR 1966 SC 1300 )).6.Now the award does not transfer the share of the respondent, interpreted in the aforesaid sense, to the appellant in express words. Nor such is the necessary intendment of the award. It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same" in consideration of a sum of Rs. 17000/(See clause 4) plus half of the amount of Rs.to the respondent and the appellants renouncement of the right to share in the amounts already received by the respondent. So in express words it purports to create rights in immovable property worth above Rs. 100/in favour of the appellant. It would accordingly require registration under S. 17, Registration Act. As it is unregistered, the Court could not look into it. If the Court could not, as we hold, look into it, the Court not pronounce judgment in accordance with it. Sec. 17, Arbitration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke Section 17.7.The award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immovable property. As already stated, various other relevant clauses constitute consideration for clause (1), that is, for the creation of absolute rights in the factory and other properties in favour of the appellant. This is perfectly clear from the note of the arbitrators appended to the award as clause 8. The appellant is not given a right to run the factory unless he has paid the awarded consideration to the respondent.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: Single Judge refused to pronounce judgment in accordance with the award because (1) according to him the award was void for uncertainty, and (2) the award, which created rights in favour of the appellant over immovable property worth over Rs. 100/- required registration and was unregistered. Counsel for the appellant has advanced three arguments: (1) the award is not void for uncertainty; (2) the award seeks to assign the respondents share in the partnership to the appellant and so does not require registration; and (3) under Section 17 of the Arbitration Act, the Court was bound to pronounce judgment in accordance with the award after it had dismissed the respondents application for setting it aside.3. It is not necessary to express any opinion on the first argument as we are of opinion that the award requires registration and, not being registered is inadmissible in evidence for the purpose of pronouncing judgment in accordance with it. So we pass on to the remaining two arguments of the appellant.4. It is well settled now that the share of a partner in the assets of the partnership which has also immovable properties is movable property and the assignment of the share does not require registration under Section 17, Registration Act. (see Ajudhia Pershad Ram Pershad v. Sham Sunder AIR 1947 Lah 13 at p. 20 (FB); Narayanappa v. Bhaskara Krishnappa, (1966) 3 SCR 400 at pp. 406 and 407 = (AIR 1966 SC 1300 ) and Commr. of Income-tax, West Bengal, Calcutta v. Juggilal Kamalapet) (1967) 1 SCR 784 at p. 790 = (AIR 1967 SC 401 ). But the award with which we are concerned does not seek to assign the share of the respondent to the appellant either in express words or by necessary implication. We set out the relevant portion of the award:"(We) make our award as follows:(1) The factory and all assets and properties of New Bengal Engineering Works are exclusively allotted to Dr. Ratan Lal Sharma, who is absolutely entitled to the same. He will pay all liabilities of the factory.(2) Dr. Ratan Lal Sharma shall have no claim for the receipts signed by Sri Purushottam Harit.(3) Payment of all cheques issued by Dr. Ratal Lal Sharma on behalf of Modern Processors to Shri Purshottam Harit shall be treated valid.(4) Dr. Ratan Lal Sharma shall pay Rs. 17,000/- (Rupees seventeen thousand only) to Shri Purshottam Hari.(5) Shri Purushottam Harit shall render all assistance to Dr. Ratan Lal Sharma for realising all the dues of the said firm as and when necessary and for transfer of tenancy right of the Factory in favour of Dr. Ratan Lal Sharma.(6) All papers and documents in respect of the said business shall be made over to Dr. Ratan Lal Sharma.(7) The following sums when realised shall be divided equally between Dr. Ratan Lal Sharma and Shri Purushottam Harit.Name of DebtorsAmount1.Associated Engineering Corpn.Rs. 284.172.Link Machinery Ltd.Rs.1079.283.Clendent ProductsRs. 47.254.Minerva Engineering WorksRs. 514.18TotalRs.1924.88N. B. (8) The factory should not be run by Dr. Ratan Lal Sharma until and unless the payment of the award is not made to Shri Purushottam Harit".5. The word "not" is slip here. The parties conceded before the learned Single Judge that the award deals with immovable property worth above Rs. 100/-. So if it is found by us that the award purports to create rights in the appellant over immovable property, it would require registration under Section 17, Registration Act. (See Satish Kumar v. Surinder Kumar, (1969) 2 SCR 244 at pp. 251-252 = (AIR 1970 SC 833 ). On the dissolution of the partnership or with the retirement of a partner from the partnership the share of the partner in the partnership assets is equal to the value of his share in the net partnership assets after deduction of all liabilities and prior charges. Even during the subsistence of the partnership, he may assign his share to another partner. In that event the assignee partner would get only the right to receive the share of profits of the assignor. (See Narayanappa (supra) at p. 407 (of 1966-3SCR 400 = AIR 1966 SC 1300 )).6.Now the award does not transfer the share of the respondent, interpreted in the aforesaid sense, to the appellant in express words. Nor such is the necessary intendment of the award. It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same" in consideration of a sum of Rs. 17000/- (See clause 4) plus half of the amount of Rs. 1924-88 to the respondent and the appellants renouncement of the right to share in the amounts already received by the respondent. So in express words it purports to create rights in immovable property worth above Rs. 100/- in favour of the appellant. It would accordingly require registration under S. 17, Registration Act. As it is unregistered, the Court could not look into it. If the Court could not, as we hold, look into it, the Court not pronounce judgment in accordance with it. Sec. 17, Arbitration Act presupposes an award which can be validly looked into by the Court. The appellant cannot successfully invoke Section 17.7.The award is an inseparable tangle of several clauses and cannot be enforced as to the part not dealing with immovable property. As already stated, various other relevant clauses constitute consideration for clause (1), that is, for the creation of absolute rights in the factory and other properties in favour of the appellant. This is perfectly clear from the note of the arbitrators appended to the award as clause 8. The appellant is not given a right to run the factory unless he has paid the awarded consideration to the respondent.8. For the reasons already discussed, we agree with the learned Single Judge that the award requires registration and not being registered, no judgment could be pronounced upon it. In the view that we have taken, the special leave petition cannot be admitted. ### Response: 0

Commissioner of Income Tax, Bombay City Vs. Ratilal Nathalal

settlement it was only his individual income and that section 16(1) (c) had no application to him.The income-tax authorities overruled this contention. The assessee appealed to the Income-tax Appellate Tribunal; but by order the 16th March, 1950, it confirmed the view taken by the income-tax authorities.Thereupon at the instance of the respondent, the Tribunal stated a case to the High Court of Bombay under section 66(1) of the Act and referred the following question for its decision;"Whether in the circumstances of the case and on the true construction of the settlement deed, is the income from the trust property liable to be included in the income of the assessees Hindu undivided family?"The contention of the assessee before the High Court was two-fold :(1) that the settlor under the trust deed was not the Hindu undivided family as the income-tax authorities were inclined to hold, but that the settlement was by two individual male members of the family, viz., Ramjibhai and Ratilal; and (2) that, in any case, the income in the hands of Ratilal was his individual income and not the joint family income.On the first point, the learned Judges held against the assessees contention. In their view the two individuals, Ramjibhai and Ratilal executed the trust deed not in their individual capacity but as the sole coparceners of the Hindu undivided family and representing the said family. On the second point, however, they held in favour of the assessee and against the Commissioner.This appeal has accordingly been brought by the Commissioner of Income-tax against that decision.4. The view taken by the High Court that the settlement deed was executed by both Ramjibhai and Ratilal on behalf of the Hindu undivided family as the settlor has not been disputed before us on either side. The sole question for our consideration is whether or not the view taken by the High Court on the second point is right. The view taken by the learned Judges of the High Court appears from the following passage in the judgement. "Now the settlement of this property was made by Ramjibhai and Ratilal not in their individual capacity but as members of the joint family and as representating that family. It is clear on this trust deed that the income which Ratilal receives after the death of Ramjibhai is received by him not on behalf of the joint family but in his own individual capacity. Ratilal alienated the property in one capacity and he receives the benefit under the trust deed in the altogether different capacity. Therefore it cannot be stated that this trust deed in any way benefits the joint family".The learned Attorney-General for the Income-tax Commissioner, while not seriously disputing that on the mere construction of the trust deed the income in the hands of Ratilal were intended to be his individual income, contends that the learned Judges erred in imposing any question of capacity in which the income is held by Ratilal, into the application of section 16(1) (c).He puts his argument in this way. The last portion of section 16(1)(c) provides that all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be the income of the transferor. The first proviso to section 16(1)(c) enacts that a settlement shall be deemed to be revocable if it contains any provision for the transfer directly or indirectly of the income or assets to the settler. The second proviso, enacts that the expression settlor in relation to a settlement shall include any person by whom the settlement or disposition was made. It is, therefore, urged that by virtue of the second proviso. Ratilal though only one of the two persons who executed the settlement deed, is the "settlor", and that the provision in the trust deed that the income was to be enjoyed by Ratilal after the death of Ramjibhai is, in substance, "a provision contained in the trust deed for a retransfer of the income to the settlor". In this view, the last portion of clause (c) of sub-section (1) of section 16 is attracted and the income arising to Ratilal must be deemed to be income of the transferor, i. e. of the Hindu undivided family, in view of the finding not disputed by either side that the settlor was the joint family.The fallacy of this argument consists in treating the respondent Ratilal as one out of two settlors for the purpose of the second proviso while treating the family as the settlor for the purpose of the last portion of clause (c) of section 16(a). If, at the outset, the settlor was the Hindu undivided family and the trust deed was executed by both the persons as the sole surviving coparceners representing the family, the second proviso which treats one out of a group of settlors as the "settlor" cannot come into operation because the Hindu undivided family is a unit independent of and larger than the two coparceners and is not merely a collection of the individuals who acted on its behalf.Therefore, the provision in the settlement deed giving the income back to Ratilal, even if it be taken as a retransfer of the income, cannot be treated as such retransfer to the original settlor, viz., the Hindu undivided family. Hence the last portion of clause (c) of section 16(1) does not come into operation.It follows accordingly that the contention on behalf of the appellant that what was intended under the terms of the trust deed as the individual income of the respondent Ratilal, becomes the joint family income by a process of successive application of the fictions enacted in the last portion of clause (c) of section 16(1), and the two provisos thereto, cannot be accepted. This is enough to dispose of the appeal.It is unnecessary, therefore, to express any opinion on the contention raised in reliance on --- Ramji Keshavji, v. Commr. of Income-tax, Bombay, AIR 1945 Bom 254 (A), that there is no retransfer of income in this case.

0[ds]The fallacy of this argument consists in treating the respondent Ratilal as one out of two settlors for the purpose of the second proviso while treating the family as the settlor for the purpose of the last portion of clause (c) of section 16(a). If, at the outset, the settlor was the Hindu undivided family and the trust deed was executed by both the persons as the sole surviving coparceners representing the family, the second proviso which treats one out of a group of settlors as the "settlor" cannot come into operation because the Hindu undivided family is a unit independent of and larger than the two coparceners and is not merely a collection of the individuals who acted on its behalf.Therefore, the provision in the settlement deed giving the income back to Ratilal, even if it be taken as a retransfer of the income, cannot be treated as such retransfer to the original settlor, viz., the Hindu undivided family. Hence the last portion of clause (c) of section 16(1) does not come into operation.It follows accordingly that the contention on behalf of the appellant that what was intended under the terms of the trust deed as the individual income of the respondent Ratilal, becomes the joint family income by a process of successive application of the fictions enacted in the last portion of clause (c) of section 16(1), and the two provisos thereto, cannot be accepted. This is enough to dispose of the appeal.

### 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: settlement it was only his individual income and that section 16(1) (c) had no application to him.The income-tax authorities overruled this contention. The assessee appealed to the Income-tax Appellate Tribunal; but by order the 16th March, 1950, it confirmed the view taken by the income-tax authorities.Thereupon at the instance of the respondent, the Tribunal stated a case to the High Court of Bombay under section 66(1) of the Act and referred the following question for its decision;"Whether in the circumstances of the case and on the true construction of the settlement deed, is the income from the trust property liable to be included in the income of the assessees Hindu undivided family?"The contention of the assessee before the High Court was two-fold :(1) that the settlor under the trust deed was not the Hindu undivided family as the income-tax authorities were inclined to hold, but that the settlement was by two individual male members of the family, viz., Ramjibhai and Ratilal; and (2) that, in any case, the income in the hands of Ratilal was his individual income and not the joint family income.On the first point, the learned Judges held against the assessees contention. In their view the two individuals, Ramjibhai and Ratilal executed the trust deed not in their individual capacity but as the sole coparceners of the Hindu undivided family and representing the said family. On the second point, however, they held in favour of the assessee and against the Commissioner.This appeal has accordingly been brought by the Commissioner of Income-tax against that decision.4. The view taken by the High Court that the settlement deed was executed by both Ramjibhai and Ratilal on behalf of the Hindu undivided family as the settlor has not been disputed before us on either side. The sole question for our consideration is whether or not the view taken by the High Court on the second point is right. The view taken by the learned Judges of the High Court appears from the following passage in the judgement. "Now the settlement of this property was made by Ramjibhai and Ratilal not in their individual capacity but as members of the joint family and as representating that family. It is clear on this trust deed that the income which Ratilal receives after the death of Ramjibhai is received by him not on behalf of the joint family but in his own individual capacity. Ratilal alienated the property in one capacity and he receives the benefit under the trust deed in the altogether different capacity. Therefore it cannot be stated that this trust deed in any way benefits the joint family".The learned Attorney-General for the Income-tax Commissioner, while not seriously disputing that on the mere construction of the trust deed the income in the hands of Ratilal were intended to be his individual income, contends that the learned Judges erred in imposing any question of capacity in which the income is held by Ratilal, into the application of section 16(1) (c).He puts his argument in this way. The last portion of section 16(1)(c) provides that all income arising to any person by virtue of a revocable transfer of assets shall be deemed to be the income of the transferor. The first proviso to section 16(1)(c) enacts that a settlement shall be deemed to be revocable if it contains any provision for the transfer directly or indirectly of the income or assets to the settler. The second proviso, enacts that the expression settlor in relation to a settlement shall include any person by whom the settlement or disposition was made. It is, therefore, urged that by virtue of the second proviso. Ratilal though only one of the two persons who executed the settlement deed, is the "settlor", and that the provision in the trust deed that the income was to be enjoyed by Ratilal after the death of Ramjibhai is, in substance, "a provision contained in the trust deed for a retransfer of the income to the settlor". In this view, the last portion of clause (c) of sub-section (1) of section 16 is attracted and the income arising to Ratilal must be deemed to be income of the transferor, i. e. of the Hindu undivided family, in view of the finding not disputed by either side that the settlor was the joint family.The fallacy of this argument consists in treating the respondent Ratilal as one out of two settlors for the purpose of the second proviso while treating the family as the settlor for the purpose of the last portion of clause (c) of section 16(a). If, at the outset, the settlor was the Hindu undivided family and the trust deed was executed by both the persons as the sole surviving coparceners representing the family, the second proviso which treats one out of a group of settlors as the "settlor" cannot come into operation because the Hindu undivided family is a unit independent of and larger than the two coparceners and is not merely a collection of the individuals who acted on its behalf.Therefore, the provision in the settlement deed giving the income back to Ratilal, even if it be taken as a retransfer of the income, cannot be treated as such retransfer to the original settlor, viz., the Hindu undivided family. Hence the last portion of clause (c) of section 16(1) does not come into operation.It follows accordingly that the contention on behalf of the appellant that what was intended under the terms of the trust deed as the individual income of the respondent Ratilal, becomes the joint family income by a process of successive application of the fictions enacted in the last portion of clause (c) of section 16(1), and the two provisos thereto, cannot be accepted. This is enough to dispose of the appeal.It is unnecessary, therefore, to express any opinion on the contention raised in reliance on --- Ramji Keshavji, v. Commr. of Income-tax, Bombay, AIR 1945 Bom 254 (A), that there is no retransfer of income in this case. ### Response: 0

Mahabir Prashad Rungta Vs. Durga Datt

the indebtedness of Rungta to Durga Datt stood as follows : 16th July, 1951 about Rs. 7,835 27th July, 1951Rs. 6,790 6th August, 1951Rs. 11,170 12th August, 1951Rs. 15,590 These sums were in addition to a security deposit of Rs. 2,038. Whatever might be the intent and purpose of the clause in question, it is clear enough that Rungta was withholding substantial amounts over a very long period without any reasonable cause. To Durga Datt, the receipt of money in time was a vital consideration if he was to fulfill his contract at all. It was not to be expected that he would go on carrying thousands of tons of coal from the colliery without receiving payments. In our opinion, these facts speak for themselves, and amply support the finding of the learned Judicial Commissioner that Rungta was really responsible for hamstringing the work of Durga Datt. Why Rungta did so is not very clear from the record of the case, though an attempt was made to show that the quantity of coal transported from month to month was falling. An abstract of the quantities transported does not support this allegation. This abstract is of the quantity loaded in wagons. The figures are almost constant, except in one month (April). There were, of course, variations in the quantity of coal loaded in the wagons form month to month; but the evidence shows that some coal remained at the siding in heaps and was not loaded immediately. The variation in the quantity also might have been due as much to Durga Datt as to the colliery and its output. In our judgment, no inference can be drawn from the abstract, showing the quantities of coal loaded into the wagons, that Durga Datt had slackened work after May. Learned counsel for Rungta cited some cases in which time was not considered as of the essence of the contract. Most of these cases deal with immovable property, where a different rule applies. In commercial transactions, time is ordinarily of the essence, and in the agreement, with which we are concerned, the payment of bills by a particular date was expressly; mentioned. The intention, obviously, was that Durga Datt would receive payments for work executed as soon as the amounts became due. Rungta did not pay these amounts, which were also within his own knowledge either by the 10th of the following month or even within a reasonable time after the presentation of the bills. In these circumstances, we are of opinion that cl. (5) was breached by Rungta. 9. In addition to this, there were difficulties of the road being in a bad state during the rainy season. The evidence shows that the wheels of the trucks used to sink in the mud frequently and the trucks had to be dragged out. For this state of affairs, Rungta was mainly responsible under cl. (8). The inclusion of the clause in the agreement itself shows that the parties realised that there might be hindrance to the trucks, if the road was not repaired. The finding of the Judicial Commissioner on this part of the case is, therefore, sound, though that reason by itself might not have been sufficient for stopping the work altogether and rescinding the contract. 10. The case is thus covered by S 55 of the Indian Contract Act, and Durga Datt was entitled to rescind the contract, when the very important condition of the agreement was broken by Rungta. We confirm the finding of the Judicial Commissioner on this part of the case. 11. This brings us to the inclusion of Rs. 7,500 on account of 3,000 tons of coal alleged to have been transported. The evidence on this part of the case is somewhat unsatisfactory. Fortunately for Durga Datt some of the witnesses of Rungta admitted that besides coal which was loaded in the wagons, there were three large heaps of coal lying in the yard and that this coal was transported by Durga Datt. The estimate of Durga Datt was 3,000 tons. That is no more than a mere guess. A railway official was examined in the case, and he stated that loose coal was sufficient to fill 100 or 50 wagons. From the schedule filed, it appears that a wagon carries on an average 20 tons. Taking the number of wagons as 75, the quantity could not exceed 1.500 tons. A sum of Rs. 3,750 as payment for 1,500 tons at Rs. 2-8-0 per ton ought to have been included. Instead of Rs 7,500. To that extent, the decree in favour of Durga Datt would be modified. 12. There remains the question of interest. Interest for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity. Bengal Nagpur Ry. Co. Ltd. v. Ruttanji Ramji, 65 Ind App 66 : (AIR 1938 P C 67). In the present case no agreement about interest was made, nor was it implied. The notice which was given did not specify the sum which was demanded, and, therefore, the Interest Act does not apply. The present case also does not fall within those cases in which Courts of equity grant interest. Learned counsel for Durga Datt claimed interest as damages; but it is well-settled that interest as damages cannot be awarded. Interest up to date of suit, therefore, was not claimable, and a deduction shall be made of such interest from the amount decreed. As regards interest pendente lite until the date of realisation, such interest was within the discretion of the Court. The rate fixed is 6 per cent. which, in the circumstances and according to the practice of Courts, appears high. Interest shall be calculated at 4 per cent. per annum instead of at 6 per cent. and the decree shall be modified accordingly.

1[ds]In our opinion, these facts speak for themselves, and amply support the finding of the learned Judicial Commissioner that Rungta was really responsible for hamstringing the work of Durga Datt. Why Rungta did so is not very clear from the record of the case, though an attempt was made to show that the quantity of coal transported from month to month was falling. An abstract of the quantities transported does not support this allegation. This abstract is of the quantity loaded in wagons. The figures are almost constant, except in one month (April). There were, of course, variations in the quantity of coal loaded in the wagons form month to month; but the evidence shows that some coal remained at the siding in heaps and was not loaded immediately. The variation in the quantity also might have been due as much to Durga Datt as to the colliery and its output. In our judgment, no inference can be drawn from the abstract, showing the quantities of coal loaded into the wagons, that Durga Datt had slackened work after May. Learned counsel for Rungta cited some cases in which time was not considered as of the essence of the contract. Most of these cases deal with immovable property, where a different rule applies. In commercial transactions, time is ordinarily of the essence, and in the agreement, with which we are concerned, the payment of bills by a particular date was expressly; mentioned. The intention, obviously, was that Durga Datt would receive payments for work executed as soon as the amounts became due. Rungta did not pay these amounts, which were also within his own knowledge either by the 10th of the following month or even within a reasonable time after the presentation of the bills. In these circumstances, we are of opinion that cl. (5) was breached by Rungta9. In addition to this, there were difficulties of the road being in a bad state during the rainy season. The evidence shows that the wheels of the trucks used to sink in the mud frequently and the trucks had to be dragged out. For this state of affairs, Rungta was mainly responsible under cl. (8). The inclusion of the clause in the agreement itself shows that the parties realised that there might be hindrance to the trucks, if the road was not repaired. The finding of the Judicial Commissioner on this part of the case is, therefore, sound, though that reason by itself might not have been sufficient for stopping the work altogether and rescinding the contract10. The case is thus covered by S 55 of the Indian Contract Act, and Durga Datt was entitled to rescind the contract, when the very important condition of the agreement was broken by Rungta. We confirm the finding of the Judicial Commissioner on this part of the case11. This brings us to the inclusion of Rs. 7,500 on account of 3,000 tons of coal alleged to have been transported. The evidence on this part of the case is somewhat unsatisfactory. Fortunately for Durga Datt some of the witnesses of Rungta admitted that besides coal which was loaded in the wagons, there were three large heaps of coal lying in the yard and that this coal was transported by Durga Datt. The estimate of Durga Datt was 3,000 tons. That is no more than a mere guess. A railway official was examined in the case, and he stated that loose coal was sufficient to fill 100 or 50 wagons. From the schedule filed, it appears that a wagon carries on an average 20 tons. Taking the number of wagons as 75, the quantity could not exceed 1.500 tons. A sum of Rs. 3,750 as payment for 1,500 tons at Rs. 2-8-0 per ton ought to have been included. Instead of Rs 7,500. To that extent, the decree in favour of Durga Datt would be modifiedt for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity.In the present case no agreement about interest was made, nor was it implied. The notice which was given did not specify the sum which was demanded, and, therefore, the Interest Act does not apply. The present case also does not fall within those cases in which Courts of equity grant interest. Learned counsel for Durga Datt claimed interest as damages; but it is well-settled that interest as damages cannot be awarded. Interest up to date of suit, therefore, was not claimable, and a deduction shall be made of such interest from the amount decreed. As regards interest pendente lite until the date of realisation, such interest was within the discretion of the Court. The rate fixed is 6 per cent. which, in the circumstances and according to the practice of Courts, appears high. Interest shall be calculated at 4 per cent. per annum instead of at 6 per cent. and the decree shall be modified accordingly.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: the indebtedness of Rungta to Durga Datt stood as follows : 16th July, 1951 about Rs. 7,835 27th July, 1951Rs. 6,790 6th August, 1951Rs. 11,170 12th August, 1951Rs. 15,590 These sums were in addition to a security deposit of Rs. 2,038. Whatever might be the intent and purpose of the clause in question, it is clear enough that Rungta was withholding substantial amounts over a very long period without any reasonable cause. To Durga Datt, the receipt of money in time was a vital consideration if he was to fulfill his contract at all. It was not to be expected that he would go on carrying thousands of tons of coal from the colliery without receiving payments. In our opinion, these facts speak for themselves, and amply support the finding of the learned Judicial Commissioner that Rungta was really responsible for hamstringing the work of Durga Datt. Why Rungta did so is not very clear from the record of the case, though an attempt was made to show that the quantity of coal transported from month to month was falling. An abstract of the quantities transported does not support this allegation. This abstract is of the quantity loaded in wagons. The figures are almost constant, except in one month (April). There were, of course, variations in the quantity of coal loaded in the wagons form month to month; but the evidence shows that some coal remained at the siding in heaps and was not loaded immediately. The variation in the quantity also might have been due as much to Durga Datt as to the colliery and its output. In our judgment, no inference can be drawn from the abstract, showing the quantities of coal loaded into the wagons, that Durga Datt had slackened work after May. Learned counsel for Rungta cited some cases in which time was not considered as of the essence of the contract. Most of these cases deal with immovable property, where a different rule applies. In commercial transactions, time is ordinarily of the essence, and in the agreement, with which we are concerned, the payment of bills by a particular date was expressly; mentioned. The intention, obviously, was that Durga Datt would receive payments for work executed as soon as the amounts became due. Rungta did not pay these amounts, which were also within his own knowledge either by the 10th of the following month or even within a reasonable time after the presentation of the bills. In these circumstances, we are of opinion that cl. (5) was breached by Rungta. 9. In addition to this, there were difficulties of the road being in a bad state during the rainy season. The evidence shows that the wheels of the trucks used to sink in the mud frequently and the trucks had to be dragged out. For this state of affairs, Rungta was mainly responsible under cl. (8). The inclusion of the clause in the agreement itself shows that the parties realised that there might be hindrance to the trucks, if the road was not repaired. The finding of the Judicial Commissioner on this part of the case is, therefore, sound, though that reason by itself might not have been sufficient for stopping the work altogether and rescinding the contract. 10. The case is thus covered by S 55 of the Indian Contract Act, and Durga Datt was entitled to rescind the contract, when the very important condition of the agreement was broken by Rungta. We confirm the finding of the Judicial Commissioner on this part of the case. 11. This brings us to the inclusion of Rs. 7,500 on account of 3,000 tons of coal alleged to have been transported. The evidence on this part of the case is somewhat unsatisfactory. Fortunately for Durga Datt some of the witnesses of Rungta admitted that besides coal which was loaded in the wagons, there were three large heaps of coal lying in the yard and that this coal was transported by Durga Datt. The estimate of Durga Datt was 3,000 tons. That is no more than a mere guess. A railway official was examined in the case, and he stated that loose coal was sufficient to fill 100 or 50 wagons. From the schedule filed, it appears that a wagon carries on an average 20 tons. Taking the number of wagons as 75, the quantity could not exceed 1.500 tons. A sum of Rs. 3,750 as payment for 1,500 tons at Rs. 2-8-0 per ton ought to have been included. Instead of Rs 7,500. To that extent, the decree in favour of Durga Datt would be modified. 12. There remains the question of interest. Interest for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity. Bengal Nagpur Ry. Co. Ltd. v. Ruttanji Ramji, 65 Ind App 66 : (AIR 1938 P C 67). In the present case no agreement about interest was made, nor was it implied. The notice which was given did not specify the sum which was demanded, and, therefore, the Interest Act does not apply. The present case also does not fall within those cases in which Courts of equity grant interest. Learned counsel for Durga Datt claimed interest as damages; but it is well-settled that interest as damages cannot be awarded. Interest up to date of suit, therefore, was not claimable, and a deduction shall be made of such interest from the amount decreed. As regards interest pendente lite until the date of realisation, such interest was within the discretion of the Court. The rate fixed is 6 per cent. which, in the circumstances and according to the practice of Courts, appears high. Interest shall be calculated at 4 per cent. per annum instead of at 6 per cent. and the decree shall be modified accordingly. ### Response: 1

Raymond Woollen Mills Ltd. (Now known as M/s. Raymond Ltd.) & Another Vs. Director General (Investigation & Registration) & Another

by evidence, can be looked into. The preliminary investigation report, as such, is not evidence on record. As such, any reference to the contents thereof, which have not been put in evidence and subjected to cross examination, cannot be looked into. This is without prejudice to the contention that there is nothing stated in the preliminary investigation report, which in any way establishes that any competition was affected within the meaning of section 2(o) of the Act and that competition was affected to any "material degree" in the relevant trade or industry, as contemplated under clause (h) of section 38(1) of the Act.37. The appellants submitted that the findings given by the Commission that the dealership of the complainant was "terminated" by the appellants herein and held it to be a "restrictive trade practice", was wholly uncalled for and untenable.38. The appellants submitted that no finding with regard to termination of dealership could be made since there was no such charge or allegation made in the Notice of Enquiry. A reference has been made to the case of M/s. Lakhanpal National Ltd. v. MRTP Commission and Another [(1989) 3 SCC 251] . This court in para 9 of the said judgment observed as under: "The argument was rightly repelled on behalf of the appellant on the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the Show Cause Notice quoted above." 39. The appellants contended that since there was no allegation of "restrictive trade practice" on account of the alleged termination of the agreement, no order in respect thereof could be passed by the Commission. The order passed in respect of the same is clearly illegal and without jurisdiction.40. The appellants further contended that, in any event, the evidence in the present case clearly establishes that the complainant firm M/s Roop Milan had itself asked for return of its security deposit from appellant No.2, which was duly returned and thereafter, there was no dealing between the parties. As such, there can be no case of termination of dealership. The said complainant firm was mainly dealing with the products of other manufacturers and out of its total turnover of Rs.25 lakhs per annum, its purchases from appellant no. 2 was only to the extent of Rs.50,000 per annum. In these circumstances, the said complainant firm did not desire to continue to deal with the appellants products and as such sought refund of its security deposit, which was duly made. The relevant extract in this behalf from the evidence of Viren Singh, partner of the complainant firm is reproduced as under: "It is correct that in our letter we had asked a refund of the security deposit which was refunded to us by the respondent no. 2 along with their aforesaid letter dated 28.9.1987. In fact we received the refund as per memo dated 28.9.1987. It is not a letter as such and this is Exh. AW1/R-18." 41. The appellants submitted that, in any event, mere termination of dealership agreement does not affect competition within the meaning of section 2(o) of the MRTP Act and cannot be treated as a "Restrictive Trade Practice". Further, the termination, if any, of a single retail dealer cannot affect competition to any "material degree" in the relevant trade or industry, within the meaning of clause (h) of section 38(1) of the Act.42. The appellants submitted that the Commission was not justified in passing any order regarding termination of dealership. The appellants also submitted that appellant no. 1 is only a holding company of which appellant no. 2 is a subsidiary company. There is no transaction of sale or dealing by appellant no. 1. No manufacturing or selling activity is carried out by appellant no. 1 and as such, no "tie-up" of sales could be resorted to by appellant no. 1. Therefore, the Commission was not justified in passing any order against appellant no. 1. The appellants submitted that the impugned order of the Commission ought to be set aside and the notice of enquiry be discharged. 43. We have carefully gone through the entire record in this case and heard the learned counsel for the parties at length. From the proper analysis of the entire evidence on record, we reach to an irresistible conclusion that no "tie-up" of sales of trousers as a condition has been established. Therefore, the Commissions passing any consequential order on the basis of tie-up is wholly untenable and unsustainable in law.44. The court would be justified in passing the order on alleged restrictive trade practice only when it is "prejudicial to public interest" under clause (h) of section 38(1) of the MRTP Act. The pre-condition for passing such an order is that the restriction as imposed directly or indirectly when restricts or discourages competition to any "material degree" in any trade or industry, then only it would be considered as "prejudicial to public interest". The court should not pass an order of "cease and desist" where the alleged restrictive trade practice does not have the impact on restricting competition to any material degree.45. When the evidence on behalf of the appellants clearly shows that there are several manufacturers including small scale manufactures, the little share of the complainant/informant does not affect the competition in the relevant trade or industry and, accordingly, in these circumstances, to pass any order under section 38(1)(h) cannot be justified.46. In the instant case, the complainant/informant had requested for refund of the security amount and, therefore, it was refunded. It was really not a case of "termination of dealership". There was no charge or allegation of termination of dealership in the notice of enquiry, therefore, the Commission was not justified in passing the order based on "termination of dealership". Even otherwise also, the termination of single dealership cannot affect competition to any "material degree" in the relevant trade or industry within the meaning of clause (h) of section 38(1) of the MRTP Act.

1[ds]43. We have carefully gone through the entire record in this case and heard the learned counsel for the parties at length. From the proper analysis of the entire evidence on record, we reach to an irresistible conclusion that noof sales of trousers as a condition has been established. Therefore, the Commissions passing any consequential order on the basis ofis wholly untenable and unsustainable in law.44. The court would be justified in passing the order on alleged restrictive trade practice only when it is "prejudicial to public interest" under clause (h) of section 38(1) of the MRTP Act. Thefor passing such an order is that the restriction as imposed directly or indirectly when restricts or discourages competition to any "material degree" in any trade or industry, then only it would be considered as "prejudicial to public interest". The court should not pass an order of "cease and desist" where the alleged restrictive trade practice does not have the impact on restricting competition to any material degree.45. When the evidence on behalf of the appellants clearly shows that there are several manufacturers including small scale manufactures, the little share of the complainant/informant does not affect the competition in the relevant trade or industry and, accordingly, in these circumstances, to pass any order under section 38(1)(h) cannot be justified.46. In the instant case, the complainant/informant had requested for refund of the security amount and, therefore, it was refunded. It was really not a case of "termination of dealership". There was no charge or allegation of termination of dealership in the notice of enquiry, therefore, the Commission was not justified in passing the order based on "termination of dealership". Even otherwise also, the termination of single dealership cannot affect competition to any "material degree" in the relevant trade or industry within the meaning of clause (h) of section 38(1) of the MRTP Act.The evidence of P. H. Hiranandani reveals that all garments including trousers were in short supply and had great demand. Therefore, the allegation that the supply of trousers had been tied up with any other garment for sale is without any basis.With regard to "territorial restriction" and "exclusive dealings", this court held in para 61 that these conditions were not "prejudicial to public interest" and that both these restrictions were in public interest.Similarly, for invoking section 38(1)(h) of the MRTP Act to show that in any event, it could not be said that competition was affected to any "material degree" in the relevant trade or industry, the appellants witness Pradeep H. Hiranandani has clarified in para 8 of the affidavit of evidence that in view of the negligible market share of the appellants in the relevant trade, it cannot be even alleged that the competition was affected to any "materialthe present case, there is no allegation of any "Agreement" entered into between the parties, either oral or in writing under which any practice ofsales was specified. As such, section 33 has no relevance to the present case.

### 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: by evidence, can be looked into. The preliminary investigation report, as such, is not evidence on record. As such, any reference to the contents thereof, which have not been put in evidence and subjected to cross examination, cannot be looked into. This is without prejudice to the contention that there is nothing stated in the preliminary investigation report, which in any way establishes that any competition was affected within the meaning of section 2(o) of the Act and that competition was affected to any "material degree" in the relevant trade or industry, as contemplated under clause (h) of section 38(1) of the Act.37. The appellants submitted that the findings given by the Commission that the dealership of the complainant was "terminated" by the appellants herein and held it to be a "restrictive trade practice", was wholly uncalled for and untenable.38. The appellants submitted that no finding with regard to termination of dealership could be made since there was no such charge or allegation made in the Notice of Enquiry. A reference has been made to the case of M/s. Lakhanpal National Ltd. v. MRTP Commission and Another [(1989) 3 SCC 251] . This court in para 9 of the said judgment observed as under: "The argument was rightly repelled on behalf of the appellant on the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the Show Cause Notice quoted above." 39. The appellants contended that since there was no allegation of "restrictive trade practice" on account of the alleged termination of the agreement, no order in respect thereof could be passed by the Commission. The order passed in respect of the same is clearly illegal and without jurisdiction.40. The appellants further contended that, in any event, the evidence in the present case clearly establishes that the complainant firm M/s Roop Milan had itself asked for return of its security deposit from appellant No.2, which was duly returned and thereafter, there was no dealing between the parties. As such, there can be no case of termination of dealership. The said complainant firm was mainly dealing with the products of other manufacturers and out of its total turnover of Rs.25 lakhs per annum, its purchases from appellant no. 2 was only to the extent of Rs.50,000 per annum. In these circumstances, the said complainant firm did not desire to continue to deal with the appellants products and as such sought refund of its security deposit, which was duly made. The relevant extract in this behalf from the evidence of Viren Singh, partner of the complainant firm is reproduced as under: "It is correct that in our letter we had asked a refund of the security deposit which was refunded to us by the respondent no. 2 along with their aforesaid letter dated 28.9.1987. In fact we received the refund as per memo dated 28.9.1987. It is not a letter as such and this is Exh. AW1/R-18." 41. The appellants submitted that, in any event, mere termination of dealership agreement does not affect competition within the meaning of section 2(o) of the MRTP Act and cannot be treated as a "Restrictive Trade Practice". Further, the termination, if any, of a single retail dealer cannot affect competition to any "material degree" in the relevant trade or industry, within the meaning of clause (h) of section 38(1) of the Act.42. The appellants submitted that the Commission was not justified in passing any order regarding termination of dealership. The appellants also submitted that appellant no. 1 is only a holding company of which appellant no. 2 is a subsidiary company. There is no transaction of sale or dealing by appellant no. 1. No manufacturing or selling activity is carried out by appellant no. 1 and as such, no "tie-up" of sales could be resorted to by appellant no. 1. Therefore, the Commission was not justified in passing any order against appellant no. 1. The appellants submitted that the impugned order of the Commission ought to be set aside and the notice of enquiry be discharged. 43. We have carefully gone through the entire record in this case and heard the learned counsel for the parties at length. From the proper analysis of the entire evidence on record, we reach to an irresistible conclusion that no "tie-up" of sales of trousers as a condition has been established. Therefore, the Commissions passing any consequential order on the basis of tie-up is wholly untenable and unsustainable in law.44. The court would be justified in passing the order on alleged restrictive trade practice only when it is "prejudicial to public interest" under clause (h) of section 38(1) of the MRTP Act. The pre-condition for passing such an order is that the restriction as imposed directly or indirectly when restricts or discourages competition to any "material degree" in any trade or industry, then only it would be considered as "prejudicial to public interest". The court should not pass an order of "cease and desist" where the alleged restrictive trade practice does not have the impact on restricting competition to any material degree.45. When the evidence on behalf of the appellants clearly shows that there are several manufacturers including small scale manufactures, the little share of the complainant/informant does not affect the competition in the relevant trade or industry and, accordingly, in these circumstances, to pass any order under section 38(1)(h) cannot be justified.46. In the instant case, the complainant/informant had requested for refund of the security amount and, therefore, it was refunded. It was really not a case of "termination of dealership". There was no charge or allegation of termination of dealership in the notice of enquiry, therefore, the Commission was not justified in passing the order based on "termination of dealership". Even otherwise also, the termination of single dealership cannot affect competition to any "material degree" in the relevant trade or industry within the meaning of clause (h) of section 38(1) of the MRTP Act. ### Response: 1

Ayodhya Prasad Vajpai Vs. State Of U.P. & Anr

Samiti or any Khand notwithstanding the inadvisability of continuing it for administrative or other valid reason. The power exercised by the Government in issuing the two notifications flows clearly from the provisions of the law under which Government was acting.7. It is for this reason that the attack of Mr. Garg was next directed against Ss. 3 and 8 of the Act. He compared the power to make new Khands and to reorganise the old ones with the other scheme of the Act under which the Kshettra Samitis are required to function with right to hold property, to possess fund and to carry on administration. All this does not show that the power given by the Act to reconstitute Khands is in any way impaired or frustrated. The two powers are quite distinct. The first power exists when the Samitis are established and continue. The second power comes into play when the need for reconstitution of the Khand emerges. The provisions of Ss. 3 and 8 cannot thus be said to negative the other provisions to which our attention was drawn.8. It was next contended by Mr. Garg that Ss. 3 and 8 were invalid because they involved excessive delegation of legislatie functions to the State Government and being not supported by adequate safeguards or guides, must be struck down. This argument is not valid. The Act speaks for itself and is self-contained. Its policy is stated in clear terms and the power to create Khands must be read with the power to abolish Khands and create new Khands in their place. The details of how big a Khand should be, what territory it should involve and so on and so forth cannot be the subject of detailed legislation. The Act gives ample indication of what the purpose of making a Khand is and the duties which the Kshettra Samitis must perform. On this subject the legislaitve will have been sufficiently expressed and must, therefore, guide the State Government in making its notifications. This case is analogous to the one reported in State of Bhopal v. Champalal, (1964) 6 SCR 35 = (AIR 1965 SC 124 ). In that case it was observed that the preamble and long title of the Act made it clear that the enactment was for the reclamation and the development of the land by the eradication of Kans weed in certain areas in the State". The purpose being specified as the eradication of Kans in area infested with it, the Act was said to be valid although the selection of the land was left to the Executive. The legislative policy behind the provisions of law was held to be writ large on it and what remained or was left to the Executive was to carry out the mandate and give effect to the law to achieve the purpose of the Act.9. In present case also the underlying policy and the objective of the legislation is clearly set out and the details of the duties of the Kshettra Samitis are indicated. It has, however, been left to the State Government to determine what the Khands should be and how many Kshettra Samitis should be constituted in each district. This is not a subject for detailed legislation because it is eminently a matter which can be left to the determination of the Executive which is to act in conformity with the wishes of the local people, the political exigency of the situation and the requirements of administrative control. In our opinion, the Act has not erred by conceding unfettered or uncanalised power to the State Government as is contended. On the other hand it has itself spoken on the relevant subject in full detail so as to outline its own will which alone the Executive is supposed to implement.10. It was next contended that Ss. 3 and 8 violate Art. 14 because they furnish an indirect method of removal of the Pramukh, the Up-Pramukh and the Members of a Kshettra Samiti without having to take recourse to the provisions for their removal as laid down in the Act. Reliance in this connection is placed upon a decision of this Court in Ram Dial v. State of Punjab, (1965) 2 SCR 858 = (AIR 1965 SC 1518 ). That case is easily distinguishable.11. There the Punjab Municipalities Act contained two provisions for the removal of a member in the public interest. By one provision he was entitled to a hearing and by the other not. This Court held that as it was open to choose one method rather than the other and that there was room for arbitrary action. Here the provisions on the subject of removal of members of the Kshettra Samitis are not congruous with the subject of reoganisation of Khands. The two provisions operate in entirely different fields. One is concerned directly with the removal of the Pramukh, Up-Pramukh and the members. The other is directly concerned with the abolition of the Khands and reconstitution of different Khands. These are two different powers and cannot be compared at all. It may be that by abolishing a Khand and its Kshettra Samiti the members also must go, but that is a consequence of the exercise of quite a different power. Of course, if the action in abolishing the Khand could be shown to be directly connected with the removal of the Pramukh, Up-Pramukh or a member of the Kshettra Samiti the action of the Executive Government can be struck down as male fide. It was for this purpose that the appellant pleaded in the High Court mala fide on the part of the Government. The two judgments now under appeal negative the existence of any mala fide intention. No material was placed before us to establish mala fide nor could the findings be attacked since they were concurrently reached. In this view of the matter we must hold that the State Government in exercising its powers acted honestly and within the four corners of its jurisdiction.

0[ds]It is not necessary to refer to these sections because they are to be found in all legislation dealing with the establishment of corporate local self-Government bodies. The question is not whether Kshettra Samitis enjoy perpetual succession. The question iswhether the Kshettra Samitis once established enjoy perpetualThe scheme of the Act clearly indicates that the area of the district is required to be divided into many Khands with a Kshettra Samiti in each Khand. Sections 3, 4, 8 and 8-A confer power upon the State Government to alter the area of the Khand, constitute new Khands and re-establish old ones. This power is given by the legislature advisedly so that the working of democracy in the rural areas in the Kshettra Samitis and Zilla Parishads may be smooth and without difficulty. The reorganisation of the Khands may become necessary because of circumstances too numerous to mention here. Power has therefore, been reserved to Government to make the alterations as stated above. It will be seen that the latter part of S. 3 gives specific power to create new Khands in addition to the change of areas of the existing Khands which means that new Khands may be brought into existence and old Khands abolished. In fact, Ss. 4 and 8-A and the newly added proviso to Section 8 bear upon the abolition of existing Khands. In other words, what the State Government did was by an express grant from the legislature. The other provisions of the Act to which our attention was drawn merely indicate what Kshettra Samiti is required to do as long as the Kshettra Samiti exists. Similarly the term of the Kshettra Samitis is to apply to a Kshettra Samiti which is not abolished but continues. The perpetual succession in this context means succession of one Kshettra Samiti to another but in fact it does not entail perpetual existence of any Samiti or any Khand notwithstanding the inadvisability of continuing it for administrative or other valid reason. The power exercised by the Government in issuing the two notifications flows clearly from the provisions of the law under which Government wasthis does not show that the power given by the Act to reconstitute Khands is in any way impaired or frustrated. The two powers are quite distinct. The first power exists when the Samitis are established and continue. The second power comes into play when the need for reconstitution of the Khand emerges. The provisions of Ss. 3 and 8 cannot thus be said to negative the other provisions to which our attention wasargument is not valid. The Act speaks for itself and is self-contained. Its policy is stated in clear terms and the power to create Khands must be read with the power to abolish Khands and create new Khands in their place. The details of how big a Khand should be, what territory it should involve and so on and so forth cannot be the subject of detailed legislation. The Act gives ample indication of what the purpose of making a Khand is and the duties which the Kshettra Samitis must perform. On this subject the legislaitve will have been sufficiently expressed and must, therefore, guide the State Government in making its notifications. This case is analogous to the one reported in State of Bhopal v. Champalal, (1964) 6 SCR 35 = (AIR 1965 SC 124 ). In that case it was observed that the preamble and long title of the Act made it clear that the enactment was for the reclamation and the development of the land by the eradication of Kans weed in certain areas in the State". The purpose being specified as the eradication of Kans in area infested with it, the Act was said to be valid although the selection of the land was left to the Executive. The legislative policy behind the provisions of law was held to be writ large on it and what remained or was left to the Executive was to carry out the mandate and give effect to the law to achieve the purpose of the Act.9. In present case also the underlying policy and the objective of the legislation is clearly set out and the details of the duties of the Kshettra Samitis are indicated. It has, however, been left to the State Government to determine what the Khands should be and how many Kshettra Samitis should be constituted in each district. This is not a subject for detailed legislation because it is eminently a matter which can be left to the determination of the Executive which is to act in conformity with the wishes of the local people, the political exigency of the situation and the requirements of administrative control. In our opinion, the Act has not erred by conceding unfettered or uncanalised power to the State Government as is contended. On the other hand it has itself spoken on the relevant subject in full detail so as to outline its own will which alone the Executive is supposed to implement.There the Punjab Municipalities Act contained two provisions for the removal of a member in the public interest. By one provision he was entitled to a hearing and by the other not. This Court held that as it was open to choose one method rather than the other and that there was room for arbitrary action. Here the provisions on the subject of removal of members of the Kshettra Samitis are not congruous with the subject of reoganisation of Khands. The two provisions operate in entirely different fields. One is concerned directly with the removal of the Pramukh, Up-Pramukh and the members. The other is directly concerned with the abolition of the Khands and reconstitution of different Khands. These are two different powers and cannot be compared at all. It may be that by abolishing a Khand and its Kshettra Samiti the members also must go, but that is a consequence of the exercise of quite a different power. Of course, if the action in abolishing the Khand could be shown to be directly connected with the removal of the Pramukh, Up-Pramukh or a member of the Kshettra Samiti the action of the Executive Government can be struck down as male fide. It was for this purpose that the appellant pleaded in the High Court mala fide on the part of the Government. The two judgments now under appeal negative the existence of any mala fide intention. No material was placed before us to establish mala fide nor could the findings be attacked since they were concurrently reached. In this view of the matter we must hold that the State Government in exercising its powers acted honestly and within the four corners of itssection allows the State Government to divide the rural area of each district into Khands. It also enables the Government to change the name of a Kshettra Samiti and to make modifications in the areas and limits of the Khands and to create new Khands. Section 4 specifies the effect of changes in the Khands and the temporary and permanent consequences thereof are provided for. Section 5 then deals with the establishment and incorporation of Kshettra Samitis for each Khand bearing the name of the Khand for which it is established. It says inter alia that every Kshettra Samiti as a body corporate having perpetual succession and common seal and subject to any restrictions or qualifications imposed by any other enactments possesses the power to acquire, hold and dispose of property and to enter into contracts and may by its corporate name sue and be sued. Section 6 details the composition of Kshettra Samitis providing for elections and co-options. Section 7 lays down the procedure for the election of the Pramukhs and the Up-pramukhs of the Kshettra Samitis and its members and Section 9 in the same way deals with the term of the Pramukhs and the Up-Pramukhs. Section 10 then enables the Government to arrange for the constitution of the first Kshetra Samiti for every Khand and for the reconstitution thereof on the expiry of the first and each subsequent term or when otherwise required under the Act having regard to the provisions of Section 6. Sections 11-16 deal with the resignation of Pramukha, Up-Pramukhs and members, filling of casual vacancies, disqualifications for being chosen or co-opted as members, disputes as to membership or disqualification and motion of no-confidence in Pramukh or Up-Pramukh and removal of Pramukh or Up-Pramukh. In this way complete local self-government is established.

### 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: Samiti or any Khand notwithstanding the inadvisability of continuing it for administrative or other valid reason. The power exercised by the Government in issuing the two notifications flows clearly from the provisions of the law under which Government was acting.7. It is for this reason that the attack of Mr. Garg was next directed against Ss. 3 and 8 of the Act. He compared the power to make new Khands and to reorganise the old ones with the other scheme of the Act under which the Kshettra Samitis are required to function with right to hold property, to possess fund and to carry on administration. All this does not show that the power given by the Act to reconstitute Khands is in any way impaired or frustrated. The two powers are quite distinct. The first power exists when the Samitis are established and continue. The second power comes into play when the need for reconstitution of the Khand emerges. The provisions of Ss. 3 and 8 cannot thus be said to negative the other provisions to which our attention was drawn.8. It was next contended by Mr. Garg that Ss. 3 and 8 were invalid because they involved excessive delegation of legislatie functions to the State Government and being not supported by adequate safeguards or guides, must be struck down. This argument is not valid. The Act speaks for itself and is self-contained. Its policy is stated in clear terms and the power to create Khands must be read with the power to abolish Khands and create new Khands in their place. The details of how big a Khand should be, what territory it should involve and so on and so forth cannot be the subject of detailed legislation. The Act gives ample indication of what the purpose of making a Khand is and the duties which the Kshettra Samitis must perform. On this subject the legislaitve will have been sufficiently expressed and must, therefore, guide the State Government in making its notifications. This case is analogous to the one reported in State of Bhopal v. Champalal, (1964) 6 SCR 35 = (AIR 1965 SC 124 ). In that case it was observed that the preamble and long title of the Act made it clear that the enactment was for the reclamation and the development of the land by the eradication of Kans weed in certain areas in the State". The purpose being specified as the eradication of Kans in area infested with it, the Act was said to be valid although the selection of the land was left to the Executive. The legislative policy behind the provisions of law was held to be writ large on it and what remained or was left to the Executive was to carry out the mandate and give effect to the law to achieve the purpose of the Act.9. In present case also the underlying policy and the objective of the legislation is clearly set out and the details of the duties of the Kshettra Samitis are indicated. It has, however, been left to the State Government to determine what the Khands should be and how many Kshettra Samitis should be constituted in each district. This is not a subject for detailed legislation because it is eminently a matter which can be left to the determination of the Executive which is to act in conformity with the wishes of the local people, the political exigency of the situation and the requirements of administrative control. In our opinion, the Act has not erred by conceding unfettered or uncanalised power to the State Government as is contended. On the other hand it has itself spoken on the relevant subject in full detail so as to outline its own will which alone the Executive is supposed to implement.10. It was next contended that Ss. 3 and 8 violate Art. 14 because they furnish an indirect method of removal of the Pramukh, the Up-Pramukh and the Members of a Kshettra Samiti without having to take recourse to the provisions for their removal as laid down in the Act. Reliance in this connection is placed upon a decision of this Court in Ram Dial v. State of Punjab, (1965) 2 SCR 858 = (AIR 1965 SC 1518 ). That case is easily distinguishable.11. There the Punjab Municipalities Act contained two provisions for the removal of a member in the public interest. By one provision he was entitled to a hearing and by the other not. This Court held that as it was open to choose one method rather than the other and that there was room for arbitrary action. Here the provisions on the subject of removal of members of the Kshettra Samitis are not congruous with the subject of reoganisation of Khands. The two provisions operate in entirely different fields. One is concerned directly with the removal of the Pramukh, Up-Pramukh and the members. The other is directly concerned with the abolition of the Khands and reconstitution of different Khands. These are two different powers and cannot be compared at all. It may be that by abolishing a Khand and its Kshettra Samiti the members also must go, but that is a consequence of the exercise of quite a different power. Of course, if the action in abolishing the Khand could be shown to be directly connected with the removal of the Pramukh, Up-Pramukh or a member of the Kshettra Samiti the action of the Executive Government can be struck down as male fide. It was for this purpose that the appellant pleaded in the High Court mala fide on the part of the Government. The two judgments now under appeal negative the existence of any mala fide intention. No material was placed before us to establish mala fide nor could the findings be attacked since they were concurrently reached. In this view of the matter we must hold that the State Government in exercising its powers acted honestly and within the four corners of its jurisdiction. ### Response: 0

Maharashtra Tubes Limited Vs. State Industrial and Investment Corporation of Maharashtra Limited and Another

Dictionary (Fourth Edition) which reads as under "Any proceedings in court of justice...... by which property of debtor is seized and diverted from his general creditors.... This term includes all proceedings authorised or sanctioned by law, and brought or instituted in a court of justice or legal tribunal, for the acquiring of a right or the enforcement of a remedy." * Even this definition does not militate against the view are inclined to take. In first place action under Section 29 of the 1951 Act is to seize the property of the defaulting industrial concern and to appropriate if for satisfying the debt. it gets diverted from the general body of creditors. The Corporation is fully empowered to dispose it of to a third party and pass a clear marketable title. All this can be done by the Corporation without the need to of to a court or tribunal or any other recovery agency. The Corporation is itself permitted to play that role. In substance the Corporation is playing the same role. From the point of view of quality and character the remedy is the same as in execution or distress proceedings. Therefore, even if one goes by the said meaning and understands the term proceedings in the light of the object and purpose of Section 22(1) of the Act 1985 Act, no difficulty is experienced in taking the view that it must be widely construed 12. Reliance was placed on decisions of two High Courts in support of the contentions urged on behalf of the appellant-company. We shall deal with them briefly. In Testeels Ltd., v. Radhaben Ranchhodlal Charitable Trust the short point for decision was whether a winding up proceeding already commenced against an industrial company ought to be dismissed or stayed during the pendency of the reference under Section 15 of the 1985 Act. The High Court held that the words be proceeded with further in Section 22 cannot be interpreted to mean that the proceedings should be kept in abeyance but the various provision of the enactment must be construed to put an end to both the contemplated and pending winding up proceedings. The High Court held that if the winding up proceedings are kept pending it may be difficult to effectively administer the schemes under Section 18 or grant financial assistance under Section 19 of the 1985 Act. The High Court held that the provision must be broadly construed keeping in mind the scheme of the law so that the ultimate objective is achieved and not defeated. In the other case of Industrial Finance Corporation of India v. Maharashtra Steel Ltd., the view taken was that pending inquiry by the BIFR the exercise of power under Section 30 of the 1951 Act would not be proper in view of Section 22(1) of the 1985 Act. Section empowers the Financial Corporation to requires an industrial concern by notice to discharges its liabilities before the agreed date. Even though no legal proceedings are contemplated under that provision, the High Court did not permit such an action during the pendency of proceedings under the 1985 Act. These two cases reinforce the view that the provision of Section 22(1) of the 1985 Act should receive a broad construction. These cases, therefore, support the view that expression proceedings in Section 22(1) need not be limited to legal proceedings understood in the narrow sense notwithstanding the use of that expression in the marginal note 13. Mr. Rao, however, invited our attention to the decision of the Andhra Pradesh High Court in Andhra Cement Co. Ltd., Secunderabad v. A.P. State Electricity Board. That was a case in which the company sought a permanent injunction against the Electricity Board to restrain it from refusing to supply of further goods under a contract cannot, in our view, be equated with the kind of proceedings contemplated by Section 22(1)". Since non-supply of goods in future cannot amount to action proposed against the property of the company, the High Court held that Section 22(1) was not attracted. It is, therefore, obvious that the decision turned on the peculiar facts of that case and does not militate against the view which commends to us 14. Now we come to the impugned decision. The High Court was considerably influenced by the fact that the appellant-company owed crores of rupees to banks and felt that so far as such creditors are concerned, different considerations may come into play but the High Court with respect failed to appreciate that the 1985 Act was enacted primarily to assist sick industrial undertakings which inter alia failed to meet their financial obligations. It is, therefore, difficult to accept the view of the High Court that where the creditors of a sick industrial concern happen to be banks or State Financial Corporations different considerations would come into play. It must be realised that in the modern industrial environment large industries are generally financed by banks and statutory corporations created specially for the purpose and if they are permitted to resort to independent actin in total disregard of the pending inquiry under Section 15 to 19 of the 1985 Act the entire exercise under the said provisions would be rendered nugatory by the time the BIFR is able to evolve a scheme of revival or rehabilitation of the sick industrial concern by the simple device of the Financial Corporation resorting to Section 29 of the 1951 Act. We are, therefore, of the opinion that where an inquiry is pending under Section 16/17 or an appeal is pending under Section 25 of the 1985 Act there should be cessation of the coercive activities of the type mentioned in Section 22(1) to permit the BIFR to consider what remedial measures it should take with respect to the sick industrial company. The expression proceedings in Section 22(1), therefore, cannot be confined to legal proceedings understood in the narrow sense of proceedings in a court of law or a legal tribunal for attachment and sale of the debtors property

1[ds]7. It will be seen from the above discussion that both the 1951 Act and the 1985 Act are special statutes, each having a different objective, the emphasis in the case of the former being on giving of financial assistance to entrepreneurs for setting up industries while in the case of the latter it being to revive or rehabilitate industries which have an account of economic or other related reasons gone sick. No doubt the latter Act also contemplates giving of financial assistance for revival or rehabilitation of a sick industrial undertaking but that is by way of a remedy or as a measure at revival of the sick unit8. Now that we have clarified the respective schemes and objects of the two enactments we may notice a few background facts which have a bearing on the question under consideration. The appellant-company was in-corporated under the Companies Act, 1956 on April 15, 1980 or thereabouts and it commenced its activities of manufacturing steel pipes/tubes etc., of various sizes and dimensions essentially for export sometime in July 1982. Unfortunately within a couple of year of its commencing manufacturing activities it ran into difficulties on account of labour unrest, strikes, financial constraints etc. which necessitated the cessation of manufacturing activities by about July 1986. The disputes with the workmen lingered on for a couple of years and were settled by about August 1988. Since the company had run into serious financial problems on account of accumulated losses and paucity of cash flow, it wrote a letter to the BIFR on August 28, 1988 enclosing therewith a provisional balance-sheet for the year ended June 30, 1988 showing the accumulated losses and sought financial assistance for revival of the unit. The Director (Finance) of the BIFR replied by pointing out certain deficiencies in the statements of accounts forwarded to it and desired the company to report the sickness in Form A and to take appropriate action under Section 15(1) of the 1985 Act. The company submitted the proposal in A showing accumulated losses as on March 31, 1990 at Rs. 369 lakhs with a paid-up capital as on that date of Rs. 1.11 crores and free reserves at Rs. 29.20 lakhs. It was also pointed out that the company suffered a cash loss of Rs. 50.40 lakhs in the financial year ended March 31, 1989 and a further cash loss Rs. 149.79 lakhs in the financial year ended march 31, 1990. The gross value of the plant and machinery of the company as on March 31, 1990 was estimated at Rs. 160 lakhs. On that date the company has 34 workers on its rolls. It appears that after the receipt of Form A the BIFR held a preliminary hearing on September 12, 1991, at which Shri Rajesh Dalmia, Managing Director of the company, confirmed the information given in Form A and stated that during July 1, 1987 to June 30, 1988, the company employed more than 50 workers. Considering the facts on record and the oral submissions made by the Managing Director of the company. the Bench of the BIFR sought information to enable it to form an opinion on the question whether or not the company was a sick industrial company within the meaning of Section 3(1)(o) of the 1985 Act since the information in regard to the total number of workers employed by the company at the relevant date was not clear and the company had also not submitted the audited accounts for the financial year ended March 31, 1991. Several other discrepancies were also pointed out to the Managing Director of the company and the Bench directed him to submit the authenticated documents regarding the number of workers, audited/finalised accounts for the years 1989-90 and 1990-91 with a detailed explanation in regard to the delay in making the reference and other discrepancies pointed out in the course of hearing. The bank and other financial institutions were also directed to submit the reports regarding the conduct of the company and their role in providing necessary funds. The Chief Manager of the Bank of Baroda addressed a letter to the company on October 4, 1991 reminding it to furnish by return of post the information in regard to the number of workers employed during the period from July 1, 1987 to August 30, 1987 duly authenticated by the Registrar/Commissioner of Labour, reasons for not reporting to BIFR in time, inventory of fixed and current assets of the company along with a copy of the audited balance-sheet as on March 31, 1991, reasons for not reporting the details of sister-concerns in Form A and the position in regard to accumulated losses/cash losses for the last three years. At the next hearing held on July 20, 1992 Bench III of BIFR took note of the statement of the Managing Director that "he had no documentary evidence in support of his contention that the unit employed more than 50 workers during one year preceding the date of reference" and after noticing certain discrepancies in regard to sundry debtors, expenditure on security staff, removal of certain movables, etc., the Bench concluded as under"Considering the facts on record and submission made at todays hearing, the Bench observed that despite sufficient opportunity given to the company, it had not submitted the authenticated documents regarding the number of workers employed during the year preceding the date of reference and Shri Dalmia also could not substantiate during the hearing today his statement that company had more than 50 workers at any one time during the year preceding the date of reference to BIFR. The company as such could not be held a sick industrial company under Section 3(1)(o) of the SIC(SP) Act, 1985. The reference is, therefore, non-maintainable and is dismissed." *After the above order was made the first respondent initiated proceedings under Section 29 of the 1951 Act for taking over possession of the factory premises of the company. In the meantime of August 20, 1992, the company filed an appeal under Section 25 of the 1985 Act against the impugned order of the BIFR Bench dated July 20, 1992, extracted hereinabove. On the same day the company also sent a letter to the first respondent requesting it to stay its hands in view of the provisions of Section 22(1) of the 1985 Act. Thereupon, the first respondent wrote a letter to the appellate authority for permission to take possession of the assets of the company. The company challenged this action before the High Court of Bombay by a writ petition which came to be dismissed on October 6, 1992. The controversy before the High Court was whether the bar of Section 22(1) of the 1985 Act applied to proceedings initiated under Section 29/31 of the 1951 Act. The High Court relying on the decision of this Court in Gram Panchayat v. Shree Vallabh Glass Works Ltd., held as under"[W]e are of the view that when the 1st respondent seeks to enforce its special rights under sub-section (1) of Section 29 of the State Financial Corporations Act, 1951, such an action would not attract the bar of sub-section (1) of Section 22 of the 1985 enactment. In our view, some distinction has to be made between the rights of the 1st respondent-Corporation to proceed under sub-section (1) of Section 31 of the said Act which amounts to initiation of proceedings. Preventing the financial institution like the 1st respondent-Corporation from even resorting to its rights under Section 29 of the 1951 Act would, in our view, render the said provisions totally nugatory. While appreciating the public interest contemplated behind the enactment of Section 22(1) of the 1985 enactment, it must be observed that it is not everybody who may have a special or a higher right of the kind provided under sub-section (1) of Section 29 of the 1951 Act. For example, in this very case, we are told at the bar that the petitioner owes crores of rupees to some banks and so far as such creditors are concerned, different considerations may come into play. As far as the State Financial Corporation respondent 1 is concerned, we are in this case concerned with its action under the letter, Exh. F, which falls squarely under sub-section (1) of Section 29 of the 1951 Act. The 1st respondent has not initiated any proceedings, which could be done only under sub-section (1) of Section 31 of the said Act." *It is this view of the High Court which assailed before us in this appeal9. Having reached the conclusion the both the 1951 Act and the 1985 Act are special statutes dealing with different situations - the former providing for the grant of financial assistance to industrial concerns with a view to boost up industrialisation and the latter providing for revival and rehabilitation of sick industrial undertakings, if necessary, by grant of financial assistance, we cannot uphold the contention urged on behalf of the respondent that the 1985 Act is a general statute covering a large number of industrial concerns than the 1951 Act and, therefore, the latter would prevail over the former in the event of conflict. Both the statutes have competing non obstante provisions. Section 46-B of the 1951 Act provides that the provision of that statute and of any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in way other law for the time being in force whereas Section 32(1) of the 1985 Act also provides that the provisions of the said Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. Section 22(1) also carries a non obstante clause and says that the said provision shall apply notwithstanding anything contained in Companies Act, 1956 or any other law. The 1985 Act being a subsequent enactment, the non obstante clause therein would ordinarily prevail over the non obstante clause found in Section 46-B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 Act is a special one. In that event the maxim generalia specialibus non derogant would apply. But in the present case on a consideration of the relevant provisions of the two statutes we have come to the conclusion that the Act 1951 Act deals with pre-sickness situation whereas the 1985 Act deals with the post-sickness situation. It is, therefore, not possible to agree that the 1951 Act is a special statutes vis-a-vis the 1985 Act which is a general statute. Both are special statutes dealing with different situations notwithstanding a slight overlap here and there, for example, both of them provide for grant of financial assistance though in different situations. We must, therefore, hold that in cases of sick industrial undertakings the provisions contained in the 1985 Act would ordinarily prevail and govern14. Now we come to the impugned decision. The High Court was considerably influenced by the fact that the appellant-company owed crores of rupees to banks and felt that so far as such creditors are concerned, different considerations may come into play but the High Court with respect failed to appreciate that the 1985 Act was enacted primarily to assist sick industrial undertakings which inter alia failed to meet their financial obligations. It is, therefore, difficult to accept the view of the High Court that where the creditors of a sick industrial concern happen to be banks or State Financial Corporations different considerations would come into play. It must be realised that in the modern industrial environment large industries are generally financed by banks and statutory corporations created specially for the purpose and if they are permitted to resort to independent actin in total disregard of the pending inquiry under Section 15 to 19 of the 1985 Act the entire exercise under the said provisions would be rendered nugatory by the time the BIFR is able to evolve a scheme of revival or rehabilitation of the sick industrial concern by the simple device of the Financial Corporation resorting to Section 29 of the 1951 Act. We are, therefore, of the opinion that where an inquiry is pending under Section 16/17 or an appeal is pending under Section 25 of the 1985 Act there should be cessation of the coercive activities of the type mentioned in Section 22(1) to permit the BIFR to consider what remedial measures it should take with respect to the sick industrial company. The expression proceedings in Section 22(1), therefore, cannot be confined to legal proceedings understood in the narrow sense of proceedings in a court of law or a legal tribunal for attachment and sale of the debtors property

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: Dictionary (Fourth Edition) which reads as under "Any proceedings in court of justice...... by which property of debtor is seized and diverted from his general creditors.... This term includes all proceedings authorised or sanctioned by law, and brought or instituted in a court of justice or legal tribunal, for the acquiring of a right or the enforcement of a remedy." * Even this definition does not militate against the view are inclined to take. In first place action under Section 29 of the 1951 Act is to seize the property of the defaulting industrial concern and to appropriate if for satisfying the debt. it gets diverted from the general body of creditors. The Corporation is fully empowered to dispose it of to a third party and pass a clear marketable title. All this can be done by the Corporation without the need to of to a court or tribunal or any other recovery agency. The Corporation is itself permitted to play that role. In substance the Corporation is playing the same role. From the point of view of quality and character the remedy is the same as in execution or distress proceedings. Therefore, even if one goes by the said meaning and understands the term proceedings in the light of the object and purpose of Section 22(1) of the Act 1985 Act, no difficulty is experienced in taking the view that it must be widely construed 12. Reliance was placed on decisions of two High Courts in support of the contentions urged on behalf of the appellant-company. We shall deal with them briefly. In Testeels Ltd., v. Radhaben Ranchhodlal Charitable Trust the short point for decision was whether a winding up proceeding already commenced against an industrial company ought to be dismissed or stayed during the pendency of the reference under Section 15 of the 1985 Act. The High Court held that the words be proceeded with further in Section 22 cannot be interpreted to mean that the proceedings should be kept in abeyance but the various provision of the enactment must be construed to put an end to both the contemplated and pending winding up proceedings. The High Court held that if the winding up proceedings are kept pending it may be difficult to effectively administer the schemes under Section 18 or grant financial assistance under Section 19 of the 1985 Act. The High Court held that the provision must be broadly construed keeping in mind the scheme of the law so that the ultimate objective is achieved and not defeated. In the other case of Industrial Finance Corporation of India v. Maharashtra Steel Ltd., the view taken was that pending inquiry by the BIFR the exercise of power under Section 30 of the 1951 Act would not be proper in view of Section 22(1) of the 1985 Act. Section empowers the Financial Corporation to requires an industrial concern by notice to discharges its liabilities before the agreed date. Even though no legal proceedings are contemplated under that provision, the High Court did not permit such an action during the pendency of proceedings under the 1985 Act. These two cases reinforce the view that the provision of Section 22(1) of the 1985 Act should receive a broad construction. These cases, therefore, support the view that expression proceedings in Section 22(1) need not be limited to legal proceedings understood in the narrow sense notwithstanding the use of that expression in the marginal note 13. Mr. Rao, however, invited our attention to the decision of the Andhra Pradesh High Court in Andhra Cement Co. Ltd., Secunderabad v. A.P. State Electricity Board. That was a case in which the company sought a permanent injunction against the Electricity Board to restrain it from refusing to supply of further goods under a contract cannot, in our view, be equated with the kind of proceedings contemplated by Section 22(1)". Since non-supply of goods in future cannot amount to action proposed against the property of the company, the High Court held that Section 22(1) was not attracted. It is, therefore, obvious that the decision turned on the peculiar facts of that case and does not militate against the view which commends to us 14. Now we come to the impugned decision. The High Court was considerably influenced by the fact that the appellant-company owed crores of rupees to banks and felt that so far as such creditors are concerned, different considerations may come into play but the High Court with respect failed to appreciate that the 1985 Act was enacted primarily to assist sick industrial undertakings which inter alia failed to meet their financial obligations. It is, therefore, difficult to accept the view of the High Court that where the creditors of a sick industrial concern happen to be banks or State Financial Corporations different considerations would come into play. It must be realised that in the modern industrial environment large industries are generally financed by banks and statutory corporations created specially for the purpose and if they are permitted to resort to independent actin in total disregard of the pending inquiry under Section 15 to 19 of the 1985 Act the entire exercise under the said provisions would be rendered nugatory by the time the BIFR is able to evolve a scheme of revival or rehabilitation of the sick industrial concern by the simple device of the Financial Corporation resorting to Section 29 of the 1951 Act. We are, therefore, of the opinion that where an inquiry is pending under Section 16/17 or an appeal is pending under Section 25 of the 1985 Act there should be cessation of the coercive activities of the type mentioned in Section 22(1) to permit the BIFR to consider what remedial measures it should take with respect to the sick industrial company. The expression proceedings in Section 22(1), therefore, cannot be confined to legal proceedings understood in the narrow sense of proceedings in a court of law or a legal tribunal for attachment and sale of the debtors property ### Response: 1

Husainbhai Nabibux Kunjada Vs. Modhia Chhotalal Mansukhlal & Others

cultivating the suit land personally during the relevant period. They further did not appear to have paid any rent to the defendants from the year 1942 onwards and the relationship of landlord and tenant did not subsist between them. There was undoubtedly a dispute about the suit land between the defendants and some others but the defendants title was established in suit no. 2/42. In that suit these plaintiffs, though impleaded as parties, had not cared to lead any evidence and indeed. they had allowed the suit to proceed against them ex parte. After considering the scheme of the Bombay Tenancy Act, 1939, the Court also concluded that the Act did not bar the jurisdiction of the trial Judge in Suit No. 2/42, to pass a decree for possession, as indeed the decree for partition and possession could only be made by the civil court. That decree was thus held not to be violative of any provision of the Bombay Tenancy Act, l939, the plaintiffs having never admitted or accepted the defendants as their landlords. The suit was accordingly dismissed. An appeal preferred by the plaintiffs to the High Court of Gujarat was dismissed by a Division Bench in limine on March 26, 1969. Leave to appeal to this Court was declined by the High Court on August 14, 1969.7. In this Court, Shri Shukla tried to show that the appellants were tenants of the suit land and were in its cultivating possession, with the result that they were entitled to the benefit of the Bombay Tenancy Act, 1939. He contended that they could not be deprived of their holding as tenants, adding, that in fact no actual possession of the land in dispute was ever taken from them. According to his submission, in execution of the decree in Suit No. 2/42, only symbolical possession could be given and no steps were in fact ever taken, in accordance with law, for delivery of actual physical possession of the land in question. Shri Shukla also submitted with some emphasis that against the appellants only attornment was claimed in Chhotalals suit (No. 2/42), with the result that their status as tenants and their possession of the land in dispute in that capacity remained unchallenged and undisturbed. Having been in continuous possession since 1929, they actually became owners under S. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948.8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court and re-appraise the evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their own ill-advised action in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court.

0[ds]8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court andthe evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their ownaction in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court.

### 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: cultivating the suit land personally during the relevant period. They further did not appear to have paid any rent to the defendants from the year 1942 onwards and the relationship of landlord and tenant did not subsist between them. There was undoubtedly a dispute about the suit land between the defendants and some others but the defendants title was established in suit no. 2/42. In that suit these plaintiffs, though impleaded as parties, had not cared to lead any evidence and indeed. they had allowed the suit to proceed against them ex parte. After considering the scheme of the Bombay Tenancy Act, 1939, the Court also concluded that the Act did not bar the jurisdiction of the trial Judge in Suit No. 2/42, to pass a decree for possession, as indeed the decree for partition and possession could only be made by the civil court. That decree was thus held not to be violative of any provision of the Bombay Tenancy Act, l939, the plaintiffs having never admitted or accepted the defendants as their landlords. The suit was accordingly dismissed. An appeal preferred by the plaintiffs to the High Court of Gujarat was dismissed by a Division Bench in limine on March 26, 1969. Leave to appeal to this Court was declined by the High Court on August 14, 1969.7. In this Court, Shri Shukla tried to show that the appellants were tenants of the suit land and were in its cultivating possession, with the result that they were entitled to the benefit of the Bombay Tenancy Act, 1939. He contended that they could not be deprived of their holding as tenants, adding, that in fact no actual possession of the land in dispute was ever taken from them. According to his submission, in execution of the decree in Suit No. 2/42, only symbolical possession could be given and no steps were in fact ever taken, in accordance with law, for delivery of actual physical possession of the land in question. Shri Shukla also submitted with some emphasis that against the appellants only attornment was claimed in Chhotalals suit (No. 2/42), with the result that their status as tenants and their possession of the land in dispute in that capacity remained unchallenged and undisturbed. Having been in continuous possession since 1929, they actually became owners under S. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948.8. In our view, both appeals are without merit. As already observed, the trial Court (Civil Judge S. D. Godhra) in Suit No. 8/67 in a well considered judgment came to the conclusion that the plaintiffs (appellants in this Court) had. never recognized the defendants as their landlords and for this reason the decree in Suit No. 2/42 did not violate any provision of the Bombay . Tenancy Act, 1929. Suit No. 2/42, being for partition and recovery of possession involving title, could only be dealt with by Civil Judge and not by Mamlatdar. The decree in that suit was, therefore not a nullity and actual physical possession in execution of the decree made in that suit could be delivered. The plaintiffs (appellants in this Court) were not entitled to the declaration that they had become owners of the suit land under Sec. 32 of the Bombay Tenancy and Agricultural Lands Act, 1948. This Act came into force after the institution of Suit No. 2/42 with the result that the execution of that decree by the ordinary civil courts was permissible. This conclusion has not been shown to be erroneous, and certainly not so grossly erroneous as to justify interference by this Court on appeal by special leave. According to the settled practice of this Court, in appeals by special leave, ordinarily, this Court does not embark upon an inquiry into the correctness or otherwise of all conclusions of fact or even of law arrived at by the High Court and re-appraise the evidence for itself. This Court may examine the evidence in those rare cases where there in misreading of evidence or where the effect of evidence has been seriously misunderstood or where important evidence making a fundamental difference in the ultimate conclusion has been completely ignored and it has led to injustice. Such is clearly not the case here.9. A faint attempt was made by Shri Shukla to show that the appellants had throughout remained in actual physical cultivating possession of the suit land which is stated to be 47 acres of agricultural land in the town of Godhra and for that purpose he referred us to the evidence on the question by submitting that this evidence had been ignored by the courts below. Reference to the entries in the revenue papers to which our attention was drawn, however, does not support the appellants case. There is no clear evidence to that effect. Once it is held that the conclusion of the courts below that the appellants had not been in possession of the suit land as tenants, as alleged is not open to challenge, their claim must fail. The decree in Suit No. 2/42 being a lawful decree and not being a nullity as contended on behalf of the appellants, it is difficult to appreciate their claim to protection against dispossession. The order granting delivery of actual possession to the respondents decreeholder is, in the circumstances of the case, fully justified.10. On the conclusions of the Courts below, it is not possible to hold that the impugned judgments suffer from any serious legal infirmity which can be said to have resulted in grave in justice.11. Both the appeals must, therefore be held to be without merit. However, keeping in view the peculiar facts and circumstances of this case and particularly the fact that the appellants were originally tenants and they have lost their right by reason of their own ill-advised action in not participating in Suit No. 2/42, we consider it to be proper to direct that the parties should bear their own costs both here and in the High Court. ### Response: 0

Punjab National Bank, Limited Vs. Its Workmen

to another Tribunal of which Mr. Ram Kanwar was the sole member. Subsequently, on 21 March, 1958, this dispute was withdrawn from the said Tribunal and referred to the present Tribunal. This series of transfers of this dispute from one Tribunal to another accounts for the delay which has resulted in the adjudication of this dispute. It is very unfortunate that the dispute raised by the respondents for the absorption of the employees of the Bharat Bank with the appellant in 1951 should have been decided as late as 28 December 1959 when the present award was pronounced.3. The respondents case before the Tribunal was that the appellant is a successor-in-interest of the Bharat Bank and as such, was bound to continue the employment of all the employees of the said bank. According to the respondents, the transaction of transfer showed that the Dalmia group had as much control in the transferor bank as in the transferee bank and so, it was really a case of a benami transaction. They also alleged that in employing 700 workmen of the Bharat Bank, the appellant had required the said employees to resign their posts in the Bharat Bank and then to apply for employment with it, and the selection was made in that behalf not consistently with the rules of industrial law but capriciously by applying the extraneous test of the loyalty of the workmen to the appellant. It is on this basis that they claimed the absorption of all the employees of the Bharat Bank and compensation for the period of enforced unemployment which they had to face.In support of their pleadings, the parties led documentary as well as oral evidence. The Tribunal has found that the respondents plea, that the persons who were the controllers of the Bharat Bank were in virtual control of the Punjab National Bank, had been rejected by the High Court of Punjab in earlier proceedings (Ex. W. 247) and so, the said plea could not be entertained. The Tribunal, however, accepted the respondents case that the appellant was the successor of the said bank so far as the banking business of the said bank was concerned. In support of this conclusion, the Tribunal has referred to an earlier decision of this Court in S. S. Shetty v. Bharat Nidhi, Ltd. [1957 - II L.L.J. 696]. Its conclusion is that there was a complete transfer of the banking business of the Bharat Bank to the appellant on 10 March, 1951. The Tribunal has also accepted the respondents plea that in picking and choosing employees from the Bharat Bank for its employment the appellant did not follow well-recognized principles of industrial law. No doubt, the Tribunal has conceded that it was not possible for the appellant to employ all the employees of the Bharat Bank, for that would have obviously defeated the very object of transfer. But it held that the 700 employees whom it employed should have been employed in accordance with principles of industrial law, and so, it gave two main reliefs to the respondents. The first relief which it gave was that it called upon the appellant to take in its employment the remaining employees of the Bharat Bank in future vacancies that may arise subsequent to the date when its award becomes enforceable. The Tribunal has ordered that in this matter the appellant should follow the provisions contained in S.25H of the Industrial Disputes Act and rules 77 and 78 of the Central Rules framed under the said Act. In that connexion, the Tribunal has issued four directions which read as follows :-(i) "that it is proved that the said employees were in the service of the Bharat Bank on 10 March 1951;(ii) that such employees are workmen according to the definition of workmen in S.2(s) as it exists at present in the Industrial Disputes Act;(iii) that such employees are not considered unfit, for reasons to be recorded in writing by the management, for employment; and(iv) that such employees shall make application for appointment to the Punjab National Bank. The said ex-employees shall be re-employed in posts corresponding to those last held by them in the Bharat Bank, or equivalent posts of the same cadre. Such employees on re-employment shall be paid emoluments not less than those drawn by them in the Bharat Bank on 10 March, 1951 or 10 April, 1951, whichever amount is higher, and they will be governed by all such conditions of service, as are applicable to them under law."4. Then, as regards compensation, the Tribunal has ordered that in view of the considerable time that has elapsed for which either party was to blame, it was reasonable to award twelve months emoluments as compensation to each and every one of the ex-employees of the Bharat Bank who has not been absorbed by the appellant. The Tribunal has also given a further direction as to how these emoluments should be calculated.5. The Tribunal then examined the respondents claim as to continuity of service in regard to those who have been employed by the appellant and who may employed hereafter, and it has held that the said employees should enjoy continuity of service only for the purpose of gratuity. That, in brief, is the substance of the directions issued by the Tribunal against the appellant. The appellant contends that these directions are not justified in law, whereas the respondents argue that the claims made by them should have been allowed in their entirety. We have already indicated that the Tribunal took the view that it would be impossible to direct the appellant to re-employ all the remaining employees of the Bharat Bank and to give them continuity of service in all particulars. Apparently, the respondents object to this finding.Dealing with the directions given by the Tribunal in regard to the employment of the previous employees of the Bharat Bank in future vacancies, it seems to us that, on the whole, the appellant is not entitled to quarrel with these directions.

1[ds]We have already indicated that the Tribunal took the view that it would be impossible to direct the appellant toall the remaining employees of the Bharat Bank and to give them continuity of service in all particulars. Apparently, the respondents object to this finding.Dealing with the directions given by the Tribunal in regard to the employment of the previous employees of the Bharat Bank in future vacancies, it seems to us that, on the whole, the appellant is not entitled to quarrel with these directions.This clause, we think, may create complications and may lead to disputes and bitterness between the existing employees of the appellant and the new recruits, and so, we would delete this clause from this direction.7. It appears that after special leave was granted to the appellant, it applied for stay, and stay was granted both in regard to compensation awarded by the award and in regard to the filling of vacancies. The order as to stay in respect of this latter item was granted on the condition that the vacancies should be filled on probation, so that in case the appeal failed, the award may be made operative. We wish to make it clear that this condition should not be treated as operative, because we are satisfied that if the appellant has employed any new hands during the pendency of the appeal, no such artificial condition should be imposed in respect of their probation. Their employment should be covered by the ordinary terms and conditions which the appellant may have in force in respect of their respective cadres. We ought to add that the orders as modified by us would meet the ends of justice, and the learned counsel appearing for both the parties agreed that the modifications that we are making would be reasonable.That takes us to the question of compensation ordered by the Tribunal in respect of all the employees of the Bharat Bank who have not been employed so far. This order proceeds on the basis that the appellant acted improperly in picking and choosing the previous employees of the Bharat Bank on unreasonable grounds. This latter finding is challenged before us by the appellant. But, even assuming that the appellant did not choose the said 700 employees according to the proper rules of industrial law, it is not easy to understand how an order directing the appellant to pay compensation to the whole body of the remaining employees of the Bharat Bank can be justified. The award pronounced by the Tribunal shows that the Tribunal accepted the appellants case that not more than 700 employees could have been absorbed by the appellant; and if that is so, at the highest, it could be said that 700 employees who should have been selected had not been selected and that too, on the assumption that each one of the persons employed by the appellant has been improperly employed. Therefore, even if the view of the Tribunal was accepted as correct, compensation could be awarded only to 700 employees. In making the order, the Tribunal does not appear to have seriously considered the implications of the order. It is plain that this order would involve the liability of several lakhs of rupees, and proceeding on the basis adopted by the Tribunal, if an enquiry was to be made as to who have been improperly excluded by the appellant, it would immediately disclose the difficulty and the complexity of the problem. In employing previous employees of the Bharat Bank, the appellant was undoubtedly justified in considering their seniority, their past record and their efficiency. If the successor of the Bharat Bank could not be called upon to employ all the employees of the transferor bank, a selection became inevitable and the selection, even according to the principles of industrial law, would necessarily include the consideration of seniority, efficiency, suitability and pastdecide this question, it would be necessary to examine the records of all those who have been employed as against all those who have not beenthis connexion, we ought to point out that the sweeping observations made by the Tribunal that the appellant acted unfairly in recruiting in its employment the previous employees of the Bharat Bank, do not appear to be quiteappears to be true about the branch of the Bharat Bank at Calcutta. Mr. Pandes evidence shows that with the exception of 13 employees, all the other employees of the Bharat Bank were taken in its employment by appellant. Similarly, Mr. Desais evidence shows that the same procedure was adopted while taking over the branch of the Bharat Bank at Bombay. Therefore, it is by no means proved that the appellant acted capriciously in selecting the employees of the Bharat Bank; but, as we have already pointed out, even if it is assumed that the appellant acted capriciously in that matter, it is impossible to confirm the order passed by the Tribunal in regard to the payment of compensation.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: to another Tribunal of which Mr. Ram Kanwar was the sole member. Subsequently, on 21 March, 1958, this dispute was withdrawn from the said Tribunal and referred to the present Tribunal. This series of transfers of this dispute from one Tribunal to another accounts for the delay which has resulted in the adjudication of this dispute. It is very unfortunate that the dispute raised by the respondents for the absorption of the employees of the Bharat Bank with the appellant in 1951 should have been decided as late as 28 December 1959 when the present award was pronounced.3. The respondents case before the Tribunal was that the appellant is a successor-in-interest of the Bharat Bank and as such, was bound to continue the employment of all the employees of the said bank. According to the respondents, the transaction of transfer showed that the Dalmia group had as much control in the transferor bank as in the transferee bank and so, it was really a case of a benami transaction. They also alleged that in employing 700 workmen of the Bharat Bank, the appellant had required the said employees to resign their posts in the Bharat Bank and then to apply for employment with it, and the selection was made in that behalf not consistently with the rules of industrial law but capriciously by applying the extraneous test of the loyalty of the workmen to the appellant. It is on this basis that they claimed the absorption of all the employees of the Bharat Bank and compensation for the period of enforced unemployment which they had to face.In support of their pleadings, the parties led documentary as well as oral evidence. The Tribunal has found that the respondents plea, that the persons who were the controllers of the Bharat Bank were in virtual control of the Punjab National Bank, had been rejected by the High Court of Punjab in earlier proceedings (Ex. W. 247) and so, the said plea could not be entertained. The Tribunal, however, accepted the respondents case that the appellant was the successor of the said bank so far as the banking business of the said bank was concerned. In support of this conclusion, the Tribunal has referred to an earlier decision of this Court in S. S. Shetty v. Bharat Nidhi, Ltd. [1957 - II L.L.J. 696]. Its conclusion is that there was a complete transfer of the banking business of the Bharat Bank to the appellant on 10 March, 1951. The Tribunal has also accepted the respondents plea that in picking and choosing employees from the Bharat Bank for its employment the appellant did not follow well-recognized principles of industrial law. No doubt, the Tribunal has conceded that it was not possible for the appellant to employ all the employees of the Bharat Bank, for that would have obviously defeated the very object of transfer. But it held that the 700 employees whom it employed should have been employed in accordance with principles of industrial law, and so, it gave two main reliefs to the respondents. The first relief which it gave was that it called upon the appellant to take in its employment the remaining employees of the Bharat Bank in future vacancies that may arise subsequent to the date when its award becomes enforceable. The Tribunal has ordered that in this matter the appellant should follow the provisions contained in S.25H of the Industrial Disputes Act and rules 77 and 78 of the Central Rules framed under the said Act. In that connexion, the Tribunal has issued four directions which read as follows :-(i) "that it is proved that the said employees were in the service of the Bharat Bank on 10 March 1951;(ii) that such employees are workmen according to the definition of workmen in S.2(s) as it exists at present in the Industrial Disputes Act;(iii) that such employees are not considered unfit, for reasons to be recorded in writing by the management, for employment; and(iv) that such employees shall make application for appointment to the Punjab National Bank. The said ex-employees shall be re-employed in posts corresponding to those last held by them in the Bharat Bank, or equivalent posts of the same cadre. Such employees on re-employment shall be paid emoluments not less than those drawn by them in the Bharat Bank on 10 March, 1951 or 10 April, 1951, whichever amount is higher, and they will be governed by all such conditions of service, as are applicable to them under law."4. Then, as regards compensation, the Tribunal has ordered that in view of the considerable time that has elapsed for which either party was to blame, it was reasonable to award twelve months emoluments as compensation to each and every one of the ex-employees of the Bharat Bank who has not been absorbed by the appellant. The Tribunal has also given a further direction as to how these emoluments should be calculated.5. The Tribunal then examined the respondents claim as to continuity of service in regard to those who have been employed by the appellant and who may employed hereafter, and it has held that the said employees should enjoy continuity of service only for the purpose of gratuity. That, in brief, is the substance of the directions issued by the Tribunal against the appellant. The appellant contends that these directions are not justified in law, whereas the respondents argue that the claims made by them should have been allowed in their entirety. We have already indicated that the Tribunal took the view that it would be impossible to direct the appellant to re-employ all the remaining employees of the Bharat Bank and to give them continuity of service in all particulars. Apparently, the respondents object to this finding.Dealing with the directions given by the Tribunal in regard to the employment of the previous employees of the Bharat Bank in future vacancies, it seems to us that, on the whole, the appellant is not entitled to quarrel with these directions. ### Response: 1

The Depot Manager and Ors Vs. S. Krishna

M.R. Shah, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.07.2013 passed by the Division Bench of the High Court of judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.1344 of 2013 the original respondents-corporation-employer has preferred the present appeal. 3. The facts leading to the present appeal in nutshell are as under : a. That the respondent was appointed as a contract driver and was working with the appellant corporation. b. That he was subjected to departmental enquiry. c. That following the report of the Enquiry Officer, his service came to be terminated. d. That the departmental appeal also came to be rejected. e. Review petition before the Regional Manager also came to be rejected on merits. f. Thereafter the original writ petitioner raised the industrial dispute and the same came to be dismissed by the Presiding Officer, Labour Court I, Hyderabad vide judgment and order in Industrial Dispute No.93 of 2010. g. Thereafter the work-manoriginal writ petitioner approached the High Court invoking jurisdiction of the High Court under Article 226 of the Constitution of India by filing Writ Petition No.5632 of 2012. h. That the learned Single Judge allowed the petition holding that the matter was not resintegra and was covered by the earlier judgment of the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012. Though on behalf of the corporation an effort was made to distinguish the earlier decision on the ground that in the present case a fullfledged enquiry has been held, this distinction did not find acceptance by the learned Single Judge and solely considering the decision of the learned Single Judge in Writ Petition No.2786 of 2012 and without even considering the facts of the case, dispose of the writ petition by directing the original respondents to reengage the petitioner in service and extend the benefit of continuity of service to him from the date of termination till the date of his reengagement except for the period during which he was absent. This was, however, without monetary benefit and was directed to count only for regularization. i. The above order of the learned Single Judge was affirmed by the Division Bench in Writ Appeal. 4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf of the appellants has submitted that the Division Bench has materially erred in affirming the order passed by the learned Single Judge and without even considering the facts of the individual case and that the Division Bench has not properly appreciated the fact that learned Single Judge has amicably and without proper application of the facts disposed of the writ petition solely relying upon the order passed by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, which was not applicable at all. It is submitted in the present case as such the original writ petitioner was dismissed from service after holding departmental enquiry and after having held the charges and the misconduct proved in a departmental enquiry. It is submitted that the main judgment and order passed by the Division Bench affirming the order passed by the learned Single Judge cannot be sustained and required to be quashed and set aside. 5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 2012 6. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside. As a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service. 8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.

1[ds]5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 20126. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside. As a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: M.R. Shah, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.07.2013 passed by the Division Bench of the High Court of judicature of Andhra Pradesh at Hyderabad in Writ Appeal No.1344 of 2013 the original respondents-corporation-employer has preferred the present appeal. 3. The facts leading to the present appeal in nutshell are as under : a. That the respondent was appointed as a contract driver and was working with the appellant corporation. b. That he was subjected to departmental enquiry. c. That following the report of the Enquiry Officer, his service came to be terminated. d. That the departmental appeal also came to be rejected. e. Review petition before the Regional Manager also came to be rejected on merits. f. Thereafter the original writ petitioner raised the industrial dispute and the same came to be dismissed by the Presiding Officer, Labour Court I, Hyderabad vide judgment and order in Industrial Dispute No.93 of 2010. g. Thereafter the work-manoriginal writ petitioner approached the High Court invoking jurisdiction of the High Court under Article 226 of the Constitution of India by filing Writ Petition No.5632 of 2012. h. That the learned Single Judge allowed the petition holding that the matter was not resintegra and was covered by the earlier judgment of the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012. Though on behalf of the corporation an effort was made to distinguish the earlier decision on the ground that in the present case a fullfledged enquiry has been held, this distinction did not find acceptance by the learned Single Judge and solely considering the decision of the learned Single Judge in Writ Petition No.2786 of 2012 and without even considering the facts of the case, dispose of the writ petition by directing the original respondents to reengage the petitioner in service and extend the benefit of continuity of service to him from the date of termination till the date of his reengagement except for the period during which he was absent. This was, however, without monetary benefit and was directed to count only for regularization. i. The above order of the learned Single Judge was affirmed by the Division Bench in Writ Appeal. 4. Mr. Gourab Banerji, learned Senior Counsel appearing on behalf of the appellants has submitted that the Division Bench has materially erred in affirming the order passed by the learned Single Judge and without even considering the facts of the individual case and that the Division Bench has not properly appreciated the fact that learned Single Judge has amicably and without proper application of the facts disposed of the writ petition solely relying upon the order passed by the learned Single Judge dated 29.02.2012 in Writ Petition No.2786 of 2012, which was not applicable at all. It is submitted in the present case as such the original writ petitioner was dismissed from service after holding departmental enquiry and after having held the charges and the misconduct proved in a departmental enquiry. It is submitted that the main judgment and order passed by the Division Bench affirming the order passed by the learned Single Judge cannot be sustained and required to be quashed and set aside. 5. Having heard the learned counsel appearing on behalf of the appellants herein and having considered the main judgment and order passed by the learned Division Bench as well as the order passed by the learned Single Judge, it appears that the learned Single Judge without having regard to the facts of the individual cases, mechanically issued the directions exclusively relying on the earlier decision dated 29.02.2012 in Writ Petition No.2786 of 2012. However, the learned Single Judge and the Division Bench both have materially erred in not appreciating the facts that in the present case the workman was dismissed from service after holding the departmental enquiry and having all the charges of misconduct proved, that was not the case in Writ Petition No.2786 of 2012 6. We may also note that the earlier order of the learned Single Judge dated 29.02.2012 was in a batch of cases, where termination orders were issued without holding an enquiry in certain cases and after holding an enquiry in others, though in violation of the principles of natural justice. It was in that view of the matter that the direction contained in Clause 6 of the operative order provided that in cases where no enquiry was conducted, the Corporation would be at liberty to conduct an enquiry in accordance with law, on the allegations of misconduct. 7. Even otherwise such a direction cannot be issued by the learned Single Judge without the termination being set aside. The ground of continuity was not sustainable for the simple reason that unless the order of termination is set aside. As a matter of first principle, continuity cannot be granted. Continuity is granted when the order of termination is set aside to ensure there is no hiatus in service. 8. There is another reason why the judgment of the High Court cannot be sustained. It is common ground that the appellant has recruited personnel like the present respondent on contract after a regular process of selection. Eventually, the contract employees are to be regularised. Granting continuity of service to a person such as the respondent, who was found to have committed misconduct, would place him on the same footing as other contractual employees who have a record without blemish. Hence, once a fresh appointment was given to the respondent and neither the termination nor the fresh engagement was placed in issue, the grant of continuity of service by the High Court was manifestly misconceived. 9. We find a considerable degree of merit in the submission of learned senior counsel appearing on behalf of the Corporation that in deciding the entire batch of cases by a common order, the learned Single Judge as well as the Division Bench unfortunately lost sight of the facts of each individual case. ### Response: 1

Mohit Chandra Saha Vs. The District Magistrate, 24 Parganas, Alipore, Calcutta-27 & Others

Shelat, J. 1. On January 11, 1971, the District Magistrate, 24 Parganas issued an order of detention against the petitioner under sub-section (1) of Section 3 read with sub-section (3) thereof of the West Bengal (Prevention of Violent Activities) Act (Presidents Act 19 of 1970). In pursuance of that order the petitioner was arrested of January 14, 1971 and detained in Dum Dum Jail from where he filed the present petition for a writ of habeas corpus.2. The grounds for detention furnished to the petitioner at the time of his arrest alleged (1) that he and some of his associates, armed with daggers, swords and other lethal weapons, trespassed into the house of one Smt. Abha Sur and threatened her with dire consequences if she were to raise any objections to certain activities of the petitioner and his associates in her locality, (2) that on November 24, 1970 he and his associates armed with acid bulbs, bombs and other lethal weapons, attacked Rani Vidyapithi, Chandpara injuring during that attack its night guard with an acid bulb on his raising an alarm, and (3) that on December 10.1970, he and his associates once again attacked the said institution causing damages to its records, furniture and other properties by setting fire to them. 3. The petition reached hearing before us on January 11, 1972 when Mr. Lakhainarasu, appearing amicus curiae for the petitioner, challenged the validity of the said order of detention on a number of grounds. However, after arguments had ended, Mr. G. S. Chatterji, appearing for the State, informed us that the State Government had revoked the said order of detention and had on January 12, 1972 released the petitioner. Even if the State Government had not passed the said order and released the petitioner the order of detention would in any case have come to an end on January 14, 1972, since under Section 13 of the Act no detenu can be kept under detention for more than the maximum period of one year from the date of his detention. 4. Since the petitioner has, as aforesaid, been released, the questions raised on his behalf have become academic and the petition also has become infructuous. In this situation no useful purpose would be served by answering the points which have become academic.

0[ds]3. The petition reached hearing before us on January 11, 1972 when Mr. Lakhainarasu, appearing amicus curiae for the petitioner, challenged the validity of the said order of detention on a number of grounds. However, after arguments had ended, Mr. G. S. Chatterji, appearing for the State, informed us that the State Government had revoked the said order of detention and had on January 12, 1972 released the petitioner. Even if the State Government had not passed the said order and released the petitioner the order of detention would in any case have come to an end on January 14, 1972, since under Section 13 of the Act no detenu can be kept under detention for more than the maximum period of one year from the date of his detention4. Since the petitioner has, as aforesaid, been released, the questions raised on his behalf have become academic and the petition also has become infructuous. In this situation no useful purpose would be served by answering the points which have become academic.

### 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: Shelat, J. 1. On January 11, 1971, the District Magistrate, 24 Parganas issued an order of detention against the petitioner under sub-section (1) of Section 3 read with sub-section (3) thereof of the West Bengal (Prevention of Violent Activities) Act (Presidents Act 19 of 1970). In pursuance of that order the petitioner was arrested of January 14, 1971 and detained in Dum Dum Jail from where he filed the present petition for a writ of habeas corpus.2. The grounds for detention furnished to the petitioner at the time of his arrest alleged (1) that he and some of his associates, armed with daggers, swords and other lethal weapons, trespassed into the house of one Smt. Abha Sur and threatened her with dire consequences if she were to raise any objections to certain activities of the petitioner and his associates in her locality, (2) that on November 24, 1970 he and his associates armed with acid bulbs, bombs and other lethal weapons, attacked Rani Vidyapithi, Chandpara injuring during that attack its night guard with an acid bulb on his raising an alarm, and (3) that on December 10.1970, he and his associates once again attacked the said institution causing damages to its records, furniture and other properties by setting fire to them. 3. The petition reached hearing before us on January 11, 1972 when Mr. Lakhainarasu, appearing amicus curiae for the petitioner, challenged the validity of the said order of detention on a number of grounds. However, after arguments had ended, Mr. G. S. Chatterji, appearing for the State, informed us that the State Government had revoked the said order of detention and had on January 12, 1972 released the petitioner. Even if the State Government had not passed the said order and released the petitioner the order of detention would in any case have come to an end on January 14, 1972, since under Section 13 of the Act no detenu can be kept under detention for more than the maximum period of one year from the date of his detention. 4. Since the petitioner has, as aforesaid, been released, the questions raised on his behalf have become academic and the petition also has become infructuous. In this situation no useful purpose would be served by answering the points which have become academic. ### Response: 0

M/S.Birla Cement Works Vs. Central Board Of Direct Taxes

used in the Section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the "work" referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to "works contract". "Work" envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with a contractor for carrying out its work which would have fallen outside the "work", but for its specific inclusion in the sub-section." 7. It is evident that ACCs case (supra) was not in respect of transport contracts. The controversy therein was deduction of tax at source from payments made for loading and unloading of goods. The question whether the expression "carrying out any work" would include therein carrying of the goods or not, was not in issue in ACCs case. That is precisely the question in the present case. The decision in ACCs case has not been correctly understood by the CBDT. It would not be correct to come to the conclusion, as CBDT did, that question involved is covered by the decision in the case of ACC. 8. Section 194C was amended by the Finance Act, 1995 with effect from 1st July, 1995. Explanation III was inserted. So for relevant for present purpose, the said explanation reads as under : "Explanation III. - For the purposes of this Section, the expression "work" shall also include : (a) ... (b) ... (c) carriage of goods and passengers by any made of transport other than by railways; (d) ..." 9. In view of above, it is not in dispute that from 1st July, 1995 Section 194C is applicable to transport contracts as well. The question, however, is whether the aforesaid explanation is only clarificatory or it makes applicable the provisions of Section 194C to the types of contracts in question for the first time from the date of insertion of the explanation, i.e., 1st July, 1995. 10. The Rajasthan High Court in the judgment under challenge has followed the interpretation placed on Section 194C by Kerala High Court in Central Board of Direct Taxes v. Cochin Goods Transport Association, 1999(236) ITR 993 and the Punjab and Haryana High Court in Ekonkar Dashmesh Transport Co. and others v. Central Board of Direct Taxes and another, 1996(219) ITR 511. the contrary views expressed by the High Courts of Bombay, Calcutta, Karnataka, Gujarat, Madras, Orissa and Delhi quashing the impugned circular has been dissented in the judgment under challenge. 11. The key words in Section 194C are "carrying out any work". Learned counsel for the appellant contended that a word or collection of words should fit into the structure of the sentence in which the word is used or collection of words formed. The contention is that in the context of Section 194C, carrying out any work indicates doing something to conduct the work to completion or something which produces such result. The mere transportation of goods by a carrier does not affect the goods carried thereby. The submission is that by carrying the goods, no work to the goods is undertaken and the context in which the expression "carrying out any work" has been used, makes it evident that it does not include in it the transportation of goods by a carrier. In Bombay Goods Transport Association and another v. Central Board of Direct Taxes, 1994(210) ITR 136 the Bombay High Court quashing the impugned circular has held that the expression "carrying out any work" would not include carrying of goods. IN Calcutta Goods Transport Association v. Union of India, 1996(219) ITR 486, similar view has been expressed by the Calcutta High Court. It has also been pointed out in this decision that the Parliament had sought to bring professional services and other works within the net of tax deduction at source. If such "works" were already covered by Section 194C, it was wholly unnecessary for the parliament to introduce separate statutory provisions in this regard and, thus, it follows that the word "work" is to be understood in the limited sense as product or result. The carrying out of work indicates doing something to conduct the work to completion or an operation which produces such result. In V.M. Salgaocar and Bros. Ltd. and others v. Income Tax Officer and others, 1999(237) ITR 630, the Karnataka High Court has concurred with the views expressed by the Bombay and Calcutta High Courts. The High Courts of Gujarat, Madras, Orissa and Delhi have also expressed similar views. On the other hand, as already noticed, Rajasthan High Court in the judgment under appeal has expressed the contrary view relying upon the decision in ACCs case (supra). 12. Two interpretations are reasonably possible on the question whether the contract for carrying of goods would come or not within the ambit of the expression "carrying out any work". One of the two possible interpretations of a taxing statute, which favours the assessee and which has been acted upon and accepted by the Revenue for a long period should not be disturbed except for compelling reasons. There can be no doubt that if the only view of Section 194C had been the one reflected in the impugned acceptance and acting thereupon by the Revenue reflecting the contrary view would have been of no consequence. That, however, is not the position. Further, there are no compelling reasons to hold that Explanation III inserted in Section 194C with effect from 1st July, 1995 is clarificatory or retrospective in operation. We hold Section 194C before insertion of Explanation III is not applicable to transport contracts, i.e., contracts for carriage of goods.

1[ds]On appeal, this Court held that Section 194C(1) had a wide import and covered "any word" which could be got carried out through a contractor under a contract including the obtaining of supply of labour under a contract with a contractor for carrying out any work. The Section was not confined or restricted in its application to "work contracts". There was nothing in the language of the Section which permitted exclusion of the amount reimbursed by the company to the contractor under clause 13 from the sum envisaged therein. The facts of the case and observations made in ACCs case make it clear that in the said decision, this Court was concerned with a work carried through a contractor under a contract which further included obtaining supply of labour under a contract with a contractor for carrying out its work which would have fallen outside the "work" but for its specific inclusion in the sub-section. Under these circumstances, it was said : "......there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to "works contract" as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the Section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the "work" referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to "works contract". "Work" envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with a contractor for carrying out its work which would have fallen outside the "work", but for its specific inclusion in the sub-section."7. It is evident that ACCs case (supra) was not in respect of transport contracts. The controversy therein was deduction of tax at source from payments made for loading and unloading of goods. The question whether the expression "carrying out any work" would include therein carrying of the goods or not, was not in issue in ACCs case. That is precisely the question in the present case. The decision in ACCs case has not been correctly understood by the CBDT. It would not be correct to come to the conclusion, as CBDT did, that question involved is covered by the decision in the case of ACC.8. Section 194C was amended by the Finance Act, 1995 with effect from 1st July, 1995. Explanation III was inserted. So for relevant for present purpose, the said explanation reads as under : "Explanation III. - For the purposes of this Section, the expression "work" shall also include : (a) ... (b) ... (c) carriage of goods and passengers by any made of transport other than by railways; (d) ..."9. In view of above, it is not in dispute that from 1st July, 1995 Section 194C is applicable to transport contracts as well. The question, however, is whether the aforesaid explanation is only clarificatory or it makes applicable the provisions of Section 194C to the types of contracts in question for the first time from the date of insertion of the explanation, i.e., 1st July, 1995.10. The Rajasthan High Court in the judgment under challenge has followed the interpretation placed on Section 194C by Kerala High Court in Central Board of Direct Taxes v. Cochin Goods Transport Association, 1999(236) ITR 993 and the Punjab and Haryana High Court in Ekonkar Dashmesh Transport Co. and others v. Central Board of Direct Taxes and another, 1996(219) ITR 511. the contrary views expressed by the High Courts of Bombay, Calcutta, Karnataka, Gujarat, Madras, Orissa and Delhi quashing the impugned circular has been dissented in the judgment under challenge.11. The key words in Section 194C are "carrying out any work". Learned counsel for the appellant contended that a word or collection of words should fit into the structure of the sentence in which the word is used or collection of words formed. The contention is that in the context of Section 194C, carrying out any work indicates doing something to conduct the work to completion or something which produces such result. The mere transportation of goods by a carrier does not affect the goods carried thereby. The submission is that by carrying the goods, no work to the goods is undertaken and the context in which the expression "carrying out any work" has been used, makes it evident that it does not include in it the transportation of goods by a carrier. In Bombay Goods Transport Association and another v. Central Board of Direct Taxes, 1994(210) ITR 136 the Bombay High Court quashing the impugned circular has held that the expression "carrying out any work" would not include carrying of goods. IN Calcutta Goods Transport Association v. Union of India, 1996(219) ITR 486, similar view has been expressed by the Calcutta High Court. It has also been pointed out in this decision that the Parliament had sought to bring professional services and other works within the net of tax deduction at source. If such "works" were already covered by Section 194C, it was wholly unnecessary for the parliament to introduce separate statutory provisions in this regard and, thus, it follows that the word "work" is to be understood in the limited sense as product or result. The carrying out of work indicates doing something to conduct the work to completion or an operation which produces such result. In V.M. Salgaocar and Bros. Ltd. and others v. Income Tax Officer and others, 1999(237) ITR 630, the Karnataka High Court has concurred with the views expressed by the Bombay and Calcutta High Courts. The High Courts of Gujarat, Madras, Orissa and Delhi have also expressed similar views. On the other hand, as already noticed, Rajasthan High Court in the judgment under appeal has expressed the contrary view relying upon the decision in ACCs case (supra).12. Two interpretations are reasonably possible on the question whether the contract for carrying of goods would come or not within the ambit of the expression "carrying out any work". One of the two possible interpretations of a taxing statute, which favours the assessee and which has been acted upon and accepted by the Revenue for a long period should not be disturbed except for compelling reasons. There can be no doubt that if the only view of Section 194C had been the one reflected in the impugned acceptance and acting thereupon by the Revenue reflecting the contrary view would have been of no consequence. That, however, is not the position. Further, there are no compelling reasons to hold that Explanation III inserted in Section 194C with effect from 1st July, 1995 is clarificatory or retrospective in operation. We hold Section 194C before insertion of Explanation III is not applicable to transport contracts, i.e., contracts for carriage of goods.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: used in the Section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the "work" referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to "works contract". "Work" envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with a contractor for carrying out its work which would have fallen outside the "work", but for its specific inclusion in the sub-section." 7. It is evident that ACCs case (supra) was not in respect of transport contracts. The controversy therein was deduction of tax at source from payments made for loading and unloading of goods. The question whether the expression "carrying out any work" would include therein carrying of the goods or not, was not in issue in ACCs case. That is precisely the question in the present case. The decision in ACCs case has not been correctly understood by the CBDT. It would not be correct to come to the conclusion, as CBDT did, that question involved is covered by the decision in the case of ACC. 8. Section 194C was amended by the Finance Act, 1995 with effect from 1st July, 1995. Explanation III was inserted. So for relevant for present purpose, the said explanation reads as under : "Explanation III. - For the purposes of this Section, the expression "work" shall also include : (a) ... (b) ... (c) carriage of goods and passengers by any made of transport other than by railways; (d) ..." 9. In view of above, it is not in dispute that from 1st July, 1995 Section 194C is applicable to transport contracts as well. The question, however, is whether the aforesaid explanation is only clarificatory or it makes applicable the provisions of Section 194C to the types of contracts in question for the first time from the date of insertion of the explanation, i.e., 1st July, 1995. 10. The Rajasthan High Court in the judgment under challenge has followed the interpretation placed on Section 194C by Kerala High Court in Central Board of Direct Taxes v. Cochin Goods Transport Association, 1999(236) ITR 993 and the Punjab and Haryana High Court in Ekonkar Dashmesh Transport Co. and others v. Central Board of Direct Taxes and another, 1996(219) ITR 511. the contrary views expressed by the High Courts of Bombay, Calcutta, Karnataka, Gujarat, Madras, Orissa and Delhi quashing the impugned circular has been dissented in the judgment under challenge. 11. The key words in Section 194C are "carrying out any work". Learned counsel for the appellant contended that a word or collection of words should fit into the structure of the sentence in which the word is used or collection of words formed. The contention is that in the context of Section 194C, carrying out any work indicates doing something to conduct the work to completion or something which produces such result. The mere transportation of goods by a carrier does not affect the goods carried thereby. The submission is that by carrying the goods, no work to the goods is undertaken and the context in which the expression "carrying out any work" has been used, makes it evident that it does not include in it the transportation of goods by a carrier. In Bombay Goods Transport Association and another v. Central Board of Direct Taxes, 1994(210) ITR 136 the Bombay High Court quashing the impugned circular has held that the expression "carrying out any work" would not include carrying of goods. IN Calcutta Goods Transport Association v. Union of India, 1996(219) ITR 486, similar view has been expressed by the Calcutta High Court. It has also been pointed out in this decision that the Parliament had sought to bring professional services and other works within the net of tax deduction at source. If such "works" were already covered by Section 194C, it was wholly unnecessary for the parliament to introduce separate statutory provisions in this regard and, thus, it follows that the word "work" is to be understood in the limited sense as product or result. The carrying out of work indicates doing something to conduct the work to completion or an operation which produces such result. In V.M. Salgaocar and Bros. Ltd. and others v. Income Tax Officer and others, 1999(237) ITR 630, the Karnataka High Court has concurred with the views expressed by the Bombay and Calcutta High Courts. The High Courts of Gujarat, Madras, Orissa and Delhi have also expressed similar views. On the other hand, as already noticed, Rajasthan High Court in the judgment under appeal has expressed the contrary view relying upon the decision in ACCs case (supra). 12. Two interpretations are reasonably possible on the question whether the contract for carrying of goods would come or not within the ambit of the expression "carrying out any work". One of the two possible interpretations of a taxing statute, which favours the assessee and which has been acted upon and accepted by the Revenue for a long period should not be disturbed except for compelling reasons. There can be no doubt that if the only view of Section 194C had been the one reflected in the impugned acceptance and acting thereupon by the Revenue reflecting the contrary view would have been of no consequence. That, however, is not the position. Further, there are no compelling reasons to hold that Explanation III inserted in Section 194C with effect from 1st July, 1995 is clarificatory or retrospective in operation. We hold Section 194C before insertion of Explanation III is not applicable to transport contracts, i.e., contracts for carriage of goods. ### Response: 1

Village Panchayat Of Kanhan Pipri Vs. Standing Committee, Zila Parishad, Nagpur, And Ors

cases enlarge the octroi limits or reduce the octroi limits and it would lead to great confusion if either of the things happens after the Panchayat had been collecting octroi duty within the octroi limits submitted by it to the Collector for approval.15.We may here deal with a minor point which was mentioned in the course of arguments. The High Court held that "R. 3 (b) must therefore be interpreted as requiring the Panchayat to notify to the public not only the proposal about the tax selected by it for levy, hut also the rules relating to that tax which must mean the action taken under the Act and the rules". On the language of R. 3 (b) we are unable to appreciate how action taken under the Act and the rules is required to be notified to the public. There is nothing in the language to warrant such a construction.16. In conclusion we hold that the octroi duty was validly levied and that it could be imposed and collected with effect from January 14, 1964.17. Mr. Sen raised another point not dealt with by the High Court. He urges that there was no proper publication under B. 4. We are unable to allow him to raise this point at this stage. He says that this point was raised before the High Court but it has not been dealt with by it. He points out a passage in the judgment of the High Court but we are unable to agree with him that the High Court has implied that this point was raised before it. He further says that this point was taken in the return filed on behalf of the Company. Para 2 of the return only alleged :"This respondent says that at that time no copy of the Rules required to be published by Rule 4 of the Rules was exhibited and long with the said Notice. This respondent is not aware and does not admit that the fact of publication of the Notice under Rule 4 was announced by beat of drum in the village."This allegation is reiterated in para 9 of the return. No such specific point was taken in the grounds of appeal to the Panchayat Samiti. It was broadly stated that the procedure required to be followed for imposing octroi had not been followed in imposing the same. Similarly, in the grounds of appeal to the Standing Committee, vague allegations were made that the village Panchayat has erred in law in not following the procedure contemplated by law in the matter of imposing the octroi and has acted contrary to the principles of natural justice on an assumption that the formalities contemplated by law were complied with." He relies on the notice which is on the record to show that as a matter of fact the publication was not in accordance with law. In the circumstances noted above we are unable to allow him to raise this point at this stage.18. Coming to the question of the vires of R. 5, it seems to us that the High Court has placed a wrong interpretation on R. 5, The High Court has held that as R..5 applies to all appeals under S. 124 (5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under R. 4 far all appeals is arbitrary and destructive of the right of appeal. But this interpretation, with respect is not correct, if R. 5 is read in the setting in which it occurs.Rule 5 follows immediately Rr. 3 and 4 and is headed "Appeal against levy of any tax or fee", and the period of Sixty days of limitation commences from the date of the publication of the notice under R. 4, i. e. the notice following the decision of a Panchayat to levy any tax or fee. This date shows that R. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Samiti under S. 124 It is true that the opening sentence makes a reference to an appeal under sub-s. (5) of S. 124, and this opening sentence would cover all appeals under sub-s. (5) of S. 124, but in the context and stating, the heading of R. 5 brings out the scope of the rule. Accordingly, the appeal of the Company to the Samiti was wrongly dismissed as time-barred.It follows from this that the Standing Committee was entitled to deal with the appeal on merits.19. The only point that remains is whether the Company brought tea into the octroi limits of the Panchayat for consumption, use or sale, therein. As we have pointed out, the High Court felt difficulty in dealing with the question because neither the Panchayat Samiti nor the Standing Committee had found sufficient facts to enable it to deal with the question. Mr. Sen says that he is willing to take the facts as stated at the bar by the learned counsel for the appellant. But we consider that it is an unsatisfactory way of dealing with questions of fact. Before this question can be dealt with satisfactorily, all the relevant facts must be found by the Standing Committee. It is true that the Standing Committee inspected the premises of the Company but in their order they have given very scanty facts. They do not say whether the tea is crushed, processed or treated chemically to convert it into a marketable commodity. The learned counsel for the Panchayat contends that these things are done and that the resultant product is completely different from the tea imported into octroi limits. It is also not quite clear whether the tea which is imported by the Company is known in trade circles as a different commodity form the tea actually sent out in boxes. In the circumstances we must also decline to deal with this point.

1[ds]It seems to us that the octroi duty has been levied in accordance withscheme of the Fees Rules accordingly seems to be that the general procedure for levying taxes or fees is laid down and then this procedure is made applicable to the levy of various taxes mentioned in the other parts of the Rules.Viewed in this background it seems to us that R 3 (b) does not require the Panchayat to fix the octroi limits in the resolution passed under R. 3 (b). It only deals with two items, (1) selection of the tax and the rate at which it is to be levied. Rule 3 (c) has to be similarly read. The Inhabitants of the village would be entitled to object only to these two matters, namely (1) the tax or fee imposed and the rate at which it is levied. Under R. 3 (d) what the panchayat does is to consider objections and suggestions and then finally make the choice as regards two things, i. e., the tax or fee to be imposed and the rate at which it is to be levied.13. This interpretation is reinforced by a propel reading of R. 4. Rule 4 requires a notice stating two things, (1) the tax or fee to be levied and (2) the rate.We are, however unable to agree with the learned counsel for the appellant that before the octroi limits are approved octroi can be collected.We consider that the fixing of the octroi limits with the approval of the Collector is an essential condition precedent to the levy of octroiare unable to agree with this submission.Apart from the fact that it may in certain circumstances lead to illegal levies, there is nothing in the language of R. 21 which indicates that the Collector can regularise an imposition made without the authority of law. The Collector may in particular cases enlarge the octroi limits or reduce the octroi limits and it would lead to great confusion if either of the things happens after the Panchayat had been collecting octroi duty within the octroi limits submitted by it to the Collector forthe language of R. 3 (b) we are unable to appreciate how action taken under the Act and the rules is required to be notified to the public. There is nothing in the language to warrant such a construction.16. In conclusion we hold that the octroi duty was validly levied and that it could be imposed and collected with effect from January 14, 1964.Coming to the questionof the vires of R.5, it seems to us that the High Court has placed a wrong interpretation on R. 5, The High Court has held that as R..5 applies to all appeals under S. 124 (5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under R. 4 far all appeals is arbitrary and destructive of the right of appeal. But this interpretation, with respect is not correct, if R. 5 is read in the setting in which it occurs.Rule 5 follows immediately Rr. 3 and 4 and is headed "Appeal against levy of any tax or fee", and the period of Sixty days of limitation commences from the date of the publication of the notice under R. 4, i. e. the notice following the decision of a Panchayat to levy any tax or fee. This date shows that R. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Samiti under S. 124 It is true that the opening sentence makes a reference to an appeal under sub-s. (5) of S. 124, and this opening sentence would cover all appeals under sub-s. (5) of S. 124, but in the context and stating, the heading of R. 5 brings out the scope of the rule. Accordingly, the appeal of the Company to the Samiti was wrongly dismissed as time-barred.It follows from this that the Standing Committee was entitled to deal with the appeal onis true that the Standing Committee inspected the premises of the Company but in their order they have given very scanty facts. They do not say whether the tea is crushed, processed or treated chemically to convert it into a marketableis also not quite clear whether the tea which is imported by the Company is known in trade circles as a different commodity form the tea actually sent out in boxes. In the circumstances we must also decline to deal with this point.

### 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: cases enlarge the octroi limits or reduce the octroi limits and it would lead to great confusion if either of the things happens after the Panchayat had been collecting octroi duty within the octroi limits submitted by it to the Collector for approval.15.We may here deal with a minor point which was mentioned in the course of arguments. The High Court held that "R. 3 (b) must therefore be interpreted as requiring the Panchayat to notify to the public not only the proposal about the tax selected by it for levy, hut also the rules relating to that tax which must mean the action taken under the Act and the rules". On the language of R. 3 (b) we are unable to appreciate how action taken under the Act and the rules is required to be notified to the public. There is nothing in the language to warrant such a construction.16. In conclusion we hold that the octroi duty was validly levied and that it could be imposed and collected with effect from January 14, 1964.17. Mr. Sen raised another point not dealt with by the High Court. He urges that there was no proper publication under B. 4. We are unable to allow him to raise this point at this stage. He says that this point was raised before the High Court but it has not been dealt with by it. He points out a passage in the judgment of the High Court but we are unable to agree with him that the High Court has implied that this point was raised before it. He further says that this point was taken in the return filed on behalf of the Company. Para 2 of the return only alleged :"This respondent says that at that time no copy of the Rules required to be published by Rule 4 of the Rules was exhibited and long with the said Notice. This respondent is not aware and does not admit that the fact of publication of the Notice under Rule 4 was announced by beat of drum in the village."This allegation is reiterated in para 9 of the return. No such specific point was taken in the grounds of appeal to the Panchayat Samiti. It was broadly stated that the procedure required to be followed for imposing octroi had not been followed in imposing the same. Similarly, in the grounds of appeal to the Standing Committee, vague allegations were made that the village Panchayat has erred in law in not following the procedure contemplated by law in the matter of imposing the octroi and has acted contrary to the principles of natural justice on an assumption that the formalities contemplated by law were complied with." He relies on the notice which is on the record to show that as a matter of fact the publication was not in accordance with law. In the circumstances noted above we are unable to allow him to raise this point at this stage.18. Coming to the question of the vires of R. 5, it seems to us that the High Court has placed a wrong interpretation on R. 5, The High Court has held that as R..5 applies to all appeals under S. 124 (5) of the Panchayat Act, the fixing of the commencement of the period of limitation as the date of publication of the notice under R. 4 far all appeals is arbitrary and destructive of the right of appeal. But this interpretation, with respect is not correct, if R. 5 is read in the setting in which it occurs.Rule 5 follows immediately Rr. 3 and 4 and is headed "Appeal against levy of any tax or fee", and the period of Sixty days of limitation commences from the date of the publication of the notice under R. 4, i. e. the notice following the decision of a Panchayat to levy any tax or fee. This date shows that R. 5 is dealing only with appeals against levy of any tax and not with the assessment or imposition of a tax or any further appeals to the Panchayat Samiti under S. 124 It is true that the opening sentence makes a reference to an appeal under sub-s. (5) of S. 124, and this opening sentence would cover all appeals under sub-s. (5) of S. 124, but in the context and stating, the heading of R. 5 brings out the scope of the rule. Accordingly, the appeal of the Company to the Samiti was wrongly dismissed as time-barred.It follows from this that the Standing Committee was entitled to deal with the appeal on merits.19. The only point that remains is whether the Company brought tea into the octroi limits of the Panchayat for consumption, use or sale, therein. As we have pointed out, the High Court felt difficulty in dealing with the question because neither the Panchayat Samiti nor the Standing Committee had found sufficient facts to enable it to deal with the question. Mr. Sen says that he is willing to take the facts as stated at the bar by the learned counsel for the appellant. But we consider that it is an unsatisfactory way of dealing with questions of fact. Before this question can be dealt with satisfactorily, all the relevant facts must be found by the Standing Committee. It is true that the Standing Committee inspected the premises of the Company but in their order they have given very scanty facts. They do not say whether the tea is crushed, processed or treated chemically to convert it into a marketable commodity. The learned counsel for the Panchayat contends that these things are done and that the resultant product is completely different from the tea imported into octroi limits. It is also not quite clear whether the tea which is imported by the Company is known in trade circles as a different commodity form the tea actually sent out in boxes. In the circumstances we must also decline to deal with this point. ### Response: 1

THE SECRETARY, MOC, NEW DELHI-1 Vs. M/S VINOD AND COMPANY

2(o) has defined the expression service to mean a service of any description. The issue essentially is whether in formulating the Exim policy and in providing a regulatory regime, the government performs a service of any description. 20. Since in the present case the relevant Exim policy is for the period from April 1988 to March 1991, it would be instructive to extract the purpose and object of the policy as contained in the foreword to the document; The Import and Export Policy plays a crucial role in the economy as a whole and in particular the industrial and export sectors. The main objectives of the new Policy are - (i) to stimulate industrial growth by providing easy access to essential imported capital goods, raw materials and components to industry and to sustain the movement towards modernisation, technological upgradation and make the industry progressively competitive internationally. (ii) to promote efficient import substitution and self- reliance; (iii) to give a fresh impetus to export promotion by improving the quality of incentives and their administration; and (iv) to simplify and ratioinalise Police and Procedures. These objectives are sought to be achieved keeping in view the constraints of both domestic and external resources. 21. Chapter XIX provided for the Duty Exemption Scheme under which paragraph 239 provided for a special REP facility in the following terms:- Special REP Facility 239. (1) The licence holder under this scheme would be eligible to an REP licence after he has fulfilled the export obligation and the DEEC has been discharged. The value of the REP licence would be equal to 10 per cent of the value addition achieved (f.o.b. value of exports minus c.i.f. value of imports). The value of the REP licence so calculated would be further limited to the REP entitlement on the total f.o.b. value of exports, as per Appendix 17 or as per para 166(2) (For Residual Products) of this policy, as the case may be. The REP licence so issued will be valid for the import of the items as allowed against the relevant export product in Appendix 17 or para 166(2) of this Policy, at the time of issue of the licence. 22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider. 23. Before a three judge Bench of this Court in Vikas Sales Corporation (supra), the issue for consideration was whether the transfer of an REP licence or Exim scrip to another constitutes a sale of goods within the meaning of state sales tax legislation. Explaining the objectives of the import policy, the Court held: 4. …..The objective behind the licences was to provide to the registered exporters the facility of importing the essential inputs required for the manufacture of the products exported. The essential idea was to encourage exports and for that purpose import licences called REP Licences were issued equal to the prescribed percentage of the value of exports. These licences were made freely transferable. It was provided that the transfer such licences did not require any endorsement or permission from the licencing authority. It was clarified that such would be: governed by the ordinary law. It only required a letter from the transferor recording and evidencing the transfer. On that basis, the transferee; became the due and lawful holder of the licence and could either import the goods permitted thereunder or sell it to another in turn. 24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held: 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer. 26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated.

1[ds]22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held:12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated.

### 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: 2(o) has defined the expression service to mean a service of any description. The issue essentially is whether in formulating the Exim policy and in providing a regulatory regime, the government performs a service of any description. 20. Since in the present case the relevant Exim policy is for the period from April 1988 to March 1991, it would be instructive to extract the purpose and object of the policy as contained in the foreword to the document; The Import and Export Policy plays a crucial role in the economy as a whole and in particular the industrial and export sectors. The main objectives of the new Policy are - (i) to stimulate industrial growth by providing easy access to essential imported capital goods, raw materials and components to industry and to sustain the movement towards modernisation, technological upgradation and make the industry progressively competitive internationally. (ii) to promote efficient import substitution and self- reliance; (iii) to give a fresh impetus to export promotion by improving the quality of incentives and their administration; and (iv) to simplify and ratioinalise Police and Procedures. These objectives are sought to be achieved keeping in view the constraints of both domestic and external resources. 21. Chapter XIX provided for the Duty Exemption Scheme under which paragraph 239 provided for a special REP facility in the following terms:- Special REP Facility 239. (1) The licence holder under this scheme would be eligible to an REP licence after he has fulfilled the export obligation and the DEEC has been discharged. The value of the REP licence would be equal to 10 per cent of the value addition achieved (f.o.b. value of exports minus c.i.f. value of imports). The value of the REP licence so calculated would be further limited to the REP entitlement on the total f.o.b. value of exports, as per Appendix 17 or as per para 166(2) (For Residual Products) of this policy, as the case may be. The REP licence so issued will be valid for the import of the items as allowed against the relevant export product in Appendix 17 or para 166(2) of this Policy, at the time of issue of the licence. 22. The objects of the policy are essentially to stimulate industrial growth by providing easy access to imported capital goods, raw materials and components, to substitute imports and promote self-reliance and to provide an impetus to exports by improving the quality of incentives. The Exim policy is an incident of the fiscal policy of the State and of its overall control over foreign trade. As an incident of its policy, the State may provide a regime of incentives. The provision of those incentives does not render the State a service provider or the person who avails of the incentives as a potential user of any service. The State, in exercise of its authority to utilise and collect revenue, puts in place diverse regulatory regimes under the law. The regime may provide for modalities for compliance, penalties for breach and incentives to achieve the purpose of the policy. The grant of these incentives does not constitute the State as a service provider. 23. Before a three judge Bench of this Court in Vikas Sales Corporation (supra), the issue for consideration was whether the transfer of an REP licence or Exim scrip to another constitutes a sale of goods within the meaning of state sales tax legislation. Explaining the objectives of the import policy, the Court held: 4. …..The objective behind the licences was to provide to the registered exporters the facility of importing the essential inputs required for the manufacture of the products exported. The essential idea was to encourage exports and for that purpose import licences called REP Licences were issued equal to the prescribed percentage of the value of exports. These licences were made freely transferable. It was provided that the transfer such licences did not require any endorsement or permission from the licencing authority. It was clarified that such would be: governed by the ordinary law. It only required a letter from the transferor recording and evidencing the transfer. On that basis, the transferee; became the due and lawful holder of the licence and could either import the goods permitted thereunder or sell it to another in turn. 24. In Bihar School Examination Board (supra) which was decided by a Bench of two judges, the issue was whether the Board of Examinations governed by state law is amenable to the jurisdiction of the District Forum under the Consumer Protection Act, 1986. Answering the question in the negative, this Court held: 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-a-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. 25. In the circumstances, it was held that the Board is not a service provider and a student who takes an examination is not a consumer. 26. We are of the view that by analogy, the same principle must govern the present case for the reasons that we have indicated. ### Response: 1

State Of Punjab Vs. Jagdip Singh & Ors

an order of the Government amounts to punishment or not, Das. C. J., speaking for the Court summarized his conclusions therein. The learned Chief Justice dealing in particular with a case of reduction in rank observed, at p. 863 (of SCR) : (at p. 49 of AIR):"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank.22. Finally, he proceeded to observe, at p. 863 (of SCR): (at pp. 49-50 of AIR):"In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herein-before referred to. If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which given protection to Government servant have not been complied with. The termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.This decision, in my view, is a clear authority on the interpretation of Art. 311 (2) of the Constitution. The question that falls to be considered under that Article is whether the Government servant was dismissed or removed or reduced in rank as punishment. It would be punishment if either of the said two tests was satisfied, namely, if he had a right to the post or if he had been visited with evil consequences of the kind mentioned in the abovementioned judgment. If either of the said two tests was satisfied, he was punished; and if so, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The argument of the learned Advocate-General is untenable for three reasons. By accepting it, (i) we would be adding a third test, (ii) we would be introducing an anomaly viz., a servant guilty of misconduct gets a preferential treatment, and (iii) we would be confusing the reason for punishment with punishment itself.23. Strong reliance is placed upon the judgment of a Division Bench of the Madras High Court in ILR (1958) Mad 158 : (AIR 1958 Mad 53 ) in respect of the contention that unless a reduction of rank is connected with the misconduct of a Government servant, Art. 311 of the Constitution cannot be invoked. In that case, the appellant as well as certain others, was appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras in 1948 during the Hyderabad Action. When normal conditions were restored, the Government passed an order in and by which it appointed the appellant and others who had been serving in the Special Armed Police, Madras, in posts in the Madras Police Service. In that order the appellant was shown as first in the list. After a lapse of more than 5 years, the Government of Madras passed another order fixing the seniority of the Deputy Superintendent of Police in a different way. The question raised in that case was whether the changes made in the seniority list affecting the appellant adversely was reduction of rank within the meaning of Art. 311 (2) of the Constitution and whether, as no reasonable opportunity was given to the affected parties within the meaning of that Articles, the said second order was bad. The Court found that the refixation of seniority on what the Government considered to be just and equitable grounds was a matter of policy and was well within its powers. On that finding, the question arose whether Art. 311 (2) of the Constitution would apply to that case. The learned Judges, after considering the decisions of this Court, held that Art. 311 (2) of the Constitution would be attracted only if a Government servant was punished on any ground personal to the servant concerned. This decision would have relevance only if a Government servant was dealt with in a legally permissible manner by the Government without any reference to his misconduct. Indeed, on the facts of that case the High Court proceeded on the basis that refixation of seniority was legally permissible. The decisions referred to in that judgment were also related to valid orders made by the Government dehors misconduct of the Government servants concerned. In all those decisions no punishment was inflicted upon the Government servant, for he did not satisfy either of the two tests laid down in Parshotam Lal Dhingras case, 1958 SCR 828 : (AIR 1958 SC 36 ). But, in the present case I have held that the Government has no power to "de-confirm" the respondents who were lawfully appointed as permanent Tahsildars. If that be so, their reduction in rank was punishment inflicted on them. They were punished though they were not guilty of any misconduct. The said judgment and the decisions referred to therein have, therefore, no application to the present case.24. I, therefore, hold that the respondents had a right to occupy a substantive rank in the posts of Tahsildars and their reduction as officiating Tahsildars was certainly reduction in rank as punishment.25. In this view, it is not necessary to express my view whether, if the reduction in rank of the respondents was not punishment, the High Court could have interfered under Art. 226 of the Constitution on the ground that the Government acted in derogation of the statutory rules.26. In the result, the appeals fail and are dismissed with costs.

1[ds]The present case is not governed by either of these two rules, and the only rule which could possibly by invoked for supporting the action of the Financial Commissioner is R. 7. Before, however, advantage could be taken of that rule, there had to be an actual or an anticipated substantive vacancy. Moreover, there is no rule which empowered the Financial Commissioner to create a post of Tehsildar. It is admitted before us that there was neither a substantive vacancy nor an anticipated vacancy in the cadre of permanent Tahsildars on October 23, 1956.Indeed, this is clear from the fact that for providing for a lien for the seven Tahsildars who were confirmed by the Financial Commissioner on October 23, 1956, the Rajpramukh realised that new posts had to be created and therefore created seven supernumerary posts the very next day. Had there been any substantive vacancies, actual or anticipated, there would have been no occasion to create supernumerary posts. In the circumstances, therefore, only one conclusion must follow and that is that the order of the Financial Commissioner had no legal foundation, there being no vacancies in which the confirmations could take place. The order of the Financial Commissioner dated October 23, 1956 confirming the respondents as permanent Tahsildars must, therefore be held to be whollymust be borne in mind that the power to create posts rests in the State. The Tahsildari Rules have not delegated to the Financial Commissioner, the appointing authority, the power to create the posts of Tahsildars. Nor again, can we read the order of the Rajpramukh of October 24, 1956 as appointing the respondents as permanent Tahsildars, as that order does not purport to do any such thing. In fact it clearly mentions the fact of the confirmation of the respondents and others. On the face of it, therefore, the creation of supernumerary posts appears, to be an after-brought and is of on avail as a means of validating the original order ofour opinion where a Government servant has no right to a post or to a particular status, though an authority under the government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status. No doubt, the Government has used the expression "de-confirming in its notification which may be susceptible of the meaning that it purported to undo an act which was therefore valid. We must, however, interpret the expression in the light of actual facts which led up to the notification. These facts clearly show that the so-called confirmation by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. In view of this, the notification of October 31, 1957 could be interpreted to mean that the Government did not accept the validity of the confirmation of the respondents and other persons who were confirmed as Tahsildars by the Financial Commissioner,answer to this is to be found in S. 116 of the States Re-organisation Act, 1956. Sub-section (1) thereof deals with the continuance of an officer in the same post. Sub-section (2), however, provides that nothing in the section shall be deemed to prevent a competent authority after the appointed day from passing in relations to any such person any order affecting his continuance in such post or office.This provision is thus wide enough to empower the successor Government, which would be the competent authority under the Act, to make the kind of notification with which we are concerned in thisthat case the question was whether loss of seniority which results from re-adjustment and re-fixing of seniority inter se between certain officers in the service would amount to a reduction in rank so as to attract the application of Art. 311 (2). This contention was rejected both by the learned single Judge and the Division Bench for the reason that the reduction in rank contemplated by Art. 311 (2) was one by way of punishment, which in its turn implied some conduct on the part of the officer which led to the reduction. Prima facie this view appears to be correct and to accord with the effect of the decision of this Court in Dhingras case, 1958 SCR 828 : (AIR 1958 SC 36 ). However, in the present appeals we are not called upon to express a definite opinion on the aspect of thehave already held that the respondents could not be validly confirmed as Tahsildars by the Financial Commissioner of Pepsu. Therefore, even though upon their allocation to the State of Punjab as from November 1, 1956, they were shown as confirmed Tahsildars, they could not in law be regarded as holding that status. Legally their status was only that of officiating Tahsildars. The notification in question in effect recognises only this as their status and cannot be said to have the effect of reducing them in rank by reason merely of correcting an earlier error. Article 311 (2) does not, therefore, come into the picture at all.

### 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: an order of the Government amounts to punishment or not, Das. C. J., speaking for the Court summarized his conclusions therein. The learned Chief Justice dealing in particular with a case of reduction in rank observed, at p. 863 (of SCR) : (at p. 49 of AIR):"A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank.22. Finally, he proceeded to observe, at p. 863 (of SCR): (at pp. 49-50 of AIR):"In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herein-before referred to. If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which given protection to Government servant have not been complied with. The termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.This decision, in my view, is a clear authority on the interpretation of Art. 311 (2) of the Constitution. The question that falls to be considered under that Article is whether the Government servant was dismissed or removed or reduced in rank as punishment. It would be punishment if either of the said two tests was satisfied, namely, if he had a right to the post or if he had been visited with evil consequences of the kind mentioned in the abovementioned judgment. If either of the said two tests was satisfied, he was punished; and if so, he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The argument of the learned Advocate-General is untenable for three reasons. By accepting it, (i) we would be adding a third test, (ii) we would be introducing an anomaly viz., a servant guilty of misconduct gets a preferential treatment, and (iii) we would be confusing the reason for punishment with punishment itself.23. Strong reliance is placed upon the judgment of a Division Bench of the Madras High Court in ILR (1958) Mad 158 : (AIR 1958 Mad 53 ) in respect of the contention that unless a reduction of rank is connected with the misconduct of a Government servant, Art. 311 of the Constitution cannot be invoked. In that case, the appellant as well as certain others, was appointed by the Government of Madras as Assistant Commandant, Special Armed Police, Madras in 1948 during the Hyderabad Action. When normal conditions were restored, the Government passed an order in and by which it appointed the appellant and others who had been serving in the Special Armed Police, Madras, in posts in the Madras Police Service. In that order the appellant was shown as first in the list. After a lapse of more than 5 years, the Government of Madras passed another order fixing the seniority of the Deputy Superintendent of Police in a different way. The question raised in that case was whether the changes made in the seniority list affecting the appellant adversely was reduction of rank within the meaning of Art. 311 (2) of the Constitution and whether, as no reasonable opportunity was given to the affected parties within the meaning of that Articles, the said second order was bad. The Court found that the refixation of seniority on what the Government considered to be just and equitable grounds was a matter of policy and was well within its powers. On that finding, the question arose whether Art. 311 (2) of the Constitution would apply to that case. The learned Judges, after considering the decisions of this Court, held that Art. 311 (2) of the Constitution would be attracted only if a Government servant was punished on any ground personal to the servant concerned. This decision would have relevance only if a Government servant was dealt with in a legally permissible manner by the Government without any reference to his misconduct. Indeed, on the facts of that case the High Court proceeded on the basis that refixation of seniority was legally permissible. The decisions referred to in that judgment were also related to valid orders made by the Government dehors misconduct of the Government servants concerned. In all those decisions no punishment was inflicted upon the Government servant, for he did not satisfy either of the two tests laid down in Parshotam Lal Dhingras case, 1958 SCR 828 : (AIR 1958 SC 36 ). But, in the present case I have held that the Government has no power to "de-confirm" the respondents who were lawfully appointed as permanent Tahsildars. If that be so, their reduction in rank was punishment inflicted on them. They were punished though they were not guilty of any misconduct. The said judgment and the decisions referred to therein have, therefore, no application to the present case.24. I, therefore, hold that the respondents had a right to occupy a substantive rank in the posts of Tahsildars and their reduction as officiating Tahsildars was certainly reduction in rank as punishment.25. In this view, it is not necessary to express my view whether, if the reduction in rank of the respondents was not punishment, the High Court could have interfered under Art. 226 of the Constitution on the ground that the Government acted in derogation of the statutory rules.26. In the result, the appeals fail and are dismissed with costs. ### Response: 1

Raja Bahadur Kamakshya Narainsingh And Others Vs. The Collector And Deputy Commissioner Of Hazaribagh And Others

a dead of settlement. We may assume, therefore that on the date of publication of the notification the disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1.It becomes, therefore, necessary to interpret the word "used" occurring in S. 4(a). It is to be noticed that this clause of S. 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used as the date of the publication of the notification. In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light of the provisions of S. 4(h) where similar words are employed.Under S. 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January, 1946. If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating the provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of the State Government, annual the transfer and dispossess the person claiming under it.These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in S. 4(h) had been established.That is to say, under these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946. To hold otherwise would be to make the provisions of S. 4(h) meaningless.When a proprietor transfer any such building, it necessarily follows that the building thereafter was not used by him as office or cutchery for the collection of rent of his estate. If the transfer was made before the first day of January, 1946 the provisions of S. 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands.If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under S. 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of S. 4(a) must be read accordingly. It would be unreasonable to construe the provisions of S. 4(a) in the way suggested by Mr. Chatterjee. The scheme of the Act has to be borne in mind and the provisions of Ss. 4(a) and 4(h) have to be read together.The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 before the first of January, 1946 or before the lease in favour of the Company. On behalf of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchery before the creation of the lease and that they were not being used in connection with any mining operation.In our opinion, if as a result of the inquiry under S. 4(h) the transfer of the disputed properties by the petitioner No. 1 is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No. 1.5. It was next contended that S. 4(h) is ultra vires the Constitution, because it imposed in an unreasonable restriction on the fundamental rights of the petitioners to realize rent from the Company, as the transfer in its favour was imperilled by the notice issued to it under S. 4(b). No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him.The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.Section 4(h), however, does direct the Collector to give reasonable notice to the parties concerned and to hear them. Such annulment to dispossession which he may order must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable. The power is, therefore, not quite so absolute or arbitrary as suggested.Assuming however, that the Collector has very wide powers, it is to be remembered that S. 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place. The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in S. 4(h). The Act being a law for acquisition of estates the question of it or S. 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise. In any event in Act including S. 4(h) is protected by Article 31-A of the Constitution.

0[ds]3.In our opinion, it is of little consequence in the present case whether the notified estate vested in the State by reason of the publication of the notification under S. 3 or by virtue of the provisions of S. 4 of the Act, because in either case a vesting did take place. Although the word land is used in the definition of estate, the provisions of Ss. 4, 5 and 7 show the necessary intention to include something more than the land when an estate vests in thebecomes, therefore, necessary to interpret the word "used" occurring in S. 4(a).If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating the provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of the State Government, annual the transfer and dispossess the person claiming under it.These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in S. 4(h) had been established.That is to say, under these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January,To hold otherwise would be to make the provisions of S. 4(h)would be unreasonable to construe the provisions of S. 4(a) in the way suggested by Mr. Chatterjee. The scheme of the Act has to be borne in mind and the provisions of Ss. 4(a) and 4(h) have to be readour opinion, if as a result of the inquiry under S. 4(h) the transfer of the disputed properties by the petitioner No. 1 is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No.Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.Section 4(h), however, does direct the Collector to give reasonable notice to the parties concerned and to hear them. Such annulment to dispossession which he may order must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable. The power is, therefore, not quite so absolute or arbitrary as suggested.Assuming however, that the Collector has very wide powers, it is to be remembered that S. 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place. The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in S. 4(h). The Act being a law for acquisition of estates the question of it or S. 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise. In any event in Act including S. 4(h) is protected by Article 31-A of thethis clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light of the provisions of S. 4(h) where similar words are employed.

### 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: a dead of settlement. We may assume, therefore that on the date of publication of the notification the disputed properties were not used primarily as office or cutchery for the collection of rent of the notified estate of petitioner No. 1.It becomes, therefore, necessary to interpret the word "used" occurring in S. 4(a). It is to be noticed that this clause of S. 4 does not expressly state that a building used primarily as office or cutchery for the collection of rent must be so used as the date of the publication of the notification. In this clause the words "used primarily as office or cutchery for the collection of rent of such estate" must be read in the light of the provisions of S. 4(h) where similar words are employed.Under S. 4(h) the Collector has the power to make inquiries in respect of any transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate, if the transfer had been made at any time after the first day of January, 1946. If on due inquiry the Collector is satisfied that such transfer was made with the object of defeating the provisions of the Act or causing loss to the State or obtaining higher compensation, then the Collector may, after giving notice to the parties concerned and hearing them and with the previous sanction of the State Government, annual the transfer and dispossess the person claiming under it.These provisions clearly indicate that if any building was used primarily as office or cutchery for the collection of rent and such building had been transferred after the first day of January, 1946, the transfer could be annulled if the circumstances mentioned in S. 4(h) had been established.That is to say, under these provisions the use to which the building was put previous to its transfer after the first day of January, 1946 and not thereafter was what the Collector was concerned with and not to what use it had been put after its transfer after the first day of January, 1946. To hold otherwise would be to make the provisions of S. 4(h) meaningless.When a proprietor transfer any such building, it necessarily follows that the building thereafter was not used by him as office or cutchery for the collection of rent of his estate. If the transfer was made before the first day of January, 1946 the provisions of S. 4(h) would not apply and such a transfer would not be liable to be annulled and the building so transferred would not vest in the State on the date of the publication of the notification covering the estate on which such building stands.If, on the other hand, this transfer was made after the first day of January, 1946, a building comprised in a notified estate, which was used immediately previous to the date of the transfer primarily as office or cutchery for the collection of rent of such estate the transfer would be liable to be annulled under S. 4(h) and it would vest absolutely in the State on the publication of the notification and the provisions of S. 4(a) must be read accordingly. It would be unreasonable to construe the provisions of S. 4(a) in the way suggested by Mr. Chatterjee. The scheme of the Act has to be borne in mind and the provisions of Ss. 4(a) and 4(h) have to be read together.The petitioners had not asserted in their petition that the disputed properties were not used as office or cutchery for the collection of rent of the notified estate of petitioner No. 1 before the first of January, 1946 or before the lease in favour of the Company. On behalf of the State, on affidavit, it has been stated that the disputed properties were all along used as cutchery before the creation of the lease and that they were not being used in connection with any mining operation.In our opinion, if as a result of the inquiry under S. 4(h) the transfer of the disputed properties by the petitioner No. 1 is annulled the disputed properties must be regarded as having vested in the State, because they were used as office or cutchery for the collection of rent previous to the transfers made by the petitioner No. 1.5. It was next contended that S. 4(h) is ultra vires the Constitution, because it imposed in an unreasonable restriction on the fundamental rights of the petitioners to realize rent from the Company, as the transfer in its favour was imperilled by the notice issued to it under S. 4(b). No appeal or review was provided in the Act against the order of the Collector issuing notice or an order of annulment made by him.The Collector was left with absolute power to annul a transfer and to dispossess a person in possession thereunder.Section 4(h), however, does direct the Collector to give reasonable notice to the parties concerned and to hear them. Such annulment to dispossession which he may order must be with the previous sanction of the State Government and he is compelled to do so on terms which may appear to him fair and equitable. The power is, therefore, not quite so absolute or arbitrary as suggested.Assuming however, that the Collector has very wide powers, it is to be remembered that S. 4(h) is a part of the law of acquisition of estates as enacted by the Act and is an integral part of the machinery by which acquisition of an estate takes place. The Act is a valid law of acquisition and its whole purpose may be defeated unless there was some such provision as contained in S. 4(h). The Act being a law for acquisition of estates the question of it or S. 4(h) of it imposing any unreasonable restriction on the fundamental rights of the petitioners does not arise. In any event in Act including S. 4(h) is protected by Article 31-A of the Constitution. ### Response: 0

Eastern Chemical and Minerals Vs. Commissioner of Income Tax

(c) or both, during the previous year, amount, in the aggregate, to 50 per cent or more of the aggregate amount of the sale proceeds and all other gross receipts of the business during the previous year credited to the profit and loss account of the company." 4. The assessee had, by a letter dated 26th March, 1969, written by the Government of India, Ministry of Commerce, been granted permission to export for the purpose of a barter deal, ferro-silicon manufactured by the Mysore Iron and Steel Works, Bhadravati, upto a value of Rs. 52 lacs (f.o.b.). Against this value the assessee was permitted to import pesticides as therein enumerated of a total value that did not exceed Rs. 22 lacs. The assessee was informed that the import licences that would be issued in this regard could be endorsed in favour of actual users on the list of the Director General, Technical Development. 5. The assessee claimed that it was entitled to the exemption from the levy of additional income-tax under Section 104(1) read with the said notification. For this purpose, it relied upon the income derived from the exports that it had made as also upon the consideration that it had realised for the assignment of the import licences obtained pursuant to such exports. The Income Tax Officer rejected the assessees contention. The Commissioner of Income Tax (Appeals) accepted it, as also did not Income Tax Appellate Tribunal. The Tribunal noted that it was common ground that if the realisation from the transfer of the assessees import licences were considered as sale proceeds derived from exports, they would constitute more than 50% of the aggregate amount of the gross receipts credited to the profit and loss account for all the assessment years. It was the contention of the Revenue that the import licence realisation could not be treated as such sale proceeds. The Tribunal relied upon a judgment of the Madras High Court in Commissioner of Income Tax Madras-I v. Wheel and Rim Company of India Limited, 107 ITR 168 and held that, having regard to the integrated nature of the scheme, the import licence realisation by the assessee would constitute sale proceeds derived by it from exports within the meaning of the said notification. 6. Arising out of the judgment and order of the Tribunal, the questions quoted above were referred to the High Court. The High Court found, rightly, that the judgment in the earlier case referred to above was distinguishable on facts. In analysed the said notification and held that an assessee would get its benefit only after it exported goods out of India and received the sale proceeds of the exports in India. The receipts from the transfer of import licences by the assessee to actual users in India did not fall within the meaning of the said notification. Admittedly, the import licences had been sold by the assessee in India and the sale proceeds thereof had been realised in India. The profit realised on such sales could not be considered as a part of export sale proceeds. Accordingly, the High Court reversed the Tribunals conclusion. 7. What is involved in this appeal is the construction of the said notification and, particularly, the proviso thereof. The notification exempts every Indian company from the operation of Section 104 in respect of the previous year relevant to the assessment year commencing on 1st April, 1970 and in subsequent years, and we now quote only what are the relevant words thereof : "Provided that such Indian company in the course of its business exports any goods or merchandise out of India and the sale proceeds of the exports is received in or brought into India by the company or on its behalf in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947) and any rules and orders made thereunder, provided further that the sale proceeds derived by the company from the exports during the previous year amount, in the aggregate, to 50% or more of the aggregate amount of the sale proceeds and all other gross receipt of the business during the previous year credited to the profit and loss account of the company."8. For the purposes of determining whether the sale proceeds derived by an assessee from exports amount of 50% or more of its aggregate gross income what is to be taken into account are "the sale proceeds of the exports"; that is to say, the export "of any goods or merchandise out of India". Secondly, the sale proceeds of the exports have to be received in or brought into India in accordance with FERA. What is contemplated is the export of goods or merchandise out of India, such export to be paid for in India or abroad. If paid for abroad, such amount has to be brought into India in accordance with the provisions of FERA. Clearly, the consideration received by an assessee for assignment of import licences received pursuant to the exports cannot be taken into account for the purpose of determining whether the sale proceeds derived by the assessee from exports amount of 50% or more of its aggregate gross income.9. No doubt, the barter deal entitles the assessee to import licences. The assessee is further entitled to assign these import licences to actual users, but the consideration that it receives in regard to such assignment falls outside the scope of the two requirement of the said notification. It may be that, as argued by learned counsel for the assessee, the import licences are intended to compensate the assessee for any loss that it has incurred by reason of export at competitive international rates. Nonetheless, for the purposes of the said notification, the consideration received by the assessee upon assignment of such import licences does not fall within the requirements of the said notification as analysed above and cannot be taken into account in determining whether 50% or more of the assessees income is derived from the sale proceeds of exports.

0[ds]The High Court found, rightly, that the judgment in the earlier case referred to above was distinguishable on facts. In analysed the said notification and held that an assessee would get its benefit only after it exported goods out of India and received the sale proceeds of the exports in India. The receipts from the transfer of import licences by the assessee to actual users in India did not fall within the meaning of the said notification. Admittedly, the import licences had been sold by the assessee in India and the sale proceeds thereof had been realised in India. The profit realised on such sales could not be considered as a part of export sale proceeds. Accordingly, the High Court reversed the Tribunals conclusion.8. For the purposes of determining whether the sale proceeds derived by an assessee from exports amount of 50% or more of its aggregate gross income what is to be taken into account are "the sale proceeds of the exports"; that is to say, the export "of any goods or merchandise out of India". Secondly, the sale proceeds of the exports have to be received in or brought into India in accordance with FERA. What is contemplated is the export of goods or merchandise out of India, such export to be paid for in India or abroad. If paid for abroad, such amount has to be brought into India in accordance with the provisions of FERA. Clearly, the consideration received by an assessee for assignment of import licences received pursuant to the exports cannot be taken into account for the purpose of determining whether the sale proceeds derived by the assessee from exports amount of 50% or more of its aggregate gross income.9. No doubt, the barter deal entitles the assessee to import licences. The assessee is further entitled to assign these import licences to actual users, but the consideration that it receives in regard to such assignment falls outside the scope of the two requirement of the said notification. It may be that, as argued by learned counsel for the assessee, the import licences are intended to compensate the assessee for any loss that it has incurred by reason of export at competitive international rates. Nonetheless, for the purposes of the said notification, the consideration received by the assessee upon assignment of such import licences does not fall within the requirements of the said notification as analysed above and cannot be taken into account in determining whether 50% or more of the assessees income is derived from the sale proceeds of exports.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: (c) or both, during the previous year, amount, in the aggregate, to 50 per cent or more of the aggregate amount of the sale proceeds and all other gross receipts of the business during the previous year credited to the profit and loss account of the company." 4. The assessee had, by a letter dated 26th March, 1969, written by the Government of India, Ministry of Commerce, been granted permission to export for the purpose of a barter deal, ferro-silicon manufactured by the Mysore Iron and Steel Works, Bhadravati, upto a value of Rs. 52 lacs (f.o.b.). Against this value the assessee was permitted to import pesticides as therein enumerated of a total value that did not exceed Rs. 22 lacs. The assessee was informed that the import licences that would be issued in this regard could be endorsed in favour of actual users on the list of the Director General, Technical Development. 5. The assessee claimed that it was entitled to the exemption from the levy of additional income-tax under Section 104(1) read with the said notification. For this purpose, it relied upon the income derived from the exports that it had made as also upon the consideration that it had realised for the assignment of the import licences obtained pursuant to such exports. The Income Tax Officer rejected the assessees contention. The Commissioner of Income Tax (Appeals) accepted it, as also did not Income Tax Appellate Tribunal. The Tribunal noted that it was common ground that if the realisation from the transfer of the assessees import licences were considered as sale proceeds derived from exports, they would constitute more than 50% of the aggregate amount of the gross receipts credited to the profit and loss account for all the assessment years. It was the contention of the Revenue that the import licence realisation could not be treated as such sale proceeds. The Tribunal relied upon a judgment of the Madras High Court in Commissioner of Income Tax Madras-I v. Wheel and Rim Company of India Limited, 107 ITR 168 and held that, having regard to the integrated nature of the scheme, the import licence realisation by the assessee would constitute sale proceeds derived by it from exports within the meaning of the said notification. 6. Arising out of the judgment and order of the Tribunal, the questions quoted above were referred to the High Court. The High Court found, rightly, that the judgment in the earlier case referred to above was distinguishable on facts. In analysed the said notification and held that an assessee would get its benefit only after it exported goods out of India and received the sale proceeds of the exports in India. The receipts from the transfer of import licences by the assessee to actual users in India did not fall within the meaning of the said notification. Admittedly, the import licences had been sold by the assessee in India and the sale proceeds thereof had been realised in India. The profit realised on such sales could not be considered as a part of export sale proceeds. Accordingly, the High Court reversed the Tribunals conclusion. 7. What is involved in this appeal is the construction of the said notification and, particularly, the proviso thereof. The notification exempts every Indian company from the operation of Section 104 in respect of the previous year relevant to the assessment year commencing on 1st April, 1970 and in subsequent years, and we now quote only what are the relevant words thereof : "Provided that such Indian company in the course of its business exports any goods or merchandise out of India and the sale proceeds of the exports is received in or brought into India by the company or on its behalf in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947) and any rules and orders made thereunder, provided further that the sale proceeds derived by the company from the exports during the previous year amount, in the aggregate, to 50% or more of the aggregate amount of the sale proceeds and all other gross receipt of the business during the previous year credited to the profit and loss account of the company."8. For the purposes of determining whether the sale proceeds derived by an assessee from exports amount of 50% or more of its aggregate gross income what is to be taken into account are "the sale proceeds of the exports"; that is to say, the export "of any goods or merchandise out of India". Secondly, the sale proceeds of the exports have to be received in or brought into India in accordance with FERA. What is contemplated is the export of goods or merchandise out of India, such export to be paid for in India or abroad. If paid for abroad, such amount has to be brought into India in accordance with the provisions of FERA. Clearly, the consideration received by an assessee for assignment of import licences received pursuant to the exports cannot be taken into account for the purpose of determining whether the sale proceeds derived by the assessee from exports amount of 50% or more of its aggregate gross income.9. No doubt, the barter deal entitles the assessee to import licences. The assessee is further entitled to assign these import licences to actual users, but the consideration that it receives in regard to such assignment falls outside the scope of the two requirement of the said notification. It may be that, as argued by learned counsel for the assessee, the import licences are intended to compensate the assessee for any loss that it has incurred by reason of export at competitive international rates. Nonetheless, for the purposes of the said notification, the consideration received by the assessee upon assignment of such import licences does not fall within the requirements of the said notification as analysed above and cannot be taken into account in determining whether 50% or more of the assessees income is derived from the sale proceeds of exports. ### Response: 0

CHANDRASHEKHAR ANANDRAOJI REWATKAR Vs. NAVJEEVAN SHIKSHAN SANSTHA AND ORS

1. Leave granted.2. These appeals have been preferred against judgments and orders passed by the High Court of Judicature at Bombay, Nagpur Bench on 4th September, 2014 and 7th October, 2015 in W.P.No.5455 of 2005 and Misc. Civil Application ST No.23162 of 2014 in W.P.No.5455 of 2005 respectively.3. The appellant was appointed as an Assistant Teacher on probation on 6th July, 1999 by Sadhbhawna Bahu Uddeshya Shikshan Sanstha which was running the school in question at the relevant point of time. The management of the school was later on transferred to respondent no.1-Navejeevan Shikshan Santha some time in the year 2001 and thereafter on 23rd June, 2004 the services of the appellant were dispensed with orally. On 21st September, 2004, the appellant approached the School Tribunal under the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The Tribunal vide order dated 8th August, 2005 allowed the appeal and reinstated the appellant with continuity of services and backwages. The High Court set aside the said order, mentioned above, on the ground that the appellant could not produce the advertisement in pursuance of which he was appointed.4. We have heard learned counsel for the parties at some length.5. It is undisputed that the appellant served for more than five years and the School Tribunal recorded a finding that the appointment of the appellant was after the prior permission of the Education Department and in pursuance of the selection after an advertisement. The said finding could not have been set aside without any basis, only on the ground that the appellant failed to produce the advertisement.

1[ds]5. It is undisputed that the appellant served for more than five years and the School Tribunal recorded a finding that the appointment of the appellant was after the prior permission of the Education Department and in pursuance of the selection after an advertisement. The said finding could not have been set aside without any basis, only on the ground that the appellant failed to produce the advertisement.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: 1. Leave granted.2. These appeals have been preferred against judgments and orders passed by the High Court of Judicature at Bombay, Nagpur Bench on 4th September, 2014 and 7th October, 2015 in W.P.No.5455 of 2005 and Misc. Civil Application ST No.23162 of 2014 in W.P.No.5455 of 2005 respectively.3. The appellant was appointed as an Assistant Teacher on probation on 6th July, 1999 by Sadhbhawna Bahu Uddeshya Shikshan Sanstha which was running the school in question at the relevant point of time. The management of the school was later on transferred to respondent no.1-Navejeevan Shikshan Santha some time in the year 2001 and thereafter on 23rd June, 2004 the services of the appellant were dispensed with orally. On 21st September, 2004, the appellant approached the School Tribunal under the provisions of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. The Tribunal vide order dated 8th August, 2005 allowed the appeal and reinstated the appellant with continuity of services and backwages. The High Court set aside the said order, mentioned above, on the ground that the appellant could not produce the advertisement in pursuance of which he was appointed.4. We have heard learned counsel for the parties at some length.5. It is undisputed that the appellant served for more than five years and the School Tribunal recorded a finding that the appointment of the appellant was after the prior permission of the Education Department and in pursuance of the selection after an advertisement. The said finding could not have been set aside without any basis, only on the ground that the appellant failed to produce the advertisement. ### Response: 1

Union of India and Another Vs. Ashok Kumar Mitra

the first ground observing that the respondent himself had "handsomely contributed" to whatever delay had so far been occasioned and, therefore, the proceedings could not be quashed on the ground of delay, which was not attributable solely to the prosecution. So far as the second ground is concerned, the High Court agreed with the submission made on behalf of the respondent and held that the respondent could not be deemed to be a "public servant" within the meaning of Section 21 of IPC and as such could not be tried by the Special Court. The High Court relied upon the judgment in Oriental Bank of Commerce v. Delhi Development Authority in support of its finding. The prosecution was accordingly quashed. The Union of India is aggrieved and has come up in appeal by special leave.5. It is submitted that since the judgment rendered by the Delhi High Court in Oriental Bank of Commerce case has been overruled by this Court therefore the judgment under appeal cannot be sustained. It is urged that a nationalised bank is a Corporation and not a "body corporate" as held in Oriental Bunk case and therefore, the respondent would be squarely covered by the definition of a "public servant" as per Section 21 Twelfth (b) of IPC. 6. In Rustom Cavasjee Cooper v. Union of India this Court with reference to the nationalised banks constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, held that the nationalised banks are Corporations. 7. The controversy, whether a nationalised bank is only a body corporate or is a corporation is no longer res integra. On account of the nationalisation, the nationalised banks are not only established by a Central Act but are also owned and controlled by the Central Government. 8. A Constitution Bench of this Court in Ashoka Marketing Ltd. v. Punjab National Bank specifically considered the question whether a nationalised bank is a Corporation or a "body corporate" and held : (SCC pp. 426-27, para 25). "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 Constitution Bench expressly overruled the judgment of the Delhi High Court in the Oriental Bank of Commerce case and held that the distinction drawn in that judgment between a "body corporate" and a Corporation in relation a nationalised bank is erroneous and that the view that a nationalised bank is not a corporation could not be sustained. Thus, it now rests settled that a nationalised bank is a corporation which is established by a Central Act and is owned and controlled by the Central Government. Are the employees of Corporations which are owned and controlled by the Central Government and are established by a Central Act, "public servants" ? 9. In State through CBI v. O. P. Dogra while setting aside the judgment of the High Court of Jammu and Kashmir, which had held that the employees of an Insurance Company were not "public servants" within the meaning of Section 21 RPC (corresponding to Section 21 IPC), this Court opined : (SCC pp. 321-22, para 4) "So far as the Life Insurance Corporation is concerned, there can be no second view that the employees of the Corporation come within the definition of the term public servant as given under Section 21 of the RPC. So far as the other respondents are concerned, admittedly Jupiter Insurance Co. has been merged with the Oriental Fire and General Insurance Co. after nationalisation and the latter is now a part of the Corporation, namely, General Insurance Corporation of India. By such process the respondents Dogra and his associates are in the same position as Anand. Mr. Kapil Sibal, learned counsel appearing for Dogra and his associates has stated before us that the finding of the High Court on this score is not tenable and the respondents must be held to be public servants." * Section 21 IPC provides "21. Public Servant. - The words public servant denote a person falling under any of the descriptions hereinafter following, namelyTwelfth. - Every person -(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956." * On a plain reading of the above provision, it follows that the view of the Calcutta High Court in the impugned judgment holding that the Branch Manager of Bank of India is not a "public servant" under Section 21 of IPC is erroneous and cannot be sustained 10. Dr. Ghosh appearing for the respondents, however, stated that right to speedy trial having been held by this Court to be a fundamental right, the prosecution in this case in which charge-sheet was filed almost ten years ago in 1985, should be quashed on account of the inordinate delay in completing the same. In the fact situation of this case, the argument does not appeal to us. The High Court itself, after considering the facts of the case, came to the conclusion that the delay was not attributable only to the prosecution and that the respondent had himself "handsomely contributed" to the delay. We agree with the above finding of the High Court which is based on facts and hold that on the ground of delay, not attributable only to the prosecution, the respondent cannot challenge his prosecution for various offences for which he was standing trial before the Special Court. The respondent, having himself contributed to the delay in the disposal of the trial, in no small measure, cannot be permitted to take advantage of his own wrong and take shelter under "speedy trial" to escape from prosecution

1[ds]On a plain reading of the above provision, it follows that the view of the Calcutta High Court in the impugned judgment holding that the Branch Manager of Bank of India is not a "public servant" under Section 21 of IPC is erroneous and cannot bethe fact situation of this case, the argument does not appeal to us. The High Court itself, after considering the facts of the case, came to the conclusion that the delay was not attributable only to the prosecution and that the respondent had himself "handsomely contributed" to the delay. We agree with the above finding of the High Court which is based on facts and hold that on the ground of delay, not attributable only to the prosecution, the respondent cannot challenge his prosecution for various offences for which he was standing trial before the Special Court. The respondent, having himself contributed to the delay in the disposal of the trial, in no small measure, cannot be permitted to take advantage of his own wrong and take shelter under "speedy trial" to escape from prosecution

### 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 first ground observing that the respondent himself had "handsomely contributed" to whatever delay had so far been occasioned and, therefore, the proceedings could not be quashed on the ground of delay, which was not attributable solely to the prosecution. So far as the second ground is concerned, the High Court agreed with the submission made on behalf of the respondent and held that the respondent could not be deemed to be a "public servant" within the meaning of Section 21 of IPC and as such could not be tried by the Special Court. The High Court relied upon the judgment in Oriental Bank of Commerce v. Delhi Development Authority in support of its finding. The prosecution was accordingly quashed. The Union of India is aggrieved and has come up in appeal by special leave.5. It is submitted that since the judgment rendered by the Delhi High Court in Oriental Bank of Commerce case has been overruled by this Court therefore the judgment under appeal cannot be sustained. It is urged that a nationalised bank is a Corporation and not a "body corporate" as held in Oriental Bunk case and therefore, the respondent would be squarely covered by the definition of a "public servant" as per Section 21 Twelfth (b) of IPC. 6. In Rustom Cavasjee Cooper v. Union of India this Court with reference to the nationalised banks constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, held that the nationalised banks are Corporations. 7. The controversy, whether a nationalised bank is only a body corporate or is a corporation is no longer res integra. On account of the nationalisation, the nationalised banks are not only established by a Central Act but are also owned and controlled by the Central Government. 8. A Constitution Bench of this Court in Ashoka Marketing Ltd. v. Punjab National Bank specifically considered the question whether a nationalised bank is a Corporation or a "body corporate" and held : (SCC pp. 426-27, para 25). "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 Constitution Bench expressly overruled the judgment of the Delhi High Court in the Oriental Bank of Commerce case and held that the distinction drawn in that judgment between a "body corporate" and a Corporation in relation a nationalised bank is erroneous and that the view that a nationalised bank is not a corporation could not be sustained. Thus, it now rests settled that a nationalised bank is a corporation which is established by a Central Act and is owned and controlled by the Central Government. Are the employees of Corporations which are owned and controlled by the Central Government and are established by a Central Act, "public servants" ? 9. In State through CBI v. O. P. Dogra while setting aside the judgment of the High Court of Jammu and Kashmir, which had held that the employees of an Insurance Company were not "public servants" within the meaning of Section 21 RPC (corresponding to Section 21 IPC), this Court opined : (SCC pp. 321-22, para 4) "So far as the Life Insurance Corporation is concerned, there can be no second view that the employees of the Corporation come within the definition of the term public servant as given under Section 21 of the RPC. So far as the other respondents are concerned, admittedly Jupiter Insurance Co. has been merged with the Oriental Fire and General Insurance Co. after nationalisation and the latter is now a part of the Corporation, namely, General Insurance Corporation of India. By such process the respondents Dogra and his associates are in the same position as Anand. Mr. Kapil Sibal, learned counsel appearing for Dogra and his associates has stated before us that the finding of the High Court on this score is not tenable and the respondents must be held to be public servants." * Section 21 IPC provides "21. Public Servant. - The words public servant denote a person falling under any of the descriptions hereinafter following, namelyTwelfth. - Every person -(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956." * On a plain reading of the above provision, it follows that the view of the Calcutta High Court in the impugned judgment holding that the Branch Manager of Bank of India is not a "public servant" under Section 21 of IPC is erroneous and cannot be sustained 10. Dr. Ghosh appearing for the respondents, however, stated that right to speedy trial having been held by this Court to be a fundamental right, the prosecution in this case in which charge-sheet was filed almost ten years ago in 1985, should be quashed on account of the inordinate delay in completing the same. In the fact situation of this case, the argument does not appeal to us. The High Court itself, after considering the facts of the case, came to the conclusion that the delay was not attributable only to the prosecution and that the respondent had himself "handsomely contributed" to the delay. We agree with the above finding of the High Court which is based on facts and hold that on the ground of delay, not attributable only to the prosecution, the respondent cannot challenge his prosecution for various offences for which he was standing trial before the Special Court. The respondent, having himself contributed to the delay in the disposal of the trial, in no small measure, cannot be permitted to take advantage of his own wrong and take shelter under "speedy trial" to escape from prosecution ### Response: 1

Union Of India Vs. Hanuman Industries

of India vide NEC/PLAN/ii-23-2-2007. Thus the letter/notification dated 04-05-2010, did relate back to 23-02-2007 for all intents and purposes. Therefore the scheme, SPINE stood withdrawn and/or closed on and from 23-02-2007. As a corollary, on a cumulative reading of the letters dated 05-02-2007, 23-02-2007 and 04-05-2010 as well as the resolution dated 21-02-2007 it is indubitable that SPINE stood withdrawn and/or closed with effect from 23-02-2007. As adverted to hereinabove, by letter dated 01-10.2007, as a consequential step, the proposal which had remained unprocessed as per the standard procedures of the scheme were returned to the State Governments. The list of proposals remitted back admittedly included those amongst others of the respondents herein. It is thus patent that on such date i.e. 01-10-2007, the claims of the respondents had not been accepted and in view of the closure of the scheme, were returned to the respective State Governments. In this pronounced backdrop, the plea of the respondents that at the institution of the writ petitions in 2009, no decision had been taken rejecting their applications fades into insignificance, as those by implication had not been entertained under the scheme. 14.2 The letters dated 04-08-2006, 04-09-2007 and 12-09-2007 to which our attention has been drawn in course of the arguments, suffice it to mention, do not contain any assurance on the part of the implementing authorities promising grant of the subsidy allowance under the scheme or any other incentive to the respondent. No reference has been made before us of any other document qua the other respondents. We are thus constrained to hold that there was no promise on the part of the public functionaries in charge of implementation of SPINE to the respondents to extend benefits thereunder, inspite of the decision to withdraw or close the same with effect from 23-02-2007. 15. In M/s Motilal Padampt Sugar Mills Company supra, this Court, on an exhaustive survey of the law pertaining to the doctrine of promissory estoppel held that the same was an equitable doctrine that would yield when equity so required. While propounding that the same had been evolved to avoid injustice where it is demonstrated that a party acting on the words or conduct of another, amounting to clear and unequivocal promise and intended to create legal relations or effect legal relationships to arise in the future had altered his position, then the promise would be binding on the promisor and he would not be permitted to renege therefrom unless it would be inequitable to compel him to do so. While extending this doctrine to the Government as well, it was enunciated that if it can be shown that having regard to the facts as had subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise the equity in favour of the promisee and enforce the promise against the Government. Their Lordships held that the doctrine of the promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. That aside overriding public interest against enforcement of the doctrine qua the Government, it would be still competent for it to depart from the promise on giving reasonable notice which need not be a formal one, affording the promisee a reasonable opportunity of resuming his position was underlined. We consider it inessential to dilate on the other decisions cited on behalf of the respondents on this theme as these are in essence in reiteration of the above proposition. 16. The gravamen of the authorities pertaining to delay highlight in unison that the same has to be explained by cogent convincing and persuasive explanation to justify condonation thereof. The legal diktat being so fundamental that a detailed treatment of the decisions relied upon by the respondents in this regard is not warranted. 17. Noticeably, in the earlier round of litigation, there was no scope to examine the purport of the contents of the letter dated 04-05-2010, which to reiterate only affirmed the decision of withdrawal and closure of SPINE with effect from 23-02-2007. The contents of the said letter to repeat disclose in unequivocal terms that even prior thereto a decision to that effect had been taken on and from that date. This decision as referred to hereinabove amongst others also received media coverage. The plea that the respondents had no knowledge of the withdrawal/closure of SPINE then, is to say the least, unconvincing. We see no weighty or cogent reason for the respondents to wait till the earlier Special Leave Petition was dismissed on 01-05-2009 by this Court to embark upon their pursuit for redress in similar terms. Their writ petitions dated 27-08-2009 also do not evince that the same were filed after the letter/notification dated 04-05-2010. In our considered opinion therefore, the respondents were deliberately bidding time to seek judicial remedy in case their co-applicants under the scheme emerged successful in their adjudicative enterprise. As the initial decision conveyed by the letter dated 05-02-2007 to stop further sanction/disbursement of Grant-in-Aid under the scheme pending scrutiny of the report of the industrial units involved did eventually metamorphosise in the closure/withdrawal of the scheme, there is an apparent correlation between the intervening developments conveyed from time to time eventuating in such a conclusion. The merit of the factums leading to this decision however has not been questioned or impeached. 18. On a consideration of the totality of the aspects involved, we are thus of the unhesitant view that the respondents herein in view of their deliberate laches, negligence and inaction have disentitled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand.

1[ds]Admittedly, the respondents herein elected not to join them and instead, soon thereafter this Court affirmed the above verdict on, staked their claim on. There is evidently thus a time lag of more than two years by which the respondents? challenge was delayedThat aside overriding public interest against enforcement of the doctrine qua the Government, it would be still competent for it to depart from the promise on giving reasonable notice which need not be a formal one, affording the promisee a reasonable opportunity of resuming his position was underlined. We consider it inessential to dilate on the other decisions cited on behalf of the respondents on this theme as these are in essence in reiteration of the above propositionIn our considered opinion therefore, the respondents were deliberately bidding time to seek judicial remedy in case theirs under the scheme emerged successful in their adjudicative enterprise. As the initial decision conveyed by the letter dated7 to stop further sanction/disbursement ofd under the scheme pending scrutiny of the report of the industrial units involved did eventually metamorphosise in the closure/withdrawal of the scheme, there is an apparent correlation between the intervening developments conveyed from time to time eventuating in such a conclusion. The merit of the factums leading to this decision however has not been questioned or impeached18. On a consideration of the totality of the aspects involved, we are thus of the unhesitant view that the respondents herein in view of their deliberate laches, negligence and inaction have disentitled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand.

### 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: of India vide NEC/PLAN/ii-23-2-2007. Thus the letter/notification dated 04-05-2010, did relate back to 23-02-2007 for all intents and purposes. Therefore the scheme, SPINE stood withdrawn and/or closed on and from 23-02-2007. As a corollary, on a cumulative reading of the letters dated 05-02-2007, 23-02-2007 and 04-05-2010 as well as the resolution dated 21-02-2007 it is indubitable that SPINE stood withdrawn and/or closed with effect from 23-02-2007. As adverted to hereinabove, by letter dated 01-10.2007, as a consequential step, the proposal which had remained unprocessed as per the standard procedures of the scheme were returned to the State Governments. The list of proposals remitted back admittedly included those amongst others of the respondents herein. It is thus patent that on such date i.e. 01-10-2007, the claims of the respondents had not been accepted and in view of the closure of the scheme, were returned to the respective State Governments. In this pronounced backdrop, the plea of the respondents that at the institution of the writ petitions in 2009, no decision had been taken rejecting their applications fades into insignificance, as those by implication had not been entertained under the scheme. 14.2 The letters dated 04-08-2006, 04-09-2007 and 12-09-2007 to which our attention has been drawn in course of the arguments, suffice it to mention, do not contain any assurance on the part of the implementing authorities promising grant of the subsidy allowance under the scheme or any other incentive to the respondent. No reference has been made before us of any other document qua the other respondents. We are thus constrained to hold that there was no promise on the part of the public functionaries in charge of implementation of SPINE to the respondents to extend benefits thereunder, inspite of the decision to withdraw or close the same with effect from 23-02-2007. 15. In M/s Motilal Padampt Sugar Mills Company supra, this Court, on an exhaustive survey of the law pertaining to the doctrine of promissory estoppel held that the same was an equitable doctrine that would yield when equity so required. While propounding that the same had been evolved to avoid injustice where it is demonstrated that a party acting on the words or conduct of another, amounting to clear and unequivocal promise and intended to create legal relations or effect legal relationships to arise in the future had altered his position, then the promise would be binding on the promisor and he would not be permitted to renege therefrom unless it would be inequitable to compel him to do so. While extending this doctrine to the Government as well, it was enunciated that if it can be shown that having regard to the facts as had subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise the equity in favour of the promisee and enforce the promise against the Government. Their Lordships held that the doctrine of the promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it. That aside overriding public interest against enforcement of the doctrine qua the Government, it would be still competent for it to depart from the promise on giving reasonable notice which need not be a formal one, affording the promisee a reasonable opportunity of resuming his position was underlined. We consider it inessential to dilate on the other decisions cited on behalf of the respondents on this theme as these are in essence in reiteration of the above proposition. 16. The gravamen of the authorities pertaining to delay highlight in unison that the same has to be explained by cogent convincing and persuasive explanation to justify condonation thereof. The legal diktat being so fundamental that a detailed treatment of the decisions relied upon by the respondents in this regard is not warranted. 17. Noticeably, in the earlier round of litigation, there was no scope to examine the purport of the contents of the letter dated 04-05-2010, which to reiterate only affirmed the decision of withdrawal and closure of SPINE with effect from 23-02-2007. The contents of the said letter to repeat disclose in unequivocal terms that even prior thereto a decision to that effect had been taken on and from that date. This decision as referred to hereinabove amongst others also received media coverage. The plea that the respondents had no knowledge of the withdrawal/closure of SPINE then, is to say the least, unconvincing. We see no weighty or cogent reason for the respondents to wait till the earlier Special Leave Petition was dismissed on 01-05-2009 by this Court to embark upon their pursuit for redress in similar terms. Their writ petitions dated 27-08-2009 also do not evince that the same were filed after the letter/notification dated 04-05-2010. In our considered opinion therefore, the respondents were deliberately bidding time to seek judicial remedy in case their co-applicants under the scheme emerged successful in their adjudicative enterprise. As the initial decision conveyed by the letter dated 05-02-2007 to stop further sanction/disbursement of Grant-in-Aid under the scheme pending scrutiny of the report of the industrial units involved did eventually metamorphosise in the closure/withdrawal of the scheme, there is an apparent correlation between the intervening developments conveyed from time to time eventuating in such a conclusion. The merit of the factums leading to this decision however has not been questioned or impeached. 18. On a consideration of the totality of the aspects involved, we are thus of the unhesitant view that the respondents herein in view of their deliberate laches, negligence and inaction have disentitled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand. ### Response: 1

Arasmeta Captive Power Co. Pvt. Ltd & An Vs. Lafarge India P. Ltd

controversy when raised pertaining to arbitrability of the disputes. Or to express an opinion on excepted matters. Such an inference by syllogistic process is likely to usher in catastrophe in jurisprudence developed in this field. We are disposed to think so as it is not apposite to pick up a line from here and there from the judgment or to choose one observation from here or there for raising it to the status of “the ratio decidendi”. That is most likely to pave one on the path of danger and it is to be scrupulously avoided. The propositions set out in SBP & Co. (supra), in our opinion, have been correctly understood by the two-Judge Bench in Boghara Polyfab Private Limited (supra) and the same have been appositely approved by the three-Judge Bench in Chloro Controls India Private Limited (supra) and we respectfully concur with the same. We find no substance in the submission that the said decisions require reconsideration, for certain observations made in SBP & Co. (supra), were not noticed. We may hasten to add that the three-Judge Bench has been satisfied that the ratio decidendi of the judgment in SBP & Co. (supra) is really inhered in paragraph 39 of the judgment. 38. Before parting with this part of our ratiocination we may profitably reproduce the following words of Lord Denning which have become locus classicus: - “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.” 39. The aforesaid passage has been referred to in Amrit Lal Machanda and another (supra). 40. We will be failing in our duty if we do not take note of another decision in Booz Allen and Hamilton Inc. v. SBI Home Finance Limited and others [(2011) 5 SCC 532] on which Mr. Ranjit Kumar has heavily relied upon. He has drawn our attention to paragraph 34 where the Court has dealt with the meaning of the term “arbitrability” and stated that arbitrability has different meanings in different contexts. The Court enumerated three facets which relate to the jurisdiction of the Arbitral Tribunal. In sub-para (ii) of the said paragraph it has been stated that one facet of arbitrability is whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the “excepted matters” excluded from the purview of the arbitration agreement. On a careful reading of the said judgment we find that the learned Judges have referred to paragraph 19 of SBP & Co. (supra) and thereafter referred to Section 8 of the Act and opined what the judicial authority should decide. Thereafter the Court proceeded to deal with nature and scope of the issues arising for consideration in an application under Section 11 of the Act for appointment of the arbitrator and, in that context, it opined thus: - “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.” 41. The said ruling is absolutely in consonance with the principle laid down in SBP & Co. (supra). The meaning given to arbitrability thereafter has been restricted to the adjudication under Section 8 and not under Section 11 of the Act. Thus, the reliance on the said decision further reflects how the court has consistently understood the principles laid down in SBP & Co. (supra). 42. In view of our foregoing analysis we sum up our conclusions as follows: - i) The decisions rendered in Boghara Polyfab Private Limited (supra) and Chloro Controls India Private Limited (supra) are in accord with the principles of law stated in SBP & Co. (supra).ii) The designated Judge, as perceived from the impugned order, while dealing with an application under Section 11(6) of the Act, on an issue raised with regard to the excepted matters, was not justified in addressing the same on merits whether it is a dispute relating to excepted matters under the agreement in question or not.iii) The designated Judge has fallen into error by opining that the disputes raised are not “billing disputes”, for the same should have been left to be adjudicated by the learned Arbitrator.iv) The part of the order impugned that reflects the expression of opinion by the designate of the Chief Justice on the merits of the disputes, being pregnable, deserves to be set aside and is hereby set aside. 43. In course of hearing we have been apprised that the learned Arbitrator has adjourned the matter to 13.12.2013 for filing counter affidavit/claim by the appellants and it has been submitted by Mr. Ranjit Kumar that it would not be possible for the appellants to file the counter affidavit/claim or objections to the claim by that date. Mr. Harish Salve, learned senior counsel appearing for the respondent, fairly stated that this Court may take note of the concession given by him that the learned Arbitrator should grant six weeks’ time commencing 13.12.2013 for filing the counter affidavit/counter claim/objections. In view of the concession given, the time stands extended. We have also been told that the learned Arbitrator has fixed the schedule for adjudication of the disputes. We would request the learned Arbitrator to re-schedule the dates as we have extended the time for filing of counter affidavit/claim by the appellants. 44.

1[ds]43. In course of hearing we have been apprised that the learned Arbitrator has adjourned the matter to 13.12.2013 for filing counter affidavit/claim by the appellants and it has been submitted by Mr. Ranjit Kumar that it would not be possible for the appellants to file the counter affidavit/claim or objections to the claim by that date. Mr. Harish Salve, learned senior counsel appearing for the respondent, fairly stated that this Court may take note of the concession given by him that the learned Arbitrator should grant sixtime commencing 13.12.2013 for filing the counter affidavit/counter claim/objections. In view of the concession given, the time stands extended. We have also been told that the learned Arbitrator has fixed the schedule for adjudication of the disputes. We would request the learned Arbitrator to re-schedule the dates as we have extended the time for filing of counter affidavit/claim by the appellants.

### 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: controversy when raised pertaining to arbitrability of the disputes. Or to express an opinion on excepted matters. Such an inference by syllogistic process is likely to usher in catastrophe in jurisprudence developed in this field. We are disposed to think so as it is not apposite to pick up a line from here and there from the judgment or to choose one observation from here or there for raising it to the status of “the ratio decidendi”. That is most likely to pave one on the path of danger and it is to be scrupulously avoided. The propositions set out in SBP & Co. (supra), in our opinion, have been correctly understood by the two-Judge Bench in Boghara Polyfab Private Limited (supra) and the same have been appositely approved by the three-Judge Bench in Chloro Controls India Private Limited (supra) and we respectfully concur with the same. We find no substance in the submission that the said decisions require reconsideration, for certain observations made in SBP & Co. (supra), were not noticed. We may hasten to add that the three-Judge Bench has been satisfied that the ratio decidendi of the judgment in SBP & Co. (supra) is really inhered in paragraph 39 of the judgment. 38. Before parting with this part of our ratiocination we may profitably reproduce the following words of Lord Denning which have become locus classicus: - “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.” 39. The aforesaid passage has been referred to in Amrit Lal Machanda and another (supra). 40. We will be failing in our duty if we do not take note of another decision in Booz Allen and Hamilton Inc. v. SBI Home Finance Limited and others [(2011) 5 SCC 532] on which Mr. Ranjit Kumar has heavily relied upon. He has drawn our attention to paragraph 34 where the Court has dealt with the meaning of the term “arbitrability” and stated that arbitrability has different meanings in different contexts. The Court enumerated three facets which relate to the jurisdiction of the Arbitral Tribunal. In sub-para (ii) of the said paragraph it has been stated that one facet of arbitrability is whether the disputes are enumerated or described in the arbitration agreement as matters to be decided by arbitration or whether the disputes fall under the “excepted matters” excluded from the purview of the arbitration agreement. On a careful reading of the said judgment we find that the learned Judges have referred to paragraph 19 of SBP & Co. (supra) and thereafter referred to Section 8 of the Act and opined what the judicial authority should decide. Thereafter the Court proceeded to deal with nature and scope of the issues arising for consideration in an application under Section 11 of the Act for appointment of the arbitrator and, in that context, it opined thus: - “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.” 41. The said ruling is absolutely in consonance with the principle laid down in SBP & Co. (supra). The meaning given to arbitrability thereafter has been restricted to the adjudication under Section 8 and not under Section 11 of the Act. Thus, the reliance on the said decision further reflects how the court has consistently understood the principles laid down in SBP & Co. (supra). 42. In view of our foregoing analysis we sum up our conclusions as follows: - i) The decisions rendered in Boghara Polyfab Private Limited (supra) and Chloro Controls India Private Limited (supra) are in accord with the principles of law stated in SBP & Co. (supra).ii) The designated Judge, as perceived from the impugned order, while dealing with an application under Section 11(6) of the Act, on an issue raised with regard to the excepted matters, was not justified in addressing the same on merits whether it is a dispute relating to excepted matters under the agreement in question or not.iii) The designated Judge has fallen into error by opining that the disputes raised are not “billing disputes”, for the same should have been left to be adjudicated by the learned Arbitrator.iv) The part of the order impugned that reflects the expression of opinion by the designate of the Chief Justice on the merits of the disputes, being pregnable, deserves to be set aside and is hereby set aside. 43. In course of hearing we have been apprised that the learned Arbitrator has adjourned the matter to 13.12.2013 for filing counter affidavit/claim by the appellants and it has been submitted by Mr. Ranjit Kumar that it would not be possible for the appellants to file the counter affidavit/claim or objections to the claim by that date. Mr. Harish Salve, learned senior counsel appearing for the respondent, fairly stated that this Court may take note of the concession given by him that the learned Arbitrator should grant six weeks’ time commencing 13.12.2013 for filing the counter affidavit/counter claim/objections. In view of the concession given, the time stands extended. We have also been told that the learned Arbitrator has fixed the schedule for adjudication of the disputes. We would request the learned Arbitrator to re-schedule the dates as we have extended the time for filing of counter affidavit/claim by the appellants. 44. ### Response: 1

Phillippa Anne Duke Vs. The State Of Tamil Nadu & Ors

following observations of the Constitution Bench in A. K. Roy v. Union of India, AIR 1982 SC 710 :-"Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Boards room, may lack the ease and composure to present his point of view. He may be "tongue-tied, nervous, confused or wanting in intelligence" (see Pett v. Greyhound Racing Association Ltd., 1969 1 QB 125), and if justice is to be done, he must at least have the help of a friend who can assist him to give conference to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M. R., in Maynard v. Osmond, 1977 1 QB 240, 253, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility."5. In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A friendly representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer friendly representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for friendly representation or its denial anywhere. The Advisory Board was neither asked nor did not Board deny any friendly representation6. A charge was made against the Advisory Board that there was inequality of treatment. It was said that while the detaining authority was allowed to be represented by its officers and advisers, the detenus were allowed no representation. There is no substance in this charg . From the affidavit of the Chairman of the Advisory Board. I find that all that happened was that some customs officers were allowed to be present in the corridor so as to enable them to produce the relevant files whenever required fore per ual by the Board. The charge of inequality of treatment is, therefore, baseless7. Yet another submission of the learned counsel was that the Advisory Board failed to consider the question whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention. The order of detention was made on 7-1-82 and the consideration by the Advisory Board was on 8-2-82. The passage of time was not so long nor had any circumstances intervened to justify any compartmentwise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case. I think that the report of the Advisory Board that three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government. This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government. This complaint is wholly unjustified. As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his affidavit, the correspondence etc. is carried on through the Government because the board has no separate administrative office of its own.

0[ds]Apart from the fact that there is no proper foundation for the submission, I am not satisfied that there is any merit in the submission. The Writ Petitions were filed on March 12, 1982 and there was then no hint of this submission, the counter-affidavit on behalf of the State of Tamil Nadu was filed on April 5, 1982. Thereafter, the clerk of the learned counsel for the petitioners has sworn to an affidavit mentioning the facts giving rise to the present submission.It was next submitted by the learned counsel that the Chief Minister, who according to the Rule of Business of the Government of Tamil Nadu, was required to deal with matters relating to preventive detention neither applied his mind to the making of the orders of detention, nor considered the representation of the detenus himself.The relevant files have been produced by the learned counsel for the State of Tamil Nadu and on perusing them, I find no substance in the submission of the learned counsel4. The submission which was most strenuously urged by the learned counsel was that the detenus had been denied the right to be represented before the Advisory Board by the Advocate or at least by a friend and that they were thus denied the right to make a proper and effective representation to the Advisory Board. This was sufficient, said the learned counsel, to vitiate the detention. The learned counsel urged that the detenus were foreign national and they were under a handicap being ignornat of the laws and procedures of this country. To deny legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation. According to the learned counsel, this was a clear case where legal representation should have been permitted. In any case, it was urged, the detenus ought to have been offered at least friendly representation, if not legal representation.In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A friendly representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer friendly representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for friendly representation or its denial anywhere. The Advisory Board was neither asked nor did not Board deny any friendlyorder of detention was made on 7-1-82 and the consideration by the Advisory Board was on 8-2-82. The passage of time was not so long nor had any circumstances intervened to justify any compartmentwise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case. I think that the report of the Advisory Board that three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government. This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government. This complaint is wholly unjustified. As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his affidavit, the correspondence etc. is carried on through the Government because the board has no separate administrative office of its own

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: following observations of the Constitution Bench in A. K. Roy v. Union of India, AIR 1982 SC 710 :-"Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Boards room, may lack the ease and composure to present his point of view. He may be "tongue-tied, nervous, confused or wanting in intelligence" (see Pett v. Greyhound Racing Association Ltd., 1969 1 QB 125), and if justice is to be done, he must at least have the help of a friend who can assist him to give conference to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M. R., in Maynard v. Osmond, 1977 1 QB 240, 253, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility."5. In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A friendly representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer friendly representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for friendly representation or its denial anywhere. The Advisory Board was neither asked nor did not Board deny any friendly representation6. A charge was made against the Advisory Board that there was inequality of treatment. It was said that while the detaining authority was allowed to be represented by its officers and advisers, the detenus were allowed no representation. There is no substance in this charg . From the affidavit of the Chairman of the Advisory Board. I find that all that happened was that some customs officers were allowed to be present in the corridor so as to enable them to produce the relevant files whenever required fore per ual by the Board. The charge of inequality of treatment is, therefore, baseless7. Yet another submission of the learned counsel was that the Advisory Board failed to consider the question whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention. The order of detention was made on 7-1-82 and the consideration by the Advisory Board was on 8-2-82. The passage of time was not so long nor had any circumstances intervened to justify any compartmentwise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case. I think that the report of the Advisory Board that three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government. This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government. This complaint is wholly unjustified. As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his affidavit, the correspondence etc. is carried on through the Government because the board has no separate administrative office of its own. ### Response: 0

MARUTI SUZUKI INDIA LTD. (EARLIER KNOWN AS MARUTI UDYOG LTD.) Vs. COMMISSIONER OF INCOME TAX DELHI

actually paid during the relevant year previous to the assessment year 1984-85. The Commissioner of Income-tax initiated proceedings under section 263 of the Act on the ground that the Assessing Officer had wrongly allowed the claim for deduction of an amount of Rs.98,25,833/- towards customs and Excise Duty paid during the previous year but credited to the profit and loss account in closing stock of goods under the provisions of Section 43B. the assessee relied upon the judgment of the Gujarat high Court in Lakhanpal National Ltd. Vs. ITO[1986] 162 ITR 240[hereinafter referred to as Lakhanpal National Ltd.s case] in support of its claim. The Commissioner of Income-tax took the view that the Gujarat High Courts decision was distinguishable on facts and, therefore, made an order under section 263 of the Act disallowing the claim of the assessee. On appeal to the Tribunal, the Tribunal held that the Gujarat high courts judgment in Lakhanpal National Ltd.s case [1986] 162 ITR 240 was distinguishable and confirmed the order of the Commissioner of Income-tax. On an application made under section 256(1) of the Act at the instance of the appellant-assessee, the Tribunal, inter alia, referred the following question of law for the opinion of the High Court (see [2002] 253 IT 738, 739): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the assessees claim for deduction of the excise and customs duties of Rs.98,25,833 paid in the year of account and debited in the profit and loss account, on the ground that the crediting of the profit and loss account by the value of the closing stock, which included the aforesaid duties, did not have the effect of wiping out the debit to the profit and loss account? The High Court by its judgment dated September 24, 2001, in I.T.R.No.213 of 1993 (see [2002] 253 ITR 738 ), answered the question referred in favour of the Revenue and against the assessee. 29. This Court in Berger Paints Ltd. (Supra) upheld the view of assessing officer and decided the question in favour of the assessee. This Court held that the Commissioner of Income Tax has incorrectly distinguished the judgment of Lakhan Pal National Ltd. Case. 30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit. 31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: - 52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account. 32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question. 33. The next submission which has been advanced by Shri Ganesh is on the first proviso to Section 43B. It has been submitted that Return for the assessment year in question was to be filed before 30.09.1999 and unutilised credit in fact was fully utilised by 30.04.1999 itself. It is submitted that since the unutilised credit was utilised for payment of Excise Duty on the manufactured vehicles, the said amount ought to have been allowed as permissible deduction under Section 43B. 34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim.

1[ds]11. The untilised MODVAT credit on 31.03.1999 to the credit of the assessee was Rs.69,93,00,428/-. The MODVAT credit was accumulated to the account of the assessee due to payment of Excise Duty on raw materials and inputs which were supplied to it by the suppliers and reflected in the invoices by which raw materials and inputs were supplied. There is no denial to the fact that the appellant was entitled to utilise this credit in payment of Excise Duty to which the assessee was liable in payment of Excise Duty on manufacture of its products15. The taxable event is manufacture and production of excisable articles and payment of duty is relatable to date of removal of such article from the factory. The manufacture of the raw materials or inputs which have been used by the appellant are the excisable items within the meaning of Central Excise Rules, 1944. The Excise Duty is leviable on the manufacturer of raw materials and inputs. The supplier of raw materials or inputs includes the Excise Duty paid on such articles in his sale invoices. The appellant when purchases raw materials and inputs for manufacture of vehicles it maintains a separate account containing the Excise Duty as mentioned in sale invoices. The credit of such Excise Duty paid by the appellant is to be given to the appellant by virtue of Rule 57A to 57F of Central Excise Rules, 1944 as it then existed. The appellant was fully entitled to discharge his liability to pay Excise Duty on vehicles manufactured by adjusting the credit of Excise Duty earned by it as per MODVAT scheme. The liability to pay Excise Duty is not fastened on two entities as per the scheme of Central Excise Act and Central Excise Rules. It is the manufacturer of raw materials and inputs which are used by appellant who has statutory liability to pay Excise Duty. The appellant is not assessee within the meaning of Central Excise Act, 1944, with reference to raw materials and inputs manufactured by the entities from which appellant had purchased the raw materials and entitiesIn the present case, the Excise Duty leviable on appellant on manufacture of vehicles was already adjusted in the concerned assessment year from the credit of Excise Duty under the MODVAT scheme. The unutilised credit in the MODVAT scheme cannot be treated as sum actually paid by the appellant. The assessee when pays the cost of raw materials where the duty is embedded, it does not ipso facto mean that assessee is the one who is liable to pay Excise Duty on such raw material/inputs. It is merely the incident of Excise Duty that has shifted from the manufacturer to the purchaser and not the liability to the same18. We thus, conclude that the unutilised credit under MODVAT scheme does not qualify for deductions under Section 43B of the Income Tax Act23. The above observation cannot be read to mean that payment of Excise Duty by the appellant which was component of sale invoice purchasing the raw material/inputs by the appellant is also payment of Excise Duty on raw material/inputs24. By payment of component of Excise Duty as included in sale invoice is benefit which is given to appellant by virtue of credit as envisaged in statutory scheme of Rule 57-A to 57-I of Central Excise Rules, 1944. The above judgment thus in no manner supports the submissions of the appellant for the purposes of the present caseThe question which was answered in the above case was entirely different to one which has arisen in the present case27. This Court as noted above in the above case has laid down that credit for the Excise Duty paid for the raw material can be used at any time when making payment of Excise Duty on excisable product. The user of such credit is at the time of payment of Excise Duty on the excisable product i.e. at the time when appellant is to pay Excise Duty on its manufactured vehicle30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: -52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim.

### Instruction: Review the case details and predict the decision: will the court accept (1) or deny (0) the appeal/petition? ### Input: actually paid during the relevant year previous to the assessment year 1984-85. The Commissioner of Income-tax initiated proceedings under section 263 of the Act on the ground that the Assessing Officer had wrongly allowed the claim for deduction of an amount of Rs.98,25,833/- towards customs and Excise Duty paid during the previous year but credited to the profit and loss account in closing stock of goods under the provisions of Section 43B. the assessee relied upon the judgment of the Gujarat high Court in Lakhanpal National Ltd. Vs. ITO[1986] 162 ITR 240[hereinafter referred to as Lakhanpal National Ltd.s case] in support of its claim. The Commissioner of Income-tax took the view that the Gujarat High Courts decision was distinguishable on facts and, therefore, made an order under section 263 of the Act disallowing the claim of the assessee. On appeal to the Tribunal, the Tribunal held that the Gujarat high courts judgment in Lakhanpal National Ltd.s case [1986] 162 ITR 240 was distinguishable and confirmed the order of the Commissioner of Income-tax. On an application made under section 256(1) of the Act at the instance of the appellant-assessee, the Tribunal, inter alia, referred the following question of law for the opinion of the High Court (see [2002] 253 IT 738, 739): Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the assessees claim for deduction of the excise and customs duties of Rs.98,25,833 paid in the year of account and debited in the profit and loss account, on the ground that the crediting of the profit and loss account by the value of the closing stock, which included the aforesaid duties, did not have the effect of wiping out the debit to the profit and loss account? The High Court by its judgment dated September 24, 2001, in I.T.R.No.213 of 1993 (see [2002] 253 ITR 738 ), answered the question referred in favour of the Revenue and against the assessee. 29. This Court in Berger Paints Ltd. (Supra) upheld the view of assessing officer and decided the question in favour of the assessee. This Court held that the Commissioner of Income Tax has incorrectly distinguished the judgment of Lakhan Pal National Ltd. Case. 30. As noted above in the above case, the claim of the assessee was that entire sum of Rs.5,85,87,181/- was the duties actually paid during the relevant previous year. The above was not a case for unutilised MODVAT credit, hence, the said case cannot be held to lay down any ratio with respect to allowable deduction under Section 43B in respect of unutilised MODVAT credit. 31. Now coming to the second question i.e. with regard to disallowance of Rs.3,08,79,171/- in respect of Sale tax recoverable amount,the High Court in paragraph 52 of the judgment has noticed relevant facts in above reference in following words: - 52. The facts are the Assessee pays sales tax on the purchase of raw materials and computers used in the manufacture of cars. Though, the sales-tax paid is part of the cost of raw material, the Assessee debits the purchases net of sales tax; the sales tax paid is debited to a separate account titled Sales-tax Recoverable A/c. Under the Haryana General Sales Tax Act 1973, the Assessee cold set off such sales-tax against its liability on the sales of the finished goods i.e. cars. Whenever the goods are sold, the tax on such sales is credited to the aforesaid account. 32. The High Court had rightly answered the above question in favour of the Revenue relying on its discussion with respect to Question No.1. The sales tax paid by the appellant was debited to a separate account titled Sales Tax recoverable account. The assessee could have set off sales tax against his liability on the sales of finished goods i.e. vehicles. We do not find any infirmity in the view of the High Court answering the above question. 33. The next submission which has been advanced by Shri Ganesh is on the first proviso to Section 43B. It has been submitted that Return for the assessment year in question was to be filed before 30.09.1999 and unutilised credit in fact was fully utilised by 30.04.1999 itself. It is submitted that since the unutilised credit was utilised for payment of Excise Duty on the manufactured vehicles, the said amount ought to have been allowed as permissible deduction under Section 43B. 34. The proviso to Section 43B provides that nothing contained in the Section shall apply in relation to any sum which is actually paid by assessee on or before due date applicable in his case for furnishing the return in respect of the previous year in which the liability to pay such sum was incurred. The crucial words in the proviso to Section 43B are in respect of the previous year in which the liability to pay such sum was incurred. The proviso takes care of the situation when liability to pay a sum has incurred but could not be paid in the year in question and has been paid in the next financial year before the date of submission of the Return. In the present case, there was no liability to adjust the unutilised MODVAT credit in the year in question since had there been liability to pay Excise Duty by the appellant on manufacture of vehicles, the unutilised MODVAT credit could have been adjusted against the payment of such Excise Duty. In the present case, the liability to pay Excise Duty of the assessee is incurred on the removal of finished goods in the subsequent year i.e. year beginning from 01.04.1999 and what we are concerned with is unutilised MODVAT Credit as on 31.03.1999 on which date the asseessee was not liable to pay any more Excise Duty. Hence, present is not a case where appellant can claim benefit of proviso to Section 43B. The submissions of Shri Ganesh on proviso to Section 43B also does not support his claim. ### Response: 1

Snowtex Investment Limited Vs. Principal Commissioner of Income Tax, Central-2, Kolkata

undue hardship to the Assessee, had taken the view that Section 43-B would not be attracted unless the sum payable by the assessee by way of tax, duty, cess or fee was payable in the same accounting year. If the tax was payable in the next accounting year, Section 43-B would not be attracted. This was done in order to prevent any undue hardship to Assessees such as the ones before us. The Memorandum of Reasons takes note of the combined effect of Section 43-B and the first proviso inserted by the Finance Act, 1987. After referring to the fact that the first proviso now removes the hardship caused to such taxpayers it explains the insertion of Explanation 2 as being for the purpose of removing any ambiguity about the term any sum payable under Clause (a) of Section 43-B. This Explanation is made retrospective. The Memorandum seems to proceed on the basis that Section 43-B read with the proviso takes care of the hardship situation and hence Explanation 2 can be inserted with retrospective effect to make clear the ambit of Section 43-B(a). Therefore, Section 43-B(a), the first proviso to Section 43-B and Explanation 2 have to be read together as giving effect to the true intention of Section 43-B. If Explanation 2 is retrospective, the first proviso will have to be so construed. Read in this light also, the proviso has to be read into Section 43-B from its inception along with Explanation 2. 26. The decision of the Court was intrinsically based on a holistic reading of the provisions of Section 43-B. The memorandum proceeded on the basis that Section 43-B read with the proviso was intended to alleviate a situation of hardship. Hence, Explanation 2 was enacted with retrospective effect to clarify the ambit of Section 43-B(a). This Court held that if Explanation 2 is retrospective, the first proviso would be similarly so construed. This position was re-enforced by a departmental circular. The Court, in other words, interpreted the intent of Parliament. 27. A similar line of enquiry has been adopted in the subsequent decision of this Court in Alom Extrusions (supra). In that case, while construing the provisions of Section 43-B, this Court held: 25. Before concluding, we extract hereinbelow the relevant observations of this Court in CIT v. J.H. Gotla (1985) 4 SCC 343 which reads as under: (SCC p. 360, para 47) 47. ... we should find out the intention from the language used by the legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. The test to be applied is essentially one of the intent of the legislature. 28. In a more recent decision in Commissioner of Income Tax v. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 , a Constitution Bench of this Court held thus: 42.1. Notes on Clauses appended to the Finance Bill, 2002 while proposing insertion of proviso categorically states that this amendment will take effect from 1.6.2002. These become epigraphic2 words, when seen in contradistinction to other amendments specifically stating those to be clarificatory or retrospectively depicting clear intention of the legislature. It can be seen from the same notes that a few other amendments in the Income Tax Act made by the same Finance Act specifically making those amendments retrospective. For example, Clause 40 seeks to amend Section 92-F. Clause (iii-a) of Section 92-F is amended so as to clarify that the activities mentioned in the said Clause include the carrying out of any work in pursuance of a contract. (emphasis supplied). This amendment takes effect retrospectively from 1-4-2002. Various other amendments also take place retrospectively. The Notes on Clauses show that the legislature is fully aware of three concepts: (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. 29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question. 30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect. 31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business.

0[ds]19. At this stage, we will deal with the first submission which is that the Explanation to Section 73, as it stood prior to the amendment, excluded from the deeming definition of a speculation business, a situation where the principal business of a company was granting of loans and advances20. In the present case, there is no dispute about the fact that the Assessee was registered as an NBFC under the provisions of the Reserve Bank of India Act, 1934. Section 73(1) does not define specifically, the circumstances in which the principal business of a company would be regarded as a business of the specified description. In the present case, the principal business was urged to be the granting of loans and advances. We cannot accept this submission and are of the view that the High Court was justified in rejecting it. The circumstance, which in our view is of crucial significance, is how the Assessee construed its own line of business. The High Court has extracted what the Assessee stated before the assessing officer namely:... in our case the share trading is our sole business during the assessment year under concernFrom the above statement of the Assessee, it is evident that the Assessee itself stated that share trading was its sole business during the assessment year in question i.e. A.Y. 2008-200922. The correctness of this aspect of the submission which has been urged by learned senior Counsel need not be determined in the facts of the present aspect, since we are of the view that the High Court was justified in relying upon the specific admission of the Assessee that during the assessment year in question, its sole business was of dealing in shares. We must also advert to the circumstance that while the Assessee had furnished loans and advances of Rs. 11.32 crores during the assessment year, this included interest free lending to the extent of Rs. 9.58 crores. Having regard to these facts and circumstances, the specific admission of the Assessee before the assessing officer assumes significance. The Assessee made an admission on a statement of fact which in our view, must bind it. In this view of the matter, the principal business of the Assessee was not of granting loans and advances during the assessment year. As a consequence, the deeming fiction Under Section 73 would be attracted. Hence, the finding of the High Court, on the first aspect, cannot be faulted24. While amending the provisions of Section 43(5), the Parliament indeed was cognizant of the provisions which were contained in Section 73(4). The above memorandum indicates that the provisions of Section 73(4) were proposed to be amended so as to reduce the period of carry forward of speculation losses from eight assessment years to four assessment years. Having introduced an amendment to Section 73(4), the Parliament would have, if it intended to bring about a parity with the provisions of Section 43(5) introduced a specific amendment. Parliament, however, did not do so by the Finance Act 2005. It was only with effect from 1 April 2015 that an amendment was brought about to exclude trading in shares from the deeming provision contained in the Explanation to Section 73. Parliament may have had reasons to allow the situation to continue until the amendment was brought into force, including its view in regard to the stability of the stock market. Insofar as this Court is concerned, It would be difficult to hold that the provisions which were contained in the Finance Act (No. 2) 2014 insofar as they amended the Explanation to Section 73 were clarificatory or that notwithstanding the provision by which the amendment was brought into force with effect from 1 April 2015, that it should be given retrospective effect. We reject the second submission29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business.

### 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: undue hardship to the Assessee, had taken the view that Section 43-B would not be attracted unless the sum payable by the assessee by way of tax, duty, cess or fee was payable in the same accounting year. If the tax was payable in the next accounting year, Section 43-B would not be attracted. This was done in order to prevent any undue hardship to Assessees such as the ones before us. The Memorandum of Reasons takes note of the combined effect of Section 43-B and the first proviso inserted by the Finance Act, 1987. After referring to the fact that the first proviso now removes the hardship caused to such taxpayers it explains the insertion of Explanation 2 as being for the purpose of removing any ambiguity about the term any sum payable under Clause (a) of Section 43-B. This Explanation is made retrospective. The Memorandum seems to proceed on the basis that Section 43-B read with the proviso takes care of the hardship situation and hence Explanation 2 can be inserted with retrospective effect to make clear the ambit of Section 43-B(a). Therefore, Section 43-B(a), the first proviso to Section 43-B and Explanation 2 have to be read together as giving effect to the true intention of Section 43-B. If Explanation 2 is retrospective, the first proviso will have to be so construed. Read in this light also, the proviso has to be read into Section 43-B from its inception along with Explanation 2. 26. The decision of the Court was intrinsically based on a holistic reading of the provisions of Section 43-B. The memorandum proceeded on the basis that Section 43-B read with the proviso was intended to alleviate a situation of hardship. Hence, Explanation 2 was enacted with retrospective effect to clarify the ambit of Section 43-B(a). This Court held that if Explanation 2 is retrospective, the first proviso would be similarly so construed. This position was re-enforced by a departmental circular. The Court, in other words, interpreted the intent of Parliament. 27. A similar line of enquiry has been adopted in the subsequent decision of this Court in Alom Extrusions (supra). In that case, while construing the provisions of Section 43-B, this Court held: 25. Before concluding, we extract hereinbelow the relevant observations of this Court in CIT v. J.H. Gotla (1985) 4 SCC 343 which reads as under: (SCC p. 360, para 47) 47. ... we should find out the intention from the language used by the legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. The test to be applied is essentially one of the intent of the legislature. 28. In a more recent decision in Commissioner of Income Tax v. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 , a Constitution Bench of this Court held thus: 42.1. Notes on Clauses appended to the Finance Bill, 2002 while proposing insertion of proviso categorically states that this amendment will take effect from 1.6.2002. These become epigraphic2 words, when seen in contradistinction to other amendments specifically stating those to be clarificatory or retrospectively depicting clear intention of the legislature. It can be seen from the same notes that a few other amendments in the Income Tax Act made by the same Finance Act specifically making those amendments retrospective. For example, Clause 40 seeks to amend Section 92-F. Clause (iii-a) of Section 92-F is amended so as to clarify that the activities mentioned in the said Clause include the carrying out of any work in pursuance of a contract. (emphasis supplied). This amendment takes effect retrospectively from 1-4-2002. Various other amendments also take place retrospectively. The Notes on Clauses show that the legislature is fully aware of three concepts: (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. 29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question. 30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect. 31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business. ### Response: 0

Maneksha Ardeshir Irani & Anr Vs. Manekji Edulji Mistry & Ors

The High Court on remand has held that the appellant was not entitled to any notice and that the appellant was a tenant on sufferance. The issues as to damages are not yet heard.7. In this appeal, the appellant contends that the appellant is entitled to protection under Section 4-B of the 1948 Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time.8. The contract of tenancy commenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under Section 23 (1) (b) of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every subsisting on the date when that section came into force become deemed to be for a period of not less than ten years. The effect of the statutory provision that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision in Section 23 (1) (b) of the 1939 Act.9. The 1948 Act while repealing the 1939 Act did not repeal but modified Section 3, 3-A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant Section for the purpose of this appeal is Section 3-A as modified by the 1948 Act Section 3-A states that every tenant shall, form the eighth day of November, 1947 be deemed to be a protected tenant for the purpose of this Act and his right as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The landlord in the present case did not make any application as contemplated in Section 3-A of the 1939 Act as modified by the 1948 Act. The result was that the appellant became a protected tenant by virtue of the 1948 Act read with Section 3-A of the 1939 Act.10. From 1 March, 1953 until 31 July, 1956 the appellant remained a protected tenant under the 1948 Act until Section 88-B was introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of Section 88-B in the 1948 Act was that the appellant no longer remained a protected tenant. Along with Section 88-B was introduced Section 4-A. Section 4-A states that a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Section 3, 3-A and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule I of the 1948 Act. Section 4-A does not apply to tenancies governed by Section 88-B (I) of the Act.11. After the appellant ceased to be protected tenant on 1 August, 1956 and the original contractual tenancy had ceased on 28 February, 1948 the appellant was in occupation of the lands on sufferance. It cannot be said that the respondent assented to the appellant continuing in possession on the same terms and conditions as the original tenancy. When the protection was withdrawn on 1 August 1956 there could be no question of holding over because there was no contractual tenancy.12. In the present case, it is not necessary for us to express any opinion as to whether Section 84 of the Bombay Land Revenue Code or Section 106 of the Transfer of Property Act would apply with regard to notice to quit13. The respondent-landlord gave a notice to quit in 1955. At that time there was no contractual tenancy. The appellant was a protected tenant. Immediately the protection was taken away by Section 88-B of the 1948 the only question is whether the appellant could claim to remain in occupation on the plea of holding over. If a lessee remains in possession after determination of the term, he is under the common law a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the consent of the landlord, he is a tenant by sufferance. It is only where a tenant will continue in possession with the consent of the landlord that he can be called a tenant holding over or a tenant at will. In the present case, there is no doubt that the appellant did not have any consent and the respondent never gave any consent to hold over. The appellant remained in possession on sufferance. Therefore Section 4-B of the Act has no application because there is no tenancy. Tenancy is a matter of privity of parties. If there is no consent, the appellant is a trespasser.14. A contention was advanced on behalf of the appellant that the Collector was entitled to a notice when the Collector held an inquiry under Section 88-B (2) of the Act for the purpose of granting a certificate to the respondent. The Collector under Section 88-B (2) of the Act grants a certificate after holding an inquiry that the conditions in the proviso to Section 88-B (1) are satisfied by any trust. The Trust has to satisfy two conditions. First, the Trust is registered under the Bombay Public Trust is Act, 1950. Second, the entire income of the lands which are the property of the Trust is appropriated for the purposes of such Trust. The certificate granted by the Collector shall be conclusive evidence. The appellant raised this contention in the High Court that the appellant was entitled to a notice. The High Court did not accept the contention. The High Court held that the appellant at no stage denied the fact that the lands are the property of a Trust. The inquiry is between the Collector and the Trust. The conclusive evidence clause in the section means that it is a rule of evidence which would not render it necessary for it to prove again the compliance with the requirements.

0[ds]8. The contract of tenancy commenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under Section 23 (1) (b) of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every subsisting on the date when that section came into force become deemed to be for a period of not less than ten years. The effect of the statutory provision that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision in Section 23 (1) (b) of the 1939 Act.9. The 1948 Act while repealing the 1939 Act did not repeal but modified Section 3, 3-A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant Section for the purpose of this appeal is Section 3-A as modified by the 1948 Act Section 3-A states that every tenant shall, form the eighth day of November, 1947 be deemed to be a protected tenant for the purpose of this Act and his right as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The landlord in the present case did not make any application as contemplated in Section 3-A of the 1939 Act as modified by the 1948 Act. The result was that the appellant became a protected tenant by virtue of the 1948 Act read with Section 3-A of the 1939 Act.10. From 1 March, 1953 until 31 July, 1956 the appellant remained a protected tenant under the 1948 Act until Section 88-B was introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of Section 88-B in the 1948 Act was that the appellant no longer remained a protected tenant. Along with Section 88-B was introduced Section 4-A. Section 4-A states that a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Section 3, 3-A and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule I of the 1948 Act. Section 4-A does not apply to tenancies governed by Section 88-B (I) of the Act.11. After the appellant ceased to be protected tenant on 1 August, 1956 and the original contractual tenancy had ceased on 28 February, 1948 the appellant was in occupation of the lands on sufferance. It cannot be said that the respondent assented to the appellant continuing in possession on the same terms and conditions as the original tenancy. When the protection was withdrawn on 1 August 1956 there could be no question of holding over because there was no contractual tenancy.12. In the present case, it is not necessary for us to express any opinion as to whether Section 84 of the Bombay Land Revenue Code or Section 106 of the Transfer of Property Act would apply with regard to notice to quit13. The respondent-landlord gave a notice to quit in 1955. At that time there was no contractual tenancy. The appellant was a protected tenant. Immediately the protection was taken away by Section 88-B of the 1948 the only question is whether the appellant could claim to remain in occupation on the plea of holding over. If a lessee remains in possession after determination of the term, he is under the common law a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the consent of the landlord, he is a tenant by sufferance. It is only where a tenant will continue in possession with the consent of the landlord that he can be called a tenant holding over or a tenant at will. In the present case, there is no doubt that the appellant did not have any consent and the respondent never gave any consent to hold over. The appellant remained in possession on sufferance. Therefore Section 4-B of the Act has no application because there is no tenancy. Tenancy is a matter of privity of parties. If there is no consent, the appellant is a trespasser.14. A contention was advanced on behalf of the appellant that the Collector was entitled to a notice when the Collector held an inquiry under Section 88-B (2) of the Act for the purpose of granting a certificate to the respondent. The Collector under Section 88-B (2) of the Act grants a certificate after holding an inquiry that the conditions in the proviso to Section 88-B (1) are satisfied by any trust. The Trust has to satisfy two conditions. First, the Trust is registered under the Bombay Public Trust is Act, 1950. Second, the entire income of the lands which are the property of the Trust is appropriated for the purposes of such Trust. The certificate granted by the Collector shall be conclusive evidence. The appellant raised this contention in the High Court that the appellant was entitled to a notice. The High Court did not accept the contention. The High Court held that the appellant at no stage denied the fact that the lands are the property of a Trust. The inquiry is between the Collector and the Trust. The conclusive evidence clause in the section means that it is a rule of evidence which would not render it necessary for it to prove again the compliance with the requirements.

### Instruction: Analyze the case proceeding and predict whether the appeal/petition will be accepted (1) or rejected (0). ### Input: The High Court on remand has held that the appellant was not entitled to any notice and that the appellant was a tenant on sufferance. The issues as to damages are not yet heard.7. In this appeal, the appellant contends that the appellant is entitled to protection under Section 4-B of the 1948 Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time.8. The contract of tenancy commenced on 1 March, 1943. It was for a period of five years ending on 28 February, 1948. Under Section 23 (1) (b) of the Bombay Tenancy Act, 1939 as it stood amended in 1946, every subsisting on the date when that section came into force become deemed to be for a period of not less than ten years. The effect of the statutory provision that the appellants lease which would have expired on 28 February, 1948 expired on 28 February, 1953 by reason of the deeming provision in Section 23 (1) (b) of the 1939 Act.9. The 1948 Act while repealing the 1939 Act did not repeal but modified Section 3, 3-A and 4 of the 1939 Act. These three sections of the 1939 Act deal with protected tenants. The relevant Section for the purpose of this appeal is Section 3-A as modified by the 1948 Act Section 3-A states that every tenant shall, form the eighth day of November, 1947 be deemed to be a protected tenant for the purpose of this Act and his right as such protected tenant shall be recorded in the Record of Rights, unless his landlord has prior to the aforesaid date made an application to the Mamlatdar for a declaration that the tenant is not a protected tenant. The landlord in the present case did not make any application as contemplated in Section 3-A of the 1939 Act as modified by the 1948 Act. The result was that the appellant became a protected tenant by virtue of the 1948 Act read with Section 3-A of the 1939 Act.10. From 1 March, 1953 until 31 July, 1956 the appellant remained a protected tenant under the 1948 Act until Section 88-B was introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of Section 88-B in the 1948 Act was that the appellant no longer remained a protected tenant. Along with Section 88-B was introduced Section 4-A. Section 4-A states that a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Section 3, 3-A and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule I of the 1948 Act. Section 4-A does not apply to tenancies governed by Section 88-B (I) of the Act.11. After the appellant ceased to be protected tenant on 1 August, 1956 and the original contractual tenancy had ceased on 28 February, 1948 the appellant was in occupation of the lands on sufferance. It cannot be said that the respondent assented to the appellant continuing in possession on the same terms and conditions as the original tenancy. When the protection was withdrawn on 1 August 1956 there could be no question of holding over because there was no contractual tenancy.12. In the present case, it is not necessary for us to express any opinion as to whether Section 84 of the Bombay Land Revenue Code or Section 106 of the Transfer of Property Act would apply with regard to notice to quit13. The respondent-landlord gave a notice to quit in 1955. At that time there was no contractual tenancy. The appellant was a protected tenant. Immediately the protection was taken away by Section 88-B of the 1948 the only question is whether the appellant could claim to remain in occupation on the plea of holding over. If a lessee remains in possession after determination of the term, he is under the common law a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession. If a tenant after the termination of the lease is in possession without the consent of the landlord, he is a tenant by sufferance. It is only where a tenant will continue in possession with the consent of the landlord that he can be called a tenant holding over or a tenant at will. In the present case, there is no doubt that the appellant did not have any consent and the respondent never gave any consent to hold over. The appellant remained in possession on sufferance. Therefore Section 4-B of the Act has no application because there is no tenancy. Tenancy is a matter of privity of parties. If there is no consent, the appellant is a trespasser.14. A contention was advanced on behalf of the appellant that the Collector was entitled to a notice when the Collector held an inquiry under Section 88-B (2) of the Act for the purpose of granting a certificate to the respondent. The Collector under Section 88-B (2) of the Act grants a certificate after holding an inquiry that the conditions in the proviso to Section 88-B (1) are satisfied by any trust. The Trust has to satisfy two conditions. First, the Trust is registered under the Bombay Public Trust is Act, 1950. Second, the entire income of the lands which are the property of the Trust is appropriated for the purposes of such Trust. The certificate granted by the Collector shall be conclusive evidence. The appellant raised this contention in the High Court that the appellant was entitled to a notice. The High Court did not accept the contention. The High Court held that the appellant at no stage denied the fact that the lands are the property of a Trust. The inquiry is between the Collector and the Trust. The conclusive evidence clause in the section means that it is a rule of evidence which would not render it necessary for it to prove again the compliance with the requirements. ### Response: 0

Commr.Of Central Excise,Jalandhar Vs. M/S Kay Kay Industries

of excise, as indicated in the documents accompanying the goods, has been paid. Thus, what is expected of an assessee is to take reasonable steps that appropriate duty, as indicated in the documents, has been paid. 22. At this juncture, it is relevant to refer to the notification issued under sub-rule (6) of Rule 57A on 30.8.1997. In the said notification iron and steel have been mentioned as goods notified for the purposes of credit of duty under MODVAT. The relevant clauses of the notification for the present purpose are clauses 2, 4 and 5 and, hence, they are reproduced below: - “2. The Central Government further declares that the duty of excise under the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as said Act), shall be deemed to have been paid (hereinafter referred to as deemed duty), on the inputs declared herein and the same shall be equivalent to the amount calculated at the rate of twelve per cent of the price, as declared by the manufacturer, in the invoice accompanying the said inputs (hereinafter referred to as invoice price), and credit of the deemed duty so determined shall be allowed to the manufacturer of the final products.xxx xxx xxx xxx4. The provisions of this notification shall apply to only those inputs which have been received directly by the manufacturer of the final products from the factory of the manufacturer of the said inputs under the cover of an invoice declaring that the appropriate duty of excise has been paid on such inputs under the provisions of section 3A of the said Act.5. The provisions of this notification shall not apply to inputs where the manufacturer of the said inputs has not declared the invoice price of the said inputs correctly in the documents issued at the time of their clearance from his factory.” [Emphasis supplied] 23. We have referred to the aforesaid notification in extenso as the controversy really rests on the understanding of the language employed in the notification. Clause (2) spells about the concept of deemed payment of duty on the inputs and further prescribes that it shall be equivalent to the amount calculated at the rate of twelve per cent of the price, as declared by the manufacturer, in the invoice accompanying the said inputs. Clause (3) deals with a different fact situation and, hence, it need not be dwelled upon. Clauses (4) and (5) are really relevant for the present purpose. On a plain reading of the said clauses it is clear to us that there are two mandates to avail the benefit of the said notification. One part is couched in the affirmative language and the other part is in the negative. As per the first part it is obligatory on the part of the assessee to produce the invoice declaring that the appropriate duty of excise has been paid on such inputs under the provision of section 3-A of the Act The second command, couched in the negative, is that the provisions of the said notification shall not apply to inputs where the manufacturer of the said inputs has not declared the invoice price of the said inputs correctly in the documents at the time of their clearance from his factory. 24. In the case at hand, there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification.25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification.

0[ds]24. In the case at hand, there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather apostulated in the notification.25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that thehad not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requiresnd not verification from the department whether the duty stands paid by theWhen all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification.

### 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: of excise, as indicated in the documents accompanying the goods, has been paid. Thus, what is expected of an assessee is to take reasonable steps that appropriate duty, as indicated in the documents, has been paid. 22. At this juncture, it is relevant to refer to the notification issued under sub-rule (6) of Rule 57A on 30.8.1997. In the said notification iron and steel have been mentioned as goods notified for the purposes of credit of duty under MODVAT. The relevant clauses of the notification for the present purpose are clauses 2, 4 and 5 and, hence, they are reproduced below: - “2. The Central Government further declares that the duty of excise under the Central Excise Act, 1944 (1 of 1944) (hereinafter referred to as said Act), shall be deemed to have been paid (hereinafter referred to as deemed duty), on the inputs declared herein and the same shall be equivalent to the amount calculated at the rate of twelve per cent of the price, as declared by the manufacturer, in the invoice accompanying the said inputs (hereinafter referred to as invoice price), and credit of the deemed duty so determined shall be allowed to the manufacturer of the final products.xxx xxx xxx xxx4. The provisions of this notification shall apply to only those inputs which have been received directly by the manufacturer of the final products from the factory of the manufacturer of the said inputs under the cover of an invoice declaring that the appropriate duty of excise has been paid on such inputs under the provisions of section 3A of the said Act.5. The provisions of this notification shall not apply to inputs where the manufacturer of the said inputs has not declared the invoice price of the said inputs correctly in the documents issued at the time of their clearance from his factory.” [Emphasis supplied] 23. We have referred to the aforesaid notification in extenso as the controversy really rests on the understanding of the language employed in the notification. Clause (2) spells about the concept of deemed payment of duty on the inputs and further prescribes that it shall be equivalent to the amount calculated at the rate of twelve per cent of the price, as declared by the manufacturer, in the invoice accompanying the said inputs. Clause (3) deals with a different fact situation and, hence, it need not be dwelled upon. Clauses (4) and (5) are really relevant for the present purpose. On a plain reading of the said clauses it is clear to us that there are two mandates to avail the benefit of the said notification. One part is couched in the affirmative language and the other part is in the negative. As per the first part it is obligatory on the part of the assessee to produce the invoice declaring that the appropriate duty of excise has been paid on such inputs under the provision of section 3-A of the Act The second command, couched in the negative, is that the provisions of the said notification shall not apply to inputs where the manufacturer of the said inputs has not declared the invoice price of the said inputs correctly in the documents at the time of their clearance from his factory. 24. In the case at hand, there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification.25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification. ### Response: 0

Income Tax Officer, I Ward, Dist, Vi, Calcutta & Ors Vs. Lakhmani Mewal Das

in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either clause (a ) or clause (b) of section 147. Therefore he could not have issued a notice under section 148".8. Reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., in the report of the Income-tax Officer to the Commissioner of Income-tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income-tax Officer in the case of Chuugamal Rajpal. We would, therefore, hold that t he second ground mentioned by the Income-tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts. All the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration.We may now deal with the first ground mentioned in the report of the Income-tax Officer to the Commissioner of Income-tax. This ground relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 74 Annas 3 as interest in the books of the assessee, having made a confession that he was doing only name-lending. There is nothing to show that the above confession related to a loan to the assessee and not t o someone else, much less to the loan of Rs. 2, 500 which was shown to have been advanced by that person to the assessee-respondent. There is also no indication as to when that confession was made and whether it relates to the period from April 1, 1 957 to March 31, 1958 which is the subject-matter of the assessment sought to be reopened. The report was made on February 13, 1967. In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report. To infer from that confession that it relates to the period from April 1, 1957 to March 31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in our opinion, would be rather far-fetched.9. As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be initiate d for reopening assessment. At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not le ad to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far-fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence.The powers of the Income-tax Officer to reopen assessment though wide are not plenary. The words of the statute are "reason to believe" and not "reason to suspect". The reopening of the assessment after the lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income-tax authorities after the assessment has been completed. The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi- judicial proceedings. It is, therefore, essential that before such action is taken the requirements of the law should be satisfied. The live link or close nexus which should be there between the material before the Income-tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latters failure or o mission to disclose fully and truly all material facts was missing in the case. In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment. The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.

0[ds]As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be initiate d for reopening assessment. At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not le ad to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far-fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence.The powers of the Income-tax Officer to reopen assessment though wide are not plenary. The words of the statute are "reason to believe" and not "reason to suspect". The reopening of the assessment after the lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income-tax authorities after the assessment has been completed. The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi- judicial proceedings. It is, therefore, essential that before such action is taken the requirements of the law should be satisfied. The live link or close nexus which should be there between the material before the Income-tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latters failure or o mission to disclose fully and truly all material facts was missing in the case. In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment. The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts.

### 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: in question, income chargeable to tax has escaped assessment for that year, nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year. We are not satisfied that the Income-tax Officer had any material before him which could satisfy the requirements of either clause (a ) or clause (b) of section 147. Therefore he could not have issued a notice under section 148".8. Reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., in the report of the Income-tax Officer to the Commissioner of Income-tax in the instant case does not stand on a better footing than the reference to the three names in the report made by the Income-tax Officer in the case of Chuugamal Rajpal. We would, therefore, hold that t he second ground mentioned by the Income-tax Officer, i.e., reference to the names of Narayansingh Nandalal, D. K. Naraindas, Bhagwandas Srichand, etc., could not have led to the formation of the belief that the income of the respondent assessee chargeable to tax had escaped assessment for that year because of the failure or omission of the assessee to disclose fully and truly all material facts. All the three learned Judges of the High Court, in our opinion, were justified in excluding the second ground from consideration.We may now deal with the first ground mentioned in the report of the Income-tax Officer to the Commissioner of Income-tax. This ground relates to Mohansingh Kanayalal, against whose name there was an entry about the payment of Rs. 74 Annas 3 as interest in the books of the assessee, having made a confession that he was doing only name-lending. There is nothing to show that the above confession related to a loan to the assessee and not t o someone else, much less to the loan of Rs. 2, 500 which was shown to have been advanced by that person to the assessee-respondent. There is also no indication as to when that confession was made and whether it relates to the period from April 1, 1 957 to March 31, 1958 which is the subject-matter of the assessment sought to be reopened. The report was made on February 13, 1967. In the absence of the date of the alleged confession, it would not be unreasonable to assume that the confession was made a few weeks or months before the report. To infer from that confession that it relates to the period from April 1, 1957 to March 31, 1958 and that it pertains to the loan shown to have been advanced to the assessee, in our opinion, would be rather far-fetched.9. As stated earlier, the reasons for the formation of the belief must have a rational connection with or relevant bearing on the formation of the belief. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Income-tax Officer and the formation of his belief that there has been escapement of the income of the assessee from assessment in the particular year because of his failure to disclose fully and truly all material facts. It is no doubt true that the court cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the Income-tax Officer on the point as to whether action should be initiate d for reopening assessment. At the same time we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched, which would warrant the formation of the belief relating to escapement of the income of the assessee from assessment. The fact that the words "definite information" which were there in section 34 of the Act of 1922 at one time before its amendment in 1948 are not there in section 147 of the Act of 1961 would not le ad to the conclusion that action cannot be taken for reopening assessment even if the information is wholly vague, indefinite, far-fetched and remote. The reason for the formation of the belief must be held in good faith and should not be a mere pretence.The powers of the Income-tax Officer to reopen assessment though wide are not plenary. The words of the statute are "reason to believe" and not "reason to suspect". The reopening of the assessment after the lapse of many years is a serious matter. The Act, no doubt, contemplates the reopening of the assessment if grounds exist for believing that income of the assessee has escaped assessment. The underlying reason for that is that instances of concealed income or other income escaping assessment in a large number of cases come to the notice of the income-tax authorities after the assessment has been completed. The provisions of the Act in this respect depart from the normal rule that there should be, subject to right of appeal and revision, finality about orders made in judicial and quasi- judicial proceedings. It is, therefore, essential that before such action is taken the requirements of the law should be satisfied. The live link or close nexus which should be there between the material before the Income-tax Officer in the present case and the belief which he was to form regarding the escapement of the income of the assessee from assessment because of the latters failure or o mission to disclose fully and truly all material facts was missing in the case. In any event, the link was too tenuous to provide a legally sound basis for reopening the assessment. The majority of the learned Judges in the High Court, in our opinion, were not in error in holding that the said material could not have led to the formation of the belief that the income of the assessee respondent had escaped assessment because of his failure or omission to disclose fully and truly all material facts. ### Response: 0

Jaipur Development Authority Vs. Vijay Kumar Data

clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: “The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” Likewise, Article 166(3) lays down that: “The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” Article 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it was observed: “Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:`166. Conduct of business of the Government of a State. –(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).” 33. It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.35. Although, we are prima facie satisfied that execution of lease deeds by the appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals.

1[ds]29. In our view, the Division Bench of the High Court committed serious error by entertaining an altogether new case set up on behalf of the respondents, who had not even prayed for amendment of the pleadings and granted relief to them by declaring that they are entitled to get benefit of the policy of regularization contained in letter dated 6.12.2001. It is difficult, if not impossible, to comprehend as to how the Division Bench could rely upon the so called policy decision taken by the Government in flagrant violation of the two judgments of this Court wherein it was categorically held that the transactions involving transfer of land after the issue of notification under Section 4 were nullity and the Land Acquisition Officer did not have the jurisdiction to direct allotment of land to the awardees/sub awardees, their nominees/sub-nominees. The basics of judicial discipline required that the Division Bench of the High Court should have followed the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case and refused relief to the respondents.30. Another grave error committed by the Division Bench of the High Court is that it ignored the unchallenged findings recorded by the Tribunal and the trial Court that the transferor of the respondents, namely, Shri Ganesh Narayan Gupta did not have valid title over the land and he had no right to secure allotment of 1500 sq. yds. land in the Lal Kothi Scheme and that the order passed by the Executing Court for delivery of possession was liable to be ignored in view of the law laid down in Radhey Shyams case and Daulat Mal Jains case.31. At this juncture, we may notice order dated 9.1.2002 passed by the Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition No.5776/2001 (Suo Motu) titled Rajasthan High Court v. State of Rajasthan and others. The preface of that order shows that a learned Single Judge of the High Court had suo motu taken cognizance of three different news items dated 8.12.2001, 10.12.2001 and 11.12.2001 published in the daily newspaper - Rajasthan Patrika, Jaipur edition. The first news item highlighted the grievance of one Lali Devi against the construction of road through her land. The second news item related to regularization of the Lal Kothi Scheme and the third news item related to the alleged irregularities committed in the construction of high rise buildings. When the matter was listed before the Bench, which had the roster to hear such matters, it was felt that the issue raised in the order passed by the learned Single Judge who, in our considered opinion, was not at all justified in suo motu taking cognizance of the newspaper reports and the order made by him could appropriately be termed as coram non judis, directed that the matter be placed before the Division Bench. On behalf of the State Government and the appellant, affidavits were filed to justify the so called policy contained in letter dated 6.12.2001. 15 villagers of village Herver and some residents of Everest Colony, Lal Kothi also appeared before the Division Bench through their advocates. While dealing with the second news item, the Division Bench did take cognizance of the fact that people having connection in the power corridors and those who were economically affluent had illegally taken possession of the acquired land and raised construction, but approved the so called policy decision taken by the State Government to regularize the illegal transfers. The reasons recorded by the Division Bench of the High Court for adopting this course are extractedsecond item with regard to the regularisation of Lal Kothi Scheme is concerned, declaration has been taken as a part of the policy by the Government and there is ample authority o f law to support the contention that such policy decisions cannot be made the subject matter of the judicial review. No doubt in the cases where any policy decision is taken for any reasons which are against the public interest, the judicial review is possible, but in case of this nature, it cannot be said in the facts and circumstances of this case which have been established before us with support of documents Including documentary evidence of contemporaneous nature that public interest has not suffered in any manner by the decision of regu1arisation. To bring an end to a 40 years prolonged agony of litigation without any avail to the State, realising the ground realities that demolition of hundreds of constructed houses of the members of public belonging to middle/lower middle class is a tough task coupled with other considerations which are germane, if the popular (elected) Government has taken a policy decision in tune with the pulse of masses, it is difficult for this Court to say that it is contrary to public interest. Public interest litigation is of-course meant to protect the rights and to take care of the problems of those who cannot take care of themselves in want of awareness of their own rights or to espouse a common cause and in such cases, the cognizance can certainly be taken by the Court even by way of suo-motu action in a given case on the basis of the news item or otherwise, but the public interest is neither an unbridled nor an unruly horse, which can enter any arena in an aimless race. In view of the reply public interest is transparent in the State action and we are satisfied and convinced that had there been a correct and complete disclosure of full facts perhaps the cognizance may not have been taken by the Court suo-motu. Be that as it may, now that the full facts have come on record and we have heard all the parties which are present, we have no hesitation in holding that in the instant case, there is no scope of any judicial review and to sit over the wisdom of the state functionaries and therefore, no interference is warranted by this Court with the decision which has been taken by the Government, as a part of public policy. In larger public interest even if the Government has to pay a little price, it is a small price in deed, which has to be paid, if at all we want the object of a welfare State to prevail. It may also be observed in all fairness to the State that after the suo-motu action had been taken by this Court and the notices had been issued, the Government has shown due regard for Courts cognizance by, staying its own order as it is stated before us that the State Government honoured the pendency of the matter in Court by directing the J.D.A. vide order dated 31st December, 2001 not to act upon the decision dated 6th December, 2001 and not to proceed further with the process of regu1arisation and has directed the J.D.A. to produce all the relevant records before the Court. It is, therefore, clear that the decision as had been taken on 6th December, 2001 had been stayed by the Government itself, showing due regard for the action initiated by the Court. Having heard all the parties, we find that the policy decision hardly warrants any interference by this Court. The Government and all concerned are free to proceed on the basis of the order dated 6th December, 2001 as had been passed by the Government.In our opinion, the High Court had undertaken a wholly unwarranted and unjustified exercise for putting the seal of approval on the so called policy contained in letter dated 6.12.2001 and, that too, by ignoring the law laid down by this Court in Radhey Shyams case and Daulat Mal Jains case. What the High Court has done is to legitimised the transactions, which were declared illegal by this Court and this was clearly impermissible. The High Courts understanding of the so called policy framed by the Government was clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that:President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the saidLikewise, Article 166(3) lays downGovernor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in hisArticle 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it wasthe functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:`166. Conduct of business of the Government of a State. –(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.(3) TheGovernor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in hisdiscretion.Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.35. Although, we are prima facie satisfied that execution of lease deeds by the appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: clearly erroneous. The letter written by Deputy Secretary (Administration), Urban Development Department to the Secretary, Jaipur Development Authority, Jaipur cannot, by any stretch of imagination, be treated as a policy decision taken by the State Government. No document was produced before the High Court and none has been produced before us to show that the recommendations made by the Committee of Ministers had been approved by the State Government culminating in issuance of a policy circular. It is trite to say that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be [Articles 77(1) and 166(1)]. Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays down that: “The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” Likewise, Article 166(3) lays down that: “The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” Article 166 was interpreted in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 and it was observed: “Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article:`166. Conduct of business of the Government of a State. –(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).” 33. It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of letter dated 6.12.2001 shows that it was neither expressed in the name of the Governor nor it was authenticated manner prescribed by the Rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.34. We are further of the view that even if the instructions contained in letter dated 6.12.2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyams case and Daulat Mal Jains case and was a crude attempt by the concerned political functionaries of the State to legalise what had already been declared illegal by this Court.35. Although, we are prima facie satisfied that execution of lease deeds by the appellant in favour of some persons in 2002 and 2003 is a clear indication of deep rooted malaise in the functioning of the appellant and is also indicative of sheer favouritism and nepotism, we refrain from pronouncing upon the legality of those transactions because the beneficiaries are not parties to these appeals. ### Response: 1

Ranchod Mathur Wasawa Vs. State Of Gujarat

Krishna Iyer, J.1. A petition from jail - this is one - demands closure judicial care and we have with deep concern scanned the materials placed before us in the light of the grounds of grievance urged in this appeal. We find no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command. In the present case, the accused has made a grievance that the amicus curiae came into the picture only on the day the trial commenced. This is an unfortunate feature. Nevertheless, we are satisfied that by postponing the examination of the important witnesses to the next day the learned Judge helped counsel to equip himself fully. We are also satisfied from a perusal of the papers that the cross-examination has not suffered for want of time or facility for counsel for the accused. We would, however, emphasize that in all these cases there should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend him properly.

0[ds]This is an unfortunate feature. Nevertheless, we are satisfied that by postponing the examination of the important witnesses to the next day the learned Judge helped counsel to equip himself fully. We are also satisfied from a perusal of the papers that thehas not suffered for want of time or facility for counsel for the accused. We would, however, emphasize that in all these cases there should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend himfind no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: Krishna Iyer, J.1. A petition from jail - this is one - demands closure judicial care and we have with deep concern scanned the materials placed before us in the light of the grounds of grievance urged in this appeal. We find no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command. In the present case, the accused has made a grievance that the amicus curiae came into the picture only on the day the trial commenced. This is an unfortunate feature. Nevertheless, we are satisfied that by postponing the examination of the important witnesses to the next day the learned Judge helped counsel to equip himself fully. We are also satisfied from a perusal of the papers that the cross-examination has not suffered for want of time or facility for counsel for the accused. We would, however, emphasize that in all these cases there should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend him properly. ### Response: 0

Delhi Jal Board Vs. National Campaign Etc

negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the civil law and thus the civil courts jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court: the first in line is the decision in Nilabati Behera v. State of Orissa wherein this Court relying upon the decision in Rudul Sah (Rudul Sah v. State of Bihar) decried the illegality and impropriety in awarding compensation in a proceeding in which the courts power under Articles 32 and 226 of the Constitution stands invoked and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the States obligation, unless of course the State can also be termed to be a joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.” On the question of quantum of damages, the Court made the following observations: “Be it placed on record that in assessing damages, all relevant materials should and ought always to be placed before the court so as to enable the court to come to a conclusion in the matter of affectation of pecuniary benefit by reason of the unfortunate death. Though mathematical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefore. It is not a fanciful item of compensation but it is on legitimate expectation of loss of pecuniary benefits. In Grand Trunk Rly. Co. of Canada v. Jennings this well-accepted principle stands reiterated as below: “In assessing the damages, all circumstances which may be legitimately pleaded in diminution of the damages must be considered. It is not a mere guesswork neither is it the resultant effect of a compassionate attitude.” As noticed above, a large number of decisions were placed before this Court as regards the quantum of compensation varying between 50,000 to one lakh in regard to the unfortunate deaths of the young children. We do deem it fit to record that while judicial precedents undoubtedly have some relevance as regards the principles of law, but the quantum of assessment stands dependent on the fact situation of the matter before the court, than judicial precedents. As regards the quantum, no decision as such can be taken to be of binding precedent as such, since each case has to be dealt with on its own peculiar facts and thus compensation is also to be assessed on the basis thereof, though however, the same can act as a guide: placement in the society, financial status differs from person to person and as such assessment would also differ. The whole issue is to be judged on the basis of the fact situation of the matter concerned though however, not on mathematical nicety.” 29. Reference also deserves to be made to MCD v. Assn. of Victims of Uphaar Tragedy and others (2005) 9 SCC 586 whereby this Court entertained the appeal filed against the order passed by the Delhi High Court for payment of compensation to the families of those who died in Uphaar tragedy and directed the appellants to deposit Rs.3,01,40,000/- with a further direction that 50% of the amount shall be available for distribution to the claimants. 30. In view of the law laid down in the afore-mentioned judgments, the appellants challenge to the interim directions given by the High Court for payment of compensation to the families of the workers deserves to be rejected. However, that is not the end of the matter. We feel that the High Court should have taken cue from the judgment in Chairman, Railway Board v. Chandrima Das (supra) and awarded compensation which could be treated as reasonable. Though, it is not possible to draw any parallel between the trauma suffered by a victim of rape and the family of a person who dies due to the negligence of others, but the High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers. We may have remitted the case to the High Court for passing appropriate order for payment of enhanced compensation but keeping in view the fact that further delay would add to the miseries of the family of the victim, we deem it proper to exercise power under Article 142 of the Constitution and direct the appellant to pay a sum of Rs.3.29 lakhs to the family of the victim through Delhi High Court State Legal Services Committee. This would be in addition to Rs.1.71 lakhs already paid by the contractor.

0[ds]13. At the threshold, we deem it necessary to erase the impression and misgivings of some people that by entertaining petitions filed by social action groups/activists/workers and NGOs for espousing the cause of those who, on account of poverty, illiteracy and/or ignorance and similar other handicaps, cannot seek protection and vindication of their constitutional and/or legal rights and silently suffer due to actions and/or omissions of the State apparatus and/or agencies/instrumentalities of the State or even private individuals, the superior Courts exceed the unwritten boundaries of their jurisdictions. When the Constitution of India was adopted, the people of this country resolved to constitute India into a Sovereign Democratic Republic.In view of the principles laid down in the aforesaid judgments, we do not have any slightest hesitation to reject the argument that by issuing the directions, the High Court has assumed the legislative power of the State. What the High Court has done is nothing except to ensure that those employed/engaged for doing work which is inherently hazardous and dangerous to life are provided with life saving equipments and the employer takes care of their safety and health. The State and its agencies/instrumentalities cannot absolve themselves of the responsibility to put in place effective mechanism for ensuring safety of the workers employed for maintaining and cleaning the sewage system. The human beings who are employed for doing the work in the sewers cannot be treated as mechanical robots, who may not be affected by poisonous gases in the manholes. The State and its agencies/instrumentalities or the contractors engaged by them are under a constitutional obligation to ensure the safety of the persons who are asked to undertake hazardous jobs. The argument of choice and contractual freedom is not available to the appellant and the like for contesting the issues raised by respondent No.1.In view of the law laid down in the afore-mentioned judgments, the appellants challenge to the interim directions given by the High Court for payment of compensation to the families of the workers deserves to be rejected. However, that is not the end of the matter. We feel that the High Court should have taken cue from the judgment in Chairman, Railway Board v. Chandrima Das (supra) and awarded compensation which could be treated as reasonable. Though, it is not possible to draw any parallel between the trauma suffered by a victim of rape and the family of a person who dies due to the negligence of others, but the High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers. We may have remitted the case to the High Court for passing appropriate order for payment of enhanced compensation but keeping in view the fact that further delay would add to the miseries of the family of the victim, we deem it proper to exercise power under Article 142 of the Constitution and direct the appellant to pay a sum of Rs.3.29 lakhs to the family of the victim through Delhi High Court State Legal Services Committee. This would be in addition to Rs.1.71 lakhs already paid by the contractor.

### 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: negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the civil law and thus the civil courts jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court: the first in line is the decision in Nilabati Behera v. State of Orissa wherein this Court relying upon the decision in Rudul Sah (Rudul Sah v. State of Bihar) decried the illegality and impropriety in awarding compensation in a proceeding in which the courts power under Articles 32 and 226 of the Constitution stands invoked and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the States obligation, unless of course the State can also be termed to be a joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.” On the question of quantum of damages, the Court made the following observations: “Be it placed on record that in assessing damages, all relevant materials should and ought always to be placed before the court so as to enable the court to come to a conclusion in the matter of affectation of pecuniary benefit by reason of the unfortunate death. Though mathematical nicety is not required but a rough and ready estimate can be had from the records claiming damages since award of damages cannot be had without any material evidence: whereas one party is to be compensated, the other party is to compensate and as such there must always be some materials available therefore. It is not a fanciful item of compensation but it is on legitimate expectation of loss of pecuniary benefits. In Grand Trunk Rly. Co. of Canada v. Jennings this well-accepted principle stands reiterated as below: “In assessing the damages, all circumstances which may be legitimately pleaded in diminution of the damages must be considered. It is not a mere guesswork neither is it the resultant effect of a compassionate attitude.” As noticed above, a large number of decisions were placed before this Court as regards the quantum of compensation varying between 50,000 to one lakh in regard to the unfortunate deaths of the young children. We do deem it fit to record that while judicial precedents undoubtedly have some relevance as regards the principles of law, but the quantum of assessment stands dependent on the fact situation of the matter before the court, than judicial precedents. As regards the quantum, no decision as such can be taken to be of binding precedent as such, since each case has to be dealt with on its own peculiar facts and thus compensation is also to be assessed on the basis thereof, though however, the same can act as a guide: placement in the society, financial status differs from person to person and as such assessment would also differ. The whole issue is to be judged on the basis of the fact situation of the matter concerned though however, not on mathematical nicety.” 29. Reference also deserves to be made to MCD v. Assn. of Victims of Uphaar Tragedy and others (2005) 9 SCC 586 whereby this Court entertained the appeal filed against the order passed by the Delhi High Court for payment of compensation to the families of those who died in Uphaar tragedy and directed the appellants to deposit Rs.3,01,40,000/- with a further direction that 50% of the amount shall be available for distribution to the claimants. 30. In view of the law laid down in the afore-mentioned judgments, the appellants challenge to the interim directions given by the High Court for payment of compensation to the families of the workers deserves to be rejected. However, that is not the end of the matter. We feel that the High Court should have taken cue from the judgment in Chairman, Railway Board v. Chandrima Das (supra) and awarded compensation which could be treated as reasonable. Though, it is not possible to draw any parallel between the trauma suffered by a victim of rape and the family of a person who dies due to the negligence of others, but the High Court could have taken note of the fact that this Court had approved the award of compensation of Rs.10 lacs in 1998 to the victim of rape as also increase in the cost of living and done well to award compensation of atleast Rs.5 lacs to the families of those who died due to negligence of the public authority like the appellant who did not take effective measures for ensuring safety of the sewage workers. We may have remitted the case to the High Court for passing appropriate order for payment of enhanced compensation but keeping in view the fact that further delay would add to the miseries of the family of the victim, we deem it proper to exercise power under Article 142 of the Constitution and direct the appellant to pay a sum of Rs.3.29 lakhs to the family of the victim through Delhi High Court State Legal Services Committee. This would be in addition to Rs.1.71 lakhs already paid by the contractor. ### Response: 0

Union Of India & Ors Vs. M/S. Bhim Sen Walaiti Ram

public auction or by private contract, and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting bidder in the manner laid down in Section 60 of the Punjab Excise Act, 1 of 1914, as applied to the Delhi Province."Clause 22, states:"When a license has been cancelled, the Collector may resell it by public auction or by private contract and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting licensee in the manner laid down in Section 60 of the Excise Act as applied to the Delhi Province."On behalf of the appellants it was contended by Dr. Seyid Muhammad that the respondent was under a legal obligation to pay one-sixth of the annual fee within seven days of the auction under Clause 21 of Rule 5.34 and it was due to his default that a resale of the excise shop was ordered. Under Clause 22 of Rule 5.34 the respondent was liable for the deficiency in price and all expenses of such resale which was caused by his default. We are unable to accept this argument. The first portion of Clause 21 requires the "person to whom the shop has been sold" to deposit one-sixth of the total annual fee within seven days. But the sale is deemed to have been made in favour of the highest bidder only on the completion of the formalities before the conclusion of the sale. Clause 16 of R. 5.34 states that "all sales are open to revision by the Chief Commissioner." Under Clause 18, the Collector has to make a report to the Chief Commissioner where in his discretion he is accepting a lower bid. Clause 33 of the Conditions, Ex. D-28, states that "all final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons." It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on the resale. An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. This view is borne out by the decision of the Court of Appeal in Hussey v. Homepayne, (1878) 8 Ch D 670 at p. 676.In that case V offered land to P and P accepted subject to the title being approved by my solicitors. V later refused to go on with the contract and the Court of Appeal held that the acceptance was conditional and there was no binding contract and that V could withdraw at any time until Ps solicitors had approved the title. Jessel M. R. observed at p. 626 of the report as follows.:"The offer made to the Plaintiff of the estate at that price was a simple offer containing no reference whatever to title. The alleged acceptance was an acceptance of the offer, so far as price was concerned, subject to the title being approved by our solicitors. There was no acceptance of that additional term, and the only question which we are called upon to decide is, whether that additional term so expressed amounts in law to an additional term or whether it amounts as was very fairly admitted by the counsel for the Respondents, to nothing at all, that is, whether it merely expresses what the law would otherwise have implied. The expression subject to the title being approved by our solicitors appears to me to be plainly an additional term. The law does not give a right to the purchaser to say that the title shall be approved by any one, either by his solicitor or his convincing counsel, or any one else. All that he is entitled to require is what is called a marketable title, or, as it is sometimes called, a good title. Therefore, when he puts in subject to the title being approved by our solicitors he must be taken to mean what he says, that is, to make a condition that solicitors of his own selection shall approve of the title."It was submitted on behalf of the appellant that the phrase "person to whom a shop has been sold" in Cl. 21 of Rule 5.34 means a "person whose bid has been provisionally accepted". It is not possible to accept this argument. As we have already shown the first part of Clause 21 deal with a completed sale and the second part deals with a situation where the auction is conducted by an officer lower in rank than the Collector. In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one-sixth of the annual fee, or if he refuses to accept the licence, the Collector may resell the licence, either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. In the present case the first part of Clause 21 applies. It is, not disputed that the Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under Cl. 33 of Ex. D-23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential pre-requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price.

1[ds]We are unable to accept this argument. The first portion of Clause 21 requires the "person to whom the shop has been sold" to deposit one-sixth of the total annual fee within seven days. But the sale is deemed to have been made in favour of the highest bidder only on the completion of the formalities before the conclusion of the sale. Clause 16 of R. 5.34 states that "all sales are open to revision by the Chief Commissioner." Under Clause 18, the Collector has to make a report to the Chief Commissioner where in his discretion he is accepting a lower bid. Clause 33 of the Conditions, Ex. D-28, states that "all final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons." It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on the resale. An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. This view is borne out by the decision of the Court of Appeal inHussey v. Homepayne, (1878) 8 Ch D 670 at p.is not possible to accept this argument. As we have already shown the first part of Clause 21 deal with a completed sale and the second part deals with a situation where the auction is conducted by an officer lower in rank than the Collector. In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one-sixth of the annual fee, or if he refuses to accept the licence, the Collector may resell the licence, either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. In the present case the first part of Clause 21 applies. It is, not disputed that the Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under Cl. 33 of Ex. D-23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential pre-requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price.

### 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: public auction or by private contract, and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting bidder in the manner laid down in Section 60 of the Punjab Excise Act, 1 of 1914, as applied to the Delhi Province."Clause 22, states:"When a license has been cancelled, the Collector may resell it by public auction or by private contract and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting licensee in the manner laid down in Section 60 of the Excise Act as applied to the Delhi Province."On behalf of the appellants it was contended by Dr. Seyid Muhammad that the respondent was under a legal obligation to pay one-sixth of the annual fee within seven days of the auction under Clause 21 of Rule 5.34 and it was due to his default that a resale of the excise shop was ordered. Under Clause 22 of Rule 5.34 the respondent was liable for the deficiency in price and all expenses of such resale which was caused by his default. We are unable to accept this argument. The first portion of Clause 21 requires the "person to whom the shop has been sold" to deposit one-sixth of the total annual fee within seven days. But the sale is deemed to have been made in favour of the highest bidder only on the completion of the formalities before the conclusion of the sale. Clause 16 of R. 5.34 states that "all sales are open to revision by the Chief Commissioner." Under Clause 18, the Collector has to make a report to the Chief Commissioner where in his discretion he is accepting a lower bid. Clause 33 of the Conditions, Ex. D-28, states that "all final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons." It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on the resale. An acceptance of an offer may be either absolute or conditional. If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place. This view is borne out by the decision of the Court of Appeal in Hussey v. Homepayne, (1878) 8 Ch D 670 at p. 676.In that case V offered land to P and P accepted subject to the title being approved by my solicitors. V later refused to go on with the contract and the Court of Appeal held that the acceptance was conditional and there was no binding contract and that V could withdraw at any time until Ps solicitors had approved the title. Jessel M. R. observed at p. 626 of the report as follows.:"The offer made to the Plaintiff of the estate at that price was a simple offer containing no reference whatever to title. The alleged acceptance was an acceptance of the offer, so far as price was concerned, subject to the title being approved by our solicitors. There was no acceptance of that additional term, and the only question which we are called upon to decide is, whether that additional term so expressed amounts in law to an additional term or whether it amounts as was very fairly admitted by the counsel for the Respondents, to nothing at all, that is, whether it merely expresses what the law would otherwise have implied. The expression subject to the title being approved by our solicitors appears to me to be plainly an additional term. The law does not give a right to the purchaser to say that the title shall be approved by any one, either by his solicitor or his convincing counsel, or any one else. All that he is entitled to require is what is called a marketable title, or, as it is sometimes called, a good title. Therefore, when he puts in subject to the title being approved by our solicitors he must be taken to mean what he says, that is, to make a condition that solicitors of his own selection shall approve of the title."It was submitted on behalf of the appellant that the phrase "person to whom a shop has been sold" in Cl. 21 of Rule 5.34 means a "person whose bid has been provisionally accepted". It is not possible to accept this argument. As we have already shown the first part of Clause 21 deal with a completed sale and the second part deals with a situation where the auction is conducted by an officer lower in rank than the Collector. In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one-sixth of the annual fee, or if he refuses to accept the licence, the Collector may resell the licence, either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. In the present case the first part of Clause 21 applies. It is, not disputed that the Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under Cl. 33 of Ex. D-23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale. As the essential pre-requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price. ### Response: 1

S.K. Siddique Vs. Madhya Pradesh state Road Transport Corporation and Anr.

KULDIP SINGH, J. The petitioner joined service in the Transport Department of the erstwhile State of Madhya Bharat in September 1960. On the formation of the Madhya Pradesh State Road Transport Corporation with effect from June 1, 1962 his services were transferred to the said corporation. He retired from service on completing the age of 58 years on June 30, 1987. In this writ petition the petitioner claims that the age of superannuation in the service of the corporation was 60 years and as such his retirement at 58 was illegal 2. We have today pronounced judgment in Civil Appeal No. 1731 of 1986 - S.P. Dubey v. M.P. State Road Transport Corporation 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939]. We have held that all those employees of the corporation who had originally joined service with the Central Provinces Transport Services Limited (hereinafter called the Company) are entitled to remain in service till attaining the age of 60 years 3. Prior to August 31, 1955, transport service in the State of Madhya Pradesh was being run by the Company. The age of superannuation of the employees of the Company, except the Drivers, was 60 years. The Company was purchased and taken over by the State of Madhya Pradesh on August 31, 1955. Thereafter the Madhya Pradesh State Road Transport Corporation was established by the State Government with effect from June 1, 1962 and the services of the employees including the petitioner were transferred to the said corporation. Some of the employees of the corporation were those who had originally joined service with the company. In S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939], we have held that all those employees who had joined service with the company are entitled to continue in service till they attain the age of 60 years. The petitioner does not belong to that category of employees. He joined service with the State of Madhya Pradesh in September 1960, when the age of superannuation was 58 years and it continued to be the same till he retired. His case is, therefore, distinguishable from that of S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939].

0[ds]3. Prior to August 31, 1955, transport service in the State of Madhya Pradesh was being run by the Company. The age of superannuation of the employees of the Company, except the Drivers, was 60 years. The Company was purchased and taken over by the State of Madhya Pradesh on August 31, 1955. Thereafter the Madhya Pradesh State Road Transport Corporation was established by the State Government with effect from June 1, 1962 and the services of the employees including the petitioner were transferred to the said corporation. Some of the employees of the corporation were those who had originally joined service with the company. In S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939], we have held that all those employees who had joined service with the company are entitled to continue in service till they attain the age of 60 years. The petitioner does not belong to that category of employees. He joined service with the State of Madhya Pradesh in September 1960, when the age of superannuation was 58 years and it continued to be the same till he retired. His case is, therefore, distinguishable from that of S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939].

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: KULDIP SINGH, J. The petitioner joined service in the Transport Department of the erstwhile State of Madhya Bharat in September 1960. On the formation of the Madhya Pradesh State Road Transport Corporation with effect from June 1, 1962 his services were transferred to the said corporation. He retired from service on completing the age of 58 years on June 30, 1987. In this writ petition the petitioner claims that the age of superannuation in the service of the corporation was 60 years and as such his retirement at 58 was illegal 2. We have today pronounced judgment in Civil Appeal No. 1731 of 1986 - S.P. Dubey v. M.P. State Road Transport Corporation 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939]. We have held that all those employees of the corporation who had originally joined service with the Central Provinces Transport Services Limited (hereinafter called the Company) are entitled to remain in service till attaining the age of 60 years 3. Prior to August 31, 1955, transport service in the State of Madhya Pradesh was being run by the Company. The age of superannuation of the employees of the Company, except the Drivers, was 60 years. The Company was purchased and taken over by the State of Madhya Pradesh on August 31, 1955. Thereafter the Madhya Pradesh State Road Transport Corporation was established by the State Government with effect from June 1, 1962 and the services of the employees including the petitioner were transferred to the said corporation. Some of the employees of the corporation were those who had originally joined service with the company. In S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939], we have held that all those employees who had joined service with the company are entitled to continue in service till they attain the age of 60 years. The petitioner does not belong to that category of employees. He joined service with the State of Madhya Pradesh in September 1960, when the age of superannuation was 58 years and it continued to be the same till he retired. His case is, therefore, distinguishable from that of S.P. Dubey case 1991 (S1) SCC 426 : 1991 SCC(L&S) 1010 : 1991 (16) ATC 939]. ### Response: 0

Shashibushan Prasad Misilra & Anr Vs. Babuji Rai & Ors

guardians cost for respondent No. 23 (deity) failing which this appeal shall stand dismissed against him without further reference to a Bench." This peremptory order was not complied with and on the expiry of the two weeks the appeal stood dismissed against the deity. At the hearing of the appeal the contesting defendants urged that the entire appeal became incompetent in view of the dismissal of the appeal against the deity. The High Court accepted this contention and dismissed the appeal in its entirety. The High Court held that there was a clear issue between defendant No. 18 and the contesting defendants as to whether the lands formed part of the village Siripur Majrahia, that the issue stood concluded against defendant No. 18 by the decree of the Trial Court, that the appeal had abated against defendant No. 18 and that as success in the appeal might lead to conflicting and inconsistent decrees, the appeal against all the defendants became incompetent. The present appeal has been filed by the plaintiffs after obtaining a certificate from the High Court. 2. Clearly, the High Court was in error in holding that the appeal had abated either wholly or in part. None of the parties to the appeal had died and there was no question of the abatement of the appeal. Mr. C. B. Agarwala relying on the case of Munni Bibi v. Trilokinath, 58 Ind App 158 = (AIR 1931 PC 114 ) submitted that the decision of the Trial Court on the question whether the suit lands appertainted to village Siripur Majrahia operated as res judicata between the deity and the contesting co-defendants,that the appellate court could not record an inconsistent finding that the suit lands appertained to village Siripur Majrahia, and that in the circumstances, the entire appeal before the High Court became incompetent. We are unable to accept these contentions. 3. The plaintiffs claiming as tenants of the deity sued the contesting defendants for declaration of their title and possession in respect of the suit lands on the allegation that the lands appertained to village Siripur Majrahia of which the deity was the proprietor. The deity was not a necessary party to the suit. It was joined as a defendant, but no relief was claimed against it.The suit was dismissed on the finding that the suit land did not appertain to village Siripur Majrahia. The plaintiffs filed an appeal against the decree impleading the deity as one of the respondents. The appeal was dismissed against the deity for non-payment of costs of its guardian ad litem. The deity was not a necessary party to the appeal. The plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity. 4. As soon as the appeal was filed by the plaintiffs in the High Court the decision of the Trial Court lost its character of finality and the question whether the suit lands appertained to village Siripur Majrahia became once again res sub judice. The case of 58 Ind App 158 = (AIR 1931 PC 114 ) (supra) shows that a decision operates as res judicata between co-defendants if (1) there is a conflict of interest between them; (2) it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and (3) the question between the co-defendants is finally decided. In the present case, the third condition was not satisfied. The question whether the suit lands appertain to Siripur Majrahia was not finally decided between the deity and the co-defendants. On the filing of the appeal by plaintiffs, the question became once more the subject of judicial inquiry between the deity and the contesting defendants. 5. Before the appeal was finally heard and decided, it was dismissed as against the deity for non-payment of its guardians costs. The Appellate Court did not give any decision on the merits of the case in the presence of the deity. There is no final decision against the deity on the question of the title to the suit lands. The decision of the Appellate Court against the contesting defendants will not lead to conflicting and inconsistent decree. The High Court was in error in holding that the appeal against the contesting defendants became incompetent. 6. In the circumstances the High Court ought to have decided the appeal before it on the merits. Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in C. A. No. 140 of 1966 arising out of T. S. No. 29/11 of 1946. That suit and T. S./ No. 12/9 of 1946 out of which the present appeal arises were heard together by the Trial Court and disposed of by a common judgment. In C. A. No. 140 to 1966 we have held that the disputed lands appertained originally to village Kazi Dumra and Shankarpur, that due to the recession of the river Karey the lands reformed in situ and that the property in the lands continued to remain with the proprietors of the lands in villages Kazi Dumra and Shankarpur. The plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in the plaint. There was no issue on the question whether the deity had acquired title to the suit lands by adverse possession. The plea for the acquisition of title by adverse possession cannot be raised for the first time at the appellate stage. The plaintiffs failed to establish acquisition of the title of the deity to any portion of the suit lands by adverse possession. It follows that there was no merit in F. A. No. 235 of 1951. Although the High Court did not decide this appeal on the merits, it is not necessary to remand the matter to the High Court.Having regard to our findings in C. A. No. 140 of 1966, T. S. No. 12/9 of 1946 also must be dismissed.

0[ds]6. In the circumstances the High Court ought to have decided the appeal before it on the merits. Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in C. A. No. 140 of 1966 arising out of T. S. No. 29/11 of 1946. That suit and T. S./ No. 12/9 of 1946 out of which the present appeal arises were heard together by the Trial Court and disposed of by a common judgment. In C. A. No. 140 to 1966 we have held that the disputed lands appertained originally to village Kazi Dumra and Shankarpur, that due to the recession of the river Karey the lands reformed in situ and that the property in the lands continued to remain with the proprietors of the lands in villages Kazi Dumra and Shankarpur. The plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in the plaint. There was no issue on the question whether the deity had acquired title to the suit lands by adverse possession. The plea for the acquisition of title by adverse possession cannot be raised for the first time at the appellate stage. The plaintiffs failed to establish acquisition of the title of the deity to any portion of the suit lands by adverse possession. It follows that there was no merit in F. A. No. 235 of 1951. Although the High Court did not decide this appeal on the merits, it is not necessary to remand the matter to the High Court.Having regard to our findings in C. A. No. 140 of 1966, T. S. No. 12/9 of 1946 also must be dismissed.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: guardians cost for respondent No. 23 (deity) failing which this appeal shall stand dismissed against him without further reference to a Bench." This peremptory order was not complied with and on the expiry of the two weeks the appeal stood dismissed against the deity. At the hearing of the appeal the contesting defendants urged that the entire appeal became incompetent in view of the dismissal of the appeal against the deity. The High Court accepted this contention and dismissed the appeal in its entirety. The High Court held that there was a clear issue between defendant No. 18 and the contesting defendants as to whether the lands formed part of the village Siripur Majrahia, that the issue stood concluded against defendant No. 18 by the decree of the Trial Court, that the appeal had abated against defendant No. 18 and that as success in the appeal might lead to conflicting and inconsistent decrees, the appeal against all the defendants became incompetent. The present appeal has been filed by the plaintiffs after obtaining a certificate from the High Court. 2. Clearly, the High Court was in error in holding that the appeal had abated either wholly or in part. None of the parties to the appeal had died and there was no question of the abatement of the appeal. Mr. C. B. Agarwala relying on the case of Munni Bibi v. Trilokinath, 58 Ind App 158 = (AIR 1931 PC 114 ) submitted that the decision of the Trial Court on the question whether the suit lands appertainted to village Siripur Majrahia operated as res judicata between the deity and the contesting co-defendants,that the appellate court could not record an inconsistent finding that the suit lands appertained to village Siripur Majrahia, and that in the circumstances, the entire appeal before the High Court became incompetent. We are unable to accept these contentions. 3. The plaintiffs claiming as tenants of the deity sued the contesting defendants for declaration of their title and possession in respect of the suit lands on the allegation that the lands appertained to village Siripur Majrahia of which the deity was the proprietor. The deity was not a necessary party to the suit. It was joined as a defendant, but no relief was claimed against it.The suit was dismissed on the finding that the suit land did not appertain to village Siripur Majrahia. The plaintiffs filed an appeal against the decree impleading the deity as one of the respondents. The appeal was dismissed against the deity for non-payment of costs of its guardian ad litem. The deity was not a necessary party to the appeal. The plaintiffs were entitled to prosecute their appeal against the contesting defendants in the absence of the deity. 4. As soon as the appeal was filed by the plaintiffs in the High Court the decision of the Trial Court lost its character of finality and the question whether the suit lands appertained to village Siripur Majrahia became once again res sub judice. The case of 58 Ind App 158 = (AIR 1931 PC 114 ) (supra) shows that a decision operates as res judicata between co-defendants if (1) there is a conflict of interest between them; (2) it is necessary to decide that conflict in order to give the plaintiffs the reliefs which they claim and (3) the question between the co-defendants is finally decided. In the present case, the third condition was not satisfied. The question whether the suit lands appertain to Siripur Majrahia was not finally decided between the deity and the co-defendants. On the filing of the appeal by plaintiffs, the question became once more the subject of judicial inquiry between the deity and the contesting defendants. 5. Before the appeal was finally heard and decided, it was dismissed as against the deity for non-payment of its guardians costs. The Appellate Court did not give any decision on the merits of the case in the presence of the deity. There is no final decision against the deity on the question of the title to the suit lands. The decision of the Appellate Court against the contesting defendants will not lead to conflicting and inconsistent decree. The High Court was in error in holding that the appeal against the contesting defendants became incompetent. 6. In the circumstances the High Court ought to have decided the appeal before it on the merits. Counsel for the parties agreed that the decision of the present appeal on the merits would abide by the decision in C. A. No. 140 of 1966 arising out of T. S. No. 29/11 of 1946. That suit and T. S./ No. 12/9 of 1946 out of which the present appeal arises were heard together by the Trial Court and disposed of by a common judgment. In C. A. No. 140 to 1966 we have held that the disputed lands appertained originally to village Kazi Dumra and Shankarpur, that due to the recession of the river Karey the lands reformed in situ and that the property in the lands continued to remain with the proprietors of the lands in villages Kazi Dumra and Shankarpur. The plaintiffs failed to prove that the deity Shri Radha Krishnaji Baldeoji came into possession of the disputed land as alleged in the plaint. There was no issue on the question whether the deity had acquired title to the suit lands by adverse possession. The plea for the acquisition of title by adverse possession cannot be raised for the first time at the appellate stage. The plaintiffs failed to establish acquisition of the title of the deity to any portion of the suit lands by adverse possession. It follows that there was no merit in F. A. No. 235 of 1951. Although the High Court did not decide this appeal on the merits, it is not necessary to remand the matter to the High Court.Having regard to our findings in C. A. No. 140 of 1966, T. S. No. 12/9 of 1946 also must be dismissed. ### Response: 0

Sebi Through its Chairman Vs. Roofit Industries Ltd

AND SURVEILLANCE DEPARTMENT email : [email protected] tel.no.:282981 M/s. Roofit Industries Ltd. 501, Sangli Bank Bldg. 296, Perin Nariman Street, Fort, Mumbai – 400001. Dear Sirs, Please refer to our summons dated July 23, 2002 advising you to submit certain information specified at Annexure ‘A’ to the said summons, by August 01, 2002. In response, you had vide your letter dated July 26, 2002 requested for extension of time till August 20, 2002 for submission of the aforesaid information. Further, vide you letter dated August 12, 2002 you had again requested for the extension of time till August 31, 2002 and now, vide your letter dated August 28, 2002 you have once again requested for extension of time till September 30, 2002 to furnish the information. From the foregoing, it appears that you do not have any desire to submit the information, as sought by us, and/or do not wish to cooperate in the ongoing investigation in the scrip of M/s. Roofit Industries Ltd. However, before initiating action in terms of prosecution under Section 24 of the SEBI Act, 1992 and/or levying penalty under Section 15A of the SEBI Act, 1992, you are once again advised to submit the information sought vide our above mentioned summons by September 16, 2002 failing which appropriate action(s) as mentioned above would be initiated and no further communication would be entertained from your end. It is thus abundantly clear from a perusal of the letter that the Appellant had declined the request for a further extension of time beyond 16.9.2002. The Respondent had failed to furnish the information by that date, resulting in the penalty under Section 15A becoming applicable. It would thus be palpable that the penalty prior to the amendment to Section 15A would be applicable, i.e. Rs. 1.5 lakhs. 8. Learned Senior Counsel for the Appellant, however, has argued that this is a continuing default, as it did not end till well after the amendment, with the result that penalties both prior to and post the amendment would apply. He has relied on the decision of the Three-Judge bench in Maya Rani Punj vs Commissioner of Income Tax, Delhi (1986) 1 SCC 445 , wherein it was held that where “a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. Having perused Maya Rani Punj, we find that the facts therein were significantly different from those before us. In that case, the Income Tax Act, 1961 applied instead of the Income Tax Act, 1922 because the former statute stated that it would apply if the Assessment was made subsequent to 1.4.1962. On an analysis of the language in the 1961 Act, it is clear that the Legislature intended for non-compliance with the obligation of making a Return to be considered an infraction as long as the default continued. The facts before us are significantly different. The amendment to Section 15A did not indicate that the amended Section would apply to penalties imposed after 29.10.2002. The amendment was merely made with effect from that date, indicating that the change would be applicable for failures occurring after that date. The date on which the failure occurred was thus relevant for deciding the applicable law, not the date on which the penalty was imposed. The relevant version of the Act for us to consider would therefore be that before 29.10.2002, the language of which did not indicate a legislative intent to consider the default a continuing one.9. We find that the situation before us is more akin in its factual matrix to that in State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890 , which distinguished between continuing offences and offences committed once and for all: 5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. (emphasis added) In that case, Regulation 3 read with Section 66 of the Mines Act made the failure to file an Annual Return by the appropriate date an offence. It was held that since the failure was to file the Returns by the stipulated date, the infringement occurred on that date and became complete on that date. Significantly, this case was discussed in Maya Rani Punj but was not overruled. 10. On the facts at hand, as in Deokaran Nenshi, the default was clearly complete on the failure to submit the requisite information by the date set by the Appellant, i.e. 16.9.2002. Had the Respondent furnished the information sought by the Appellant by that date, undoubtedly there would have been no culpability against it. Thus the penalty first became applicable under the pre-amendment Section, which imposed “a penalty not exceeding one lakh fifty thousand rupees for each such failure”. The intention of the Section as it then stood was clearly not to consider it a continuing default. Such an intention can be read into the provision as it currently stands, as it imposes a penalty for each day for which the breach continues, but this was not the case prior to 29.10.2002. Facially, this was the reason and necessity for the amendment.

0[ds]6. However, before imposing such a penalty, we must consider the date on which the amendment came into effect, i.e. 29.10.2002. Since theSummons to furnish the required documents was prior to this date and the Respondent failed to do so till well after it, the question before us is when the failure or default took place. While this question does not appear to have been raised before the SAT, it is a question of law and can therefore be raised at any point. As was held by this Court in Chitturi Subbanna vs Kudapa Subbanna (1965) 2 SCR 661 , a pure question of law, which is not dependent on the determination of any question of fact, may be raised for the first time at the appellate or even the final stage, even though no reference to it had been made in the Courts below.On the facts at hand, as in Deokaran Nenshi, the default was clearly complete on the failure to submit the requisite information by the date set by the Appellant, i.e. 16.9.2002. Had the Respondent furnished the information sought by the Appellant by that date, undoubtedly there would have been no culpability against it. Thus the penalty first became applicable under the pre-amendment Section, which imposedpenalty not exceeding one lakh fifty thousand rupees for each suchThe intention of the Section as it then stood was clearly not to consider it a continuing default. Such an intention can be read into the provision as it currently stands, as it imposes a penalty for each day for which the breach continues, but this was not the case prior to 29.10.2002. Facially, this was the reason and necessity for the

### Instruction: Examine the case narrative and anticipate the court's decision: will it result in an approval (1) or disapproval (0) of the appeal? ### Input: AND SURVEILLANCE DEPARTMENT email : [email protected] tel.no.:282981 M/s. Roofit Industries Ltd. 501, Sangli Bank Bldg. 296, Perin Nariman Street, Fort, Mumbai – 400001. Dear Sirs, Please refer to our summons dated July 23, 2002 advising you to submit certain information specified at Annexure ‘A’ to the said summons, by August 01, 2002. In response, you had vide your letter dated July 26, 2002 requested for extension of time till August 20, 2002 for submission of the aforesaid information. Further, vide you letter dated August 12, 2002 you had again requested for the extension of time till August 31, 2002 and now, vide your letter dated August 28, 2002 you have once again requested for extension of time till September 30, 2002 to furnish the information. From the foregoing, it appears that you do not have any desire to submit the information, as sought by us, and/or do not wish to cooperate in the ongoing investigation in the scrip of M/s. Roofit Industries Ltd. However, before initiating action in terms of prosecution under Section 24 of the SEBI Act, 1992 and/or levying penalty under Section 15A of the SEBI Act, 1992, you are once again advised to submit the information sought vide our above mentioned summons by September 16, 2002 failing which appropriate action(s) as mentioned above would be initiated and no further communication would be entertained from your end. It is thus abundantly clear from a perusal of the letter that the Appellant had declined the request for a further extension of time beyond 16.9.2002. The Respondent had failed to furnish the information by that date, resulting in the penalty under Section 15A becoming applicable. It would thus be palpable that the penalty prior to the amendment to Section 15A would be applicable, i.e. Rs. 1.5 lakhs. 8. Learned Senior Counsel for the Appellant, however, has argued that this is a continuing default, as it did not end till well after the amendment, with the result that penalties both prior to and post the amendment would apply. He has relied on the decision of the Three-Judge bench in Maya Rani Punj vs Commissioner of Income Tax, Delhi (1986) 1 SCC 445 , wherein it was held that where “a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. Having perused Maya Rani Punj, we find that the facts therein were significantly different from those before us. In that case, the Income Tax Act, 1961 applied instead of the Income Tax Act, 1922 because the former statute stated that it would apply if the Assessment was made subsequent to 1.4.1962. On an analysis of the language in the 1961 Act, it is clear that the Legislature intended for non-compliance with the obligation of making a Return to be considered an infraction as long as the default continued. The facts before us are significantly different. The amendment to Section 15A did not indicate that the amended Section would apply to penalties imposed after 29.10.2002. The amendment was merely made with effect from that date, indicating that the change would be applicable for failures occurring after that date. The date on which the failure occurred was thus relevant for deciding the applicable law, not the date on which the penalty was imposed. The relevant version of the Act for us to consider would therefore be that before 29.10.2002, the language of which did not indicate a legislative intent to consider the default a continuing one.9. We find that the situation before us is more akin in its factual matrix to that in State of Bihar v. Deokaran Nenshi (1972) 2 SCC 890 , which distinguished between continuing offences and offences committed once and for all: 5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. (emphasis added) In that case, Regulation 3 read with Section 66 of the Mines Act made the failure to file an Annual Return by the appropriate date an offence. It was held that since the failure was to file the Returns by the stipulated date, the infringement occurred on that date and became complete on that date. Significantly, this case was discussed in Maya Rani Punj but was not overruled. 10. On the facts at hand, as in Deokaran Nenshi, the default was clearly complete on the failure to submit the requisite information by the date set by the Appellant, i.e. 16.9.2002. Had the Respondent furnished the information sought by the Appellant by that date, undoubtedly there would have been no culpability against it. Thus the penalty first became applicable under the pre-amendment Section, which imposed “a penalty not exceeding one lakh fifty thousand rupees for each such failure”. The intention of the Section as it then stood was clearly not to consider it a continuing default. Such an intention can be read into the provision as it currently stands, as it imposes a penalty for each day for which the breach continues, but this was not the case prior to 29.10.2002. Facially, this was the reason and necessity for the amendment. ### Response: 0

Superintendant of Police Manipur and Others Vs. R.K. Tomolsona Singh (Dead) Through Lrs

1. One Shri R. K. Tomalsana Singh, (now dead) at the relevant time was serving as Sub-Inspector of Police in State or Manipur. He was suspended from service by an order dated October 26, 1964 by the Superintendent of Police, Manipur, being the disciplinary authority, pending a departmental inquiry against him. The Inquiry Officer submitted his report holding that the charge levelled against the delinquent were proved whereupon the Superintendent of Police after giving second opportunity to the delinquent officer dismissed him from service by the order May 11, 1965. This order dismissing the original petitioner-respondent herein from service was questioned in Civil Writ Application No. 5 of 1967 in the Court of Judicial Commissioner, Manipur. The learned Judicial Commissioner accepted the petition holding that the inquiry was not held in accordance with the relevant rules as were in force and therefore, consequential action of dismissal from service was without the authority of law. In reaching this conclusion the contention that found favour with the Court was that the order made by Chief Commissioner, Manipur dated July 27, 1951 whereby the rules included in the Assam Police Manual Part I-V would apply to Manipur Police and for the purpose of facilitating the application of these rules, they may be continued with such alterations and modification, not affecting the substance as may be necessary or proper having regard to the existing administrative arrangements in Manipur State, was not valid and therefore, the inquiry held against the deceased respondent in accordance with the provisions in Part I-V of Assam Police Manual is illegal and invalid. The contention before the learned Judicial Commissioner on behalf of the appellant was that at the relevant time the office of the I.G.P. and Chief Commissioner of Manipur both were held by one Mr. E. P. Mong and even though Section 12 of the Police act, 1861 confers powers on the Inspector-General of Police, subject to the approval of the State Government, to issue order and frame rules, the order dated July 27, 1951 must be deemed to have been made by the Manipur State as the order in question was issued by the Chief Commissioner, Manipur who had the authority to issue order in his dual capacity as I.G.P. and mere error in describing the authority, though held, cannot vitiate the order. This contention did not find favour with the learned Commissioner and in our opinion rightly. A bare reading of Section12 of the Police Act, 1861 show that the power to make rules and issue orders as may be deemed expedient relating to the organisation, classification and distribution of Police Force etc. is conferred on the Inspector-General of Police subject to the approval of the State Government. The power is conferred by the statute on a statutory authority called Inspector-General of Police and the power is hedged in with a condition that it can be exercised subject to the approval of the State Government was not obtained and it is futile to contend that as the order issuing authority was simultaneously holding office of Chief Commissioner of Manipur State, the order dated July 27, 1951 would be deemed to have been issued with the approval of the State Government. Section 12 does not recognise the authority of Chief Commissioner to make rules, on behalf of the State Government nor any such authority was brought to our notice. Even Rules of Business, if any, were not shown either to the learned Judicial Commissar or to this Court which would spell out such authority of Chief Commissioner of State. In fact, the learned Judicial Commissioner was of the opinion that the inquiry ought to have been held in accordance with the Central Civil Services [Classification, Control and Appeal] Rules, 1951 and that having not been done the order is vitiated. This finding in unassailable. The situation as at present stands is that the order issued by the Chief Commissioner dated July 27, 1951 is being relied upon to show that the rules contained in Assam Police Manual have been validly prescribed for the administration of Manipur Police Force. The learned Commissioner was right in holding the order dated July 27, 1951 is ineffective to incorporate and apply provision contained in Part I-V of Assam Police Manual for Police Force in Manipur State and therefore, the departmental inquiry was not held in accordance with the relevant law and rightly set aside the order of dismissal of deceased respondent from service and declared that the original-petitioner, respondent therein shall continue to be in service and will be entitled to all the benefits which he could have had if he had continued in service. Unfortunately, the original-petitioner, respondent herein is dead and his physical reinstatement is not possible.

1[ds]The contention before the learned Judicial Commissioner on behalf of the appellant was that at the relevant time the office of the I.G.P. and Chief Commissioner of Manipur both were held by one Mr. E. P. Mong and even though Section 12 of the Police act, 1861 confers powers on theof Police, subject to the approval of the State Government, to issue order and frame rules, the order dated July 27, 1951 must be deemed to have been made by the Manipur State as the order in question was issued by the Chief Commissioner, Manipur who had the authority to issue order in his dual capacity as I.G.P. and mere error in describing the authority, though held, cannot vitiate the order. This contention did not find favour with the learned Commissioner and in our opinionbare reading of Section12 of the Police Act, 1861 show that the power to make rules and issue orders as may be deemed expedient relating to the organisation, classification and distribution of Police Force etc. is conferred on theof Police subject to the approval of the State Government. The power is conferred by the statute on a statutory authority calledof Police and the power is hedged in with a condition that it can be exercised subject to the approval of the State Government was not obtained and it is futile to contend that as the order issuing authority was simultaneously holding office of Chief Commissioner of Manipur State, the order dated July 27, 1951 would be deemed to have been issued with the approval of the State Government. Section 12 does not recognise the authority of Chief Commissioner to make rules, on behalf of the State Government nor any such authority was brought to our notice. Even Rules of Business, if any, were not shown either to the learned Judicial Commissar or to this Court which would spell out such authority of Chief Commissioner ofsituation as at present stands is that the order issued by the Chief Commissioner dated July 27, 1951 is being relied upon to show that the rules contained in Assam Police Manual have been validly prescribed for the administration of Manipur Police Force. The learned Commissioner was right in holding the order dated July 27, 1951 is ineffective to incorporate and apply provision contained in Partof Assam Police Manual for Police Force in Manipur State and therefore, the departmental inquiry was not held in accordance with the relevant law and rightly set aside the order of dismissal of deceased respondent from service and declared that therespondent therein shall continue to be in service and will be entitled to all the benefits which he could have had if he had continued in service. Unfortunately, therespondent herein is dead and his physical reinstatement is not possible.

### 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. One Shri R. K. Tomalsana Singh, (now dead) at the relevant time was serving as Sub-Inspector of Police in State or Manipur. He was suspended from service by an order dated October 26, 1964 by the Superintendent of Police, Manipur, being the disciplinary authority, pending a departmental inquiry against him. The Inquiry Officer submitted his report holding that the charge levelled against the delinquent were proved whereupon the Superintendent of Police after giving second opportunity to the delinquent officer dismissed him from service by the order May 11, 1965. This order dismissing the original petitioner-respondent herein from service was questioned in Civil Writ Application No. 5 of 1967 in the Court of Judicial Commissioner, Manipur. The learned Judicial Commissioner accepted the petition holding that the inquiry was not held in accordance with the relevant rules as were in force and therefore, consequential action of dismissal from service was without the authority of law. In reaching this conclusion the contention that found favour with the Court was that the order made by Chief Commissioner, Manipur dated July 27, 1951 whereby the rules included in the Assam Police Manual Part I-V would apply to Manipur Police and for the purpose of facilitating the application of these rules, they may be continued with such alterations and modification, not affecting the substance as may be necessary or proper having regard to the existing administrative arrangements in Manipur State, was not valid and therefore, the inquiry held against the deceased respondent in accordance with the provisions in Part I-V of Assam Police Manual is illegal and invalid. The contention before the learned Judicial Commissioner on behalf of the appellant was that at the relevant time the office of the I.G.P. and Chief Commissioner of Manipur both were held by one Mr. E. P. Mong and even though Section 12 of the Police act, 1861 confers powers on the Inspector-General of Police, subject to the approval of the State Government, to issue order and frame rules, the order dated July 27, 1951 must be deemed to have been made by the Manipur State as the order in question was issued by the Chief Commissioner, Manipur who had the authority to issue order in his dual capacity as I.G.P. and mere error in describing the authority, though held, cannot vitiate the order. This contention did not find favour with the learned Commissioner and in our opinion rightly. A bare reading of Section12 of the Police Act, 1861 show that the power to make rules and issue orders as may be deemed expedient relating to the organisation, classification and distribution of Police Force etc. is conferred on the Inspector-General of Police subject to the approval of the State Government. The power is conferred by the statute on a statutory authority called Inspector-General of Police and the power is hedged in with a condition that it can be exercised subject to the approval of the State Government was not obtained and it is futile to contend that as the order issuing authority was simultaneously holding office of Chief Commissioner of Manipur State, the order dated July 27, 1951 would be deemed to have been issued with the approval of the State Government. Section 12 does not recognise the authority of Chief Commissioner to make rules, on behalf of the State Government nor any such authority was brought to our notice. Even Rules of Business, if any, were not shown either to the learned Judicial Commissar or to this Court which would spell out such authority of Chief Commissioner of State. In fact, the learned Judicial Commissioner was of the opinion that the inquiry ought to have been held in accordance with the Central Civil Services [Classification, Control and Appeal] Rules, 1951 and that having not been done the order is vitiated. This finding in unassailable. The situation as at present stands is that the order issued by the Chief Commissioner dated July 27, 1951 is being relied upon to show that the rules contained in Assam Police Manual have been validly prescribed for the administration of Manipur Police Force. The learned Commissioner was right in holding the order dated July 27, 1951 is ineffective to incorporate and apply provision contained in Part I-V of Assam Police Manual for Police Force in Manipur State and therefore, the departmental inquiry was not held in accordance with the relevant law and rightly set aside the order of dismissal of deceased respondent from service and declared that the original-petitioner, respondent therein shall continue to be in service and will be entitled to all the benefits which he could have had if he had continued in service. Unfortunately, the original-petitioner, respondent herein is dead and his physical reinstatement is not possible. ### Response: 1

Baljeet Singh and Others Vs. Risal Singh and Others

the first time that such suits and proceedings in the various Courts had to be stayed in which a question of title in respect of any plot mentioned in the statement with reference to el. (c) of sub-s. (1) of s. 11 had been raised and that these stayed suits or proceedings were to be decided subsequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act.These provisions of sub-s. (5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which at atements under s. 11 were filed after the amendment had been made.The amendments made by the other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in any way.13. Thereafter case Act XXXVIII of 1958. This Act again substituted a new s. 5, and the relevant portion of the substituted section reads: 5.Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as. the case may be, ensue in the area to which . the declaration relates; namely- x x x x x (b) (1) all proceedings for correction of the records and all suits for declaration of rights and interest over land , or for posses- sion of land or for partition, pending before any authority or court, whether of first ins- tance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the right or interests in dispute in the said pro- ceedings or suits before the consolidation au- thorities under and in accordance with the provisions of this Act and the Rules made thereunder: (ii) the findings of consolidation autho- rities in proceedings under this Act in respect of such right or interest in the land, -shall be acceptable to -the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned. proceed with the proceeding or suit, as the case may be; These provisions operate prospectively. The consequences mentioned in s. 5 ensue upon the publication of the notification under S. 4 in the Gazette and continue up to the publication of the notification under s. 52. They do not continue thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October 1955. They do not therefore bar the hearing of these appeals. These a peals have not. therefore become infructuous.Sections 7, 8, 9, 10, 11, 11-A, 11-B, 12, 12-A, 12-B, 12-C and 12-D have been substituted by new section which apply to proceedings taken in consolidation operations subsequent to the coming into force of the Amending Act XXXVIII of 1858. Sub-s. (1) of is. 12 makes it clear that the matters mentioned in that sub-section cannot be raised subsequent to the date of notification under s. 52.14. There has been no material change made in as. 27 and 30, but s. 49 now reads: "49. Notwithstanding anything contained in any other law, for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." This now provides that the adjudication of rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act. This leads practically to the same result to which cl. (ii) of sub-s. (b) of s. 5 leads to. The provisions of this section are not expressly limited to the period between the declaration under s. 4 and the notification under s. 52, but can be so construed as they relate back to s. 5 (b) (ii) of the Act as the declara- tion and adjudication of rights have to be done in accordance with the provisions of the Act. Further the amended provision would apply to the proceedings regarding rights in land in the area for which a declaration under s. 4 has been issued after the amendment.We are therefore of opinion that these appeals have not become infructuous. (SCR at page 230) On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res judicata. It- is essential for any previous Adjudication of a point to bar its consideration second time that, the previous adjudication must have been between the same parties and that it be with respect to the same matter.15. The three suits in which judgments became final were against one Banwari and, not against any of the present appellants. The matter in issue in those three suits were also different from that in the suits which have given rise to these appeals. Each of the twelve suits related to different plots. A common judgment on account of similar questions being raised for decision in the different suits, does not always make that judgment amount to one judgment in those suits. Such a judgment will ordinarily be deemed to be really so many judgments as the suits disposed of by it. This Court expressed a similar view in Badri Narayan Singh v. Kamdeo Prasad Singh([1962] 3 S. C. R. 759.).16.

1[ds]We may state that no objection was raised on behalf of the respondent to the effect that these appeals could not have been instituted, but we have discussed that matter, in view of the fact that the appeals were filed after the State Government had made a declaration under s.4 of thehave not been referred to any provision in these, Acts, viz.. Act V of 1954, Act xxvr of 1954 and Act XIII of 1955 which would lead to the conclusion that these appeals have become infructuous.Act XX of 1955 made an amendment in s.27 of the Act. The amendment however does not affect the question before us. Act XXIV of 1956 which came into force on July 3, 1956, substituted a new section 5 in the place of the old. The substituted section 5 read : "5. When the declaration under section 4 has been published in the Gazette, the consequences as hereinafter set forth shall, from the date specified thereunder till the publication of the notification under section 52 in the Official Gazette to the effect that the consolidation operations have been closed, ensue in the area to which the declaration relates, namely ; (a) the district or the local area, as the case may be, shall be deemed to be under consolidation operations from the specified date, and the duty of preparing and maintaining the khasra and the annual Register under Chapter III of the U.P. Land Revenue Act, 1901, shall stand transferred to the Settlement Officer (Consolidation), and (b) all proceedings for the correction of any such records pending before any court or authority shall be stayed but without pre- judice to the right of the persons affected to agitate the question before the Assistant Consolidation Officer under sub-section (3) of Section 8, or in proceedings commenced under and in accordance with section 10" Clearly, cl. (b) does not apply to these appeals as they have not arisen out of proceedings for the correction of villageXXIV of 1956 made certain amendments in s. 11 with which we are not concerned. We are not also concerned with the amendments this Act made in subs. (1) of s. 12. It substituted a new sub-section (5) and added sub-s. (7). These new subsections (5) and (7)are: "(5) Upon the publication of the statement under section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of any plot mentioned in the statement with reference to clause (c) of sub-section (1) of section II has been raised, shall be stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed. (7) A question of title in respect of any plot mentioned in the statement in clause (c) Of sub-section 1 of section 11, which might and ought to have been raised under subsection (1) but had not been raised, shall not be raised in any objection filed under subsection (2) of section 20, or under sub-section (1) of section 34." It is for the first time that such suits and proceedings in the various Courts had to be stayed in which a question of title in respect of any plot mentioned in the statement with reference to el. (c) of sub-s. (1) of s. 11 had been raised and that these stayed suits or proceedings were to be decided subsequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act.These provisions of sub-s. (5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which at atements under s. 11 were filed after the amendment had been made.The amendments made by the other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in anycase Act XXXVIII of 1958. This Act again substituted a new s. 5, and the relevant portion of the substituted section reads: 5.Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as. the case may be, ensue in the area to which . the declaration relates; namely- x x x x x (b) (1) all proceedings for correction of the records and all suits for declaration of rights and interest over land , or for posses- sion of land or for partition, pending before any authority or court, whether of first ins- tance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the right or interests in dispute in the said pro- ceedings or suits before the consolidation au- thorities under and in accordance with the provisions of this Act and the Rules made thereunder: (ii) the findings of consolidation autho- rities in proceedings under this Act in respect of such right or interest in the land, -shall be acceptable to -the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned. proceed with the proceeding or suit, as the case may be; These provisions operate prospectively. The consequences mentioned in s. 5 ensue upon the publication of the notification under S. 4 in the Gazette and continue up to the publication of the notification under s. 52. They do not continue thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October 1955. They do not therefore bar the hearing of these appeals. These a peals have not. therefore become infructuous.Sections 7, 8, 9, 10, 11, 11-A, 11-B, 12, 12-A, 12-B, 12-C and 12-D have been substituted by new section which apply to proceedings taken in consolidation operations subsequent to the coming into force of the Amending Act XXXVIII of 1858. Sub-s. (1) of is. 12 makes it clear that the matters mentioned in that sub-section cannot be raised subsequent to the date of notification under s.has been no material change made in as. 27 and 30, but s. 49 now reads: "49. Notwithstanding anything contained in any other law, for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." This now provides that the adjudication of rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act. This leads practically to the same result to which cl. (ii) of sub-s. (b) of s. 5 leads to. The provisions of this section are not expressly limited to the period between the declaration under s. 4 and the notification under s. 52, but can be so construed as they relate back to s. 5 (b) (ii) of the Act as the declara- tion and adjudication of rights have to be done in accordance with the provisions of the Act. Further the amended provision would apply to the proceedings regarding rights in land in the area for which a declaration under s. 4 has been issued after the amendment.We are therefore of opinion that these appeals have not become infructuous. (SCR at page 230) On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res judicata. It- is essential for any previous Adjudication of a point to bar its consideration second time that, the previous adjudication must have been between the same parties and that it be with respect to the samethree suits in which judgments became final were against one Banwari and, not against any of the present appellants. The matter in issue in those three suits were also different from that in the suits which have given rise to these appeals. Each of the twelve suits related to different plots. A common judgment on account of similar questions being raised for decision in the different suits, does not always make that judgment amount to one judgment in those suits. Such a judgment will ordinarily be deemed to be really so many judgments as the suits disposed of by it. This Court expressed a similar view in Badri Narayan Singh v. Kamdeo Prasad Singh([1962] 3 S. C. R. 759.).

### 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 first time that such suits and proceedings in the various Courts had to be stayed in which a question of title in respect of any plot mentioned in the statement with reference to el. (c) of sub-s. (1) of s. 11 had been raised and that these stayed suits or proceedings were to be decided subsequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act.These provisions of sub-s. (5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which at atements under s. 11 were filed after the amendment had been made.The amendments made by the other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in any way.13. Thereafter case Act XXXVIII of 1958. This Act again substituted a new s. 5, and the relevant portion of the substituted section reads: 5.Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as. the case may be, ensue in the area to which . the declaration relates; namely- x x x x x (b) (1) all proceedings for correction of the records and all suits for declaration of rights and interest over land , or for posses- sion of land or for partition, pending before any authority or court, whether of first ins- tance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the right or interests in dispute in the said pro- ceedings or suits before the consolidation au- thorities under and in accordance with the provisions of this Act and the Rules made thereunder: (ii) the findings of consolidation autho- rities in proceedings under this Act in respect of such right or interest in the land, -shall be acceptable to -the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned. proceed with the proceeding or suit, as the case may be; These provisions operate prospectively. The consequences mentioned in s. 5 ensue upon the publication of the notification under S. 4 in the Gazette and continue up to the publication of the notification under s. 52. They do not continue thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October 1955. They do not therefore bar the hearing of these appeals. These a peals have not. therefore become infructuous.Sections 7, 8, 9, 10, 11, 11-A, 11-B, 12, 12-A, 12-B, 12-C and 12-D have been substituted by new section which apply to proceedings taken in consolidation operations subsequent to the coming into force of the Amending Act XXXVIII of 1858. Sub-s. (1) of is. 12 makes it clear that the matters mentioned in that sub-section cannot be raised subsequent to the date of notification under s. 52.14. There has been no material change made in as. 27 and 30, but s. 49 now reads: "49. Notwithstanding anything contained in any other law, for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act." This now provides that the adjudication of rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act. This leads practically to the same result to which cl. (ii) of sub-s. (b) of s. 5 leads to. The provisions of this section are not expressly limited to the period between the declaration under s. 4 and the notification under s. 52, but can be so construed as they relate back to s. 5 (b) (ii) of the Act as the declara- tion and adjudication of rights have to be done in accordance with the provisions of the Act. Further the amended provision would apply to the proceedings regarding rights in land in the area for which a declaration under s. 4 has been issued after the amendment.We are therefore of opinion that these appeals have not become infructuous. (SCR at page 230) On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res judicata. It- is essential for any previous Adjudication of a point to bar its consideration second time that, the previous adjudication must have been between the same parties and that it be with respect to the same matter.15. The three suits in which judgments became final were against one Banwari and, not against any of the present appellants. The matter in issue in those three suits were also different from that in the suits which have given rise to these appeals. Each of the twelve suits related to different plots. A common judgment on account of similar questions being raised for decision in the different suits, does not always make that judgment amount to one judgment in those suits. Such a judgment will ordinarily be deemed to be really so many judgments as the suits disposed of by it. This Court expressed a similar view in Badri Narayan Singh v. Kamdeo Prasad Singh([1962] 3 S. C. R. 759.).16. ### Response: 1

R.C. Gupta & Others Vs. Regional Provident Fund Commissioner Employees Provident Fund Organisation & Others

the Act. The Pension Scheme which was framed to give effect to the provisions of Section 6A containsinter aliaClause 11, which deals with determination of pensionable salary. Under Clause 11(3) of the Pension Scheme, the maximum pensionable salary was limited to Rs.5,000/-, which was subsequently enhanced to Rs.6,500/- per month w.e.f. 08.10.2001. A couple of months after the Pension Scheme was framed w.e.f. 16.11.1995, a proviso was added to Clause 11(3) w.e.f. 16.03.1996 permitting an option to the employer and an employee for contribution on salary exceeding Rs.5,000/- or Rs.6,500/- (w.e.f. 08.10.2001) per month. 8.33% of such contribution on full salary was required to be remitted to the Pension Fund. 4. The appellant-employees on the eve of their retirement i.e. sometime in the year 2005 took the plea that the proviso brought in by the amendment of 1996 was not within their knowledge and, therefore, they may be given the benefit thereof, particularly, when the employers contribution under the Act has been on actual salary and not on the basis of ceiling limit of either Rs.5,000/- or 6,500/- per month, as the case may be. This plea was negatived by the Provident Fund Authority on the ground that the proviso visualized a cut-off date for exercise of option, namely, the date of commencement of Scheme or from the date the salary exceeded the ceiling amount of Rs.5,000/- or 6,500/- per month, as may be. As the request of the appellant-employees was subsequent to either of the said dates, the same cannot be acceded to. 5. Aggrieved the appellant-employees moved the High Court under Article 226 of the Constitution. The learned Single Judge decided the Writ petition in favour of the appellant-employees making it clear that the decision would not serve as a precedent for the future. The Division Bench reversed the said decision upholding the view of the Provident Fund Authority that under the proviso to Clause 11 (3) of the Pension Scheme there was a cut-off date. 6. We have heard the learned counsels for the parties. We have read and considered the orders of the High Court, the provisions of the Act, the Provident Fund Scheme as well as the relevant provisions of the Pension Scheme. 7. Clause 11 (3) of the Pension Scheme is in the following terms : 11. Determination of Pensionable Salary. XXX XXX XXX (3) The maximum pensionable salary shall be limited to (Subs, by G.S.R.774(E), dated 8th October, 2001 (w.r.e.f. 1-6-2001))[rupees six thousand and five hundred/Rs.6,500/-] per month. (Subs. By G.S.R. 134, dated 28th February, 1996 (w.e.f. 16-3-1996) [Provided that if at the option of the employer and employee, contribution paid on salary exceeding [rupees six thousand and five hundred/Rs. 6,500/-] per month from the date of commencement of this Scheme or from the date salary exceeds [rupees six thousand and five hundred/Rs.6,500/-] whichever is later, and 8.33 per cent share of the employers thereof is remitted into the Pension Fund, pensionable salary shall be based on such higher salary.] 8. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court, wherein the Special Leave Petition (C) No.7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.03.2016. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs.5,000/- or Rs.6,500/- per month, as the case may be. 9. A further argument has been made on behalf of the Provident Fund Commissioner that the appellant-employees had already exercised their option under paragraph 26(6) of the Employees Provident Funds Scheme. Paragraph 26(6) is in the following terms: 26. Classes of employees entitled and required to join the fund XXXXXX xxx (6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than (Subs. By Notification No.S-350/2/2/96-SS II, dated 4th May, 2001, for rupees five thousand. Earlier the words rupees five thousand were substituted by G.S.R. 718(E), dated 23rd September, 1994, for the words rupees three thousand and five hundred (w.e.f. 1-10-1994))[six thousand five hundred rupees] of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee]. 10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11 (3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11 (3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

1[ds]8. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are notf dates to determine the eligibility of thee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court, wherein the Special Leave Petition (C) No.7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.03.2016. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to af date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs.5,000/per month, as the case may be10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11 (3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11 (3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

### 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: the Act. The Pension Scheme which was framed to give effect to the provisions of Section 6A containsinter aliaClause 11, which deals with determination of pensionable salary. Under Clause 11(3) of the Pension Scheme, the maximum pensionable salary was limited to Rs.5,000/-, which was subsequently enhanced to Rs.6,500/- per month w.e.f. 08.10.2001. A couple of months after the Pension Scheme was framed w.e.f. 16.11.1995, a proviso was added to Clause 11(3) w.e.f. 16.03.1996 permitting an option to the employer and an employee for contribution on salary exceeding Rs.5,000/- or Rs.6,500/- (w.e.f. 08.10.2001) per month. 8.33% of such contribution on full salary was required to be remitted to the Pension Fund. 4. The appellant-employees on the eve of their retirement i.e. sometime in the year 2005 took the plea that the proviso brought in by the amendment of 1996 was not within their knowledge and, therefore, they may be given the benefit thereof, particularly, when the employers contribution under the Act has been on actual salary and not on the basis of ceiling limit of either Rs.5,000/- or 6,500/- per month, as the case may be. This plea was negatived by the Provident Fund Authority on the ground that the proviso visualized a cut-off date for exercise of option, namely, the date of commencement of Scheme or from the date the salary exceeded the ceiling amount of Rs.5,000/- or 6,500/- per month, as may be. As the request of the appellant-employees was subsequent to either of the said dates, the same cannot be acceded to. 5. Aggrieved the appellant-employees moved the High Court under Article 226 of the Constitution. The learned Single Judge decided the Writ petition in favour of the appellant-employees making it clear that the decision would not serve as a precedent for the future. The Division Bench reversed the said decision upholding the view of the Provident Fund Authority that under the proviso to Clause 11 (3) of the Pension Scheme there was a cut-off date. 6. We have heard the learned counsels for the parties. We have read and considered the orders of the High Court, the provisions of the Act, the Provident Fund Scheme as well as the relevant provisions of the Pension Scheme. 7. Clause 11 (3) of the Pension Scheme is in the following terms : 11. Determination of Pensionable Salary. XXX XXX XXX (3) The maximum pensionable salary shall be limited to (Subs, by G.S.R.774(E), dated 8th October, 2001 (w.r.e.f. 1-6-2001))[rupees six thousand and five hundred/Rs.6,500/-] per month. (Subs. By G.S.R. 134, dated 28th February, 1996 (w.e.f. 16-3-1996) [Provided that if at the option of the employer and employee, contribution paid on salary exceeding [rupees six thousand and five hundred/Rs. 6,500/-] per month from the date of commencement of this Scheme or from the date salary exceeds [rupees six thousand and five hundred/Rs.6,500/-] whichever is later, and 8.33 per cent share of the employers thereof is remitted into the Pension Fund, pensionable salary shall be based on such higher salary.] 8. Reading the proviso, we find that the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme. A somewhat similar view that has been taken by this Court in a matter coming from the Kerala High Court, wherein the Special Leave Petition (C) No.7074 of 2014 filed by the Regional Provident Fund Commissioner was rejected by this Court by order dated 31.03.2016. A beneficial Scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date, particularly, in a situation where (as in the present case) the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs.5,000/- or Rs.6,500/- per month, as the case may be. 9. A further argument has been made on behalf of the Provident Fund Commissioner that the appellant-employees had already exercised their option under paragraph 26(6) of the Employees Provident Funds Scheme. Paragraph 26(6) is in the following terms: 26. Classes of employees entitled and required to join the fund XXXXXX xxx (6) Notwithstanding anything contained in this paragraph, an officer not below the rank of an Assistant Provident Fund Commissioner may, on the joint request in writing, of any employee of a factory or other establishment to which this Scheme applies and his employer, enroll such employee as a member or allow him to contribute more than (Subs. By Notification No.S-350/2/2/96-SS II, dated 4th May, 2001, for rupees five thousand. Earlier the words rupees five thousand were substituted by G.S.R. 718(E), dated 23rd September, 1994, for the words rupees three thousand and five hundred (w.e.f. 1-10-1994))[six thousand five hundred rupees] of his pay per month if he is already a member of the fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the fund, provided that the employer gives an undertaking in writing that he shall pay the administrative charges payable and shall comply with all statutory provisions in respect of such employee]. 10. We do not see how exercise of option under paragraph 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under paragraph 11 (3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under paragraph 26 of the Provident Scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11 (3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated. ### Response: 1

Sardar Sarup Singh & Others Vs. The State Of Punjab & Others

Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co-option. The designation of the head ministers of the five principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board. In 1953, nomination was done away with and the number of co-opted members was increased to twenty-five, of whom at least twelve were to be residents of Pepsu. This was even before the principal Act was extended to the Pepsu area. When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: S.148-B gives representation to those areas as an interim measure and S. 43A as a permanent measure. Considering S. 148-B in the light of these circumstances, we are unable to hold that it violates the fundamental right of the Sikhs under Art. 26(b) of the Constitution.The method of representation for the extended areas during the interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion. The question before us is not whether a more satisfactory arrangement could have been made even for the interim period; perhaps, it could have been. Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period. That may be unfortunate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom of religion. 11. We now proceed to consider the specific grievances which the petitioners have made in respect of the persons who come into the Board under S. 148-B. As to the members of the Interim Board, Patiala, who under Cl. (a) of sub-s. (1) of S. 148-B are deemed to be members of the Board constituted under S. 43, it is argued that they were appointed under a Punjab Government notification dated 10-1-1958 and though they are Sikhs, they do not represent the Sikh community and are mere nominees of Government; furthermore, they are not subject to the disqualifications mentioned in Ss. 45 and 46 of the Act in respect of elected and co-opted members respectively.We have pointed out earlier that the principal Act contained a provision before 1953 or nomination of 12 members by the Rajpramukh of Pepsu; and after 1953, the co-opted members included twelve residents of Pepsu. By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was constituted to look after certain gurdwaras of the Pepsu area, and after merger the appointment was made by the Governor of the Punjab. Under S. 148-A which was also added to the principal Act by the amending Act of 1959, the interim Gurdwara Board, Patiala, has ceased to function, and under S. 148-B (1) (a) the members of the Interim Board, Patiala have become members of the Board constituted under S. 43. We are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental, right; nor do we think that the non-application of the disqualifications stated in Ss. 45 and 46 of the Act to these members advances the case of the petitioners any further.The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co-opted members and after nomination had ceased in 1953, of elected or co-opted members only. It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications; furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any of the disqualifications stated in S. 45 or S. 46. 12. With regard to the thirty-five Sikhs to be elected under cl. (b) of sub-s. (1) of S. 148-B, there is a three-fold contention. It has been submitted that (1) the electorate detailed in sub-s- (2) of S. 148-B is not representative of all the Sikhs; (2) some of the members of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non-Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government. We do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the Board for the extended areas as in interim measure is not a matter of religion.The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under Art. 26(b) of the Constitution.It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty-five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co-opted members of the Board. 13.

0[ds].The petitioners have not specifically alleged in their petition that the State Government has acted in any mala fide manner; and whatever justification some people may feel in their criticisms of the political wisdom of a particular legislative or executive action, this Court cannot be called upon to embark on an enquiry into public policy or investigate into questions of political wisdom or even to pronounce upon motives of the legislature in enacting a law which it is otherwise competent to make.We do not say that in pronouncing on the rights of the parties before it, this Court must always stand aloof on the chill and distant heights of abstract logic and pay no heed to the great tides and currents which move society and men. If and when the occasion demands, for example, when there is violation of a fundamental right guaranteed by the Constitution, it will never hesitate to act. But it is well to remember that a fundamental right, such as freedom of religion, is of an enduring character and must stand beyond the sweep of changing and deflecting forces of current opinion9. Without a fuller and more detailed examination of the provisions of the principal Act we hesitate to pronounce finally on the larger question if any of the other provisions of the principal Act affect matters of religion; nor do we think it necessary to decide that larger question in the present case. We are of the view that the present petition can be decided on a shorter ground, even if we proceed on the assumption that some of the provisions of the principal Act relate to matters of religion and the Board, either acting in exercise of its power of control, direction and superintendence over other committees or in its capacity as the committee for certain gurdwaras, can pass orders about matters of religion. We may point out, however, that the preamble of the principal Act indicates that it is mainly a law to provide for the better administration of certain Sikh gurdwaras and it is admitted that in so far as the powers of the Board relate to mere administration of gurdwara properties in either of its two capacities, such administration must be in accordance with law, and the appropriate legislature can lay down what the law should beWe do not think that such a stand is correct or justified by Art. 26 of the Constitution; nor has any authoritative text been placed before us to show that a direct election by the entire Sikh community in the management of gurdwaras is part of the Sikh religion.The principal Act, as it stood before the amending Act of 1959, does not support any such contention. However great our respect may be for the democratic principle of direct election, we do not think that having regard to the provisions of the principal Act and the circumstances in which S. 148-B came to be added thereto, the principle of direct election on universal denominational suffrage can be raised to the pedestal of religion within the meaning of Art. 26(b) of the Constitution. If it were so raised, then the co-option of some members which has not been challenged by the petitioners would also be violative of their fundamental right; so also any restrictions which the principal Act or the rules made thereunder may impose in the matter of election or the exercise of the vote, such as, restrictions with regard to the age of the voter etc. Obviously, these are not matters of religion and we say without meaning any offence to anybody that to treat these as matters of religion is tantamount to confusing religion with current politics10. It is to be remembered that the principal Act constituted a Board representative of the Sikhs both inside Punjab and outside it; that is why in the constitution of the Board there was provision for election, nomination, designation of the head ministers of certain principal Sikh gurdwaras, and also co-option. The purpose obviously was to make the Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co-option. The designation of the head ministers of the five principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board. In 1953, nomination was done away with and the number of co-opted members was increased to twenty-five, of whom at least twelve were to be residents of Pepsu. This was even before the principal Act was extended to the Pepsu area. When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: S.148-B gives representation to those areas as an interim measure and S. 43A as a permanent measure. Considering S. 148-B in the light of these circumstances, we are unable to hold that it violates the fundamental right of the Sikhs under Art. 26(b) of the Constitution.The method of representation for the extended areas during the interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion. The question before us is not whether a more satisfactory arrangement could have been made even for the interim period; perhaps, it could have been. Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period. That may be unfortunate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom of religionWe are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental, right; nor do we think that the non-application of the disqualifications stated in Ss. 45 and 46 of the Act to these members advances the case of the petitioners any further.The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co-opted members and after nomination had ceased in 1953, of elected or co-opted members only. It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications; furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any of the disqualifications stated in S. 45 or S. 46.The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under Art. 26(b) of the Constitution.It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty-five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co-opted members of the Board.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: Board as representative as possible, and because an Act passed by the Punjab legislature could not contain provisions for the election of members from constituencies outside the Punjab, there arose the necessity for nomination, designation and co-option. The designation of the head ministers of the five principal Sikh shrines may be also attributed to the reason that they were important functionaries who should be on the Board. In 1953, nomination was done away with and the number of co-opted members was increased to twenty-five, of whom at least twelve were to be residents of Pepsu. This was even before the principal Act was extended to the Pepsu area. When the amending Act of 1959 extended the principal Act to the Pepsu area, the problem at once arose as to how to give some representation to the Sikhs in the extended areas, for the intervening period before the next election of the Board, and also as a permanent measure: S.148-B gives representation to those areas as an interim measure and S. 43A as a permanent measure. Considering S. 148-B in the light of these circumstances, we are unable to hold that it violates the fundamental right of the Sikhs under Art. 26(b) of the Constitution.The method of representation for the extended areas during the interim period appears to us to be an arrangement dictated merely by considerations of convenience and expediency, and does not involve any principle of religion. The question before us is not whether a more satisfactory arrangement could have been made even for the interim period; perhaps, it could have been. Learned counsel for the petitioners has pointed out that many Sikhs of influence and standing in the Pepsu area will have no vote for the interim period. That may be unfortunate, but is not a relevant consideration for determining the question before us, namely, whether there has been interference with freedom of religion. 11. We now proceed to consider the specific grievances which the petitioners have made in respect of the persons who come into the Board under S. 148-B. As to the members of the Interim Board, Patiala, who under Cl. (a) of sub-s. (1) of S. 148-B are deemed to be members of the Board constituted under S. 43, it is argued that they were appointed under a Punjab Government notification dated 10-1-1958 and though they are Sikhs, they do not represent the Sikh community and are mere nominees of Government; furthermore, they are not subject to the disqualifications mentioned in Ss. 45 and 46 of the Act in respect of elected and co-opted members respectively.We have pointed out earlier that the principal Act contained a provision before 1953 or nomination of 12 members by the Rajpramukh of Pepsu; and after 1953, the co-opted members included twelve residents of Pepsu. By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was constituted to look after certain gurdwaras of the Pepsu area, and after merger the appointment was made by the Governor of the Punjab. Under S. 148-A which was also added to the principal Act by the amending Act of 1959, the interim Gurdwara Board, Patiala, has ceased to function, and under S. 148-B (1) (a) the members of the Interim Board, Patiala have become members of the Board constituted under S. 43. We are unable to hold that the designation of such members, as an interim measure, to represent those gurdwaras in the Pepsu area which they were actually managing is violative of any fundamental, right; nor do we think that the non-application of the disqualifications stated in Ss. 45 and 46 of the Act to these members advances the case of the petitioners any further.The principal Act did not contain any provisions as to disqualification of designated members; it contained provisions for disqualification of elected, nominated or co-opted members and after nomination had ceased in 1953, of elected or co-opted members only. It is permissible to presume that the legislature knows that the members it is designating do not suffer from any disqualifications; furthermore, the petitioners have not even suggested in their petition that the members of the Interim Board, Patiala, suffer from any of the disqualifications stated in S. 45 or S. 46. 12. With regard to the thirty-five Sikhs to be elected under cl. (b) of sub-s. (1) of S. 148-B, there is a three-fold contention. It has been submitted that (1) the electorate detailed in sub-s- (2) of S. 148-B is not representative of all the Sikhs; (2) some of the members of the electorate like Sikh members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non-Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government. We do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the Board for the extended areas as in interim measure is not a matter of religion.The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under Art. 26(b) of the Constitution.It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty-five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty five co-opted members of the Board. 13. ### Response: 0

Kumari N. Vasundara Vs. State Of Mysore & Anr

631 - it was observed by the Judicial Committee that "the word domicile in Article 63 (of the Civil Code of Lower Canada) was used in the sense of residence, and did not refer to international domicile". What has to be considered is whether in the present context "domicile" was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There is no reference to domicile in the rule itself, but in the Explanation which follows, clauses (a) and (b) refer to domicile, and they occur as part of the definition of "bona fide resident". In Corpus Juris Secundum, Volume 28, Page 5, it is stated:"The term bona fide residence means the residence with domiciliary intent."There is therefore considerable force in the contention of the respondent that when the rule-making authorities referred to domicile in clauses (a) and (b) they were thinking really of residence. In this view also, the contention that the rule is repugnant to Article 15 (1) must fail."Under the impugned rule in that case no capitation fee was to be charged from the students who were bona fide residents of Madhya Bharat, and the expression "bona fide resident" for the purpose of the rule was defined as (to quote the relevant portion):"One who is-(a) a citizen of India whose original domicile is in Madhya Bharat, provided he has not acquired a domicile elsewhere, or(b) a citizen of India, where original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or(c) a person who migrated from Pakistan before September 30, 1948 and intends to reside in Madhya Bharat permanently, or(d) ................................."In our view the word "domicile" as used in Rule 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizen to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule. The problem as noticed in P. Rajendrans case, (1968) 2 SCR 786 = (AIR 1968 SC 1012 ) and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness. The counter affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.9. The petitioners argument that candidates whose parents have of necessity to remain out of Mysore State and who have also by compelling reasons to shift their residence frequently from one State to another without completing ten years in any one State, would suffer because their parents cannot afford to arrange for their childrens residence in Mysore State for ten years during the first 17 years of their age, merely suggests that there is a likelihood of some cases of hardship under the impugned rule. But cases of hardship are likely to arise in the working of almost any rule which may be framed for selecting a limited number of candidates for admission out of a long list. This, however, would not render the rule unconstitutional. For relief against hardship in the working of a valid rule, the petitioner has to approach elsewhere because it relates to the policy underlying the rule. Redress for the grievance against the wide gap between the number of seats in the medical colleges and the number of candidates aspiring to become doctors for earning their own livelihood and for serving the needs of the country, is also to be sought elsewhere and not in this Court, which is only concerned with the constitutionality of the rule.

0[ds]In our view the word "domicile" as used in Rule 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizen to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule. The problem as noticed in P. Rajendrans case, (1968) 2 SCR 786 = (AIR 1968 SC 1012 ) and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness. The counter affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.9. The petitioners argument that candidates whose parents have of necessity to remain out of Mysore State and who have also by compelling reasons to shift their residence frequently from one State to another without completing ten years in any one State, would suffer because their parents cannot afford to arrange for their childrens residence in Mysore State for ten years during the first 17 years of their age, merely suggests that there is a likelihood of some cases of hardship under the impugned rule. But cases of hardship are likely to arise in the working of almost any rule which may be framed for selecting a limited number of candidates for admission out of a long list. This, however, would not render the rule unconstitutional. For relief against hardship in the working of a valid rule, the petitioner has to approach elsewhere because it relates to the policy underlying the rule. Redress for the grievance against the wide gap between the number of seats in the medical colleges and the number of candidates aspiring to become doctors for earning their own livelihood and for serving the needs of the country, is also to be sought elsewhere and not in this Court, which is only concerned with the constitutionality of theto this observation which merelythe settled law, if the sources are properly classified on reasonable basis, then Courts are not expected to interfere with the manner and method of making the classification. Reasonable basis of course must mean that the basis is not arbitrary or fanciful, but bears a just, rational and intelligible relation with the object sought to be achieved by the classification.

### 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: 631 - it was observed by the Judicial Committee that "the word domicile in Article 63 (of the Civil Code of Lower Canada) was used in the sense of residence, and did not refer to international domicile". What has to be considered is whether in the present context "domicile" was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There is no reference to domicile in the rule itself, but in the Explanation which follows, clauses (a) and (b) refer to domicile, and they occur as part of the definition of "bona fide resident". In Corpus Juris Secundum, Volume 28, Page 5, it is stated:"The term bona fide residence means the residence with domiciliary intent."There is therefore considerable force in the contention of the respondent that when the rule-making authorities referred to domicile in clauses (a) and (b) they were thinking really of residence. In this view also, the contention that the rule is repugnant to Article 15 (1) must fail."Under the impugned rule in that case no capitation fee was to be charged from the students who were bona fide residents of Madhya Bharat, and the expression "bona fide resident" for the purpose of the rule was defined as (to quote the relevant portion):"One who is-(a) a citizen of India whose original domicile is in Madhya Bharat, provided he has not acquired a domicile elsewhere, or(b) a citizen of India, where original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or(c) a person who migrated from Pakistan before September 30, 1948 and intends to reside in Madhya Bharat permanently, or(d) ................................."In our view the word "domicile" as used in Rule 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizen to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule. The problem as noticed in P. Rajendrans case, (1968) 2 SCR 786 = (AIR 1968 SC 1012 ) and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness. The counter affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them.9. The petitioners argument that candidates whose parents have of necessity to remain out of Mysore State and who have also by compelling reasons to shift their residence frequently from one State to another without completing ten years in any one State, would suffer because their parents cannot afford to arrange for their childrens residence in Mysore State for ten years during the first 17 years of their age, merely suggests that there is a likelihood of some cases of hardship under the impugned rule. But cases of hardship are likely to arise in the working of almost any rule which may be framed for selecting a limited number of candidates for admission out of a long list. This, however, would not render the rule unconstitutional. For relief against hardship in the working of a valid rule, the petitioner has to approach elsewhere because it relates to the policy underlying the rule. Redress for the grievance against the wide gap between the number of seats in the medical colleges and the number of candidates aspiring to become doctors for earning their own livelihood and for serving the needs of the country, is also to be sought elsewhere and not in this Court, which is only concerned with the constitutionality of the rule. ### Response: 0

State Of Madhya Pradesh Vs. Bhopal Sugar Industries Ltd

region incorporated in the new State was not discriminatory at the date when the reorganisation took place, it can never become discriminatory thereafter. The assumptions made by both the parties appear to be erroneous. The High Court was of the view that after expiry of a reasonable period during which the State has the opportunity of making necessary adaptations so as to make the Act applicable to the entirety of the new State, if the State fails to adapt the law, historical considerations which initially justified the classification must be deemed to have disappeared. That assumption without further enquiry may not be accepted as correct. It was necessary for the High Court to investigate whether at the date when the petition was filed, special treatment of the Bhopal region in the matter of levy of agricultural income-tax has a rational basis. That necessitated an enquiry into the structure of tax burden imposed directly or indirectly on or in respect of agricultural land or income from it in the different regions constituting the State. If for instance on account If disparity in the impost of land revenue and related taxes on land and income from land in other regions the ultimate burden on persons in the Bhopal region who were subjected to agricultural income-tax and agricultural land owners in the rest of the State did not disclose a pattern of wide variations, the mere existence of agricultural income impost in one region, and absence of such impost in another region may not necessarily justify an inference of unlawful discrimination. It was therefore necessary to ascertain the difference in the overall tax liability between persons similarly situated in the State of Madhya Pradesh in the matter of levy of agricultural tax. For that purpose an investigation was necessary whether the incidence of total burden on agriculturists was so disparate that an inference of unlawful discrimination may reasonably be made. The High Court had to ascertain the impact of diverse land taxes imposed on agricultural land in the four regions of the State and whether the burden between persons similarly circumstanced was substantially dissimilar and whether continuance of dissimilar levies was justified. If upon a thorough examination of the pattern of land taxes in different regions of the State it appeared to the Court that an unreasonably larger burden was sought to be continued upon this region, without any apparently justifiable ground, an inference of discrimination may arise.9. In adjudging reasonableness of classification for the purpose of taxation, the Courts recognise greater freedom in the Legislature and if the statute discloses a permissible policy of taxation, the Court will uphold it. The Courts undoubtedly lean more readily in favour of the presumption of constitutionality of a taxing statute but that is not to say that they will not strike down a statute unless it appears that the tax was imposed deliberately with the object of differentiating between persons similarly circumstances. We may state that the observations to the contrary that in matters of taxation a statute may not be struck down "unless the Court finds that" the tax "has been imposed with a deliberate intention of differentiating between individual and individual" in 1962-2 SCR 619 was not strictly necessary for deciding that case, and was not intended to lay down nay special test applicable to taxing statutes in their relation to Art. 14 of the Constitution.10. To arrive at a conclusion adverse to the State it was therefore necessary to decide whether the differentiation arising from the continuation of the levy of the agricultural income-tax was unfair and not supported by a reasonable standard, and the State having the requisite information and opportunity to make the imposts reasonably uniform, had failed or neglected to do so. No set formula can be devised for solving a problem of this character. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others.11. The petition filed by the Company was singularly deficient in furnishing particulars which would justify the plea of infringement of Art. 14 of the Constitution. 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 equal protection of the laws has been denied to him must make out that not only he had been treated differently form others but he had been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made. A mere plea that the Company and other agriculturists within the region of the former Bhopal State had to pay the agricultural income-tax whereas the agriculturists elsewhere had not to pay such tax, is not sufficient to make out a case of infringement of the fundamental right under Art. 14 of the Constitution.12. The State also did not place evidence before the High Court which would in the very nature of things be in its possession, showing a rational relation between the differential treatment and the classification and has also not placed any material before the Court throwing light on the question whether the continuance of the tax was justified: it merely chose to plead its case as on a demurrer. Both the State and the Company have by inadequate appreciation of the true position in law contributed to the manner in which the trial of the petition has proceeded. We would in the circumstances not be justified in dismissing the petition on a technical view of the burden of proof. We think that this is a case in which the parties should be given an opportunity to plead their respective cases adequately and to go to trial after the requisite evidence which has a bearing is brought before the Court.

1[ds]9. In adjudging reasonableness of classification for the purpose of taxation, the Courts recognise greater freedom in the Legislature and if the statute discloses a permissible policy of taxation, the Court will uphold it. The Courts undoubtedly lean more readily in favour of the presumption of constitutionality of a taxing statute but that is not to say that they will not strike down a statute unless it appears that the tax was imposed deliberately with the object of differentiating between persons similarly circumstances. We may state that the observations to the contrary that in matters of taxation a statute may not be struck down "unless the Court finds that" the tax "has been imposed with a deliberate intention of differentiating between individual and individual" in 1962-2 SCR 619 was not strictly necessary for deciding that case, and was not intended to lay down nay special test applicable to taxing statutes in their relation to Art. 14 of thebe 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 equal protection of the laws has been denied to him must make out that not only he had been treated differently form others but he had been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made. A mere plea that the Company and other agriculturists within the region of the former Bhopal State had to pay the agricultural income-tax whereas the agriculturists elsewhere had not to pay such tax, is not sufficient to make out a case of infringement of the fundamental right under Art. 14 of the Constitution.12. The State also did not place evidence before the High Court which would in the very nature of things be in its possession, showing a rational relation between the differential treatment and the classification and has also not placed any material before the Court throwing light on the question whether the continuance of the tax was justified: it merely chose to plead its case as on a demurrer. Both the State and the Company have by inadequate appreciation of the true position in law contributed to the manner in which the trial of the petition has proceeded. We would in the circumstances not be justified in dismissing the petition on a technical view of the burden of proof. We think that this is a case in which the parties should be given an opportunity to plead their respective cases adequately and to go to trial after the requisite evidence which has a bearing is brought before the Court.

### Instruction: Analyze the legal arguments presented and estimate the likelihood of the court accepting (1) or rejecting (0) the petition. ### Input: region incorporated in the new State was not discriminatory at the date when the reorganisation took place, it can never become discriminatory thereafter. The assumptions made by both the parties appear to be erroneous. The High Court was of the view that after expiry of a reasonable period during which the State has the opportunity of making necessary adaptations so as to make the Act applicable to the entirety of the new State, if the State fails to adapt the law, historical considerations which initially justified the classification must be deemed to have disappeared. That assumption without further enquiry may not be accepted as correct. It was necessary for the High Court to investigate whether at the date when the petition was filed, special treatment of the Bhopal region in the matter of levy of agricultural income-tax has a rational basis. That necessitated an enquiry into the structure of tax burden imposed directly or indirectly on or in respect of agricultural land or income from it in the different regions constituting the State. If for instance on account If disparity in the impost of land revenue and related taxes on land and income from land in other regions the ultimate burden on persons in the Bhopal region who were subjected to agricultural income-tax and agricultural land owners in the rest of the State did not disclose a pattern of wide variations, the mere existence of agricultural income impost in one region, and absence of such impost in another region may not necessarily justify an inference of unlawful discrimination. It was therefore necessary to ascertain the difference in the overall tax liability between persons similarly situated in the State of Madhya Pradesh in the matter of levy of agricultural tax. For that purpose an investigation was necessary whether the incidence of total burden on agriculturists was so disparate that an inference of unlawful discrimination may reasonably be made. The High Court had to ascertain the impact of diverse land taxes imposed on agricultural land in the four regions of the State and whether the burden between persons similarly circumstanced was substantially dissimilar and whether continuance of dissimilar levies was justified. If upon a thorough examination of the pattern of land taxes in different regions of the State it appeared to the Court that an unreasonably larger burden was sought to be continued upon this region, without any apparently justifiable ground, an inference of discrimination may arise.9. In adjudging reasonableness of classification for the purpose of taxation, the Courts recognise greater freedom in the Legislature and if the statute discloses a permissible policy of taxation, the Court will uphold it. The Courts undoubtedly lean more readily in favour of the presumption of constitutionality of a taxing statute but that is not to say that they will not strike down a statute unless it appears that the tax was imposed deliberately with the object of differentiating between persons similarly circumstances. We may state that the observations to the contrary that in matters of taxation a statute may not be struck down "unless the Court finds that" the tax "has been imposed with a deliberate intention of differentiating between individual and individual" in 1962-2 SCR 619 was not strictly necessary for deciding that case, and was not intended to lay down nay special test applicable to taxing statutes in their relation to Art. 14 of the Constitution.10. To arrive at a conclusion adverse to the State it was therefore necessary to decide whether the differentiation arising from the continuation of the levy of the agricultural income-tax was unfair and not supported by a reasonable standard, and the State having the requisite information and opportunity to make the imposts reasonably uniform, had failed or neglected to do so. No set formula can be devised for solving a problem of this character. It cannot be said that because a certain number of years have elapsed or that the State has made other laws uniform, the State has acted improperly in continuing an impost which operates upon a class of citizens more harshly than upon others.11. The petition filed by the Company was singularly deficient in furnishing particulars which would justify the plea of infringement of Art. 14 of the Constitution. 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 equal protection of the laws has been denied to him must make out that not only he had been treated differently form others but he had been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiably made. A mere plea that the Company and other agriculturists within the region of the former Bhopal State had to pay the agricultural income-tax whereas the agriculturists elsewhere had not to pay such tax, is not sufficient to make out a case of infringement of the fundamental right under Art. 14 of the Constitution.12. The State also did not place evidence before the High Court which would in the very nature of things be in its possession, showing a rational relation between the differential treatment and the classification and has also not placed any material before the Court throwing light on the question whether the continuance of the tax was justified: it merely chose to plead its case as on a demurrer. Both the State and the Company have by inadequate appreciation of the true position in law contributed to the manner in which the trial of the petition has proceeded. We would in the circumstances not be justified in dismissing the petition on a technical view of the burden of proof. We think that this is a case in which the parties should be given an opportunity to plead their respective cases adequately and to go to trial after the requisite evidence which has a bearing is brought before the Court. ### Response: 1

Suresh Chandra Bahri Vs. State of Bihar

was to be executed. The evidence discussed above shows that her murder was committed in an extremely, brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife Suresh Bahri was further determined to kill his innocent two children at Dhulli farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body threw their dead bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder.105. The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest.106. As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal Sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant. Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton. From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.83 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent.107. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore, commute his sentence of death also into a sentence for life imprisonment and modify the judgments of the two Courts below accordingly.

0[ds]43. The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of Section 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accompliance, in othe words, a guilty companion in crime, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 illustration (b) to Section 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combine reading of the two provisions that in Section 133 and illustration (b) of Section 114 of Evidence Act go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to Section 133 a conviction is "not illegal or in other words not unlawful" merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of Section 114 of the Evidence Act with a view to emphasis that the rule contained therein as well as in Section 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to Section 114 is placed in Chapter VII of Evidence Act while Section 133 in inserted in Chapter IX of the Act. The better course was to insert the illustration (b) of Section 114 as an explanation or in any case as a proviso to Section 133 of the Act instead of their insertion at two different places and that too in different chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to Section 114 provides a rule of caution to which the Courts should have regard. It is now well settled by a long series of decisions that except in circumstances of special nature it is the duty of the Court to raise the presumption in Section 114 illustration (b) and the Legislature requires that the Court should make the natural presumption in that Section as would be clear from the decisions which we shall discuss hereinafter.The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmation by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.72. In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned counsel for the appellants have no application to the facts of the present case and do not advance the case of the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa (supra) the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar (supra) also does not help the appellants in the present case. In the case of Abdul Sattar (supra) recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrence from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing the Khadgraha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles.73. Now we come to the evidence of the experts examined by the prosecution, and the expert opinion rendered by them touching upon the crime in question. K.K. Arora, PW 51 at the relevant time was working as the Senior Scientist in Chemistry branch of the Central Forensic Science Laboratory, Delhi having 24 years experience. He had examined the gunny bag which was used for carrying salt for dropping in the sceptic tank after the dead body of Urshia was thrown in the said tank. K.K. Arora in his report Ext. 20 found salt in the said bag. Dr. G.B. Gupta, PW 53 Senior Scientist had examined the wall scrappings of the blood from the room of the Ranchi house of Suresh and scrapings from the steel trunk seized from the room of the said house of Suresh and found human blood stains in the same. Dr. R.P. Bhatnagar another Senior Scientist, Head of SurgeryChemical Examiner to the Govt. of India (CBI) New Delhi had examined the scrapping of the blood taken from the Ranchi house of Suresh Bahri and he as per his report Ext. 20/40 found human blood of `B group in the same.74. The prosecution had also examined about 20 employees. Managers and Proprietors of different hotels which have been catalogued by the High Court in para 69 of its judgment in which the appellant Suresh Bahri and Raj Pal Sharma had stayed of different dates by concealing their real names and giving out different names and addresses under the fear of being apprehended as they had received intimation that the rumours were circulating about the murder of Urshia Bahri and had also learnt about the arrival of Bineet Sarang, PW 69 brother of Urshia in January, 1984 at Delhi who was searching and making enquiries about his sister and her children and had visited Delhi house, business premises and Ranchi house of the appellant Suresh Bahri and made reports to the Chutia Police Station.75. Thus on an overall independent consideration of the circumstantial and expert evidence as well as the evidence of the approver adduced by the prosecution and discussed by us in the foregoing paras it is abundantly clear and satisfactorily established that the evidence of the approver Ram Sagar Vishwakarma, PW 3 has received requisite corroboration on all material particulars and the totality of the surrounding circumstances, antecedents and subsequent conduct amongst other factors established against the three appellants prove beyond all reasonable doubt that at the instance of Suresh Bahri who master minded the plan, the other two appellants conjointly hatched a conspiracy to commit the murder of Urshia Bahri and that in prosecution of the common intention Suresh Bahri and Raj Pal Sharma did commit the murder of Urshia Bahri. Not only this but all the three appellants with a view to screen themselves from the commission of the offence made out all efforts for the disappearance of the dead body of Urshia.After going through the evidence and material on record we are also satisfied that the aforementioned facts and circumstances found to be established by the Trial Court as well as by the High Court are well founded and fully supportable by evidence on record. Since we find ourselves in agreement with the said conclusions the same do not call for any interference by this Court in exercise of our jurisdiction under Article 136 of the Constitution.78.Learned counsel for the appellants, however, contended that in a case where a witness identifies an accused who is not known to him, in the Court for the first time, his statement is not of any evidentiary value without their being a previous identification parade and as in the present case the appellant Raj Pal Sharma was quite stranger to the witnesses who for the first time identified him in the dock, without their being any previous identification parade, their evidence should not have been accepted with regard to the factum that he was the person who came and stayed in the house of Suresh Bahri and took part in the alleged murder of Urshia and her two children. While advancing these arguments support was sought to be taken from the decisions in Kannan v. State of Kerala, 1979(3) SCC 319 and Mohanlal Ganga Ram Gehani, 1982(1) SCC 700.There can be no dispute with regard to the principles as to the evidence relating to identification of a stranger accused involved in any crime. It is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the Investigating Agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned also who was a stranger to the accused because in that event the chances of his memory fading away are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of T.I. parade. In the present case as stated earlier the appellant Raj Pal Sharma approached Murari Lal, PW 1 with a letter of Suresh in pursuance of which Murari Lal had directed the bungalow gardner, Moolchand, PW 24 to open the house and permit Raj Pal Sharma to stay there. Raj Pal Sharma came and stayed in the Ranchi house in the last week of September and continued to live there till 1.10.83 when Suresh along with Urshia arrived and stayed there. Thus Murari Lal, PW 1 and Moolchand Mali, PW 24 had an opportunity to see Raj Pal for several days and it was not for the first time that they saw him in the Court when they identified to be the one who took active part in the crime. Similarly Shambhu Nath Tiwari, PW 7 who was running a Tea Stall at Chutia where Raj Pal used to take tea and other eatable articles for a number of days and had no money to pay the charges but continued to serve him with tea, etc. on the assurance of Murari Lal, PW 1 that the dues would be cleared by Suresh Bahri as Raj Pal was a man of Suresh. Moolchand Mali, PW 24 also had an opportunity to see Raj Pal living in Chutia house, Ranchi for several days. Similar is the case with other witnesses who had identified Raj Pal to be the person who had stayed in the house of Suresh Bahri. Thus in view of this evidence it cannot be said that the witnesses who identified Raj Pal in the Court had seen him only once for a short while by reason of which their evidence should not be accepted. In the case of Kannan (supra) relied on by the learned counsel for the appellants the accused of that case was seen by the identifying witness only once in the Court and, therefore, in the absence of T.I. parade the evidence was not accepted which is not the case before us. Similar was the position in Mohanlal Ganga Singh Gehani (supra) wherein the witness who identified the accused for the first time in Court did not know him before and therefore in the absence of T.I. parade the evidence of that witness was held valueless and unreliable. In the present case in the facts and circumstances discussed above T.I. parade was not necessary at all as the witnesses had seen the appellant Raj Pal Sharma continuously for several days and they had the opportunity of knowing and recognising him since before they made their statement in the Court.79. This brings us to the second leg of the prosecution case relating to the murder of two children, namely, Richa and Saurabh who are alleged to be murdered in the intervening night of 17/18th December, 1983 at Dhulli farm house of Suresh Bahri in conspiracy with the other two appellants, namely, Raj Pal Sharma and S. Gurbachan Singh. This episode of their plan commenced with two applications Ext. 40 and Ext. 40/1 made by the appellant Suresh on 5.12.83 to the Principal, Father Agnels School, South Extension, New Delhi, stating that his children Richa and Saurabh will not be attending the classes from 5.12.83 till the end of February, 1984. To establish this fact the prosecution had examined the Principal of the said school Shri M. Cawlih, PW 33. He deposed that he knew well Richa and Saurabh who were the students of his school. Saurabh was in 4th standard and Richa was in 6th standard. He further deposed that the aforesaid two applications were made by Suresh Chandra Bahri, father of the two children named above. The application about Richa Bahri was received by her class teacher named Sonia and the other application relating to Saurabh Bahri was received by Mrs. Randhawa and he recognized the endorsement and signatures made by the two class teachers on the aforesaid two applications. The Principal of the school further deposed that both the applications were seized by CBI officials. A copy book Ext. 1/2 of Richa Bahri was also seized by the CBI in his presence and he had signed at pages 1, 2, 23 and 36 of the said copy book. He also identified Richa in the photograph Ext. 1 and Saurabh in the photograph Ext. 1/3. He also identified the father and mother of the two children Saurabh and Richa in the photograph Ext. 1/2. Mrs. George, PW 34 a teacher of Father Agnels School was also examined who was the class teacher of Richa when she was in 4th and 5th standard and claimed to be fully acquainted with her handwriting. She identified the handwriting of Richa in her copy book from pages 2 to 26 seized by CBI from the Principal of the school as she had seen the writings when the copy book was submitted to her for correction and she had signed the said copy book at pages 5, 16, 20 and 23. PW 34 also identified Saurabh in the photograph Ext. 1 and 1/3. She also identified Richa in the photograph Ext. 1/1. The evidence of these two witnesses was half heartedly sought to be challenged by the counsel for the appellants as unreliable, a mention of which is made only to be rejected as both of them are independent witnesses having no animus against any of the accused/appellants. Their evidence does not suffer from any infirmities and we find their version as fully truthful.80. The prosecution in order to establish further chain of circumstances in the murder of two children examined Dina Nath Sharma, PW 6 who knew Suresh Bahri since 1965 and both were classmates. He deposed that he frequently visited the Delhi house of Suresh Bahri and also used to stay with him. He knew all the family members of Suresh Bahri including his wife and children. Dina Nath stated that when he visited Delhi house of Suresh in the first week of December, 1983 he saw the two children of Suresh in Delhi house when Suresh had told him that he will take his children to Ranchi to get them admitted in any school there so that the children and their mother may live together. PW 6 further deposed that Suresh Bahri left for Ranchi house in the morning of 8.12.83 in the Ambassador car along with his mother Santosh Bahri and a maidservant and one more person (identifying Raj Pal in the court to be that person). Suresh told him that his mother andwould be going upto Basti (UP). On asking about the other man Suresh told him that he was a Motor Mechanic whom he had taken by way of precaution as he had to cover a long journey. He also stated that he had takenbeddings besides other articles in the car.81. Witness Gopi Krishna, PW 11 Manager of the Tourist Dak Bungalow, Varanasi added further link to the incident. He deposed that Suresh Bahri and Raj Pal Sharma along with the two children had stayed at his bungalow on two days i.e.The Guest House Register Ext. 8 contained the entry about their stay on the aforesaid dates. Gopi Krishna identified the appellants Suresh and Raj Pal Sharma in the Court and stated that Suresh had made the said entry in the Guest register. It was shown in the said entry that they were coming from Basti and were going to Ranchi which fact lend support to the statement of Dina Nath, PW 6 that his mother and the maid servant would travel only upto Basti and it was for this reason that only the appellants Suresh, Raj Pal and the two children had stayed in the Guest House onThe entries made by Suresh in his handwriting in the Guest House Register were compared with his admitted writings by the handwriting expert Shri S. C. Mittal, PW 65 who found both the writings to be in the hand of Suresh. After leaving Varanasi in the evening of 14.12.83 the appellant Suresh, Raj Pal alongwith the two children proceeded further by car to Ranchi and before reaching Ranchi stayed in New Punjab Rest House at Daltonganj, as testified by its Proprietor S. Gurbax Singh, PW 19 who deposed that inthe hotel was known as Punjab Rest House but the name was subsequently changed as New Punjab Rest House. The witness stated that Suresh alongwith the two children and another person came and stayed in the hotel on 15.12.83 in room No. 4 as per entry at Serial No. 576 of the Guest Register. The entries in the Guest Register were made by Richa Bahri which was also signed by Suresh. The number of passengers as given in the entry was shown as four coming from Delhi and going to Ranchi. CBI Inspector, Rajendra Singh, PW 82 seized the register of his hotel. The entries in the said register made in the writing of Richa Bahri and in her copy book were compared by the expert S. C. Mittal, PW 65 who opined that the writings and signature of Richa in the Guest House Register fully tallied with her writing in the copy book of Father Agnels School as proved by her class teacher, PW 34.82. The party of four i.e. Suresh, Raj Pal and the two children ultimately landed at Dhulli farm in the afternoon on 16.12.83 as testified by Caretaker, Gopi Mistry, PW 29 of Suresh on his Dhulli farm house and his son Shiv Nandan Lohare, PW 60. Both of them stated that their master Suresh along with Raj Pal and the two children had arrived at Dhulli farm house in the afternoon of 16.12.83 and stayed there till the morning of 18.12.83. Both the witnesses also stated that about a fortnight before the arrival of Suresh and party, the appellant Gurbachan Singh had also come to Dhulli farm to make arrangement for some cots and chairs which were sent by him from Ranchi in a bus. Gopi Mistry also deposed that Raj Pal Sharma and two children stayed at Dhulli in the night following 16.12.83 and next day on 17.12.83 Raj Pal went to Ranchi and came back with appellant Gurbachan Singh on a motorcycle but Gurbachan went away after about an hour. In the night of 17.12.83 all the four took food prepared by the wife of Gopi Mistry and then all the four slept in one room at Dhulli farm. Gopi Mistry proceeded further to state that on 11.12.83 at about dawn Suresh gave a call to him and on hearing the call he, his wife and his son Shiv Nandan woke up. He came out and noticed the two children in the rear seat of the car in the sleeping position fully covered with a quilt and only some parts of their legs along were visible. Suresh Bahri and Raj Pal were sitting in the front seat of the car and Suresh told him that they were going and if any one enquired about him they be told that he was not there and then left Dhulli farm. Shiv Nandan, PW 60 the son of Caretaker, Gopi Mistry also made similar statement but further added that when Suresh and party was ready to leave at dawn on 18.12.83 he came and tried to look inside the car through the glasses, but the appellant Raj Pal shouted at him commanding him to go away.83. The evidence of these two witnesses PW 29 and PW 60 was sought to be assailed by the learned counsel for the appellants by pointing out some minor and insignificant contradictions as also the statement of PW 60 that he tried to look inside the car through the glasses when he was shouted down and directed to be away by the appellant which statement has not been made by his father PW 29. We are not impressed at all by these arguments as the immaterial omissions and contradictions have hardly any bearing on the reliability of these two witnesses whose evidence is consistent on all material aspects and there is no reason at all to discredit their testimony.84. In the series of circumstances connecting the appellant Suresh Bahri and Raj Pal with the murder of the two children the prosecution has examined Vijay Kumar Asthana, PW 12 who was the Manager of Hotel India, Varanasi at the relevant time. Asthana deposed that Suresh had stayed in his hotel on 18.12.83 by making entry Ext. 4/2 in his presence in the Guest Register Ext. 8/1 at Sl. No. 1448 at page No. 25 in his handwriting in the name of Mahesh Chandra Gupta. The said handwriting was compared with the specimen writing and signature of Suresh by the expert S. C. Mittal, PW 65 who found the two writings having been made by the same person in other words by Suresh. The purpose of this evidence is to show that after leaving Dhulli farm at dawn on 18.12.83 when on their return journey Suresh stayed in Hotel India at Varanasi on 18.12.83 there were only 2 persons i.e. Suresh himself and the appellant Raj Pal Sharma and the two children were no longer in their company whose bodies were disposed of somewhere on the way which would be clear from the evidence discussed hereinafter.85. Hiralal, PW 36 is a businessman of Sarnath, District Banaras who had gone to the bank of Varuna river on 20.12.83 at about 8.00 a.m. to ease himself when he noticed crowd there. He went and saw a gunny bag was floating in the water of Varuna river which was taken out and opened in the presence of persons present there. In the said bag dead body of a Hindu boy aged about 12/13 years was found having incised wounds in the neck. In the meanwhile one Dr. Mahendra Prasad, PW 35 also arrived there who at his instance wrote a report which he took and lodged in Sarnath Police Station in respect of the dead body. On the basis of his report the First Information Report, Ext. 13 was recorded in the Police Station and Atma Nand Singh, PW 46, Incharge, P. S. Sarnath went to the bank of Varuna river, prepared the panchnama of the dead body Ext. 14 and seized the gunny bag as per seizure memo Ext. 12. Investigating Officer, PW 46 then called a photographer, Ashok Kapoor, PW 48 and took the photographs of the dead body of the boy for purpose of identification later. Dr. Bhargav, PW 27 performed an autopsy over the dead body of the boy on 21.12.83 and found two incised wounds on the neck. There was also contusion on the chest and various other injuries on his person which werein nature caused by sharp object.86. Here it may be mentioned that next door neighbour Murari Lal, PW 1, family friend Dina Nath Sharma, PW 6, Gopi Krishna Asthana, PW 11, Manager of Tourist Dak Bungalow, Varanasi, Gopi Mistry, PW 29, the Caretaker of Suresh at Dhulli farm, Mrs. George, PW 34, a teacher of Father Agnels School where the two children studied, Satvender Kaur, PW 41, a close relative of Urshia Bahri and the informant Bineet Singh, PW 69 the brother of the deceased have all identified from the photographs that were taken by the photographer Ashok Kapoor, PW 48 to be the photographs of none else but Saurabh and thus there is overwhelming evidence to establish that the dead body found floating in Varuna river was that of Saurabh.87. However, learned counsel for the appellants referring to the statement of Dr. Bhargav, PW 27 contended that the prosecution story that the two children were done to death in the intervening night ofat Dhulli farm is not consistent with the medical evidence and on the contrary it is falsified by the medical evidence inasmuch as the dead body was found at about 8.00 a.m. on 20.12.83 but without any sign of decomposition and only regourmortrous was present while putrefaction starts after about 24 hours of the death but the same was not found at the time ofwhich was performed after 60 hours of the alleged time of murder. On that basis, therefore, it was submitted that the dead body recovered was either not the dead body of Saurabh or the murder was not committed in the intervening night ofLearned counsel for the appellants further submitted that the doctor had found that the stomach of the deceased was empty while according to the evidence of Gopi Mistry, PW 29 and his son Shiv Nandan Lohare, PW 60 the two children had slept after taking their meals in the night ofThese arguments were advanced on the basis of some stray sentences here and there from the evidence of Dr. Bhargav in isolation. A reading of the full statement of Dr. Bhargav, PW 27 will go to show that there is absolutely no substance in the aforementioned submissions.88. So far as the identity of the dead body is concerned, we have already discussed above that there isoverwhelming evidence toshow that it was the dead body of Saurabh as stated by a large number of witnesses after seeing the photographs. So far as the question of putrefaction and decomposition of the dead body is concerned, it depends on various factors such as the season, place and the manner in which the dead body was kept besides other relative considerations. A perusal of evidence of Dr. Bhargav, PW 27 would reveal that he clearly stated that putrefaction may take place even after 3 to 5 days if the dead body remained submerged in water. Admittedly the dead body of Saurabh was found floating in Varuna river in the morning of 20.12.83. Consequently according to the evidence of Dr. Bhargav the progress of putrefaction or decomposition could not have commenced at the time when the dead body was recovered andwas conducted. This circumstance, therefore, does not render the prosecution story improbable or unreliable. The absence of food at the time ofof Saurabh is also not of much significance to render the prosecution story doubtful. The presence or absence of food at the time ofin relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. In the present case there is no evidence about the exact time when the meals were taken by the children on the night of 17.12.83 nor about the type or nature of the food consumed by them. Saurabh was a young boy aged about 12 years and he being a young and energetic boy, his power of digestion must be assumed to be quick and strong, therefore, if the stomach at the time ofwas found to be empty it was but natural.89. The prosecution story with regard to the murder of the two children proceeds further by adding some more links to the circumstantial evidence against the appellants in the shape of recovery of some incriminating articles on Panchkoshi Road, near Nursery of Forest Deptt. and some other places. The Investigating Officer, Sarnath, Atma Nand Singh, PW 46 stated that in the evening of 27.12.83 he received information from some persons that some articles stained with blood were lying at Panchkoshi Road near Palghambarpur village where the refuse is dumped. PW 46, therefore, rushed there and in the presence of witnesses seizedand a gadda which looked like a quilt by seizure memo Ext./9. At the same time he also learnt that some articles were also lying near a Nursery of the Forest Department at Asapur Road crossing. He, therefore, visited that place also and seized two blood stainedin the presence of witnesses by seizure Memo Ext.5/10. All these articles seized under seizure Memo 5/9 and 5/10 were sent to the Central Forensic Science Laboratory, Delhi which were examined by Dr. G.D. Gupta, PW 53, a Senior Scientist who found human blood on the quilt and its cover. These articles were further sent for examination by Serologist Dr. P.K. Bhatnagar, PW 56 who as per his report Ext. B/4 found that the aforesaid articles contained blood group `B.90. It may be noticed that when Atma Nand Singh, PW 46 Police Officer, Sarnath could not succeed in finding out the identity of the dead body of the child he got his photographs published in police gazette as well as in various newspapers but still nobody came forward to claim the body or to identify the child and, therefore, he made a final report and closed the case but it appears that during the investigation of the murder of Urshia and her children when the CBI Inspector Madan Lal, PW 85 arrested Suresh Bahri on 31.7.84 at Delhi who appears to have made disclosure about his children also and it was thereafter that the Government of India entrusted the Sarnath case also to CBI by another notification dated 14.9.84 on the basis of which R.C. Case No. 5/84 was registered by CBI and the CBI Inspector Rajendra Singh, PW 82 was entrusted with its investigation by him, a large number of witnesses were examined by him who identified the photographs as that of Saurabh.91. Though no trace of the dead body of Richa could be made but in view of the overwhelming circumstantial evidence which we shall discuss hereinafter the same leads to the conclusion that she also met the same fate as that of her brother Saurabh at Dhulli farm in the intervening night of 17/18.12.83 at the hands of the appellants Suresh and Raj Pal Sharma. It has already been discussed that the two children were withdrawn from the Delhi school on the pretext that they would be taken to Ranchi where they would stay with their mother and prosecute their further studies as is clear from the letters of Suresh written to hisbut the two appellants Suresh and Raj Pal took them to Dhulli farm and after a short stay of one and a half day there both the appellants proceeded back to Delhi. No plausible reason is discernible as to what were the compelling reasons for the two appellants that after a long journey from Delhi to Dhulli farm, they thought of to return back to Delhi only after a very short stay at Dhulli and without even visiting his house at Ranchi at a short distance of about 40 kms from Dhulli. But the reason is not far to seek, the purpose being to execute their plan to do away with the children in a lonely and secluded place so that their dastardly and unholy act may not come to light and be not detected or suspected by anyone. After their withdrawal from school from 5.12.83 by the appellant Suresh he took them to his South Extension residence, Delhi and thereafter Suresh left Delhi along with the children on 8.12.83 and reached Dhulli farm in the afternoon of 16.12.83 via Basti, Varanasi and Daltonganj having their halts in the hotels at two places as already discussed earlier. The entries of the said hotels indicated that there were four personsappellants Suresh and Raj Pal and the two children. The two children were accompanying these two appellants is fully established from the entries in Daltonganj hotel which were made and signed by Richa and Saurabh. The said entries are proved by the opinion and evidence of the expert. The return journey of the appellants Suresh and Raj Pal which commenced on 18.12.83 tells a different story that though the two children were shown to be fast asleep in the near seat of the car but thereafter the two children were not found accompanying them either dead or alive on their onward journey as is evident from the entries made in different hotels in different names by these two appellants and entries indicated that only two persons had stayed in those hotels on the return journey and obviously so because the two children were already done to death and their bodies while proceeding to Delhi were thrown in Varuna river, the body of Saurabh having been found floating while that of Richa appears to have been swept away unnoticed to some unknown destination. The articles gadda, quilt and sheets stained with human blood which were also thrown on the way and the Serologist on examination found blood group B on the same the evidence in respect of which has already been discussed in detail earlier.92. There is yet another circumstances which deserves notice. The two children were shown to be fast asleep in the rear seat of the car with their whole body covered except for a part of their legs which is something against the normal conduct of children of that age. The two appellants had resumed their return journey after a short stay at Dhulli at dawn on 18.12.83 when the two children of the age they were, are not expected to sleep but would be excited to enjoy the trip in the company of their father. This leads to a legitimate conclusion that in fact they were not alive but were dead whose throats were cut as noticed by Dr. Bhatnagar who conductedon the dead body of Saurabh. It is also surprising to note that Suresh Bahri and Raj Pal Sharma left Dhulli farm early in the morning of 18.12.83 without any arrangement for the breakfast or tea even for the children while all these facilities were available at Dhulli farm but all this was not necessary because the children were no more alive.93. It may also be pointed out that after the murders of Urshia and thereafter the killings of the two children Suresh Bahri was running about place to place and staying in different hotels to avoid his apprehension. From 9.5.84 to 17.5.84 Suresh was staying in a hotel at Ghaziabad in the name of Mahesh Chand Gupta though Delhi is not even an hours run from Ghaziabad. When his mother withdrew an amount of Rs. 25,000/from the State Bank, Delhi and Travellers cheque worth Rs. 25,000/was taken in the name of his maternal uncle, Y.D. Arya which was encashed at Ghaziabad on 10.5.84 and this circuitous method was adopted to mislead the prosecution and at the same time provide money to Suresh who was wandering from place to place in different hotels and needed money to go to Nepal according to his plan and create false evidence in support of his defence plea which he hadin case he was apprehended by police. Here it may also be pointed out that the appellant Suresh went to Kathmandu (Nepal) and firstly he stayed in Kozy hotel from 8.4.84 to 29.4.84 vide Ext. 4/34 and thereafter from 15.5.84 to 22.5.84 vide Exts. 4.35 and 4/36. It is interesting to note that thereafter Suresh left the hotel Kozy of Kathmandu and lodged himself in a private house obtained on rent only with a view to create false evidence for suddenof his children at Kathmandu according to his plan with which he had gone to Nepal because Suresh thought that his ultimate apprehension would be unavoidable as the Chutia police had submitted awith regard to the murder of Urshia against him in which he was shown absconding accused. In furtherance of his plan to create evidence for his defence the appellant Suresh made a false report Ext. 25/1 to Nepal Police on 10.8.84 that his two children who came to Kathmandu (Nepal) with him were missing while in fact they were already done to death on the nights of 17/18th December, 1983. This report on enquiry was found to be totally unfounded and false as would be clear from the evidence of Basant Kumar Lama, PW 67, a Police Officer of Nepal. There could be no reason to doubt the testimony of Basant Kumar Lama, PW 67 as he is totally a stranger to the appellant Suresh having no axe to grind against him with a view to falsely implicate him. Though Suresh tried to be wiser by making the information with Kathmandu Police about the missing of his children only after shifting in a private house as giving such a false information from the hotel where the number of the guest/passenger is noted, would have exposed him because in fact the children had not gone with him to Kathmandu. But he proved himself only to be a wiser fool in doing so.94. The totality of all the aforementioned circumstances complete the chain which lead to the only irresistible conclusion that the three appellants before us had hatched the conspiracy to commit the murder of the two children also in the same way as their mother Urshia was killed and in prosecution of their said plan they executed it at Dhulli farm.95. Learned counsel appearing for the appellants Gurbachan Singh and Raj Pal Sharma contended that there is no direct and legal evidence against the appellants for their involvement in the alleged conspiracy and that in any case there is no factual evidence against the appellant Gurbachan Singh about his actual participation in the crime and, therefore, the conviction under Sectionof the Penal Code in his case is bad in law and unsustainable.96. In the above context we may refer to the provisions of Sectionof the Indian Penal Code which defines criminal conspiracy. It provides that when two or more persons agree to do, or cause to be done, (1) an illegal act or (2) an act which is not illegal by illegal means, such agreement is designated a criminal conspiracy, provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Thus, a cursory look to the provisions contained in Sectionreveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Sectionread with the proviso to(2) of Sectionof the I.P.C., then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Sectionand the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in Sectionsince from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.Although we have already discussed the facts and circumstances appearing against the appellants Gurbachan Singh and Raj Pal Sharma indicating their direct involvement in the conspiracy of murder of Urshia and her two children yet at the risk of repetition we shall in briefthe same. It is evidently clear from the series of circumstances established by the prosecution and discussed by us in the foregoing paras that the main brain behind the conspiracy who master minded the plan for the killings of the three innocent lives is the appellant Suresh Bahri, the unworthy husband of Urshia and a brute cruel father of the two unfortunate children, who approached the other appellants Gurbachan Singh and Raj Pal Sharma for help in the commission of the said ghastly crime by winning over their favour on account of his friendship and close association with them and as such it appears that they had no hesitation in extending their helping hands by constituting themselves as members of the criminal conspiracy hatched by Suresh Bahri. No doubt there is no direct evidence about the conspiracy and as said earlier it is seldom available. But the trial Court has catalogued a large number of circumstances against the appellants which have also been accepted by the High Court and in our opinion rightly so. The two Courts below have noticed the movements and activities of appellants Gurbachan Singh and Raj Pal Sharma at the instance of appellant Suresh right from the beginning and long before the murder of Urshia, their acts in arranging the preparation of a danda, sharpening of a dagger, preparation of batalies and wooden box, dumping of dead body of Urshia in sceptic tank and taking it out again and dumping it in a hillock at Khadgraha. The appellant Raj Pal arrives at Ranchi in the last week of September, 1983 and stayed in Ranchi house No. 936 of Suresh Bahri till arrival of Suresh and his deceased wife Urshia on 1.10.83 and thereafter his movements at Ranchi itself till she was done to death on 11.10.83 in one of the rooms of the house when appellant Raj Pal Sharma was also seen moving about from one room to another wearing only underwear and having a blood stained dagger in his hand. Raj Pal accompanied suresh while he left Delhi in the Ambassador car along with the two children for Dhulli farm where the party stayed on 16.17.12.83 and left Dhulli farm at dawn on 18.12.83 with the dead bodies of the two children, throwing the dead bodies in Varuna river on their way back to Delhi. All these facts clearly borne out mainly from the statement of PW 1, PW 2, PW 4, PW 6, PW 11, PW 19, PW 29, PW 31 and PW 60 besides other evidence that there was not only an agreement to commit the alleged murders but the appellants in fact committed overt acts also for fulfilment of their object which is eloquently evident from the evidence discussed above. All these facts and circumstances without the least hesitation lead to the only irresistible conclusion that they were active members of the agreement who had hatched a conspiracy to eliminate all the three members of the family of Suresh and thus actually executed their plan.98. The aforementioned facts and circumstances fully establish the offence under Sectionof the Penal Code against the appellants Gurbachan Singh and Raj Pal Sharma also and there is hardly anything deserving interference with the view taken by the two courts below after a detailed and elaborate discussion of the evidence and material on record. We, therefore, confirm the conclusions recorded by the two courts below as well as the convictions of the appellants under Sections 302,and 201 of the Penal Code.99. Shri Sushil Kumar, learned counsel lastly contended that the prosecution kept away for reasons best known to it the disclosure statement running in 22 pages alleged to have been made by the appellant Suresh Bahri on 1.8.84 before Metropolitan Magistrate, Delhi for which not only the adverse inference has to be drawn against the prosecution but it vitiated the whole trial. He submitted that when the appellant Suresh Bahri was arrested on 31.7.84 and on 1.8.84 produced before the Metropolitan Magistrate he had made a statement running in 22 pages as mentioned in the remand order itself dated 1.8.82 and also in his application for grant of bail. That statement has not been produced by the prosecution for reasons best known to it. In our considered opinion there is no force in the argument. If actually appellant Suresh Bahri had made any disclosure statement it was within his special knowledge as to what he had stated in those alleged 22 pages but he did not divulge anything in this connection in his statement recorded under Section 313, Cr.P.C. as to the nature of that statement, when he was questioned whether had to say anything else. Yet learned counsel wants us to draw an adverse inference against the prosecution. Learned counsel did not elaborate as to what adverse inference ought to be drawn and how and in what manner withholding of the alleged statement could vitiate the trial. Not only this but the learned counsel appearing for the accused appellant Suresh at the trial did not put any question even to the Investigating Officer, Chutia Police Station, Raghuvir Singh, PW 59, Rajendra Singh, PW 82 and Madanlal, PW 85, the CBI Inspector or any other prosecution witnesses about the alleged statement. A mere mention in the remand order or bail application does not by itself prove the recording of any statement as alleged without any further evidence and material being placed on record in support of it. In these facts and circumstances it is difficult for us to hold that Suresh Bahri had made any disclosure statement or if it was so made it would result in vitiating the whole trial.100. Lastly all the learned counsel appearing for the three appellants made vigorous efforts to persuade us that the evidence and circumstances of the present case do not justify the extreme penalty of death sentence to the three appellants or any of them as there is no evidence as to the manner in which the three persons were done to death.101. It may be noticed that since about the last two decades there has been throughout the civilized world, a great deal of anguished concern about what sentences be given to those convicted of crimes. It is also felt that crime and punishment have a moral dimension of considerable complexity that must guide sentencing in any enlightened society. The criticism of judicial sentencing has raised its head in various forms that it is inequitable as evidenced by desperate sentences; that it is ineffective; or that it is unfair being either inadequate or in some cases harsh. It has been often expressed that there is a considerable disparity in sentencing an accused found to be guilty for some offence. This sentencing variation is bound to reflect because of the varying degrees of seriousness in the offence and/or varying characteristics of the offender himself. Moreover, since no two offences or offenders can be identical the charge or label of variation as disparity in sentencing necessarily involves a valuebased judgment, i.e., disparity to one person may be a simply justified variation to another. It is only when such a variation takes the form different sentences for similar offenders committing similar offences that it can be said to be desperate sentencing.102. It appears that it was to minimise these considerations indicating the areas of imposition of penalties including the extreme penalty of death that the Legislature introducedand (4) in Section 354 of the Code of Criminal Procedure in the new Code of 1973.(3) contemplated that when conviction is for an offence punishable with death or in the alternative, the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded,and, in the case of sentence of death, the special reasons for such sentence (emphasis supplied). Thus,Having regard to the principles formulated by this Court discussed above, we have given our anxious consideration to the question of sentence to the appellants and have also examined in depth and with great concern the facts and circumstances of the present case and the reasons assigned by the two courts below for awarding the extreme penalty of death to the three appellants before us. At the cost of repetition we may recall that the appellant Suresh had strong motive and entertained some grievances against his wife Urshia because she had made up her mind to dispose of Ranchi house and migrate to America along with her children with the sale proceeds against the wishes of Suresh and, therefore, to put an end to her life, Suresh planned a long drawn plot and hatched a conspiracy with the appellants Gurbachan Singh and Raj Pal Sharma for execution of this plan. Urshia not even having an inkling of the evil designs and hidden unholy intentions of her husband accompanied him from Delhi to Ranchi on 1.10.83 with a view to finalise the deal of house and execute theBut according to theshe was done to death in the intervening night of 10th and 11th October, 1983 and she could not see the light of 11th October, 1983 when sale deed was to be executed. The evidence discussed above shows that her murder was committed in an extremely, brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife Suresh Bahri was further determined to kill his innocent two children at Dhulli farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body threw their dead bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder.105. The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest.106. As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal Sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant. Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton. From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.83 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent.107. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore, commute his sentence of death also into a sentence for life imprisonment and modify the judgments of the two Courts below accordingly.

### 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: was to be executed. The evidence discussed above shows that her murder was committed in an extremely, brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of the society. The victim was subjected to inhuman acts of torture and cruelty while causing her murder as her body was truncated into two parts in a devilish style evincing total depravity simply to gain control over the property. Having been not satisfied with the killing of his wife Suresh Bahri was further determined to kill his innocent two children at Dhulli farm making them believe that they were being taken on a pleasure trip to the farm and then after they were done to death by inflicting severe injuries on neck and other parts of the body threw their dead bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder.105. The cold blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a triffling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his own children for absolutely no fault of theirs. In the facts and circumstances discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule of the rarest of rare cases has to be applied as the present case falls within the category of the rarest of rare cases and for the perpetration of the crime of the nature discussed above there could be no other proper and adequate sentence except the sentence of death as there are no mitigating circumstances whatsoever. Having regard to all the facts and circumstances of the present case as far as Suresh Bahri is concerned there is no cause for any interference in the view taken by the two Courts below in awarding the death sentence to him. We, therefore, affirm the conviction and sentence of death awarded to Suresh by the High Court. In the event of the execution of death sentence, the sentence awarded under Section 201 of the IPC shall remain only of academic interest.106. As far as the question of sentence to the appellants Gurbachan Singh and Raj Pal Sharma is concerned, we may state that there is convincing and conclusive evidence for their involvement and active participation in the criminal conspiracy with Suresh to do away with the three members of his family. But from the evidence on record as discussed by us in the earlier part of this judgment it is clear that Gurbachan Singh had reached the house of Suresh at Ranchi in the fateful evening of 10th October, 1983 when Urshia was already done to death by the appellant. Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing an underwear holding a dagger in his hand and cleaning the blood in the room with cotton. From the evidence it is, therefore, clear that Gurbachan was not a party to the actual murder of Urshia although he was an active member of the party who hatched the conspiracy to kill her. Similarly it is also clear from the evidence that we have discussed in the earlier part of this judgment that though Gurbachan Singh rendered assistance in sending the cot and chairs to Dhulli farm and sharpening the dagger and batalies for the murder of two children but he in fact was not present on 17/18.12.83 at Dhulli farm when the two children were done to death by the appellants Suresh and Raj Pal Sharma. In these facts and circumstances, in our opinion, the appellant Gurbachan Singh does not deserve the extreme penalty of death but the adequate sentence for the part he played would be life sentence. We, therefore, commute his sentence of death into that of life sentence and modify the judgment of the two Courts below accordingly to that extent.107. This brings us to the question of sentence to be awarded to the appellant Raj Pal Sharma. There is no doubt that there is ample evidence for his active participation in the murder of Urshia as well as in the murder of two children but the prosecution evidence is silent about the actual part that he played in the two murders and the manner in which he acted in the said killings. It is difficult to take a definite view that the part he played in said killings was cruel and callous or it was the appellant Suresh alone who took the leading part and did the whole thing by himself while the appellant Raj Pal Sharma assisted him in one or the other manner. In such a situation, in our opinion, it would not be proper to inflict the extreme penalty of death to Raj Pal Sharma also but in the facts and circumstances of the case the sentence of life imprisonment will be just and proper sentence. We, therefore, commute his sentence of death also into a sentence for life imprisonment and modify the judgments of the two Courts below accordingly. ### Response: 0

RATHIN GHOSH Vs. WEST BENGAL STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ORS

debar future employment (7) Dismissal from service which ordinarily debars future employment.? 23. It is relevant to notice that Regulation 62 does not contain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees? Service Regulations, which have been adopted by the Company, no punishment could have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly concluded that the disciplinary authority committed jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees?(Death-CumRetirement Benefit) Regulations, 1985 (hereinafter referred to as ?Regulations, 1985?, which contain provisions as Regulation 11A dealing with withholding of pension. Pension has been defined in Regulation 6(i) as: ?Pension? except when the term pension is used in contradistinction to gratuity, includes gratuity. Regulation 11A which is relevant for the present case is as follows: ?11A : (1) The pension of an officer may be withheld in whole or in part under an order of the Board passed not later than three years after the date of retirement to meet any sum due under the liability incurred by such officer to the Board. (2) Right of the Board to withhold pension in certain cases : The Board reserves to itself the right of withholding or withdrawing the pension or any part of it whether permanently or for specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Board, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after the retirement : Provided that- (a) Such departmental proceeding if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer be deemed to be a proceeding under this Regulation and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. (b) Such departmental proceedings, if not instituted while the officer was in service before his retirement or during his reemployment— (i) Shall not be instituted save with the sanction of the Board; (ii) Shall not be in respect of any event which took place more than four years before such institution and (iii) Shall be conducted by such authority and in such place as the Board may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) No such judicial proceeding, if not instituted while the officer was in service whether before his retirement or during his re-employment shall be instituted in respect of the cause of action which arose or an event which took place more than four years before such institution. [Ref: Office Order No.4232 dtd.23.11.1987] Provided further that the pension of an employee may be released in rarest of the rare cases by the Chairman of the Board even during pendency of the criminal proceedings against the employee where the Chairman of the Board is entirely satisfied that the following conditions are fulfilled:- (i) There is a reasonable possibility of acquittal from all charges leveled against the employee in the pending criminal proceedings. (ii) The conduct of the employee during his tenure in service was otherwise satisfactory in all respects. (iii) The criminal proceeding arises out of due discharge of the official duties by the employee. [Ref: Office Order No.5676 dated 21.01.1999]? 24. There is no doubt that Board has right to withhold pension in certain cases in the circumstances as mentioned in Regulation 11A(2). The pre-condition for withholding pension as enumerated in Regulation 11A(2):- ?…if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service…? 25. The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is contemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service nor was a pensioner, there was no occasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with notice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees? Service Regulations and not any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error. 26. In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order. 27. Now, we come to the question of relief which the appellant may be entitled in the facts of the present case. As noticed above, the appellant has already submitted his resignation on 13.05.2008, which was not accepted by the respondent. As recorded in the order dated 09.10.2018, this Court has proposed that the resignation letter be treated as a voluntary retirement and the appellant be entitled to all benefits accruing to him on retirement as on that date.

1[ds]14. The substance of the charges against the appellant as noted in the impugned judgment dated 20.09.2017 and extracted above were twofold. Insofar as charge of attending the seminar on 17.04.2008 without having any permission from higher authorities, suffice it to say that the casual leave application for 17.04.2008 having been sanctioned by Additional Chief Engineering (Distt. Testing) by order dated 24.04.2008 ex post facto the sting of charge goes away. Further, it is on the record that the appellant had informed his superior, Additional Chief Engineer (Distt. Testing) on 16.04.2008 itself about his programme to attend the presentation at New Delhi. The Additional Chief Engineer (Distt. Testing), Shri Subrata Kumar Das was produced by employer as PW.4 in support of the charges, who in his statement has clearly mentioned about the invitation by the appellant having been placed before him and appellant having intimated in the evening of 16th April, 2008 prior to leaving for New Delhi that he was going to New Delhi for attending the meeting. It is further stated by the witness that the appellant informed him regarding his intention to attend the meeting on 17.04.2008. Following was stated by PW4 in hisCO had shown me the letter (Ex.13) received from IEEMA by himself. Sri Ghosh, CO informed me regarding his intention to attend meeting on 17.04.2008. The CO had intimated me on 16.04.2008 in the evening prior to leaving New Delhi that he was going to New Delhi for attending the said meeting I never restrained or forbidden the CO from going to New Delhi.Thus, the appellant attended the presentation at New Delhi with the prior information to his superior officer and also shown his invitation. The presentation organized by IEEMA was a programme organised by a private organisation on the subject of presentation MIOS (Meter Inter Operative System), which subject was relevant and beneficial to all who were concerned with the subject. The invitation was not any official invitation but was in the personal name of the appellant. The appellant has never been nominated nor has been sent by the Co. for the presentation. Even if it is assumed that appellant was required to obtain prior written permission from the Company to go to attend the meeting, he having informed his superior officer in advance before going to attend the presentation, the charge of any such misconduct is not made out, which may warrant extreme punishment of dismissal.Now, coming to the second charge as noted above i.e. appellant availed the hospitality of M/s. Secure Meters as his air-fare from Calcutta to Delhi on 16.04.2008 and return journey on 17.04.2008 was paid by M/s. Secure Meters when he was officially dealing with M/s. Secure Meters, one of the tenderers. Suffice it to say that M/s. Secure Meters has not made any payment for the air tickets nor is there any material on the record to show that such payment was made. The appellant has made the payment on 28.04.2008 for an amount of Rs.12,350/- against the bill raised by the Travel Agency dated 18.04.2008, money receipt dated 28.04.2008 was filed in the proceedings, which has not been disbelieved, thus, it was the appellant, who made the payment for the journey from Delhi-Calcutta and Calcutta-Delhi. Inquiry Officer was not right in his conclusion that getting ticket booked through the Travel Agent by M/s. Secure Meters is equivalent to borrowing money by the appellant from M/s. Secure Meters. The conclusion of the Inquiry Officer is perverse and not supported by the material on record.It is further relevant to notice that insofar as the appellant?s role in providing for technical specifications for tender and his role in selection of M/s. Secure Meters in acceptance of technical bid or in decision regarding acceptance of tenders, the appellant had no role to play. PW4, the Additional Chief Engineer (Distt. Testing), who was produced on behalf of the employer in support of the charges, himself in his statement has clearly stated about the role of the appellant.The above statement of PW4, who was produced on behalf of the employer, clearly indicates that the appellant was neither a member of the committee nor he was present during the discussion of the core committee, who was authority competent to accept the tenders. Further, insofar as specification regarding Notice No.P-28/2007-08, it was clearly stated that specification was prepared by the Adviser (S&V) and finally decided by the Adviser (S&V) himself, i.e., Additional Chief Engineer (Distt. Testing). The appellant was not involved in any such manner. Furthermore, neither any allegation nor any material regarding appellant having got any kind of benefit from M/s. Secure Meters in any manner was produced. The tender specification by specification notice NO. P-28/2007-08 was ultimately cancelled, hence it is not a case of any benefit obtained from M/s. Secure Meters out of the tenders.There cannot be any dispute to the proposition that disciplinary authority has exclusive power to impose appropriate punishment keeping in view the magnitude and gravity of misconduct. The punishment to be imposed on a delinquent employee has to be proportionate to the charge and in event punishment is disproportionate, the delinquent has to be held to be given discriminatory treatment violating Article 14. The test as has been approved by this Court is that the High Court and this Court can interfere with the punishment imposed by the disciplinary authority when it shocks conscience of the Court. The present is a case where the punishment is so disproportionate to the charge that it clearly shocks the conscience of the Court. The charges which were held to be proved were not any such charges on which punishment of dismissal could have been imposed. Further, when the payment of air ticket which was got prepared by Travel Agent of M/s. Secure Meters was ultimately made by the appellant, which was not disbelieved in the proceedings and no other material or evidence extending any benefit to M/s. Secure Meters were on the record, there was no occasion of awarding extreme punishment.Another aspect, which needs to be noticed is that disciplinary authority while imposing the punishment of dismissal from service has also awarded (a)permanently withhold of pension for life time; (b) forfeiture of his entire gratuity. The proceedings were initiated against the appellant under Regulations 61 and 63 of WBSEB Employees? ServiceIt is relevant to notice that Regulation 62 does not contain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees? Service Regulations, which have been adopted by the Company, no punishment could have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly concluded that the disciplinary authority committed jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees?(Death-CumRetirement Benefit) Regulations, 1985 (hereinafter referred to as ?Regulations, 1985?, which contain provisions as Regulation 11A dealing with withholding of pension.In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order.noticed above, the appellant has already submitted his resignation on 13.05.2008, which was not accepted by the respondent. As recorded in the order dated 09.10.2018, this Court has proposed that the resignation letter be treated as a voluntary retirement and the appellant be entitled to all benefits accruing to him on retirement as on that date.The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is contemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service nor was a pensioner, there was no occasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with notice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees? Service Regulations and not any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error.

### 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: debar future employment (7) Dismissal from service which ordinarily debars future employment.? 23. It is relevant to notice that Regulation 62 does not contain any punishment of permanent withholding of pension for life time or forfeiture of gratuity. In the proceedings drawn against the appellant under West Bengal State Electricity Board Employees? Service Regulations, which have been adopted by the Company, no punishment could have been awarded as permanent withholding of pension for life time or forfeiture of gratuity. Learned Single Judge has dealt with the issue and has rightly concluded that the disciplinary authority committed jurisdictional error in imposing the above punishments. The Division Bench in the impugned judgment has sought to justify the punishment of withholding the pension and forfeiture of gratuity by referring to West Bengal State Electricity Board Employees?(Death-CumRetirement Benefit) Regulations, 1985 (hereinafter referred to as ?Regulations, 1985?, which contain provisions as Regulation 11A dealing with withholding of pension. Pension has been defined in Regulation 6(i) as: ?Pension? except when the term pension is used in contradistinction to gratuity, includes gratuity. Regulation 11A which is relevant for the present case is as follows: ?11A : (1) The pension of an officer may be withheld in whole or in part under an order of the Board passed not later than three years after the date of retirement to meet any sum due under the liability incurred by such officer to the Board. (2) Right of the Board to withhold pension in certain cases : The Board reserves to itself the right of withholding or withdrawing the pension or any part of it whether permanently or for specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Board, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after the retirement : Provided that- (a) Such departmental proceeding if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer be deemed to be a proceeding under this Regulation and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. (b) Such departmental proceedings, if not instituted while the officer was in service before his retirement or during his reemployment— (i) Shall not be instituted save with the sanction of the Board; (ii) Shall not be in respect of any event which took place more than four years before such institution and (iii) Shall be conducted by such authority and in such place as the Board may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) No such judicial proceeding, if not instituted while the officer was in service whether before his retirement or during his re-employment shall be instituted in respect of the cause of action which arose or an event which took place more than four years before such institution. [Ref: Office Order No.4232 dtd.23.11.1987] Provided further that the pension of an employee may be released in rarest of the rare cases by the Chairman of the Board even during pendency of the criminal proceedings against the employee where the Chairman of the Board is entirely satisfied that the following conditions are fulfilled:- (i) There is a reasonable possibility of acquittal from all charges leveled against the employee in the pending criminal proceedings. (ii) The conduct of the employee during his tenure in service was otherwise satisfactory in all respects. (iii) The criminal proceeding arises out of due discharge of the official duties by the employee. [Ref: Office Order No.5676 dated 21.01.1999]? 24. There is no doubt that Board has right to withhold pension in certain cases in the circumstances as mentioned in Regulation 11A(2). The pre-condition for withholding pension as enumerated in Regulation 11A(2):- ?…if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service…? 25. The scheme of the Regulation indicates that the power to withhold the pension has to be exercised when proceedings are drawn under Regulations, 1985. Further, what is contemplated is withholding of pension of pensioner, which power has to be exercised qua a pensioner, the appellant having never retired from service nor was a pensioner, there was no occasion for exercising of power under Regulation 11A of Regulations, 1985. Even for argument, it is assumed if before retirement of a person power under Regulation 11A can be exercised, there has to be separate proceeding under Regulations, 1985 for withholding of pension with notice under Regulations, 1985 for proposed action. Present is a case where disciplinary authority has drawn proceeding against the appellant under the West Bengal State Electricity Board Employees? Service Regulations and not any proceeding is drawn under Regulations, 1985. The imposition of punishment of withholding of pension while in proceeding under WBSEBES Regulations are illegal and without jurisdiction. The order passed by the disciplinary authority, thus, suffered from the above jurisdictional error. 26. In view of the foregoing discussions, we are unable to sustain the judgment of the Division Bench. We upheld the judgment of the learned Single Judge to the extent it has set aside the dismissal order. 27. Now, we come to the question of relief which the appellant may be entitled in the facts of the present case. As noticed above, the appellant has already submitted his resignation on 13.05.2008, which was not accepted by the respondent. As recorded in the order dated 09.10.2018, this Court has proposed that the resignation letter be treated as a voluntary retirement and the appellant be entitled to all benefits accruing to him on retirement as on that date. ### Response: 1

WALCHANDNAGAR INDUSTRIES LTD Vs. THE STATE OF MAHARASHTRA & ANR

for the years 1975--76 and 1976--77. From these balance-sheets and profit & loss accounts, it is sought to be highlighted that the appellant made a profit of Rs.96.07 lakhs during the year 1975--76 and that the profit went down to Rs.40.83 lakhs during the year 1976--77. 73. If this claim of the appellant is taken to be true, it would mean that the appellant suffered a reduction in profit to the tune of about Rs.55,00,000/-in one year immediately after possession of the land was taken. The balance sheets and profit & loss accounts produced by the appellant before us are as on 30.09.1976 and 30.09.1977. Even according to the appellant, the reduction in the profit to the extent of nearly Rs.55,00,000/- was not wholly attributable to the increase in transportation cost. The appellant claimed only a sum of Rs.8,00,718/- per year towards increase in transportation cost. This constitutes only 15% of the total amount of reduction in profits. It is seen from the profit & loss account for the year ended 30.09.1977 that the sales turn over itself had come down from Rs.22.09 crores to Rs.18.17 crores. Even the raw material consumed had come down from 13.47 crores to Rs.9.32 crores. There had also been a substantial down slide in sub- contract and process charges. Therefore, the contention of the appellant that the profits went down, may be a point in an answer to the adverse inference drawn by the High Court with regard to profits. But it cannot be used in support of the appellants case that the increase in the transportation cost accounted at least in part to a reduced margin of profit. 74. The impact of the increase in transportation cost, upon the profit margin of a seller of goods, would depend upon the terms and conditions of the contract. It may also vary from sea transport to rail transport to road transport to air transport. Though in shipping contracts there are standard covenants such as FOB (Free on Board), CIF (Cost, Insurance and Freight) etc., there are no such standard covenants in rail and road contracts. In any case, the trolley line of the appellant covered only a distance of 35 kms upto Bhigwan. Delivery of material had to be effected by the appellant to its customers through some method of transport from Bhigwan. Nothing is on record to show that the goods were always dispatched to all customers through goods carriage railway line of the Indian Railways beyond Bhigwan. In the absence of any evidence to show that the increase in the transportation cost due to the submerging of a part of the trolley line, had always to be absorbed only by the appellant, but could not have been passed on to its customers due to specific terms and conditions of contract, the Reference Court could not have accepted a claim in this regard. 75. Moreover there was a finding of fact in the Award passed on 09.12.1981 which was taken note of by the High Court. The relevant portion of the Award reads as follows: Further as per local enquiry it is told that the Trolley line was constructed years back mainly for bringing heavy machinery at Walchandnagar. After this purpose was served, they were using it for movement of goods for some time. The process of moving the goods on the Trolley line became uneconomical. So they resorted to road and truck traffic which was quick and possibly economical. Thus the whole Trolley line was in disuse being uneconomical on the relevant date i.e. 27-9-72. In these circumstances the claim for severance and injurious affection has been rejected. 76. Therefore, the decision of the High Court with regard to the claim for compensation towards increase in transportation cost appears to be reasonable and hence cannot be interfered with. CONCLUSION 77. The upshot of the above discussion is that the refusal of the High Court to award any compensation for the injurious affection to one set of movable property, namely, rolling stock cannot be found fault with, for the reasons stated above. Similarly, the refusal of the High Court to award any compensation for increase in transportation cost, falling under the category of injurious affection to earnings cannot also be faulted, for the reasons indicated separately. However, the refusal of the High Court to grant compensation for the injurious affection sustained by the appellant to one set of movable property, namely, rails and sleepers forming the trolley line for a distance of 28 kms., is clearly unsustainable especially when the grant of compensation for the injurious affection to rails and sleepers to a stretch of 7 kms. submerged in the backwaters, has been sustained by the High Court. In fact, the State has not come up on appeal against the grant of compensation for the injurious affection to the trolley line to a distance of 7 kms which got submerged in back waters. That the remaining portion of the trolley line to a distance of 28 kms has been rendered useless after the acquisition, is not in dispute. 78. A question may arise as to whether the reasoning given by us for rejecting the claim for loss of earnings in the form of increase in transportation costs, will not apply ipso facto to the claim for compensation for the rails and sleepers also, since the appellant had switched over to road transport in the year 1972 itself. But our answer would be that clause fourthly of Section 23(1), uses a significant phrase viz., injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. Therefore, injurious affection to property, in any other manner, may stand on a different footing from injurious affection to earnings. While there is no evidence on record to connect the drop in the level of profits from 1975--76 to 1976--77, with the increase in transportation costs, there is acceptable evidence to show that movable property became useless after the acquisition. Therefore, both stand on different footings.

1[ds]31. In simple terms, the six items covered by Section 23(1), which are to be taken into consideration by the court in determining compensation, can be summarised as follows:-(i) The market value of the land on the date of publication of notification under Section 4(1);(ii) The damage to standing crops or trees, which are on the land at the time of the Collector taking possession;(iii) The damage sustained by reason of severing such land from the unacquired land;(iv) The damage sustained by reason of the acquisition injuriously affecting the other property, movable or immovable, in any other manner or the earnings, of the person interested;(v) The reasonable expenses incurred by the person interested, in changing his residence or place of business, when he is compelled to do so in consequence of the acquisition;(vi) The damage bona fide resulting from diminution of the profits of the land between the time of publication of the declaration under Section 6 and the time of the Collectors taking possession.32. The points arising for determination in these appeals revolve around clauses thirdly and fourthly of Section 23(1). These clauses are referred to in common parlance as clauses concerning severance and injurious affection respectively.34. It may be noted that clause thirdly of Section 23(1) relates only to land, as it speaks only about the severance of the acquired land from the unacquired land and the damage sustained as a consequence. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by the person interested, due to the injurious affection, (i) of his other movable property; (ii) of his other immovable property; and (iii) of his earnings. In other words what is injuriously affected at the time of Collectors taking possession of the land, may either be the unacquired portion of the immovable property or other movable property or even the earnings of the person interested.39. The distinction between the scope of sub-section (1) and the scope of sub-section (2) of Section 49 was brought out by this Court in M/s Harsook Das Bal Kishan Das vs. The First Land Acquisition Collector and Others (1975) 2 SCC 256 as follows:-12. The object of Section 49(1) of the Act is to give to the owner the option whether he would like part to be acquired. The Government cannot take the other part under Section 49(1) of the Act unless the owner says so. Section 49(2) of the Act has nothing to do with Section 49(1) of the Act. Section 49(2) of the Act gives the option to the Government only where the claim under the third clause of Section 23(1) of the Act is excessive. Reference to the third clause of Section 23(1) of the Act makes it clear that the claim under the third clause of Section 23(1) is for severance. The Government in such a case of acquisition of the remaining portion of the land under Section 49(2) of the Act saves the public exchequer money which otherwise will be the subject-matter of a claim for severance.40. In the case on hand, the provisions of Section 49(1) have no application. This is due to the fact that the appellant never desired that the whole of the manufactory shall be acquired by the Government. In fact, the total extent of land owned by the appellant was about 16000 acres, on which a township had come up. Therefore, there was no occasion for the appellant to exercise any option invoking Section 49(1). In any case, the appellant actually requested the Government to acquire land from other people, to divert the trolley line. Therefore, Section 49(1) has no application to the case on hand.41. Section 49(2) also may not have any application for the reason that the appropriate Government did not think fit to seek acquisition of the whole of the land on which the remaining portion of the trolley line existed, on the ground that the claim for severance compensation was un-reasonable or excessive. Therefore, it is enough for us to go back to clauses thirdly and fourthly of Section 23(1) without the constraints of sub-section (1) or (2) of Section 49.42. As we have indicated earlier, clause thirdly relates to the damage sustained by the person interested, by reason of severance of the acquired land from the unacquired land, at the time of Collectors taking possession of the land. In contrast, clause fourthly of Section 23(1) deals with the damage sustained by reason of the acquisition injuriously affecting, (i) the other movable property; (ii) the other immovable property; and/or (iii) the earnings of the person interested.44. The second category of claim indicated in paragraph 22 of the award of the Reference Court, extracted above, contains a mix of claims that may fall under clauses thirdly, fourthly and sixthly of section 23(1). But fortunately the rejection of some of those claims are not taken up now by the appellant. In the appeals on hand, the claim is restricted only to three items namely, (i) the value of rails and sleepers; (ii) the value of rolling stock; and (iii) increase in transportation costs. These items are covered only by clause fourthly of Section 23(1) and they do not fall under clause thirdly.45. Even within clause fourthly, what we are concerned in these appeals is the injurious affection of, (i) movable property such as rails and sleepers and rolling stock; and (ii) the loss of earnings due to increase in transportation costs. But unfortunately what the appellant did was to claim a sum of Rs.80,07,180/- towards in- crease in transportation costs and a separate amount of Rs.35,62,000/- towards loss of earnings. Even under the heading loss of earnings, what was claimed was actually loss of profits. The appellant did not realize that the diminution of profits fell un- der clause sixthly of Section 23(1) and the claim under this head is restricted to the time between the date of publication of the decla- ration under Section 6 and the time of Collector taking possession. Injurious affection to earnings is covered by clause fourthly and the statute has made a distinction between, (i) injurious affec- tion to earnings; and (ii) diminution of the profits between the time of publication of the declaration under Section 6 and the time of taking possession.46. The Reference Court rejected the claim for compensation of Rs.35,62,000/- towards loss of earnings, on the ground that it overlapped with the claim under the heading increase in trans- portation costs. It is perhaps after realizing such overlapping of claim that the appellant has confined their claim in the present ap- peals only to injurious affection, (i) to rails and sleepers; (ii) to rolling stock; and (iii) to earnings due to increase in transportation costs, all of which fall under clause fourthly of Section 23(1).47. One of the earliest cases to be decided on the question of inju- rious affection, was a Division Bench decision of the Calcutta High Court in R.H. Wernickle and Ors. vs. The Secretary of the State for India (2 Ind.Cas 562). The said case arose out of the acquisition of land which included a tea estate. The purpose of the acquisition was the extension of the rifle range of the Cantonment in the Vil- lages of Lebong and Pandan at Darjeeling. A claim for injurious af- fection was made by the owners of the tea estate on the ground that they were forced to stop work in the unacquired portion of the tea estate, during the time when firing was practiced in the rifle range. Dealing with the claim, Doss, J. opined, There can be no doubt that it is extremely unsafe to work on land situate behind the butts when firing is going on, and the consequent loss of time must inevitably increase the cost of cultivation. Therefore, Doss, J., held that the owners of the tea estate were entitled to compensation for the injurious affection of the 8 acres of tea land behind the butts. Expressing concurrence with the view of Doss, J., Richardson, J. observed:It is said that the rifle range will interfere with the work- ing of 8 acres of land behind the butts and I think that there can be no doubt as to this. It will not be safe to put coolies on the land when the range is being used. An argument was advanced by the Government that the contemplated injury was contingent and that it could arise only from the negligent use of the range and that the same would fall under the category of actionable nuisance. Reject- ing the said argument, Richardson, J., opined: But it is not clear that the injury which the claimants contemplate will amount to an actionable nuisance. The Government will have the right to use the land as a rifle range and no doubt it may be presumed that it will be so used with the greatest care and circumspection. But even so, no prudent owner would put his coolies on the land behind the butts while firing was going on.48. In Balammal vs. State of Madras AIR 1968 SC 1425 , this Court was concerned with a land acquisition under the provisions of the Madras City Improvement Trust Act, Section 71 of which authorized the Board of Trustees to acquire land under the provisions of The Land Acquisition Act, 1894 with the previous sanction of the Government. When the dispute relating to determination of compensation ultimately landed up before this Court, the argument of one of the land owners was that a part of the compound of a cinema theatre was acquired compulsorily and that it deprived the owner of the land, of the facility of providing additional amenities to the patrons of the theatre and also of making constructions on the land expanding the business. The claim was pitched in the alternative on clauses thirdly, fourthly and sixthly of Section 23(1). While agreeing on principle about the entitlement of a person interested to compensation under these clauses, this Court rejected the claim in that case, on the ground that there was no evidence either to show any loss by reason of severance or to show that the remaining land was injuriously affected by reason of acquisition or to show that the earnings of the owners were affected.56. But as rightly contended by Shri Gopal Sankaranarayanan, learned senior counsel for the appellant, the acquisition of land for laying alternative trolley line was not an easy task, especially when there were lot of land owners. The urgency clause under Section 17 of the Land Acquisition Act could not have been invoked, as the appellant is a company.57. The fundamental flaw in the reasoning of the High Court is that the High Court presumed that it was enough if the land for relocating 7 kms. of trolley line was acquired. If trolley line to a distance of 7 kms., out of a total stretch of 35 kms. admittedly got submerged in the backwaters, the trolley line relating to the entire stretch would naturally become redundant. Railway line is not like a roadway. Roads can take deviation easily, but not railway lines. Therefore, if land had to be acquired for relocating the trolley line, it should have been for the entire stretch of 35 kms. It is not possible to retain 28 kms. of trolley line and relocate the remaining 7 kms. stretch alone. Therefore, we are of the considered view that the High Court committed a gross error in reversing the finding of the Reference Court under this heading.64. Though it is contended on behalf of the appellant that the evidence of PW--13 (Shri Kamat) was misread by the High Court and that due to good maintenance, the life of the rolling stock had increased, we do not think that the view taken by the High Court was completely out of sync with the evidence on record. The High Court has actually extracted one portion of the evidence of Shri Kamat (PW--13). He has clearly admitted that though he inspected the Assets Register in 1986 before preparing the report he did not record in his report, the book value of the asset. He clearly stated it is possible that in book value, the assets might become zero value in the instant case.65. Therefore, no exception can be taken to the finding recorded by the High Court insofar as rolling stock is concerned.71. Insofar as the first objection is concerned, we must point out at the outset that the Notification for acquisition under Section 4 was published in the Government Gazette on 26.10.1972. The declaration under Section 6 was published in the Government Gazette on 01.08.1974. Notices under Sections 9(1) and 9(2) were published in September--1974 and Feburary-1975. Though the exact date on which possession was taken is not mentioned by either of the parties, the appellant has stated in their synopsis that the Government took possession of the land in 1976.72. The appellant has produced before us the copy of the balance- sheets and profit & loss account for the years 1975--76 and 1976--77. From these balance-sheets and profit & loss accounts, it is sought to be highlighted that the appellant made a profit of Rs.96.07 lakhs during the year 1975--76 and that the profit went down to Rs.40.83 lakhs during the year 1976--77.73. If this claim of the appellant is taken to be true, it would mean that the appellant suffered a reduction in profit to the tune of about Rs.55,00,000/-in one year immediately after possession of the land was taken. The balance sheets and profit & loss accounts produced by the appellant before us are as on 30.09.1976 and 30.09.1977. Even according to the appellant, the reduction in the profit to the extent of nearly Rs.55,00,000/- was not wholly attributable to the increase in transportation cost. The appellant claimed only a sum of Rs.8,00,718/- per year towards increase in transportation cost. This constitutes only 15% of the total amount of reduction in profits. It is seen from the profit & loss account for the year ended 30.09.1977 that the sales turn over itself had come down from Rs.22.09 crores to Rs.18.17 crores. Even the raw material consumed had come down from 13.47 crores to Rs.9.32 crores. There had also been a substantial down slide in sub- contract and process charges. Therefore, the contention of the appellant that the profits went down, may be a point in an answer to the adverse inference drawn by the High Court with regard to profits. But it cannot be used in support of the appellants case that the increase in the transportation cost accounted at least in part to a reduced margin of profit.74. The impact of the increase in transportation cost, upon the profit margin of a seller of goods, would depend upon the terms and conditions of the contract. It may also vary from sea transport to rail transport to road transport to air transport. Though in shipping contracts there are standard covenants such as FOB (Free on Board), CIF (Cost, Insurance and Freight) etc., there are no such standard covenants in rail and road contracts. In any case, the trolley line of the appellant covered only a distance of 35 kms upto Bhigwan. Delivery of material had to be effected by the appellant to its customers through some method of transport from Bhigwan. Nothing is on record to show that the goods were always dispatched to all customers through goods carriage railway line of the Indian Railways beyond Bhigwan. In the absence of any evidence to show that the increase in the transportation cost due to the submerging of a part of the trolley line, had always to be absorbed only by the appellant, but could not have been passed on to its customers due to specific terms and conditions of contract, the Reference Court could not have accepted a claim in this regard.75. Moreover there was a finding of fact in the Award passed on 09.12.1981 which was taken note of by the High Court. The relevant portion of the Award reads as follows:Further as per local enquiry it is told that the Trolley line was constructed years back mainly for bringing heavy machinery at Walchandnagar. After this purpose was served, they were using it for movement of goods for some time. The process of moving the goods on the Trolley line became uneconomical. So they resorted to road and truck traffic which was quick and possibly economical. Thus the whole Trolley line was in disuse being uneconomical on the relevant date i.e. 27-9-72. In these circumstances the claim for severance and injurious affection has been rejected.76. Therefore, the decision of the High Court with regard to the claim for compensation towards increase in transportation cost appears to be reasonable and hence cannot be interfered with.77. The upshot of the above discussion is that the refusal of the High Court to award any compensation for the injurious affection to one set of movable property, namely, rolling stock cannot be found fault with, for the reasons stated above. Similarly, the refusal of the High Court to award any compensation for increase in transportation cost, falling under the category of injurious affection to earnings cannot also be faulted, for the reasons indicated separately. However, the refusal of the High Court to grant compensation for the injurious affection sustained by the appellant to one set of movable property, namely, rails and sleepers forming the trolley line for a distance of 28 kms., is clearly unsustainable especially when the grant of compensation for the injurious affection to rails and sleepers to a stretch of 7 kms. submerged in the backwaters, has been sustained by the High Court. In fact, the State has not come up on appeal against the grant of compensation for the injurious affection to the trolley line to a distance of 7 kms which got submerged in back waters. That the remaining portion of the trolley line to a distance of 28 kms has been rendered useless after the acquisition, is not in dispute.78. A question may arise as to whether the reasoning given by us for rejecting the claim for loss of earnings in the form of increase in transportation costs, will not apply ipso facto to the claim for compensation for the rails and sleepers also, since the appellant had switched over to road transport in the year 1972 itself. But our answer would be that clause fourthly of Section 23(1), uses a significant phrase viz., injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. Therefore, injurious affection to property, in any other manner, may stand on a different footing from injurious affection to earnings. While there is no evidence on record to connect the drop in the level of profits from 1975--76 to 1976--77, with the increase in transportation costs, there is acceptable evidence to show that movable property became useless after the acquisition. Therefore, both stand on different footings.

### 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: for the years 1975--76 and 1976--77. From these balance-sheets and profit & loss accounts, it is sought to be highlighted that the appellant made a profit of Rs.96.07 lakhs during the year 1975--76 and that the profit went down to Rs.40.83 lakhs during the year 1976--77. 73. If this claim of the appellant is taken to be true, it would mean that the appellant suffered a reduction in profit to the tune of about Rs.55,00,000/-in one year immediately after possession of the land was taken. The balance sheets and profit & loss accounts produced by the appellant before us are as on 30.09.1976 and 30.09.1977. Even according to the appellant, the reduction in the profit to the extent of nearly Rs.55,00,000/- was not wholly attributable to the increase in transportation cost. The appellant claimed only a sum of Rs.8,00,718/- per year towards increase in transportation cost. This constitutes only 15% of the total amount of reduction in profits. It is seen from the profit & loss account for the year ended 30.09.1977 that the sales turn over itself had come down from Rs.22.09 crores to Rs.18.17 crores. Even the raw material consumed had come down from 13.47 crores to Rs.9.32 crores. There had also been a substantial down slide in sub- contract and process charges. Therefore, the contention of the appellant that the profits went down, may be a point in an answer to the adverse inference drawn by the High Court with regard to profits. But it cannot be used in support of the appellants case that the increase in the transportation cost accounted at least in part to a reduced margin of profit. 74. The impact of the increase in transportation cost, upon the profit margin of a seller of goods, would depend upon the terms and conditions of the contract. It may also vary from sea transport to rail transport to road transport to air transport. Though in shipping contracts there are standard covenants such as FOB (Free on Board), CIF (Cost, Insurance and Freight) etc., there are no such standard covenants in rail and road contracts. In any case, the trolley line of the appellant covered only a distance of 35 kms upto Bhigwan. Delivery of material had to be effected by the appellant to its customers through some method of transport from Bhigwan. Nothing is on record to show that the goods were always dispatched to all customers through goods carriage railway line of the Indian Railways beyond Bhigwan. In the absence of any evidence to show that the increase in the transportation cost due to the submerging of a part of the trolley line, had always to be absorbed only by the appellant, but could not have been passed on to its customers due to specific terms and conditions of contract, the Reference Court could not have accepted a claim in this regard. 75. Moreover there was a finding of fact in the Award passed on 09.12.1981 which was taken note of by the High Court. The relevant portion of the Award reads as follows: Further as per local enquiry it is told that the Trolley line was constructed years back mainly for bringing heavy machinery at Walchandnagar. After this purpose was served, they were using it for movement of goods for some time. The process of moving the goods on the Trolley line became uneconomical. So they resorted to road and truck traffic which was quick and possibly economical. Thus the whole Trolley line was in disuse being uneconomical on the relevant date i.e. 27-9-72. In these circumstances the claim for severance and injurious affection has been rejected. 76. Therefore, the decision of the High Court with regard to the claim for compensation towards increase in transportation cost appears to be reasonable and hence cannot be interfered with. CONCLUSION 77. The upshot of the above discussion is that the refusal of the High Court to award any compensation for the injurious affection to one set of movable property, namely, rolling stock cannot be found fault with, for the reasons stated above. Similarly, the refusal of the High Court to award any compensation for increase in transportation cost, falling under the category of injurious affection to earnings cannot also be faulted, for the reasons indicated separately. However, the refusal of the High Court to grant compensation for the injurious affection sustained by the appellant to one set of movable property, namely, rails and sleepers forming the trolley line for a distance of 28 kms., is clearly unsustainable especially when the grant of compensation for the injurious affection to rails and sleepers to a stretch of 7 kms. submerged in the backwaters, has been sustained by the High Court. In fact, the State has not come up on appeal against the grant of compensation for the injurious affection to the trolley line to a distance of 7 kms which got submerged in back waters. That the remaining portion of the trolley line to a distance of 28 kms has been rendered useless after the acquisition, is not in dispute. 78. A question may arise as to whether the reasoning given by us for rejecting the claim for loss of earnings in the form of increase in transportation costs, will not apply ipso facto to the claim for compensation for the rails and sleepers also, since the appellant had switched over to road transport in the year 1972 itself. But our answer would be that clause fourthly of Section 23(1), uses a significant phrase viz., injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. Therefore, injurious affection to property, in any other manner, may stand on a different footing from injurious affection to earnings. While there is no evidence on record to connect the drop in the level of profits from 1975--76 to 1976--77, with the increase in transportation costs, there is acceptable evidence to show that movable property became useless after the acquisition. Therefore, both stand on different footings. ### Response: 1

Indore Malwa United Mills Ltd., Indore Vs. State Of Madhya Bharat And Others

Tax Rules and the corresponding provisions of the Indian Income-tax Act. It is said that the Indore Industrial Tax Rules are only concerned with the cotton mill industry and the tax payable thereunder is in respect of the said industry, while under the Income-tax the tax is payable in respect of the income of the business of the assessee. But a perusal of the proceedings during all the stages does not disclose that any such argument was advanced at any time. Assuming that the contention was correct, if it had been raised before, the assessee might have been in a position to establish by relevant evidence that the particular amount borrowed by the Managing Agents was from and out of the mounts borrowed for the purpose of the said industry. We cannot allow a question which at its best is a mixed question of fact and law to be raised for the first time before us. We do not propose to express our opinion on the same one way or other. We shall proceed with the appeal on the basis that for the purpose of the deducting trading losses in computing trading profits there is no difference between the Incometax Act and the relevant Indore Industrial Tax Rules.6. The only question, therefore, is whether the loss claimed in the present case was a trading loss which is deductible in computing the profits of the company. The relevant principle of law has been laid down by this Court in Badridas Daga v. Commissioner of Income-tax, 1959 SCR 690 at p. 695: (AIR 1958 SC 783 at p. 786). There, after considering the relevant decisions on the subject, this Court laid down the following test:"The result is that when a claim is made for a deduction for which there is no specific provision in S. 10 (2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act."Where in agent employed by the appellant for the purpose of carrying on his business in exercise of the powers conferred on him operated on the bank accounts, withdrew moneys from it and use them for discharging his personal debts, this Court in the said decision found no difficulty in holding that the amount misappropriated and found irrecoverable was an allowable deduction under the Income-tax Act. The only difference between that case and the present one is that the Agent misappropriated the amount in that case, whereas in the present case the Managing Agents in exercise of the power conferred by the appellant borrowed the moneys but failed to return the same. If embezzlement of moneys entrusted to an agent is incidental to a business, by the same taken moneys legally utilized by the agent must more appropriately be incidental to the business. In a recent decision in Commissioner of Income-tax, U. P. v. Nainital Bank Ltd. Civil Appeal No. 938 of 1963, dated 25-9-1964: (AIR 1985 SC 1227), this Court held that an amount lost to the bank by dacoity was a loss incidental to the business of banking. There, in the course of the business large amounts were kept in the bank premises, and this Court held that the risk of loss by dacoity was incidental to a banking business. If that be so, the fact that the Managing Agents brought into the companys till larger amounts than the company business demanded at a particular point of time would not make the borrowings or the lending of money to themselves any the less incidental to the sanctioned business operations.7. The question is not whether the Managing Agents committed a fraud on the company, but whether the amounts borrowed were the funds of the company. If the creditors had filed a suit against the company, could it have resisted the suit on the ground that the Managing Agents had no power to borrow the amounts for the reason that at the time they borrowed, the amounts were in excess of the requirements of the business ? Decidedly not. There would not have been any defence to such a suit. After the borrowing the money became the companys money. That apart there was no question of fraud in this case, for the profit and loss account and the balance-sheet placed before the General Body Meeting of the Company every year brought to its notice the total amount the company borrowed through the Managing Agents and the General Body approved of it. The only fraud, if any, consisted in the practice followed by the Managing Agents in bringing into the accounts of the company entire amount lent to them in order to satisfy the share-holders that nothing was going wrong.8. The next step is the borrowing of money by the Managing Agents from the company. Under the memorandum of association as well as under the express power conferred by the said resolution, the company, through the Managing Agents, could invest its funds by way of loans. If there was no mishap the Managing Agent, would have paid the entire amount and if they did not the company could have recovered the entire amount from them. The result, therefore, was that both the borrowing by the Managing Agents on behalf of the company from third parties and the lending to themselves created legal obligations. They were obligations created in the course of the business. The money lent would be a debit item in the accounts of the company in accordance with the accepted commercial practice and if the amount was realized it would be a credit item. Both would be proper items of accounts for ascertaining the profit and loss of the company. If the debt became irrecoverable, it would be a bad debt.

1[ds]There would not have been any defence to such a suit. After the borrowing the money became the companys money. That apart there was no question of fraud in this case, for the profit and loss account and the balance-sheet placed before the General Body Meeting of the Company every year brought to its notice the total amount the company borrowed through the Managing Agents and the General Body approved of it. The only fraud, if any, consisted in the practice followed by the Managing Agents in bringing into the accounts of the company entire amount lent to them in order to satisfy the share-holders that nothing was going wrong.8. The next step is the borrowing of money by the Managing Agents from the company. Under the memorandum of association as well as under the express power conferred by the said resolution, the company, through the Managing Agents, could invest its funds by way of loans. If there was no mishap the Managing Agent, would have paid the entire amount and if they did not the company could have recovered the entire amount from them. The result, therefore, was that both the borrowing by the Managing Agents on behalf of the company from third parties and the lending to themselves created legal obligations. They were obligations created in the course of the business. The money lent would be a debit item in the accounts of the company in accordance with the accepted commercial practice and if the amount was realized it would be a credit item. Both would be proper items of accounts for ascertaining the profit and loss of the company. If the debt became irrecoverable, it would be a bada perusal of the proceedings during all the stages does not disclose that any such argument was advanced at any time. Assuming that the contention was correct, if it had been raised before, the assessee might have been in a position to establish by relevant evidence that the particular amount borrowed by the Managing Agents was from and out of the mounts borrowed for the purpose of the said industry. We cannot allow a question which at its best is a mixed question of fact and law to be raised for the first time before us. We do not propose to express our opinion on the same one way or other. We shall proceed with the appeal on the basis that for the purpose of the deducting trading losses in computing trading profits there is no difference between the Incometax Act and the relevant Indore Industrial Taxin agent employed by the appellant for the purpose of carrying on his business in exercise of the powers conferred on him operated on the bank accounts, withdrew moneys from it and use them for discharging his personal debts, this Court in the said decision found no difficulty in holding that the amount misappropriated and found irrecoverable was an allowable deduction under theAct. The only difference between that case and the present one is that the Agent misappropriated the amount in that case, whereas in the present case the Managing Agents in exercise of the power conferred by the appellant borrowed the moneys but failed to return the same. If embezzlement of moneys entrusted to an agent is incidental to a business, by the same taken moneys legally utilized by the agent must more appropriately be incidental to the business. In a recent decision in Commissioner ofU. P. v. Nainital Bank Ltd. Civil Appeal No. 938 of 1963, dated(AIR 1985 SC 1227), this Court held that an amount lost to the bank by dacoity was a loss incidental to the business of banking. There, in the course of the business large amounts were kept in the bank premises, and this Court held that the risk of loss by dacoity was incidental to a banking business. If that be so, the fact that the Managing Agents brought into the companys till larger amounts than the company business demanded at a particular point of time would not make the borrowings or the lending of money to themselves any the less incidental to the sanctioned business operations.

### 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: Tax Rules and the corresponding provisions of the Indian Income-tax Act. It is said that the Indore Industrial Tax Rules are only concerned with the cotton mill industry and the tax payable thereunder is in respect of the said industry, while under the Income-tax the tax is payable in respect of the income of the business of the assessee. But a perusal of the proceedings during all the stages does not disclose that any such argument was advanced at any time. Assuming that the contention was correct, if it had been raised before, the assessee might have been in a position to establish by relevant evidence that the particular amount borrowed by the Managing Agents was from and out of the mounts borrowed for the purpose of the said industry. We cannot allow a question which at its best is a mixed question of fact and law to be raised for the first time before us. We do not propose to express our opinion on the same one way or other. We shall proceed with the appeal on the basis that for the purpose of the deducting trading losses in computing trading profits there is no difference between the Incometax Act and the relevant Indore Industrial Tax Rules.6. The only question, therefore, is whether the loss claimed in the present case was a trading loss which is deductible in computing the profits of the company. The relevant principle of law has been laid down by this Court in Badridas Daga v. Commissioner of Income-tax, 1959 SCR 690 at p. 695: (AIR 1958 SC 783 at p. 786). There, after considering the relevant decisions on the subject, this Court laid down the following test:"The result is that when a claim is made for a deduction for which there is no specific provision in S. 10 (2), whether it is admissible or not will depend on whether, having regard to accepted commercial practice and trading principles, it can be said to arise out of the carrying on of the business and to be incidental to it. If that is established, then the deduction must be allowed, provided of course there is no prohibition against it, express or implied, in the Act."Where in agent employed by the appellant for the purpose of carrying on his business in exercise of the powers conferred on him operated on the bank accounts, withdrew moneys from it and use them for discharging his personal debts, this Court in the said decision found no difficulty in holding that the amount misappropriated and found irrecoverable was an allowable deduction under the Income-tax Act. The only difference between that case and the present one is that the Agent misappropriated the amount in that case, whereas in the present case the Managing Agents in exercise of the power conferred by the appellant borrowed the moneys but failed to return the same. If embezzlement of moneys entrusted to an agent is incidental to a business, by the same taken moneys legally utilized by the agent must more appropriately be incidental to the business. In a recent decision in Commissioner of Income-tax, U. P. v. Nainital Bank Ltd. Civil Appeal No. 938 of 1963, dated 25-9-1964: (AIR 1985 SC 1227), this Court held that an amount lost to the bank by dacoity was a loss incidental to the business of banking. There, in the course of the business large amounts were kept in the bank premises, and this Court held that the risk of loss by dacoity was incidental to a banking business. If that be so, the fact that the Managing Agents brought into the companys till larger amounts than the company business demanded at a particular point of time would not make the borrowings or the lending of money to themselves any the less incidental to the sanctioned business operations.7. The question is not whether the Managing Agents committed a fraud on the company, but whether the amounts borrowed were the funds of the company. If the creditors had filed a suit against the company, could it have resisted the suit on the ground that the Managing Agents had no power to borrow the amounts for the reason that at the time they borrowed, the amounts were in excess of the requirements of the business ? Decidedly not. There would not have been any defence to such a suit. After the borrowing the money became the companys money. That apart there was no question of fraud in this case, for the profit and loss account and the balance-sheet placed before the General Body Meeting of the Company every year brought to its notice the total amount the company borrowed through the Managing Agents and the General Body approved of it. The only fraud, if any, consisted in the practice followed by the Managing Agents in bringing into the accounts of the company entire amount lent to them in order to satisfy the share-holders that nothing was going wrong.8. The next step is the borrowing of money by the Managing Agents from the company. Under the memorandum of association as well as under the express power conferred by the said resolution, the company, through the Managing Agents, could invest its funds by way of loans. If there was no mishap the Managing Agent, would have paid the entire amount and if they did not the company could have recovered the entire amount from them. The result, therefore, was that both the borrowing by the Managing Agents on behalf of the company from third parties and the lending to themselves created legal obligations. They were obligations created in the course of the business. The money lent would be a debit item in the accounts of the company in accordance with the accepted commercial practice and if the amount was realized it would be a credit item. Both would be proper items of accounts for ascertaining the profit and loss of the company. If the debt became irrecoverable, it would be a bad debt. ### Response: 1

Krishan Kumar Vs. Union of India & Another

land in the same village for ` 2,65,651/-. These sale deeds were clear indicators, reflecting that MGF sale deed (Exhibit PW-1/2) showed inflated figure therein. 24. We find that the aforesaid finding of the High Court, on a proper appreciation of the evidence on record, is absolutely valid thereby rejecting the credit worthiness of Exhibit PW-1/2 for the purposes of ascertaining the market value of the land. In view thereof, judgments relied upon by the Appellants counsel on this aspect have no application in the instant cases. 25. It has come on record that apart from the aforesaid sale deed, the counsel for the parties had not produced any other sale deeds either of the year 1998 or of the year 2003. Some sale deeds post 2003 were produced in evidence but the parties rightly chose not to refer to them, a fact specifically noted by the High Court. This would show that there is no sale deed of the area in question which could provide an exemplar for fixing the market value of the land. We are, thus, left with the Government Notifications issuing circular rate of the lands in question. There is a Notification dated 1st April, 1998 as per which the value of the land is fixed at ` 11,20,000/- per acre for category A. Then, there is Notification dated 09.08.2001 fixing circular rate at ` 15,70,000/- per acre. 26. We would like to point out at this stage the argument of Mr. Shishodia, learned senior counsel who appeared in some of these appeals, to the effect that in the absence of any evidence of exemplar depicting sale value, the Court is required to do guesswork. In support of this proposition, he placed reliance upon the decision of this Court in the cases of Trishala Jain and Anr. v. State of Uttaranchal and Anr. (2011) 6 SCC 47 as well as K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Anr. (1996) 2 SCC 62. In the present case, as the only sale deed on which reliance was placed (Exhibit PW-1/2) stands rejected, there is no other exemplar in the form of sale deed. The learned Counsel wants us to guesstimate the market value. In Trishala Jain (supra), the Court laid down the circumstances when application of guesstimate principle is to be applied. This can be found in para 65 of the said judgment which reads as under: "65. It will be appropriate for us to state certain principles controlling the application of "guesstimate".(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted to.(b) Discretion of the court in applying guesswork to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the data on record produced by the parties by way of evidence. Further, this entire exercise has to be within the limitations specified Under Sections 23 and 24 of the act and cannot be made in detriment thereto." 27. Keeping in view the aforesaid principles, and having peculiarity of the present appeals where there is total absence of exemplars, we are of the opinion that some increase, but only marginal one, can be ordered over and above the circular rates fixed by the Government Orders. In the case of Land Acquisition Officer v. Karigowda (2010) 5 SCC 708 , following pertinent observations were made by this Court: "90...The Court is entitled to apply some [amount] of reasonable guesswork to balance the equities and fix a just and fair market value in terms of the parameters specified Under Section 23 of the Act." 28. This Court can indulge in the same reasonable guesswork to balance the equity for fixing just and fair market value. In the absence of any other exemplar in the form of sale deed, though it is difficult to say as to what extent the actual market value was higher in contradistinction to the value of land fixed by the Government in the aforesaid Notifications, we are of the opinion that as a thumb rule an increase of ` 1,00,000/- per acre be granted, in the peculiar facts and circumstances of this case. 29. Accordingly, we fix the market value of the land situate in Village Jharoda Mazra Burari, which was acquired vide Notification dated 24.07.1998, at ` 12,60,580/- and in Village Burari, which was acquired vide Notification dated 18.07.2003, at ` 20,20,568/-. 30. This brings us to the land aspect of the matter which was argued by those Appellants whose lands are classified in inferior category, namely, whether it was proper to categorize the land and after fixing the market value for category A land, depress the same by 10% each for category B and C respectively. 31. Insofar as land situate in Village Burari is concerned, as already noted above, though the LAC had given the categorisation, the Reference Court had refused to accept the same finding that the entire land was to be treated uniformly as category A land. Apart from the topography of the land, which was almost identical, the Reference Court also pointed out that the distinction had no relevance because the acquisition was for the same purpose, namely, Bio-Diversity Park, and, therefore, potentiality of the land would be the same for the aforesaid purpose and it did not matter as to whether a particular parcel of the land was different from the other (though it was not even factually correct). We find this reason to be quite convincing. There appears to be no manifest justification in the judgment of the High Court in re-introducing the said categorization. We, therefore, are of the opinion that the compensation should be awarded to all the Appellants uniformly at ` 20,20,568/- per acre. For the same reasons, similar treatment is to be accorded to the Appellants whose lands in Jharoda Mazra Burari are acquired by granting compensation at uniform rate of ` 12,60,580/- per acre. 32.

1[ds]It is clearve that the submissions of learnedcounsel for thehave two limbs,For ascertaining the market value of the, the sale deed pertaining to the land in that very area was the best exemplar. There was no reason to discard Exhibitwhich was produced to reflect the market value of the land in the year 1993, which was much before the two acquisition Notifications of the year 1998 and 2003. This was, according to them, the bestThe Government Orders which are made the basis for fixing the market value of the land by the courts below could not have been relied upon for such a purpose as they are not the true indicia of the market price.From the aforesaid twin prepositions, reliance was placed on the following judgments of thisIn Cement Corporation of India Ltd. v. Purya and(2004) 8 SCC 270 , this CourtA registered document in terms of Sectionof the Act may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the court may act on the basis of such presumption. Even when in terms of the Evidence Act, a provision has been made that the court shall presume a fact, the same by itself would not be irrebuttable or conclusive. The genuineness of a transaction can always fall for adjudication, if any question is raised in this behalf.While it is clear thatof the LA Act a presumption as to the genuineness of the contents of the document is permitted to be raised, the same can be relied upon only if the said presumption is not rebutted by other evidence. In the said view of the matter we are of the opinion that the decision of this Court in the case of Land Acquisition Officer & Mandal Revenue Officer v. V.(2001) 3 SCC 530 lays down the correct law.In National Fertilizers Limited v. Jagga Singh (Deceased) Through(2012) 1 SCC 74 , this CourtThe Division Bench of the High Court has thus relied upon its order in Karam Singh (RFA No. 906 of 1988) passed onwhich was marked in the reference proceedings as Ext.The land in the case of Karam Singh was acquired for a municipal park by a notification issuedSection 4 of the Land Acquisition Act onand is located within the municipal limits. In Karam Singh case there was evidence of three transactions of sale of the same date i.e.showing that some land in the area had been sold at the rate of Rs. 100 per square yard, some land in the area had been sold at Rs. 70.30 paise per square yard and some land in the area had been sold at the rate of Rs. 62.50 per square yard and the Court took the average rate of the three sale transactions which worked out to Rs. 80 per square yard. The Court then added an increase of 12% per annum for ten years to arrive at the value of the land in the year 1983 when the land was acquired and the figure worked out at Rs. 176 per square yard.Regarding quality of the land acquired in the present case, the learnedcounsel for thesubmitted that the land in Karam Singh case was developed urban land meant for residential and commercial purpose, whereas the land acquired in the present case was low, waterlogged. We, however, findce of Basant Singh Patwari, Land Acquisition, Industries Department, Government of Punjab, Chandigarh, examined as RW 1, that the level of the land, which was acquired in the present case, was that of thehe township of NFL. The learned Additional District Judge in his order datedhas in fact held, after considering all the oral and documentary evidence adduced by the parties, that the market value of the land acquired in the present case has to be determined on the basis of its potentiality for urban development and not on the basis of the revenue or agricultural classification of the land as done by the Collector because the land acquired in the present case had great potential value for urban purposes i.e. commercial, industrial and residential.In Chindha Fakira Patil (Dead) Throughv. Special Land Acquisition Officer,(2011) 10 SCC 787 , this CourtIn our view, the approach adopted by the High Court was clearly erroneous. There is no basis for the assumption that the purchaser of the land must have offered higher price for special reasons. Exhibit 28 was proved by Shri Arjun Sukdeo Patil, who had appeared as witness on behalf of theIt was open to thecounsel for thene the witness and elicit the special reasons, if any, for sale of land allegedly at a higher price. However, the fact of the matter is that no such question was put to the witness.As a matter of fact, it is neither the pleaded case of thenor has it been argued before us that the sale deed Exhibit 28 had not been proved or that the price mentioned therein was not the highest price paid for jirayat land in the area. Therefore, we have no hesitation to hold that the High Court was not right in interfering with the fixation of market value by the Reference Court for jirayat land at the rate of Rs. 3 lakhs and for bagayat land at the rate of Rs. 6 lakhs per hectare. The mere fact that average sale price of the transactions relied upon by thewas substantially less could not be made a ground for discarding Exhibit 28.In Mehrawal Khewaji Trust (Registered), Faridkot andv. State of Punjab and(2012) 5 SCC 432 , this Court observedIn State of Punjab v. Hans Raj(1994) 5 SCCthis Court has held that method of working out the "average price" paid under different sale transactions is not proper and that one should not have, ordinarily recourse to such method. This Court further held that the bona fide sale transactions proximate to the point of acquisition of the lands situated in the neighbourhood of thes are the real basis to determine the market value.It is clearthat when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.We would first deal with the submissions predicated on ExhibitThe reason given by the Reference Court in discarding this piece of evidence does not appear to be correct. The Reference Court has noted that since this sale deed is of the year 1993 and the acquisitions took place 5 and 10 years thereafter, respectively, the sale deed of 1993 would not reflect the market price that was prevailing in the years of acquisition. If the sale price stated in the said sale deed is of the year 1993, the value of the land would even be higher in the year 1998 and 2003. Therefore, this reason is not convincing at all. However, at the same time, we find that very justifiable grounds are given by the High Court in discarding ExhibitA perusal of the impugned judgment, touching upon this aspect, would reflect that the High Court has gone through the relevant evidence. This piece of land was purchased by one company known as Motor General and Finance Limited (MGF). Its Director, Shri Arun Mitter, had appeared asin LAC No. 140/1/206. He admitted that he was not familiar with the topology of the area and had no proof of any earningsnd during the period it remained with the company and virtually admitted not having put the land to any use. The High Court, thus, observed that Director of the Company who purchased the land did not give convincing reasons of having put the land to any use. It was only stated that flowers were grown therein by a Mali, though the witness could not even depose as to who employed him and in what manner salary was paid to him. Leaving this ignorance of the Directors aside, even otherwise, his claim that flowers were grown and were consumed in the house was found by the High Court to be the most uninspiring. From the aforesaid and other related/attendant facts, the Court came to the conclusion that the speculative nature of the transaction wasIt was more so as nearly six years after the purchase of the, MGF sold the same at a meager price rise of, which gave not even 1% increase in the value of the landnearly six years. All these aspects clearly demonstrated that MGF was not an informed buyer. Referring to the decision of this Court in Mohammad Raofuddin v. Land Acquisition(2009) 14 SCC 367 , the High Court opined that such a speculative transaction could not be taken as reflective of the real market value inasmuch as in respect of sale of land it is settled law that the test is the price which an informed buyer would pay to the willing seller and to be an informed buyer there must be evidence that the buyer has knowledge of the topology of the area, the land available for sale and such other factors showing that the buyer was an informed buyer.We also findrd thatcounsel for thehad pointed out to Exhibita sale deed dated 22.11.2003 executed in favour of one Nisha Tyagi, which showed that she had purchased agriculture land in Village Burari on 22.11.2003 forin respect of land admeasuring 5 bigha and 19 biswa. There was also a sale deed Exhibitdated 02.01.2004 which reflected that Raj Bal, his wife, Usha Tyagi and his sisterShobha Tyagi had purchased 02 bigha and 10 biswa land in the same village for. These sale deeds were clear indicators, reflecting that MGF sale deed (Exhibitshowed inflated figure therein.We find that the aforesaid finding of the High Court, on a proper appreciation of the evidence on record, is absolutely valid thereby rejecting the credit worthiness of Exhibitfor the purposes of ascertaining the market value of the land. In view thereof, judgments relied upon by thecounsel on this aspect have no application in the instant cases.It has come onfrom theaforesaid sale deed, thecounsel for theparties had not produced any other sale deeds either of the year 1998 or of the year 2003. Some sale deeds post 2003 were produced in evidence but the parties rightly chose not tom, a fact specifically noted by the High Court. This would show that there is no sale deed of the area in question which could provide an exemplar for fixing the market value of the land. We are, thus, left with the Government Notifications issuing circular rate of the lands in question. There is a Notification dated 1st April, 1998 as per which the value of the land is fixed ater acrefor category A. Then, there is Notification dated 09.08.2001 fixing circular rate at. This Court can indulge in the same reasonable guesswork to balance the equity for fixing just and fair market value. In the absence of any other exemplar in the form of sale deed, though it is difficult to say as to what extent the actual market value was higher in contradistinction to the value of land fixed by the Government in the aforesaid Notifications, we are of the opinion that as a thumb rule an increase ofer acrebe granted, in the peculiar facts and circumstances of this case.Accordingly, we fix the market value of the land situate in Village Jharoda Mazra Burari, which was acquired vide Notification dated 24.07.1998, atnd in Village Burari, which was acquired vide Notification dated 18.07.2003, at. This brings us to the land aspect of the matter which was argued by thosewhose lands are classified in inferior category, namely, whether it wasze the land and after fixing the market value for category A land, depress the same by 10% each for category B and C respectively.Insofar as land situate in Village Burari is concerned, as already noted above, though the LAC had given the categorisation, the Reference Court had refused to accept the same finding that the entire land was to be treated uniformly as category A land. Aparthy of the land, which was almost identical, the Reference Court also pointed out that the distinction had no relevance because the acquisition was for the same purpose, namely,Park, and, therefore, potentiality of the land would be theaforesaid purpose and it did not matter as to whether a particular parcel of the land was differenter (though it was not even factually correct). We find this reason to be quite convincing. There appears to be no manifest justification in the judgment of the High Court inthe said categorization. We, therefore, are of the opinion that the compensation should be awarded to all theFor the same reasons, similar treatment is to be accorded to thewhose lands in Jharoda Mazra Burari are acquired by granting compensation at uniform rate of

### 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: land in the same village for ` 2,65,651/-. These sale deeds were clear indicators, reflecting that MGF sale deed (Exhibit PW-1/2) showed inflated figure therein. 24. We find that the aforesaid finding of the High Court, on a proper appreciation of the evidence on record, is absolutely valid thereby rejecting the credit worthiness of Exhibit PW-1/2 for the purposes of ascertaining the market value of the land. In view thereof, judgments relied upon by the Appellants counsel on this aspect have no application in the instant cases. 25. It has come on record that apart from the aforesaid sale deed, the counsel for the parties had not produced any other sale deeds either of the year 1998 or of the year 2003. Some sale deeds post 2003 were produced in evidence but the parties rightly chose not to refer to them, a fact specifically noted by the High Court. This would show that there is no sale deed of the area in question which could provide an exemplar for fixing the market value of the land. We are, thus, left with the Government Notifications issuing circular rate of the lands in question. There is a Notification dated 1st April, 1998 as per which the value of the land is fixed at ` 11,20,000/- per acre for category A. Then, there is Notification dated 09.08.2001 fixing circular rate at ` 15,70,000/- per acre. 26. We would like to point out at this stage the argument of Mr. Shishodia, learned senior counsel who appeared in some of these appeals, to the effect that in the absence of any evidence of exemplar depicting sale value, the Court is required to do guesswork. In support of this proposition, he placed reliance upon the decision of this Court in the cases of Trishala Jain and Anr. v. State of Uttaranchal and Anr. (2011) 6 SCC 47 as well as K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Anr. (1996) 2 SCC 62. In the present case, as the only sale deed on which reliance was placed (Exhibit PW-1/2) stands rejected, there is no other exemplar in the form of sale deed. The learned Counsel wants us to guesstimate the market value. In Trishala Jain (supra), the Court laid down the circumstances when application of guesstimate principle is to be applied. This can be found in para 65 of the said judgment which reads as under: "65. It will be appropriate for us to state certain principles controlling the application of "guesstimate".(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted to.(b) Discretion of the court in applying guesswork to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the data on record produced by the parties by way of evidence. Further, this entire exercise has to be within the limitations specified Under Sections 23 and 24 of the act and cannot be made in detriment thereto." 27. Keeping in view the aforesaid principles, and having peculiarity of the present appeals where there is total absence of exemplars, we are of the opinion that some increase, but only marginal one, can be ordered over and above the circular rates fixed by the Government Orders. In the case of Land Acquisition Officer v. Karigowda (2010) 5 SCC 708 , following pertinent observations were made by this Court: "90...The Court is entitled to apply some [amount] of reasonable guesswork to balance the equities and fix a just and fair market value in terms of the parameters specified Under Section 23 of the Act." 28. This Court can indulge in the same reasonable guesswork to balance the equity for fixing just and fair market value. In the absence of any other exemplar in the form of sale deed, though it is difficult to say as to what extent the actual market value was higher in contradistinction to the value of land fixed by the Government in the aforesaid Notifications, we are of the opinion that as a thumb rule an increase of ` 1,00,000/- per acre be granted, in the peculiar facts and circumstances of this case. 29. Accordingly, we fix the market value of the land situate in Village Jharoda Mazra Burari, which was acquired vide Notification dated 24.07.1998, at ` 12,60,580/- and in Village Burari, which was acquired vide Notification dated 18.07.2003, at ` 20,20,568/-. 30. This brings us to the land aspect of the matter which was argued by those Appellants whose lands are classified in inferior category, namely, whether it was proper to categorize the land and after fixing the market value for category A land, depress the same by 10% each for category B and C respectively. 31. Insofar as land situate in Village Burari is concerned, as already noted above, though the LAC had given the categorisation, the Reference Court had refused to accept the same finding that the entire land was to be treated uniformly as category A land. Apart from the topography of the land, which was almost identical, the Reference Court also pointed out that the distinction had no relevance because the acquisition was for the same purpose, namely, Bio-Diversity Park, and, therefore, potentiality of the land would be the same for the aforesaid purpose and it did not matter as to whether a particular parcel of the land was different from the other (though it was not even factually correct). We find this reason to be quite convincing. There appears to be no manifest justification in the judgment of the High Court in re-introducing the said categorization. We, therefore, are of the opinion that the compensation should be awarded to all the Appellants uniformly at ` 20,20,568/- per acre. For the same reasons, similar treatment is to be accorded to the Appellants whose lands in Jharoda Mazra Burari are acquired by granting compensation at uniform rate of ` 12,60,580/- per acre. 32. ### Response: 1

Comnr. Of Central Excise, Trichy Vs. Grasim Industries Ltd

the position, the arguments of the learned DR cannot be accepted. .........." 16. In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms "brand name or trade name" get qualified by the words which follow. The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words "any writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "write" and "Writing" is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a Notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect. 17. This Court has, in the case of Royal Hatcheries Pvt. Ltd. vs. State of A. P. reported in 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company. It is thus clear that the Tribunals decision in Nippa Chemicals (Pvt.) Ltd.s case is clearly erroneous and will stand overruled. In the case of Collector of Central Excise, Goa vs. Christine Hoden (I) Pvt. Ltd. reported in 1999 (113) ELT 591 the question was whether the use of the word "comfit" with the name "Christine Hoden London, Rome Stockholm" would disentitle the Respondents therein from the benefit of the Notification. It was however found, as a matter of fact, that the word "comfit" was owned by the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment as follows: "Mere indication of the foreign companys name does not create any association in the course of trade between the goods and the foreign company." 18. There would be no purpose in indicating the foreign companys name in relation to the product except to indicate a connection between the product and the foreign company. Therefore, to this extent, the Tribunal is not correct. 19. In the case of Commissioner of Central Excise, Hyderabad vs. Sarat Electronics reported in 2004 (167) ELT 404 the question was whether the Respondents (therein) were entitled to benefit of Notification No. 1/93-C.E., which Notification was identical to the one under consideration by us. The Respondents therein used the words "SARAT" in bold letters following which the words "A quality product from ITL group" and "Technical licencee of ITL" were also printed. The Tribunal, following its earlier decisions, held as follows:"6. In the facts of the present case, we are of the view that the expression "ITL" was used to convey the name of the company and not as a trade mark. It showed that the technical know-how was obtained from Instrument Techniques Pvt. Ltd. The expression "A quality product from ITL group" also would not mean that the product was manufactured by Instrument Techniques Pvt. Ltd. According to us, the facts of the case are more akin to the facts in Weigand India (P) Ltd. and Chemguard Coatings Pvt. Ltd. rather than Chopra Appliances." 20. In our view, the Tribunal was clearly erroneous. As indicated above, the Explanation makes it clear that it need not be a trade name or brand name as commonly understood. Any name or mark or writing, even the name of a company is sufficient so long as it is used for the purpose of indicating a connection between the product and that Company. The use of the words "A quality product from ITL group" clearly showed an intention to show a connection between the product and the ITL group. These words indicated that the quality of the product was the same as that of a product of ITL group. If use of such words did not disentitle a party from the benefit of the Notification, we fail to understand what sort of words would disentitle a party. The decision of the Tribunal in this case is clearly erroneous and will stand overruled. 21.

1[ds]9. We find some substance in thisis not just a legal submission but is based on a factual situation which would require checking. After a full hearing this Court is not going to adjourn this case. As no such contention was taken earlier by filing any Affidavit in Reply we do not propose to dismiss these Appeals on this ground. Even otherwise, we find that in all Judgments, relied upon, the Tribunal has taken a patently erroneous view. It becomes necessary for this Court to clarify the law so that the erroneous Judgments of the Tribunal do not remain binding precedents.11. The Judgments of the Tribunal appear to be based upon the Judgment of this Court in Astra Pharmaceuticals Ltd. case (supra). Even in the impugned Judgment Astra Pharmaceuticals Ltd.s case has been relied upon. In our view, the Tribunal is misconstruing and misunderstanding the Judgment of this Court in Astra Pharmaceuticals Ltd.s case.This Court has, in the case of Royal Hatcheries Pvt. Ltd. vs. State of A. P. reported in 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company. It is thus clear that the Tribunals decision in Nippa Chemicals (Pvt.) Ltd.s case is clearly erroneous and will stand overruled. In the case of Collector of Central Excise, Goa vs. Christine Hoden (I) Pvt. Ltd. reported in 1999 (113) ELT 591 the question was whether the use of the word "comfit" with the name "Christine Hoden London, Rome Stockholm" would disentitle the Respondents therein from the benefit of the Notification. It was however found, as a matter of fact, that the word "comfit" was owned by the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment asindication of the foreign companys name does not create any association in the course of trade between the goods and the foreign company.There would be no purpose in indicating the foreign companys name in relation to the product except to indicate a connection between the product and the foreign company. Therefore, to this extent, theIn the case of Commissioner of Central Excise, Hyderabad vs. Sarat Electronics reported in 2004 (167) ELT 404 the question was whether the Respondents (therein) were entitled to benefit of Notification No. 1/93-C.E., which Notification was identical to the one under consideration by us. The Respondents therein used the words "SARAT" in bold letters following which the words "A quality product from ITL group" and "Technical licencee of ITL" were also printed. The Tribunal, following its earlier decisions, held as follows:"6. In the facts of the present case, we are of the view that the expression "ITL" was used to convey the name of the company and not as a trade mark. It showed that the technical know-how was obtained from Instrument Techniques Pvt. Ltd. The expression "A quality product from ITL group" also would not mean that the product was manufactured by Instrument Techniques Pvt. Ltd. According to us, the facts of the case are more akin to the facts in Weigand India (P) Ltd. and Chemguard Coatings Pvt. Ltd. rather than Chopra Appliances.In our view, the Tribunal was clearly erroneous. As indicated above, the Explanation makes it clear that it need not be a trade name or brand name as commonly understood. Any name or mark or writing, even the name of a company is sufficient so long as it is used for the purpose of indicating a connection between the product and that Company. The use of the words "A quality product from ITL group" clearly showed an intention to show a connection between the product and the ITL group. These words indicated that the quality of the product was the same as that of a product of ITL group. If use of such words did not disentitle a party from the benefit of the Notification, we fail to understand what sort of words would disentitle a party. The decision of the Tribunal in this case is clearly erroneous and will stand overruled.6. In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms "brand name or trade name" get qualified by the words which follow. The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words "any writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "write" and "Writing" is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a Notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect.

### 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: the position, the arguments of the learned DR cannot be accepted. .........." 16. In our view, the Tribunal has completely misdirected itself. The term "brand name or trade name" is qualified by the words "that is to say". Thus, even though under normal circumstances a brand name or a trade name may have the meaning as suggested by the Tribunal, for the purposes of such a Notification the terms "brand name or trade name" get qualified by the words which follow. The words which follow are "a name or a mark". Thus even an ordinary name or an ordinary mark is sufficient. It is then elaborated that the "name or mark" such as a "symbol" or a "monogram" or a "label" or even a "signature of invented word" is a brand name or trade name. However, the contention is that they must be used in relation to the product and for the purposes of indicating a connection with the other person. This is further made clear by the words "any writing". These words are wide enough to include the name of a company. The reasoning given by the Tribunal based on a dictionary meaning of the words "write" and "Writing" is clearly erroneous. Even the name of some other company, if it is used for the purposes of indicating a connection between the product and that company, would be sufficient. It is not necessary that the name or the writing must always be a brand name or a trade name in the sense that it is normally understood. The exemption is only to such parties who do not associate their products with some other person. Of course this being a Notification under the Excise Act, the connection must be of such a nature that it reflects on the aspect of manufacture and deal with quality of the products. No hard and fast rule can be laid down however it is possible that words which merely indicate the party who is marketing the product may not be sufficient. As we are not dealing with such a case we do not express any opinion on this aspect. 17. This Court has, in the case of Royal Hatcheries Pvt. Ltd. vs. State of A. P. reported in 1994 Supp (1) SCC 429, already held that words to the effect "that is to say" qualify the words which precede them. In this case also the words "that is to say" qualify the words "brand name or trade name" by indicating that these terms must therefore be understood in the context of the words which follow. The words which follow are of wide amplitude and include any word, mark, symbol, monogram or label. Even a signature of an invented word or any writing would be sufficient if it is used in relation to the product for purpose of indicating a connection between the product and the other person/company. It is thus clear that the Tribunals decision in Nippa Chemicals (Pvt.) Ltd.s case is clearly erroneous and will stand overruled. In the case of Collector of Central Excise, Goa vs. Christine Hoden (I) Pvt. Ltd. reported in 1999 (113) ELT 591 the question was whether the use of the word "comfit" with the name "Christine Hoden London, Rome Stockholm" would disentitle the Respondents therein from the benefit of the Notification. It was however found, as a matter of fact, that the word "comfit" was owned by the Respondent. It was on that basis held that the Respondents therein were entitled to the benefit of Notification. To this extent the Tribunal was right. However, the Tribunal has unnecessarily also gone on to comment as follows: "Mere indication of the foreign companys name does not create any association in the course of trade between the goods and the foreign company." 18. There would be no purpose in indicating the foreign companys name in relation to the product except to indicate a connection between the product and the foreign company. Therefore, to this extent, the Tribunal is not correct. 19. In the case of Commissioner of Central Excise, Hyderabad vs. Sarat Electronics reported in 2004 (167) ELT 404 the question was whether the Respondents (therein) were entitled to benefit of Notification No. 1/93-C.E., which Notification was identical to the one under consideration by us. The Respondents therein used the words "SARAT" in bold letters following which the words "A quality product from ITL group" and "Technical licencee of ITL" were also printed. The Tribunal, following its earlier decisions, held as follows:"6. In the facts of the present case, we are of the view that the expression "ITL" was used to convey the name of the company and not as a trade mark. It showed that the technical know-how was obtained from Instrument Techniques Pvt. Ltd. The expression "A quality product from ITL group" also would not mean that the product was manufactured by Instrument Techniques Pvt. Ltd. According to us, the facts of the case are more akin to the facts in Weigand India (P) Ltd. and Chemguard Coatings Pvt. Ltd. rather than Chopra Appliances." 20. In our view, the Tribunal was clearly erroneous. As indicated above, the Explanation makes it clear that it need not be a trade name or brand name as commonly understood. Any name or mark or writing, even the name of a company is sufficient so long as it is used for the purpose of indicating a connection between the product and that Company. The use of the words "A quality product from ITL group" clearly showed an intention to show a connection between the product and the ITL group. These words indicated that the quality of the product was the same as that of a product of ITL group. If use of such words did not disentitle a party from the benefit of the Notification, we fail to understand what sort of words would disentitle a party. The decision of the Tribunal in this case is clearly erroneous and will stand overruled. 21. ### Response: 1

COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Vs. ADITYA BIRLA NUVO LTD. AND OTHERS

necessary to go into the same as we find that the case is squarely covered by a Constitution Bench judgment of this Court in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., . By the aforesaid judgment dated 27.01.1989 passed by the Constitution Bench in Civil Misc. Petition that was filed for clarification of earlier Constitution Bench judgment rendered by the same Bench on 04.11.1988 in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., , following clarification was given by the Constitution Bench: In respect of the civil miscellaneous petition for clarification of this Courts judgment dated 4th November, 1988, it is made clear that the assessable value of the processed fabrics could be the value of the grey-cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses deemed to be the price at the factory gate for the processed fabric. The factory gate here means the deemed factory gate as if the processed fabric was sold by the processor. In order to explain the position it is made clear by the following illustration: if the value of the grey-cloth in the hands of the processor is Rs. 20/- and the value of the job work done is Rs. 5/- and the manufacturing profit and expenses for the processing be Rs. 35/-, then in such a case the value would be Rs. 30/-, being the value of the grey-cloth plus the value of the job work done plus manufacturing profit and expenses. That would be the correct assessable-value. 2. If the trader, who entrusts cotton or man-made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the Excise authorities as the assessable-value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processors factory plus his profit. Rule 174 of the Central Excise Rules, 1944 enjoins that when goods owned by one person are manufactured by another the information is required relating to the price at which the said manufacturer is selling the said goods and the person so authorized agrees to discharge all the liabilities under the said Act and the rules made thereunder. The price at which he is selling the goods must be the value of the grey-cloth or fabric plus the value of the job work done plus the manufacturing profit and the manufacturing expenses but not any other subsequent profit or expenses. It is necessary to include the processors expenses, costs and charges plus profit, but it is not necessary to include the traders profits who gets the fabrics processed, because those would be post-manufacturing profits. 4. The aforesaid clarification makes it clear that for the purpose of arriving at the value of the job at the hands of job workers, factory gate is treated as deemed factory gate as if the processed fabric was sold by the Assessee. It cannot be disputed that the fact situation in these cases is identical where the job workers had paid the excise duty at the time of supply of these processed fabric to the Respondent Assessees. Once that could be treated as sale, the necessary corollary is that so far as the Assessees are concerned, they had purchased processed fabric from the job workers and, therefore, would satisfy the condition of subsequent purchase contained in Notification No. 38/2003. 5. In fact, this position is accepted even by the Department which can be discerned from Circular No. 737/53/2003 dated 19.08.2003. Though certain doubts for carrying out the obligation under Standards of Weights and Measures Act, 1976 were clarified by the said Circular, incidentally it touched upon this very process that is undertaken by the Assessees herein and remarked that such process would be covered by Notification No. 38/2003 and would be fully exempt from payment of excise duty. Para 4 of the said Circular which makes the aforesaid position crystal clear is re-produced below: Section 39 of the Standards of Weights & Measures Act, 1976 applies to commodities, which are cleared, sold, disturbed etc. in packed condition. In terms of Rule 1(1) of the Standards of Weights & Measures (Package Commodity) Rules, 1977, a prepackaged commodity means a commodity, which, without the purchaser being present, is placed in a package so that the quantity of goods contained therein, has a predetermined value and such value cannot be altered without opening the package. Further, in terms of the said Rules, the term package is to be construed as package containing such pre-packed commodity. Thereafter, only when such pre-packed commodities are sold in retail packages, the provisions of Standards of Weights & Measures Act and rules regarding declaration of the retail sale price (and consequently valuation of the goods based on such RSP) arises. Many a times garments are cleared in bulk where the manufacture neither packs the same nor declares the retail sale price therein. Such garments are ultimately displayed in the retailers outlets, which may or may not attach a price tag thereto. Some times, the dealer/retailer packs, re-packs, labels or re-labels the goods, which may result in such goods fall within the purview of Standards of Weights & Measures (Package Commodity) Rules. However, in such cases central excise valuation is not important, as such activities undertaken on duty paid goods are fully exempt vide Notification No. 38/2003 dated 30-4-2003. Thus, it is clear that in such cases, the manufacture of the garments is under no legal obligations to declare the retail sale price while clearing the garments from his factory in bulk and in unpacked condition.

0[ds]3. The aforesaid processes undertaken by all these three Assessees fall within the processes that are mentioned in the Notification and there is no dispute about it.We may mention at this stage that though the Tribunal has undertaken a detailed discussion on this aspect holding that this would amount to purchase within the meaning of Section 2H of the Central Excise Act, 1944, it is not even necessary to go into the same as we find that the case is squarely covered by a Constitution Bench judgment of this Court in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., . By the aforesaid judgment dated 27.01.1989 passed by the Constitution Bench in Civil Misc. Petition that was filed for clarification of earlier Constitution Bench judgment rendered by the same Bench on 04.11.1988 in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., , following clarification was given by the Constitution Bench:In respect of the civil miscellaneous petition for clarification of this Courts judgment dated 4th November, 1988, it is made clear that the assessable value of the processed fabrics could be the value of the grey-cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses deemed to be the price at the factory gate for the processed fabric. The factory gate here means the deemed factory gate as if the processed fabric was sold by the processor. In order to explain the position it is made clear by the following illustration: if the value of the grey-cloth in the hands of the processor is Rs. 20/- and the value of the job work done is Rs. 5/- and the manufacturing profit and expenses for the processing be Rs. 35/-, then in such a case the value would be Rs. 30/-, being the value of the grey-cloth plus the value of the job work done plus manufacturing profit and expenses. That would be the correct assessable-value.2. If the trader, who entrusts cotton or man-made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the Excise authorities as the assessable-value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processors factory plus his profit. Rule 174 of the Central Excise Rules, 1944 enjoins that when goods owned by one person are manufactured by another the information is required relating to the price at which the said manufacturer is selling the said goods and the person so authorized agrees to discharge all the liabilities under the said Act and the rules made thereunder. The price at which he is selling the goods must be the value of the grey-cloth or fabric plus the value of the job work done plus the manufacturing profit and the manufacturing expenses but not any other subsequent profit or expenses. It is necessary to include the processors expenses, costs and charges plus profit, but it is not necessary to include the traders profits who gets the fabrics processed, because those would be post-manufacturing profits.4. The aforesaid clarification makes it clear that for the purpose of arriving at the value of the job at the hands of job workers, factory gate is treated as deemed factory gate as if the processed fabric was sold by the Assessee. It cannot be disputed that the fact situation in these cases is identical where the job workers had paid the excise duty at the time of supply of these processed fabric to the Respondent Assessees. Once that could be treated as sale, the necessary corollary is that so far as the Assessees are concerned, they had purchased processed fabric from the job workers and, therefore, would satisfy the condition of subsequent purchase contained in Notification No. 38/2003.5. In fact, this position is accepted even by the Department which can be discerned from Circular No. 737/53/2003 dated 19.08.2003. Though certain doubts for carrying out the obligation under Standards of Weights and Measures Act, 1976 were clarified by the said Circular, incidentally it touched upon this very process that is undertaken by the Assessees herein and remarked that such process would be covered by Notification No. 38/2003 and would be fully exempt from payment of excise duty. Para 4 of the said Circular which makes the aforesaid position crystal clear is re-produced below:Section 39 of the Standards of Weights & Measures Act, 1976 applies to commodities, which are cleared, sold, disturbed etc. in packed condition. In terms of Rule 1(1) of the Standards of Weights & Measures (Package Commodity) Rules, 1977, a prepackaged commodity means a commodity, which, without the purchaser being present, is placed in a package so that the quantity of goods contained therein, has a predetermined value and such value cannot be altered without opening the package. Further, in terms of the said Rules, the term package is to be construed as package containing such pre-packed commodity. Thereafter, only when such pre-packed commodities are sold in retail packages, the provisions of Standards of Weights & Measures Act and rules regarding declaration of the retail sale price (and consequently valuation of the goods based on such RSP) arises. Many a times garments are cleared in bulk where the manufacture neither packs the same nor declares the retail sale price therein. Such garments are ultimately displayed in the retailers outlets, which may or may not attach a price tag thereto. Some times, the dealer/retailer packs, re-packs, labels or re-labels the goods, which may result in such goods fall within the purview of Standards of Weights & Measures (Package Commodity) Rules. However, in such cases central excise valuation is not important, as such activities undertaken on duty paid goods are fully exempt vide Notification No. 38/2003 dated 30-4-2003. Thus, it is clear that in such cases, the manufacture of the garments is under no legal obligations to declare the retail sale price while clearing the garments from his factory in bulk and in unpacked condition.

### 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: necessary to go into the same as we find that the case is squarely covered by a Constitution Bench judgment of this Court in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., . By the aforesaid judgment dated 27.01.1989 passed by the Constitution Bench in Civil Misc. Petition that was filed for clarification of earlier Constitution Bench judgment rendered by the same Bench on 04.11.1988 in Ujagar Prints Vs. Union of India (UOI) and Others etc. etc., , following clarification was given by the Constitution Bench: In respect of the civil miscellaneous petition for clarification of this Courts judgment dated 4th November, 1988, it is made clear that the assessable value of the processed fabrics could be the value of the grey-cloth in the hands of the processor plus the value of the job work done plus manufacturing profit and manufacturing expenses deemed to be the price at the factory gate for the processed fabric. The factory gate here means the deemed factory gate as if the processed fabric was sold by the processor. In order to explain the position it is made clear by the following illustration: if the value of the grey-cloth in the hands of the processor is Rs. 20/- and the value of the job work done is Rs. 5/- and the manufacturing profit and expenses for the processing be Rs. 35/-, then in such a case the value would be Rs. 30/-, being the value of the grey-cloth plus the value of the job work done plus manufacturing profit and expenses. That would be the correct assessable-value. 2. If the trader, who entrusts cotton or man-made fabric to the processor for processing on job work basis, would give a declaration to the processor as to what would be the price at which he would be selling the processed goods in the market, that would be taken by the Excise authorities as the assessable-value of the processed fabric and excise duty would be charged to the processor on that basis provided that the declaration as to the price at which he would be selling the processed goods in the market, would include only the price or deemed price at which the processed fabric would leave the processors factory plus his profit. Rule 174 of the Central Excise Rules, 1944 enjoins that when goods owned by one person are manufactured by another the information is required relating to the price at which the said manufacturer is selling the said goods and the person so authorized agrees to discharge all the liabilities under the said Act and the rules made thereunder. The price at which he is selling the goods must be the value of the grey-cloth or fabric plus the value of the job work done plus the manufacturing profit and the manufacturing expenses but not any other subsequent profit or expenses. It is necessary to include the processors expenses, costs and charges plus profit, but it is not necessary to include the traders profits who gets the fabrics processed, because those would be post-manufacturing profits. 4. The aforesaid clarification makes it clear that for the purpose of arriving at the value of the job at the hands of job workers, factory gate is treated as deemed factory gate as if the processed fabric was sold by the Assessee. It cannot be disputed that the fact situation in these cases is identical where the job workers had paid the excise duty at the time of supply of these processed fabric to the Respondent Assessees. Once that could be treated as sale, the necessary corollary is that so far as the Assessees are concerned, they had purchased processed fabric from the job workers and, therefore, would satisfy the condition of subsequent purchase contained in Notification No. 38/2003. 5. In fact, this position is accepted even by the Department which can be discerned from Circular No. 737/53/2003 dated 19.08.2003. Though certain doubts for carrying out the obligation under Standards of Weights and Measures Act, 1976 were clarified by the said Circular, incidentally it touched upon this very process that is undertaken by the Assessees herein and remarked that such process would be covered by Notification No. 38/2003 and would be fully exempt from payment of excise duty. Para 4 of the said Circular which makes the aforesaid position crystal clear is re-produced below: Section 39 of the Standards of Weights & Measures Act, 1976 applies to commodities, which are cleared, sold, disturbed etc. in packed condition. In terms of Rule 1(1) of the Standards of Weights & Measures (Package Commodity) Rules, 1977, a prepackaged commodity means a commodity, which, without the purchaser being present, is placed in a package so that the quantity of goods contained therein, has a predetermined value and such value cannot be altered without opening the package. Further, in terms of the said Rules, the term package is to be construed as package containing such pre-packed commodity. Thereafter, only when such pre-packed commodities are sold in retail packages, the provisions of Standards of Weights & Measures Act and rules regarding declaration of the retail sale price (and consequently valuation of the goods based on such RSP) arises. Many a times garments are cleared in bulk where the manufacture neither packs the same nor declares the retail sale price therein. Such garments are ultimately displayed in the retailers outlets, which may or may not attach a price tag thereto. Some times, the dealer/retailer packs, re-packs, labels or re-labels the goods, which may result in such goods fall within the purview of Standards of Weights & Measures (Package Commodity) Rules. However, in such cases central excise valuation is not important, as such activities undertaken on duty paid goods are fully exempt vide Notification No. 38/2003 dated 30-4-2003. Thus, it is clear that in such cases, the manufacture of the garments is under no legal obligations to declare the retail sale price while clearing the garments from his factory in bulk and in unpacked condition. ### Response: 0

Panchanan Dhara & Others Vs. Monmatha Nath Maity (dead) thr. L.Rs. & Another

as all the courts have arrived at a finding of fact that the period for execution of the deed of sale had been extended. 32. Similarly, the applicability of the provisions of Section 29 of the Indian Contract Act having not been raised, the same cannot be permitted to be raised for the first time before this Court. Even otherwise we do not see, on a plain reading of the said agreement of sale deed 18.4.1971, that the terms thereof were uncertain or vague so as to attract the provisions of Section 29 of the Indian Contract Act. 33. Sections 46 and 48 of the Companies Act, read as under: "46. Form of contracts - (1) Contracts on behalf of a company may be made as follows:- (a) a contract which, if made between private persons, would by law be required to be in writing signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied and may in the same manner be varied or discharged. (b) a contract which, if made between private persons would by law be valid although made by parole only and not reduced into writing, may be made by parole on behalf of the company by any person acting under its authority, express or implied, and may in the same manner be varied or discharged. (2) A contract made according to this section shall bind the company. 48. Execution of deeds (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place either in or outside India. (2) A deed signed by such an attorney on behalf of the company and under his seal where sealing is required shall bind the company and have the same effect as if it were under its common seal." 34. Section 46 merely lays down the mode an signing contract on behalf of the company. Once a deed is executed on behalf of the company, it is company and not the persons signing can sue or be sued on the contract if the evidence is clear that the signature was only that of the company. 35. An oral agreement for sale is permissible in law. There is furthermore no dispute that the agreement for sale was entered into by three directors of the company. The subsequent letters written on behalf of the Company clearly demonstrate that all the directors were aware of the said agreement. The company before the Trial Court never chose to file any written statement or dispute the contentions raised in the plaint. The Company, thus, never denied or disputed the correctness or otherwise of the contents of the said agreement. The Company never denied or disputed the terms of the agreement nor raised any plea that the agreement was not binding on the company or the same was illegal. In fact in the deeds executed in favour of the agreement, it had clearly been stated that the suit for specific performance of contract filed by Respondent No.1 was pending. 36. In Chairman, Life Insurance Corpn. and others vs. Rajiv Kumar Bhaskar (2005) 6 SCC 188 ), this Court held: "Agency as is well settled, is a legal concept which is employed by the Court when it becomes necessary to explain and resolve the problems created by certain fact situations. In other words, when the existence of an agency relationship would help to decide an individual problem, and the facts permits a court to conclude that such a relationship existed at a material time, then whether or not any express or implied consent to the creation of an agency may have been given by one party to another, the Court is entitled to conclude that such relationship was in existence at the time, and for the purpose in question. (See Established Agency by GHL Fridman - 1968 (84) Law Quarterly Review 224 at p.231.)" 37. It is not in dispute that the contract was executed in the name of the company. It has furthermore not disputed that all the five directors executed the agreement. The Company was a private limited company. The Trial Court held: "As all the directors of the company took part in execution of ext. - 3 there was not necessity of giving any special authorization either u/s 46 or u/s 48 of the Companies Act for entering into or for execution of the contract. It is true that at the time of execution of the documents in favour of the party defendants (ext. A series) there was a resolution of the company. The copy of the said resolution was marked (ext. 1). On plain reading of Ext. (1) it is found that as 4 directors out of the 5 directors of the company were empowered to execute those documents said resolution was necessary u/s 48. of the Companies Act." 38. Before the courts below, execution of the agreement was not denied. Thus, even in the absence of resolution the contract could not have been held to be invalid or illegal. 39. So far as the question of putting up of the seal of the Company is concerned, it is a relic of the days when mediaeval barons, who could not read or write, used their rings to make a characteristic impress. Even in absence of a seal, the Company may still be held to be liable having regard to the nature of transaction and the authority of those who had executed it. If the act of the Directors is not ultra vires or no public policy is involved, the parties acting thereupon cannot be left at large. (See. Probodh Chandra vs. Roadoils (India) Ltd. AIR 1930 Cal 782 and OTV Birwel Co. Ltd. vs. Technical and General Guarantee Co. Ltd. (2002) 4 All ER 668). 40. For the reasons aforementioned, we

0[ds]are of the opinion that the plea raised by the learned counsel for the Appellant that the suit was barred by limitation cannot be accepted as all the courts have arrived at a finding of fact that the period for execution of the deed of sale had been extendedSimilarly, the applicability of the provisions of Section 29 of the Indian Contract Act having not been raised, the same cannot be permitted to be raised for the first time before this Court. Even otherwise we do not see, on a plain reading of the said agreement of sale deed 18.4.1971, that the terms thereof were uncertain or vague so as to attract the provisions of Section 29 of the Indian Contract ActSection 46 merely lays down the mode an signing contract on behalf of the company. Once a deed is executed on behalf of the company, it is company and not the persons signing can sue or be sued on the contract if the evidence is clear that the signature was only that of the companyAn oral agreement for sale is permissible in law. There is furthermore no dispute that the agreement for sale was entered into by three directors of the company. The subsequent letters written on behalf of the Company clearly demonstrate that all the directors were aware of the said agreement. The company before the Trial Court never chose to file any written statement or dispute the contentions raised in the plaint. The Company, thus, never denied or disputed the correctness or otherwise of the contents of the said agreementThe Company never denied or disputed the terms of the agreement nor raised any plea that the agreement was not binding on the company or the same was illegal. In fact in the deeds executed in favour of the agreement, it had clearly been stated that the suit for specific performance of contract filed by Respondent No.1 was pending. 36It is not in dispute that the contract was executed in the name of the company. It has furthermore not disputed that all the five directors executed the agreement. The Company was a private limited company. The Trial Court held:"As all the directors of the company took part in execution of ext. - 3 there was not necessity of giving any special authorization either u/s 46 or u/s 48 of the Companies Act for entering into or for execution of the contract. It is true that at the time of execution of the documents in favour of the party defendants (ext. A series) there was a resolution of the company. The copy of the said resolution was marked (ext. 1). On plain reading of Ext. (1) it is found that as 4 directors out of the 5 directors of the company were empowered to execute those documents said resolution was necessary u/s 48. of the Companies Act."Before the courts below, execution of the agreement was not denied. Thus, even in the absence of resolution the contract could not have been held to be invalid or illegal

### 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: as all the courts have arrived at a finding of fact that the period for execution of the deed of sale had been extended. 32. Similarly, the applicability of the provisions of Section 29 of the Indian Contract Act having not been raised, the same cannot be permitted to be raised for the first time before this Court. Even otherwise we do not see, on a plain reading of the said agreement of sale deed 18.4.1971, that the terms thereof were uncertain or vague so as to attract the provisions of Section 29 of the Indian Contract Act. 33. Sections 46 and 48 of the Companies Act, read as under: "46. Form of contracts - (1) Contracts on behalf of a company may be made as follows:- (a) a contract which, if made between private persons, would by law be required to be in writing signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied and may in the same manner be varied or discharged. (b) a contract which, if made between private persons would by law be valid although made by parole only and not reduced into writing, may be made by parole on behalf of the company by any person acting under its authority, express or implied, and may in the same manner be varied or discharged. (2) A contract made according to this section shall bind the company. 48. Execution of deeds (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place either in or outside India. (2) A deed signed by such an attorney on behalf of the company and under his seal where sealing is required shall bind the company and have the same effect as if it were under its common seal." 34. Section 46 merely lays down the mode an signing contract on behalf of the company. Once a deed is executed on behalf of the company, it is company and not the persons signing can sue or be sued on the contract if the evidence is clear that the signature was only that of the company. 35. An oral agreement for sale is permissible in law. There is furthermore no dispute that the agreement for sale was entered into by three directors of the company. The subsequent letters written on behalf of the Company clearly demonstrate that all the directors were aware of the said agreement. The company before the Trial Court never chose to file any written statement or dispute the contentions raised in the plaint. The Company, thus, never denied or disputed the correctness or otherwise of the contents of the said agreement. The Company never denied or disputed the terms of the agreement nor raised any plea that the agreement was not binding on the company or the same was illegal. In fact in the deeds executed in favour of the agreement, it had clearly been stated that the suit for specific performance of contract filed by Respondent No.1 was pending. 36. In Chairman, Life Insurance Corpn. and others vs. Rajiv Kumar Bhaskar (2005) 6 SCC 188 ), this Court held: "Agency as is well settled, is a legal concept which is employed by the Court when it becomes necessary to explain and resolve the problems created by certain fact situations. In other words, when the existence of an agency relationship would help to decide an individual problem, and the facts permits a court to conclude that such a relationship existed at a material time, then whether or not any express or implied consent to the creation of an agency may have been given by one party to another, the Court is entitled to conclude that such relationship was in existence at the time, and for the purpose in question. (See Established Agency by GHL Fridman - 1968 (84) Law Quarterly Review 224 at p.231.)" 37. It is not in dispute that the contract was executed in the name of the company. It has furthermore not disputed that all the five directors executed the agreement. The Company was a private limited company. The Trial Court held: "As all the directors of the company took part in execution of ext. - 3 there was not necessity of giving any special authorization either u/s 46 or u/s 48 of the Companies Act for entering into or for execution of the contract. It is true that at the time of execution of the documents in favour of the party defendants (ext. A series) there was a resolution of the company. The copy of the said resolution was marked (ext. 1). On plain reading of Ext. (1) it is found that as 4 directors out of the 5 directors of the company were empowered to execute those documents said resolution was necessary u/s 48. of the Companies Act." 38. Before the courts below, execution of the agreement was not denied. Thus, even in the absence of resolution the contract could not have been held to be invalid or illegal. 39. So far as the question of putting up of the seal of the Company is concerned, it is a relic of the days when mediaeval barons, who could not read or write, used their rings to make a characteristic impress. Even in absence of a seal, the Company may still be held to be liable having regard to the nature of transaction and the authority of those who had executed it. If the act of the Directors is not ultra vires or no public policy is involved, the parties acting thereupon cannot be left at large. (See. Probodh Chandra vs. Roadoils (India) Ltd. AIR 1930 Cal 782 and OTV Birwel Co. Ltd. vs. Technical and General Guarantee Co. Ltd. (2002) 4 All ER 668). 40. For the reasons aforementioned, we ### Response: 0

The Commissioner of Income Tax - 6 Vs. M/S.Essel Propack Limited (Formerly Known As Essel Packaging Limited)

claim of the assessee.4. We have perused the original licence agreement and the modification. Under the terms of the agreement, the assessee as a licensee obtained only a nonexclusive licence which was restricted to the Territory of India to manufacture and use tube-making machines. The proprietary rights in the patents continued to vest in the licensor. The term of the licence was five years. Having regard to these salient aspects of the agreement, the Tribunal was justified in coming to the conclusion that the assessee did not acquire an asset of a capital nature. In Commissioner of Income Tax V/s. CIBA of India Limited, (1968) 69 ITR 692 (S.C.) the Supreme Court dealt with a case where a Swiss company had undertaken to deliver to the assessee processes, formulae, scientific data, working rules and prescriptions pertaining to the manufacture or processing of products discovered in the laboratories of the company. The assessee was granted full and sole rights and a licence under the patents, to make use exercise and vend the inventions referred to in India. In consideration of the right to receive scientific and technical assistance, the assessee had agreed to make stipulated contributions. The assessee was held to be a mere licensee for a limited period. The Supreme Court held that the Swiss company did not part with any assets of its business nor had the assessee acquired any asset of an enduring nature. In that context, the Supreme Court held thus :The following facts which emerge from the agreement clearly show that the secret processes were not sold by the Swiss Co. to the assessee : (a) the licence was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; (b) the object of the agreement was to obtain the benefit of the technical assistance for running the business; (c) the licence was granted to the assessee subject to rights actually granted or which may be granted after the date of the agreement to other person; (d) the assessee was expressly prohibited from divulging confidential information to third parties without the consent of the Swiss Co.; (e) there was no transfer of the fruits of research once for all : the Swiss Co. which was continuously carrying on research had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the agreement. We agree with the High Court that the first question was rightly answered in favour of the assessee.5. We have adverted to the aforesaid judgment for the purpose of illuminating the basic finding which has been arrived at in the present case which is to the effect that the assessee cannot be regarded as having acquired either wholly or any part, proprietary rights by or under the licence agreement dated 1st September 1997 as modified on 15th June 1998.6. On behalf of the Revenue, it was sought to be submitted that the acquisition of know how under a licence would fall within the ambit of Section 32 of the Income Tax Act, 1961 as amended. On the finding of fact which has been arrived at by the Commissioner of Income Tax (Appeals) and by the Tribunal it has emerged from the record in the present case that the assessee had as a matter of fact not acquired a proprietary interest or ownership in respect of the subject matter of the licence either wholly or in part so as to attract the provisions of Section 32. Having regard to the factual position which has emerged before the Court which is to the effect that the assessee had obtained the benefit, purely on a nonexclusive basis, of a licence confined to the territory of India, for a limited term and that the proprietary rights in the patents which formed the subject matter of the licence continued to vest in the licensor, the provisions of Section 32 were not attracted in this case. Moreover, the finding which has been arrived at in the present case is that the agreement was entered into on 1st September 1997 which was prior to 1st April 1998 on which date the amended provisions of Section 32 were brought into force. Though the contention of the Revenue was that the approval of the Government was obtained after 1st April 1998, more specifically on 5th June 1998, the Tribunal has observed that once approval was granted, it would relate back to the original date of the agreement, 1st September 1997, and that as a matter of fact the assessee had used the technical know how for the production of machines in financial year 19971998. Thus, as a matter of fact the Tribunal found that the agreement was operative during the course of financial year 19971998 prior to the enforcement of the amended provisions of Section 32. Hence, looked at from either perspective, the finding which has been arrived at by the Tribunal does not suffer from any error and no substantial question of law would arise insofar as first the three questions are concerned.7. In so far as the fourth question is concerned, there is a finding of fact which has been arrived at by the Tribunal which is to the effect that no real income had accrued to the assessee during the course of the assessment year in question. The record before the Court would show that it was the contention of the assessee even before the Assessing Officer that an application had to be made to the Licensing Authority for obtaining an advance licence against exports and as a matter of fact no application was made during the assessment year by the assessee. No application was made by the assessee during the assessment year 19992000 and consequently no real income had accrued to the assessee during that period. On this finding of fact, no substantial question of law would arise. There is no merit in the appeal.

0[ds]4. We have perused the original licence agreement and the modification. Under the terms of the agreement, the assessee as a licensee obtained only a nonexclusive licence which was restricted to the Territory of India to manufacture and usemachines. The proprietary rights in the patents continued to vest in the licensor. The term of the licence was five years. Having regard to these salient aspects of the agreement, the Tribunal was justified in coming to the conclusion that the assessee did not acquire an asset of a capital nature. In Commissioner of Income Tax V/s. CIBA of India Limited, (1968) 69 ITR 692 (S.C.) the Supreme Court dealt with a case where a Swiss company had undertaken to deliver to the assessee processes, formulae, scientific data, working rules and prescriptions pertaining to the manufacture or processing of products discovered in the laboratories of the company. The assessee was granted full and sole rights and a licence under the patents, to make use exercise and vend the inventions referred to in India. In consideration of the right to receive scientific and technical assistance, the assessee had agreed to make stipulated contributions. The assessee was held to be a mere licensee for a limited period. The Supreme Court held that the Swiss company did not part with any assets of its business nor had the assessee acquired any asset of an enduring nature. In that context, the Supreme Court held thus :The following facts which emerge from the agreement clearly show that the secret processes were not sold by the Swiss Co. to the assessee : (a) the licence was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; (b) the object of the agreement was to obtain the benefit of the technical assistance for running the business; (c) the licence was granted to the assessee subject to rights actually granted or which may be granted after the date of the agreement to other person; (d) the assessee was expressly prohibited from divulging confidential information to third parties without the consent of the Swiss Co.; (e) there was no transfer of the fruits of research once for all : the Swiss Co. which was continuously carrying on research had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the agreement. We agree with the High Court that the first question was rightly answered in favour of the assessee.5. We have adverted to the aforesaid judgment for the purpose of illuminating the basic finding which has been arrived at in the present case which is to the effect that the assessee cannot be regarded as having acquired either wholly or any part, proprietary rights by or under the licence agreement dated 1st September 1997 as modified on 15th Junethe finding of fact which has been arrived at by the Commissioner of Income Tax (Appeals) and by the Tribunal it has emerged from the record in the present case that the assessee had as a matter of fact not acquired a proprietary interest or ownership in respect of the subject matter of the licence either wholly or in part so as to attract the provisions of Section 32. Having regard to the factual position which has emerged before the Court which is to the effect that the assessee had obtained the benefit, purely on a nonexclusive basis, of a licence confined to the territory of India, for a limited term and that the proprietary rights in the patents which formed the subject matter of the licence continued to vest in the licensor, the provisions of Section 32 were not attracted in this case. Moreover, the finding which has been arrived at in the present case is that the agreement was entered into on 1st September 1997 which was prior to 1st April 1998 on which date the amended provisions of Section 32 were brought into force. Though the contention of the Revenue was that the approval of the Government was obtained after 1st April 1998, more specifically on 5th June 1998, the Tribunal has observed that once approval was granted, it would relate back to the original date of the agreement, 1st September 1997, and that as a matter of fact the assessee had used the technical know how for the production of machines in financial year 19971998. Thus, as a matter of fact the Tribunal found that the agreement was operative during the course of financial year 19971998 prior to the enforcement of the amended provisions of Section 32. Hence, looked at from either perspective, the finding which has been arrived at by the Tribunal does not suffer from any error and no substantial question of law would arise insofar as first the three questions are concerned.7. In so far as the fourth question is concerned, there is a finding of fact which has been arrived at by the Tribunal which is to the effect that no real income had accrued to the assessee during the course of the assessment year in question. The record before the Court would show that it was the contention of the assessee even before the Assessing Officer that an application had to be made to the Licensing Authority for obtaining an advance licence against exports and as a matter of fact no application was made during the assessment year by the assessee. No application was made by the assessee during the assessment year 19992000 and consequently no real income had accrued to the assessee during that period. On this finding of fact, no substantial question of law would arise. There is no merit in the appeal

### 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: claim of the assessee.4. We have perused the original licence agreement and the modification. Under the terms of the agreement, the assessee as a licensee obtained only a nonexclusive licence which was restricted to the Territory of India to manufacture and use tube-making machines. The proprietary rights in the patents continued to vest in the licensor. The term of the licence was five years. Having regard to these salient aspects of the agreement, the Tribunal was justified in coming to the conclusion that the assessee did not acquire an asset of a capital nature. In Commissioner of Income Tax V/s. CIBA of India Limited, (1968) 69 ITR 692 (S.C.) the Supreme Court dealt with a case where a Swiss company had undertaken to deliver to the assessee processes, formulae, scientific data, working rules and prescriptions pertaining to the manufacture or processing of products discovered in the laboratories of the company. The assessee was granted full and sole rights and a licence under the patents, to make use exercise and vend the inventions referred to in India. In consideration of the right to receive scientific and technical assistance, the assessee had agreed to make stipulated contributions. The assessee was held to be a mere licensee for a limited period. The Supreme Court held that the Swiss company did not part with any assets of its business nor had the assessee acquired any asset of an enduring nature. In that context, the Supreme Court held thus :The following facts which emerge from the agreement clearly show that the secret processes were not sold by the Swiss Co. to the assessee : (a) the licence was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; (b) the object of the agreement was to obtain the benefit of the technical assistance for running the business; (c) the licence was granted to the assessee subject to rights actually granted or which may be granted after the date of the agreement to other person; (d) the assessee was expressly prohibited from divulging confidential information to third parties without the consent of the Swiss Co.; (e) there was no transfer of the fruits of research once for all : the Swiss Co. which was continuously carrying on research had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the agreement. We agree with the High Court that the first question was rightly answered in favour of the assessee.5. We have adverted to the aforesaid judgment for the purpose of illuminating the basic finding which has been arrived at in the present case which is to the effect that the assessee cannot be regarded as having acquired either wholly or any part, proprietary rights by or under the licence agreement dated 1st September 1997 as modified on 15th June 1998.6. On behalf of the Revenue, it was sought to be submitted that the acquisition of know how under a licence would fall within the ambit of Section 32 of the Income Tax Act, 1961 as amended. On the finding of fact which has been arrived at by the Commissioner of Income Tax (Appeals) and by the Tribunal it has emerged from the record in the present case that the assessee had as a matter of fact not acquired a proprietary interest or ownership in respect of the subject matter of the licence either wholly or in part so as to attract the provisions of Section 32. Having regard to the factual position which has emerged before the Court which is to the effect that the assessee had obtained the benefit, purely on a nonexclusive basis, of a licence confined to the territory of India, for a limited term and that the proprietary rights in the patents which formed the subject matter of the licence continued to vest in the licensor, the provisions of Section 32 were not attracted in this case. Moreover, the finding which has been arrived at in the present case is that the agreement was entered into on 1st September 1997 which was prior to 1st April 1998 on which date the amended provisions of Section 32 were brought into force. Though the contention of the Revenue was that the approval of the Government was obtained after 1st April 1998, more specifically on 5th June 1998, the Tribunal has observed that once approval was granted, it would relate back to the original date of the agreement, 1st September 1997, and that as a matter of fact the assessee had used the technical know how for the production of machines in financial year 19971998. Thus, as a matter of fact the Tribunal found that the agreement was operative during the course of financial year 19971998 prior to the enforcement of the amended provisions of Section 32. Hence, looked at from either perspective, the finding which has been arrived at by the Tribunal does not suffer from any error and no substantial question of law would arise insofar as first the three questions are concerned.7. In so far as the fourth question is concerned, there is a finding of fact which has been arrived at by the Tribunal which is to the effect that no real income had accrued to the assessee during the course of the assessment year in question. The record before the Court would show that it was the contention of the assessee even before the Assessing Officer that an application had to be made to the Licensing Authority for obtaining an advance licence against exports and as a matter of fact no application was made during the assessment year by the assessee. No application was made by the assessee during the assessment year 19992000 and consequently no real income had accrued to the assessee during that period. On this finding of fact, no substantial question of law would arise. There is no merit in the appeal. ### Response: 0

State Of Tamil Nadu Vs. India Cements Ltd.

are not available the particulars of production/sales for prior three years shall be ascertained from the books of the dealers and Eligibility Certificate got amended to incorporate the particulars to avoid any dispute. As per decision of Tamil Nadu Taxation Special Tribunal in O.P.1229/1230/1231/98 dated 23.11.1998. Mercury Fittings (P) Ltd. It was held that GOM No.119/CTRE/13.4.1994 (sic) contemplate the liability to pay tax with reference to Base Production Volume or Base Sales Volume whichever is reached earlier and the liability for deferral is only with reference to volume of Sales and not with reference to taxes paid on sales for the base year. Thus all Deputy Commissioners and Assistant Commissioners shall thoroughly verify all expansion cases and satisfy themselves that taxes have been paid until the BPV/BSV has been achieved." (Emphasis supplied by us)18. It is manifest from the highlighted portion of the circular that as per the clarification issued by the Commissioner of Commercial Taxes, in exercise of the power conferred on him under Section 28A of the TNGST Act, the benefit of sales tax deferral scheme would be available to a dealer from the date of reaching of BPV or BSV, whichever is earlier, as is pleaded on behalf of the first respondent. It is trite law that circulars issued by the revenue are binding on the departmental authorities and they cannot be permitted to repudiate the same on the plea that it is inconsistent with the statutory provisions or it mitigates the rigour of the law.19. In Paper Products Ltd. Vs. Commissioner of Central Excise3, while interpreting Section 37-B of the Central Excise Act, 1944, which is in pari materia with Section 28A of the TNGST Act, this Court had held that the circulars issued by the Central Board of Excise & Customs are 3 (1999) 7 SCC 84 binding on the department and the department is precluded from challenging the correctness of the said circulars, even on the ground of the same being inconsistent with the statutory provision. It was further held that the department is precluded from the right to file an appeal against the correctness of the binding nature of the circulars and the departments action has to be consistent with the circular which is in force at the relevant point of time.20. In Collector of Central Excise, Vadodara Vs. Dhiren Chemical Industries ((2002) 2 SCC 127 ), a Constitution Bench of this Court had held that if there are circulars issued by the Central Board of Excise & Customs which place a different interpretation upon a phrase in the statute, the interpretation suggested in the circular would be binding upon the revenue even regardless of the interpretation placed by this Court.21. Similarly, in Commissioner of Customs, Calcutta & Ors. Vs. Indian Oil Corpn. Ltd. & Anr. ((2004) 3 SCC 488 ), dealing with the circular issued by the Board under Section 151-A of the Customs Act, 1962, which is again in pari materia with Section 28A of the TNGST Act, Ruma Pal, J., had opined that the circular will be binding primarily on the basis of the language of the statutory provisions buttressed by the need of the adjudicating officers to maintain uniformity in the levy of tax/duty throughout the country.Although in the same judgement, while concurring with the view expressed by Ruma Pal, J., on the facts of that case, P. Venkatarama Reddi, J., entertaining certain doubts as to the correctness of the proposition laid down by the Constitution Bench in Dhiren Chemical Industries (supra), had observed that there was a need to redefine succinctly the extent and parameters of the binding character of the circulars of the Central Board of Direct Taxes or Central Excise etc., by another Constitution Bench, yet the learned Judge did not disagree with the proposition that it is not open to the revenue to file an appeal against the order passed by an appellate authority which is in conformity with a departmental circular. In fact, His Lordship went on to observe that when there is a statutory mandate to observe and follow the orders and instructions of CBEC in regard to specified matters, that mandate has to be complied with. It is not open to the adjudicating authority to deviate from those orders or instructions which the statute enjoins that it should follow. If any order is passed contrary to those instructions, the order is liable to be struck down on that very ground.22. In Commissioner of Central Excise, Bolpur Vs. Ratan Melting & Wire Industries ((2008) 13 SCC 1 ), a Constitution Bench of this Court has clarified the confusion created on account of the view expressed in para 11 of Dhiren Chemical Industries (supra), on the question of binding effect of judgment of this Court vis-à-vis State and Central Government circulars thus: "7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." 23. In the present case, it is not the case of the revenue that circular dated 1st May, 2000 is in conflict with either any statutory provision or the deferral schemes announced under the afore-mentioned government orders. We, therefore, hold that the said circular is binding in law on the adjudicating authority under the TNGST Act.

0[ds]16. A conjoint reading of clauses 3(i) and (ii) of G.O.Ms.No.119 dated 13th April, 1994, and paragraph 5.3 of eligibility certificate dated 13th February, 1998 would show that the object of the conditions with reference to reaching of BPV is to ensure that the concerned unit achieves the highest production and sale of the existing unit in the last three years prior to the commencement of the commercial production in the expansion unit, resulting in higher revenue on higher sales. The benchmark for availing the benefit of the sales tax deferral scheme having been fixed both with reference to the production as also to the sales, in our opinion, it is immaterial whether the unit concerned reaches BPV or the BSV earlier. In our view, the word "when" employed in clause 3(ii) of G.O.Ms.No.119, whether read as "if" or "after" only signifies that in order to avail of the benefit of sales tax deferral for sales made in the year in excess of the BSV, the industry must achieve in that year the BPV, which is the highest production of the last three years prior to the expansion, for every assessment year of the total number of years, viz., 12 years, besides reaching BSV in that particular year. It is obvious that by insisting that the BSV should also be reached, the revenue of the State gets protected in every assessment year during the entire period of deferral and, in fact, the industry gets the benefit of deferral only on sales which are in excess of the BSV. It is pertinent to note that if for any reason the beneficiary ultimately fails to achieve the BPV during the financial year, the benefit of deferral of sales tax availed of by it on achieving BSV becomes refundable forthwith along with interest thereon. In our opinion, in light of the intention behind the schemes, clause 3(ii) of the G.O.Ms.No.119 cannot be construed to mean that the benefit would flow only from the date of reaching the BPV and not from the date of reaching the BSV, particularly when the main object of the schemes is to increase the productivity without compromising with the revenue of the State. Any other interpretation of the said GOM would frustrate the object of the scheme. It is now well established principle of law that if a plain meaning given to the provision for the purpose of considering as to whether the applicant had fulfilled the eligibility criteria as laid down in the notification or not is found to be clear, purpose and object the notification seeks to achieve must be given effect to. (See: G.P. Ceramics Private Limited Vs. Commissioner, Trade Tax, Uttar Pradesh ((2009) 2 SCC 90 ).)17. In any event, we feel that the decision of the High Court cannot be flawed with in light of the circular dated 1st May, 2000 issued by the office of the Principal Commissioner and Commissioner of Commercial Taxes, Chennai, in exercise of power conferred on him under Section 28A of the TNGST Act. For the sake of ready reference, the relevant portion of the circular is extractedper GOMs No.119, CT & RE/13.4.1994 as regards expansion cases it was decided that the past revenue shall be protected obtained prior to expansion. The BPV/BSV is fixed on the basis of highest annual production/sales in the 3 years prior to expansion. Thus the industries will have to pay the taxes due upon the turnover and until the Base Production Volume/Base Sales volume mentioned in the Eligibility Certificate is achieved. The BPV/BSV shall have to be worked out and incorporated in the Eligibility Certificate by SIPCOT and other district centres as per above Government order. Hence if the details are not available the particulars of production/sales for prior three years shall be ascertained from the books of the dealers and Eligibility Certificate got amended to incorporate the particulars to avoid any dispute. As per decision of Tamil Nadu Taxation Special Tribunal in O.P.1229/1230/1231/98 dated 23.11.1998. Mercury Fittings (P) Ltd. It was held that GOM No.119/CTRE/13.4.1994 (sic) contemplate the liability to pay tax with reference to Base Production Volume or Base Sales Volume whichever is reached earlier and the liability for deferral is only with reference to volume of Sales and not with reference to taxes paid on sales for the base year. Thus all Deputy Commissioners and Assistant Commissioners shall thoroughly verify all expansion cases and satisfy themselves that taxes have been paid until the BPV/BSV has beensupplied by us)18. It is manifest from the highlighted portion of the circular that as per the clarification issued by the Commissioner of Commercial Taxes, in exercise of the power conferred on him under Section 28A of the TNGST Act, the benefit of sales tax deferral scheme would be available to a dealer from the date of reaching of BPV or BSV, whichever is earlier, as is pleaded on behalf of the first respondent. It is trite law that circulars issued by the revenue are binding on the departmental authorities and they cannot be permitted to repudiate the same on the plea that it is inconsistent with the statutory provisions or it mitigates the rigour of the law.19. In Paper Products Ltd. Vs. Commissioner of Central Excise3, while interpreting Section 37-B of the Central Excise Act, 1944, which is in pari materia with Section 28A of the TNGST Act, this Court had held that the circulars issued by the Central Board of Excise & Customs are 3 (1999) 7 SCC 84 binding on the department and the department is precluded from challenging the correctness of the said circulars, even on the ground of the same being inconsistent with the statutory provision. It was further held that the department is precluded from the right to file an appeal against the correctness of the binding nature of the circulars and the departments action has to be consistent with the circular which is in force at the relevant point of time.20. In Collector of Central Excise, Vadodara Vs. Dhiren Chemical Industries ((2002) 2 SCC 127 ), a Constitution Bench of this Court had held that if there are circulars issued by the Central Board of Excise & Customs which place a different interpretation upon a phrase in the statute, the interpretation suggested in the circular would be binding upon the revenue even regardless of the interpretation placed by this Court.21. Similarly, in Commissioner of Customs, Calcutta & Ors. Vs. Indian Oil Corpn. Ltd. & Anr. ((2004) 3 SCC 488 ), dealing with the circular issued by the Board under Section 151-A of the Customs Act, 1962, which is again in pari materia with Section 28A of the TNGST Act, Ruma Pal, J., had opined that the circular will be binding primarily on the basis of the language of the statutory provisions buttressed by the need of the adjudicating officers to maintain uniformity in the levy of tax/duty throughout the country.Although in the same judgement, while concurring with the view expressed by Ruma Pal, J., on the facts of that case, P. Venkatarama Reddi, J., entertaining certain doubts as to the correctness of the proposition laid down by the Constitution Bench in Dhiren Chemical Industries (supra), had observed that there was a need to redefine succinctly the extent and parameters of the binding character of the circulars of the Central Board of Direct Taxes or Central Excise etc., by another Constitution Bench, yet the learned Judge did not disagree with the proposition that it is not open to the revenue to file an appeal against the order passed by an appellate authority which is in conformity with a departmental circular. In fact, His Lordship went on to observe that when there is a statutory mandate to observe and follow the orders and instructions of CBEC in regard to specified matters, that mandate has to be complied with. It is not open to the adjudicating authority to deviate from those orders or instructions which the statute enjoins that it should follow. If any order is passed contrary to those instructions, the order is liable to be struck down on that very ground.22. In Commissioner of Central Excise, Bolpur Vs. Ratan Melting & Wire Industries ((2008) 13 SCC 1 ), a Constitution Bench of this Court has clarified the confusion created on account of the view expressed in para 11 of Dhiren Chemical Industries (supra), on the question of binding effect of judgment of this Court vis-à-vis State and Central Government circularsCirculars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law.In the present case, it is not the case of the revenue that circular dated 1st May, 2000 is in conflict with either any statutory provision or the deferral schemes announced under the afore-mentioned government orders. We, therefore, hold that the said circular is binding in law on the adjudicating authority under the TNGST Act.

### Instruction: Using the case data, forecast whether the court is likely to side with (1) or against (0) the appellant/petitioner. ### Input: are not available the particulars of production/sales for prior three years shall be ascertained from the books of the dealers and Eligibility Certificate got amended to incorporate the particulars to avoid any dispute. As per decision of Tamil Nadu Taxation Special Tribunal in O.P.1229/1230/1231/98 dated 23.11.1998. Mercury Fittings (P) Ltd. It was held that GOM No.119/CTRE/13.4.1994 (sic) contemplate the liability to pay tax with reference to Base Production Volume or Base Sales Volume whichever is reached earlier and the liability for deferral is only with reference to volume of Sales and not with reference to taxes paid on sales for the base year. Thus all Deputy Commissioners and Assistant Commissioners shall thoroughly verify all expansion cases and satisfy themselves that taxes have been paid until the BPV/BSV has been achieved." (Emphasis supplied by us)18. It is manifest from the highlighted portion of the circular that as per the clarification issued by the Commissioner of Commercial Taxes, in exercise of the power conferred on him under Section 28A of the TNGST Act, the benefit of sales tax deferral scheme would be available to a dealer from the date of reaching of BPV or BSV, whichever is earlier, as is pleaded on behalf of the first respondent. It is trite law that circulars issued by the revenue are binding on the departmental authorities and they cannot be permitted to repudiate the same on the plea that it is inconsistent with the statutory provisions or it mitigates the rigour of the law.19. In Paper Products Ltd. Vs. Commissioner of Central Excise3, while interpreting Section 37-B of the Central Excise Act, 1944, which is in pari materia with Section 28A of the TNGST Act, this Court had held that the circulars issued by the Central Board of Excise & Customs are 3 (1999) 7 SCC 84 binding on the department and the department is precluded from challenging the correctness of the said circulars, even on the ground of the same being inconsistent with the statutory provision. It was further held that the department is precluded from the right to file an appeal against the correctness of the binding nature of the circulars and the departments action has to be consistent with the circular which is in force at the relevant point of time.20. In Collector of Central Excise, Vadodara Vs. Dhiren Chemical Industries ((2002) 2 SCC 127 ), a Constitution Bench of this Court had held that if there are circulars issued by the Central Board of Excise & Customs which place a different interpretation upon a phrase in the statute, the interpretation suggested in the circular would be binding upon the revenue even regardless of the interpretation placed by this Court.21. Similarly, in Commissioner of Customs, Calcutta & Ors. Vs. Indian Oil Corpn. Ltd. & Anr. ((2004) 3 SCC 488 ), dealing with the circular issued by the Board under Section 151-A of the Customs Act, 1962, which is again in pari materia with Section 28A of the TNGST Act, Ruma Pal, J., had opined that the circular will be binding primarily on the basis of the language of the statutory provisions buttressed by the need of the adjudicating officers to maintain uniformity in the levy of tax/duty throughout the country.Although in the same judgement, while concurring with the view expressed by Ruma Pal, J., on the facts of that case, P. Venkatarama Reddi, J., entertaining certain doubts as to the correctness of the proposition laid down by the Constitution Bench in Dhiren Chemical Industries (supra), had observed that there was a need to redefine succinctly the extent and parameters of the binding character of the circulars of the Central Board of Direct Taxes or Central Excise etc., by another Constitution Bench, yet the learned Judge did not disagree with the proposition that it is not open to the revenue to file an appeal against the order passed by an appellate authority which is in conformity with a departmental circular. In fact, His Lordship went on to observe that when there is a statutory mandate to observe and follow the orders and instructions of CBEC in regard to specified matters, that mandate has to be complied with. It is not open to the adjudicating authority to deviate from those orders or instructions which the statute enjoins that it should follow. If any order is passed contrary to those instructions, the order is liable to be struck down on that very ground.22. In Commissioner of Central Excise, Bolpur Vs. Ratan Melting & Wire Industries ((2008) 13 SCC 1 ), a Constitution Bench of this Court has clarified the confusion created on account of the view expressed in para 11 of Dhiren Chemical Industries (supra), on the question of binding effect of judgment of this Court vis-à-vis State and Central Government circulars thus: "7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." 23. In the present case, it is not the case of the revenue that circular dated 1st May, 2000 is in conflict with either any statutory provision or the deferral schemes announced under the afore-mentioned government orders. We, therefore, hold that the said circular is binding in law on the adjudicating authority under the TNGST Act. ### Response: 0

Mrs. Sanjana M. Wig Vs. Hindustan Petro Corp. Ltd

under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. 15. In Harbanslal Sahnia (supra), Lahoti, J, (as His Lordship then was), relied upon Whirpool Corporation vs. Registrar of Trade Marks [(1998) 8 SCC 1] observing that in an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 16. We may, however, notice that the Bench did not notice the earlier decisions in M/s Titagarh Paper Mill Ltd. (supra) and M/s Bisra Stone Lime Co. Ltd. (supra). However, there cannot be any doubt whatsoever that the question as to when such a discretionary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard and fast rule can be laid down. 17. A three-Judge Bench of this Court in Gujarat Ambuja Cement Ltd. (supra), referring to Harbanslal Sahnia, (supra) held: There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 25. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. 18. It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of domestic forum created therefor, the writ petition may be held to be maintainable; but indisputably therefor such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service (supra) and E. Venkatakrishna (supra), that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act, 1963; but while entertaining a writ petition even in such a case, the court may not loose sight of the fact that if a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. A writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent. 19. But in a case of this nature, while exercising a plenary jurisdiction, we must take the supervening circumstances into consideration. The parties admittedly invoked the arbitration agreement before the arbitrator. They entered into a settlement. Pursuant to or in furtherance of the said settlement, the Appellant herein was to pay a sum of Rs.4,64,586/- unto the Respondent in five installments with interest. The Appellant herein for violation of the terms of contract presumably prayed for award of damages but no reference thereto has been made in the award. In any event such claim of damages could have been made before the Arbitrator on the ground of alleged breach of contract. 20. We are further of opinion that in this matter no case has been made out for grant of a relief of restoration of the dealership. The contract stood terminated on the death of the Appellants partner. No case of novation of contract has been made out. It is also not the case of the parties that any other or further agreement between the parties came into being. The arrangement was an ad hoc one. The Appellant did not derive any legal right to continue the business for an indefinite period. Moreover, she allegedly violated the terms of the contract. 21. It may be true that the said award has been made without prejudice to the interest of the parties in this appeal; but

0[ds]Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief18. It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of domestic forum created therefor, the writ petition may be held to be maintainable; but indisputably therefor such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service (supra) and E. Venkatakrishna (supra), that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act, 1963; but while entertaining a writ petition even in such a case, the court may not loose sight of the fact that if a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. A writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent19. But in a case of this nature, while exercising a plenary jurisdiction, we must take the supervening circumstances into consideration. The parties admittedly invoked the arbitration agreement before the arbitrator. They entered into a settlement. Pursuant to or in furtherance of the said settlement, the Appellant herein was to pay a sum of Rs.4,64,586/- unto the Respondent in five installments with interest. The Appellant herein for violation of the terms of contract presumably prayed for award of damages but no reference thereto has been made in the award. In any event such claim of damages could have been made before the Arbitrator on the ground of alleged breach of contract20. We are further of opinion that in this matter no case has been made out for grant of a relief of restoration of the dealership. The contract stood terminated on the death of the Appellants partner. No case of novation of contract has been made out. It is also not the case of the parties that any other or further agreement between the parties came into being. The arrangement was an ad hoc one. The Appellant did not derive any legal right to continue the business for an indefinite period. Moreover, she allegedly violated the terms of the contract21. It may be true that the said award has been made without prejudice to the interest of the parties in this appeal;

### 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: under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. 15. In Harbanslal Sahnia (supra), Lahoti, J, (as His Lordship then was), relied upon Whirpool Corporation vs. Registrar of Trade Marks [(1998) 8 SCC 1] observing that in an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 16. We may, however, notice that the Bench did not notice the earlier decisions in M/s Titagarh Paper Mill Ltd. (supra) and M/s Bisra Stone Lime Co. Ltd. (supra). However, there cannot be any doubt whatsoever that the question as to when such a discretionary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard and fast rule can be laid down. 17. A three-Judge Bench of this Court in Gujarat Ambuja Cement Ltd. (supra), referring to Harbanslal Sahnia, (supra) held: There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 25. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. 18. It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of domestic forum created therefor, the writ petition may be held to be maintainable; but indisputably therefor such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service (supra) and E. Venkatakrishna (supra), that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act, 1963; but while entertaining a writ petition even in such a case, the court may not loose sight of the fact that if a serious disputed question of fact is involved arising out of a contract qua contract, ordinarily a writ petition would not be entertained. A writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent. 19. But in a case of this nature, while exercising a plenary jurisdiction, we must take the supervening circumstances into consideration. The parties admittedly invoked the arbitration agreement before the arbitrator. They entered into a settlement. Pursuant to or in furtherance of the said settlement, the Appellant herein was to pay a sum of Rs.4,64,586/- unto the Respondent in five installments with interest. The Appellant herein for violation of the terms of contract presumably prayed for award of damages but no reference thereto has been made in the award. In any event such claim of damages could have been made before the Arbitrator on the ground of alleged breach of contract. 20. We are further of opinion that in this matter no case has been made out for grant of a relief of restoration of the dealership. The contract stood terminated on the death of the Appellants partner. No case of novation of contract has been made out. It is also not the case of the parties that any other or further agreement between the parties came into being. The arrangement was an ad hoc one. The Appellant did not derive any legal right to continue the business for an indefinite period. Moreover, she allegedly violated the terms of the contract. 21. It may be true that the said award has been made without prejudice to the interest of the parties in this appeal; but ### Response: 0

Sabal Singh and Others Vs. State of Rajasthan

cultivation. This means that Banta Singh and Hajura Singh, were in actual cultivating possession in the statute of tenants. But in the Khasra Girdwari entries (P1 and P2) relating to the relevant period, Banta Singh or Hajura Singh are not shown in possession of the land in any capacity, whatever. 5. The above circumstances clearly show that forcible occupation of the Dhani and the land by the appellants could not be viewed - as the learned judges of the High Court have done a single or sporadic act of trespass by the accused. They came with a determination to stay and did stay and continue in effective physical possession of the disputed land with crops thereon till the occurrence on March 8, 1975. 6. The circumstances mentioned below establish by inference a strong possibility, verging on probability, about the existence of the fact that the persons went in a body to the field, armed and primed with liquor, with a determination to remove the Gowar crop by force from the possession and control of the accused : (a) The investigating officer found on the scene of occurrence, near the dead bodies, several weapons, namely, Jei (Article 6), as a Sela Blade (Article 6), a lathi, one kukari and one sword. (b) No evidence has been brought on the record to show that these weapons belonged to the accused or had been used by them in assaulting the deceased persons. On the contrary, at the trial, the eye-witness Banta Singh, Hajura Singh and Amar Singh categorically stated that the accused had belaboured the deceased persons with lathis only. It was nobodys case that the accused used more than one weapon in assaulting the deceased. Consistently with the same story, the investigating police officer had recovered one lathi from each of the three accused. The lathis said to have been recovered from Prem Singh and Ugam Singh were found stained with blood but not the one recovered from Sabal Singh. (c) The appellants had also received injuries. The medical witness who had examined the accused-appellants on March 16, 1975, found three injuries on Ugam Singh and seven on Prem Singh. The injuries were simple and were caused with a blunt object. In the opinion of the medical witness, these injuries were 6 to 8 days old at the time their examination. This means, they could have been received by the accused in the course of the occurrence on March 9, 1975.The High Court has discounted this conclusion mainly on the ground that the accused did not get their injuries examined soon after the occurrence. With respect, we are unable to agree with this reasoning. It was manifest that these two accused were reluctant to get their injuries examined because of the fear that it was an incriminating circumstance indicating their participation in the crime. Even after their arrest, the accused were examined by the Doctor at the instance of the police The learned judge of the High Court have held - contrary to the story narrated at the trial by the eye-witness, - that the Sela and Jei found at the spot had been used by the appellants in inflicting injuries on the deceased, and in the process, they seem to have used in F.I.R. as if it were a substantive of evidence. The High Court Was clearly in error in making out or reconstructing a new case, which was not set up by the prosecution at the trial. (c) On post-mortem examination, alcohol was found in the stomachs of the deceased persons : (Ridmal Singh, Sheodhan Singh and Jatan Singh). This shows the deceased person had come to the spot after having primed themselves with liquor. (e) Since it was the positive case of the prosecution at the trial, that the accused had belaboured the deceased, only with lathis, and not with any of the blunt and sharp weapons found at the scene of occurrence, the only reasonable inference is that these weapons viz., Jei, Sela blade, lathi, sword, kukari were used by persons other then the appellants. So far as the blunt weapons (Jei and lathi) which were found at the spot are concerned, the greater possibility is that they were used by the deceased persons in inflicting injuries on Prem Singh and Ugam Singh, appellants because all the injuries on the latter were caused with blunt weapons. As regard the sharp weapon (sword), it might have been used in causing the incised injuries to the deceased by some person other then three appellants, who according to the prosecution, had used lathis only in the assault. This means the possibility of the participation of one more person armed with a sharp-edged weapon, addition to the three appellants, in the assault upon the deceased, cannot altogether be ruled out. 7. In Sum, the circumstances catalogued above, probables, the existence of these facts : (i) The accused were in actual, effective possession of the disputed land and the crops standing or lying therein. (ii) The deceased per son were unarmed. They were drunk at the time of occurrence. (iii) The deceased party went to the filed with a determination to remove the Gowara crop from the possession or control of the accused. (vi) The occurrence was not a one-sided affair, there was some fight, in the course of which, blows were exchanged and both sides received injuries. But the injuries inflicted by the accused party on the deceased persons both in severity and number were far greater then those received by the accused party. 8. In view of these facts, it can be said that the accused had a right to defend their possession and property. But the force used by them was recklessly excessive, and as such, they were rightly not given the benefit of Exception II to Section 300 I.P.C. Nevertheless, the circumstances showing that the appellants had a right on private defence of property, which they exceeded, could be taken into consideration in extenuation of the extreme penalty. 9.

1[ds]In view of these facts, it can be said that the accused had a right to defend their possession and property. But the force used by them was recklessly excessive, and as such, they were rightly not given the benefit of Exception II to Section 300 I.P.C. Nevertheless, the circumstances showing that the appellants had a right on private defence of property, which they exceeded, could be taken into consideration in extenuation of the extreme penalty.

### 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: cultivation. This means that Banta Singh and Hajura Singh, were in actual cultivating possession in the statute of tenants. But in the Khasra Girdwari entries (P1 and P2) relating to the relevant period, Banta Singh or Hajura Singh are not shown in possession of the land in any capacity, whatever. 5. The above circumstances clearly show that forcible occupation of the Dhani and the land by the appellants could not be viewed - as the learned judges of the High Court have done a single or sporadic act of trespass by the accused. They came with a determination to stay and did stay and continue in effective physical possession of the disputed land with crops thereon till the occurrence on March 8, 1975. 6. The circumstances mentioned below establish by inference a strong possibility, verging on probability, about the existence of the fact that the persons went in a body to the field, armed and primed with liquor, with a determination to remove the Gowar crop by force from the possession and control of the accused : (a) The investigating officer found on the scene of occurrence, near the dead bodies, several weapons, namely, Jei (Article 6), as a Sela Blade (Article 6), a lathi, one kukari and one sword. (b) No evidence has been brought on the record to show that these weapons belonged to the accused or had been used by them in assaulting the deceased persons. On the contrary, at the trial, the eye-witness Banta Singh, Hajura Singh and Amar Singh categorically stated that the accused had belaboured the deceased persons with lathis only. It was nobodys case that the accused used more than one weapon in assaulting the deceased. Consistently with the same story, the investigating police officer had recovered one lathi from each of the three accused. The lathis said to have been recovered from Prem Singh and Ugam Singh were found stained with blood but not the one recovered from Sabal Singh. (c) The appellants had also received injuries. The medical witness who had examined the accused-appellants on March 16, 1975, found three injuries on Ugam Singh and seven on Prem Singh. The injuries were simple and were caused with a blunt object. In the opinion of the medical witness, these injuries were 6 to 8 days old at the time their examination. This means, they could have been received by the accused in the course of the occurrence on March 9, 1975.The High Court has discounted this conclusion mainly on the ground that the accused did not get their injuries examined soon after the occurrence. With respect, we are unable to agree with this reasoning. It was manifest that these two accused were reluctant to get their injuries examined because of the fear that it was an incriminating circumstance indicating their participation in the crime. Even after their arrest, the accused were examined by the Doctor at the instance of the police The learned judge of the High Court have held - contrary to the story narrated at the trial by the eye-witness, - that the Sela and Jei found at the spot had been used by the appellants in inflicting injuries on the deceased, and in the process, they seem to have used in F.I.R. as if it were a substantive of evidence. The High Court Was clearly in error in making out or reconstructing a new case, which was not set up by the prosecution at the trial. (c) On post-mortem examination, alcohol was found in the stomachs of the deceased persons : (Ridmal Singh, Sheodhan Singh and Jatan Singh). This shows the deceased person had come to the spot after having primed themselves with liquor. (e) Since it was the positive case of the prosecution at the trial, that the accused had belaboured the deceased, only with lathis, and not with any of the blunt and sharp weapons found at the scene of occurrence, the only reasonable inference is that these weapons viz., Jei, Sela blade, lathi, sword, kukari were used by persons other then the appellants. So far as the blunt weapons (Jei and lathi) which were found at the spot are concerned, the greater possibility is that they were used by the deceased persons in inflicting injuries on Prem Singh and Ugam Singh, appellants because all the injuries on the latter were caused with blunt weapons. As regard the sharp weapon (sword), it might have been used in causing the incised injuries to the deceased by some person other then three appellants, who according to the prosecution, had used lathis only in the assault. This means the possibility of the participation of one more person armed with a sharp-edged weapon, addition to the three appellants, in the assault upon the deceased, cannot altogether be ruled out. 7. In Sum, the circumstances catalogued above, probables, the existence of these facts : (i) The accused were in actual, effective possession of the disputed land and the crops standing or lying therein. (ii) The deceased per son were unarmed. They were drunk at the time of occurrence. (iii) The deceased party went to the filed with a determination to remove the Gowara crop from the possession or control of the accused. (vi) The occurrence was not a one-sided affair, there was some fight, in the course of which, blows were exchanged and both sides received injuries. But the injuries inflicted by the accused party on the deceased persons both in severity and number were far greater then those received by the accused party. 8. In view of these facts, it can be said that the accused had a right to defend their possession and property. But the force used by them was recklessly excessive, and as such, they were rightly not given the benefit of Exception II to Section 300 I.P.C. Nevertheless, the circumstances showing that the appellants had a right on private defence of property, which they exceeded, could be taken into consideration in extenuation of the extreme penalty. 9. ### Response: 1

State Of Haryana Vs. Brij Lal Mittal

had expired. In this process the petitioners (the respondents before us) lost their right to get the sample re-analysed from the Central Drugs Laboratory. The petitioners counsel rightly alleges that a valuable right has lost and this caused prejudice to the petitioners." 7. At the risk of petition, we wish to emphasise that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned (here the latter clause did not apply for the prosecution was to be initiated) within twenty-eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. The complaint and its accompaniments (which include correspondence that took place between the Inspector and the manufacturers) clearly disclose that on February 19, 1991 the Inspector served the original copies of the Analysts report upon the Managing Director of the manufacturers along with two letters asking for their comments. They further disclose that receiving no reply from the manufacturers the Inspector again wrote a letter on March 6, 1991 directing them to reply to his letters dated February 19, 1991 and asked whether they wanted to take benefit of the provisions of Section 25(3) of the Act. In spite thereof the manufacturers did not exercise their right (much less within 28 days from the date of the receipt of the report of the Government Analyst i.e. February 19, 1991); and, on the contrary, in their letter dated April 8, 1991, annexed to the complaint), sent in response to the letter dated March 6, 1991, asserted that their quality control department examined and tested samples of the two drugs and found that they complied with the test of sterility. It must, therefore, be said that consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst also became conclusive evidence under sub-section (3). The delay in filing the complaint till the expiry of the shelf life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers right under sub-section (3) expired four months before the expiry of the shelf life of the drugs. In view of the above discussion, the reasoning of the High Court for quashing the prosecution against the three respondents cannot at all be sustained. 8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as directors of the manufacturers with the aid of Section 34 (1) of the Act which reads as under: "OFFENCES BY COMPANIES:(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence." It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in-charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be in-charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in-charge of the company and also responsible to the company for the conduct of its business. 9. In Delhi Municipality v. Ram Kishan, (1983) 1 SCC 1 , while dealing with the applicability of Section 17(1) of the Prevention of the Food Adulteration Act, 1954, which is in pari materia with section 34(1) of the Act, on similar facts, this Court observed as under: "So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the arguments of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed." (emphasis supplied) 10. Since we are in respectful agreement with the view so expressed we dismiss this appeal and uphold the order of the High Court quashing the prosecution against the three respondents on a different ground. 11.

0[ds]5. From a bare perusal of sub-section (3) it is manifest that the report of the Government Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the person from whom the sample was taken or the person whose name, address or other particulars have been disclosed under Section 18A (in this case the manufacturers) has within 28 days of the receipt of the report notified in writing the Inspector or the Court before which any proceeding in respect of the sample are pending that he intends to adduce evidence in controversion of the report. Sub-section (4) also makes it abundantly clear that the right to get the sample tested by Central Government Laboratory (so as to make its report override the report of the Analyst) through the Court accrues to a person accused in the case only if the had earlier notified in accordance with sub-section (3) his intention of adducing evidence in controversion of the report of the Government Analyst. To put it differently, unless requirement of sub-section (3) is complied with by the person concerned he cannot avail of his right under sub-section (4).6. On perusal of the impugned judgment we are constrained to say that the High Court did not properly consider the provisions of sub-section (3) nor did it appear to have perused the complaint and the documents annexed thereto before concluding that the respondents were deprived of their right under sub-section (4).Since we are in respectful agreement with the view so expressed we dismiss this appeal and uphold the order of the High Court quashing the prosecution against the three respondents on a different ground.

### 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: had expired. In this process the petitioners (the respondents before us) lost their right to get the sample re-analysed from the Central Drugs Laboratory. The petitioners counsel rightly alleges that a valuable right has lost and this caused prejudice to the petitioners." 7. At the risk of petition, we wish to emphasise that the right to get the sample examined by the Central Drugs Laboratory through the Court before which the prosecution is launched arises only after the person concerned notifies in writing the Inspector or the Court concerned (here the latter clause did not apply for the prosecution was to be initiated) within twenty-eight days from the receipt of the copy of the report of the Government Analyst that he intends to adduce evidence in controversion of the report. The complaint and its accompaniments (which include correspondence that took place between the Inspector and the manufacturers) clearly disclose that on February 19, 1991 the Inspector served the original copies of the Analysts report upon the Managing Director of the manufacturers along with two letters asking for their comments. They further disclose that receiving no reply from the manufacturers the Inspector again wrote a letter on March 6, 1991 directing them to reply to his letters dated February 19, 1991 and asked whether they wanted to take benefit of the provisions of Section 25(3) of the Act. In spite thereof the manufacturers did not exercise their right (much less within 28 days from the date of the receipt of the report of the Government Analyst i.e. February 19, 1991); and, on the contrary, in their letter dated April 8, 1991, annexed to the complaint), sent in response to the letter dated March 6, 1991, asserted that their quality control department examined and tested samples of the two drugs and found that they complied with the test of sterility. It must, therefore, be said that consequent upon their failure to notify the Inspector that they intended to adduce evidence in controversion of the report within 28 days, not only the right of the manufacturers to get the sample tested by the Central Drugs Laboratory through the Court concerned stood extinguished but the report of the Government Analyst also became conclusive evidence under sub-section (3). The delay in filing the complaint till the expiry of the shelf life of the drugs could not, therefore, have been made a ground by the High Court to quash the prosecution. It will not be out of place to mention that the manufacturers right under sub-section (3) expired four months before the expiry of the shelf life of the drugs. In view of the above discussion, the reasoning of the High Court for quashing the prosecution against the three respondents cannot at all be sustained. 8. Nonetheless, we find that the impugned judgment of the High Court has got to be upheld for an altogether different reason. Admittedly, the three respondents were being prosecuted as directors of the manufacturers with the aid of Section 34 (1) of the Act which reads as under: "OFFENCES BY COMPANIES:(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence." It is thus seen that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was in-charge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be in-charge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were in-charge of the company and also responsible to the company for the conduct of its business. 9. In Delhi Municipality v. Ram Kishan, (1983) 1 SCC 1 , while dealing with the applicability of Section 17(1) of the Prevention of the Food Adulteration Act, 1954, which is in pari materia with section 34(1) of the Act, on similar facts, this Court observed as under: "So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the arguments of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed." (emphasis supplied) 10. Since we are in respectful agreement with the view so expressed we dismiss this appeal and uphold the order of the High Court quashing the prosecution against the three respondents on a different ground. 11. ### Response: 0

J.K. Steel Ltd Vs. Union Of India

duty of excise as is equivalent to the duty payable on the said article. Notifications Nos. 70, 77 and 89 exempted payment of excise duty on an article to the extent duty had been paid on the law material used in the manufacture of the article dutiable under entry 26AA. All these Notifications proceeded on the basis that the second limb of the levy in column 3 of entry 26AA refers to the duty payable on the Pig Iron or Steel Ingot, as the case may be used in the manufacture of an article dutiable under 26AA.41. But the above notifications do not deal with the countervailing duty levied under Entry 63 (36) of the First Schedule to the Tariff Act. This was clearly an omission. To make good that omission the Government amended Notification No. 89/62 by its order dated December 29, 1962. The amended Notification in addition to the exemption already given under Notification No. 89/62 also exempted from the payment of duty any article falling within any of the sub-items in Items 26AA if made from an article on which countervailing duty has been paid under Item 63(36) of the First Schedule to the Tariff Act from so much of the duty of excise as is equivalent to the countervailing custom duty payable on the said article. This Notification clearly shows that the countervailing duty in question was levied on the basis that the excise duty contemplated by entry 26AA will not apply to articles made out of imported Pig Iron or Steel Ingot. Further if the legislature intended the duty under entry 63(36) to be an additional duty, the exemption granted would nullify the legislative mandate.42. To summarise the effect of the Finance (No. 2) Act of 1962 and the various Notifications issued for the purpose of implementing the scheme under that Act is that excise duty is leviable at the rate mentioned in column 3 of Item 26AA on pig iron or steel ingot used in the production of the article on which duty under entry 26AA is sought to be levied but to the extent any excise duty or countervailing custom duty had been paid on any of the material used in the manufacture of any of that article, the same is exempt. From this scheme it is clear that when Item 26AA speaks of "the excise duty for the time being leviable on Pig Iron or Steel Ingots as the case may be" it refers to the excise duty payable on the Pig Iron or Steel Ingots used in the production of the article dutiable under that item.43. Form the above discussion, it follows that the wires which are the subject matter of the levy impugned in this case are not liable to pay the duty in dispute in this case.44. At one stage it was contended on behalf of the assessee that the levy under sub-item (1) of Item 26-AA comes into effect only when an article is made directly form out of Pig Iron or Steel Ingot as the case may be and not otherwise. It is not necessary to examine the correctness of this contention because at no stage the assessee had challenged his liability to pay ad valorem duty under Item 26-AA. He paid the same without objection not had he claimed refund of the same.45. I shall now take up the question of limitation. The written demand made on March 21, 1963 purports to have been made under Rule 9 (2) of the rules. Therein the assessing authority demanded steel ingot duty which according to it the assessee had failed to pay. Quite clearly Rule 9 (2) inapplicable to the facts of the case. Admittedly the assessee had cleared the goods from the warehouse after paying the duty demanded and after obtaining the permission of the concerned authority. Hence there is no question of any evasion. Despite the fact that the assessee challenged the validity of the demand made on him, both the Assistant Collector as well as the Collector ignored that contention; but when the matter was taken up to the Government it treated the demand in question as a demand under Rule 10. The Government confined the demand to clearance effected after December 21, 1962. The demand so modified is in conformity with Rule 10. But the contention of the assessee is that the demand having been under Rule 9 (2) and there being no indication in that demand that it was made under Rule 10, the Revenue cannot now change its position and justify the demand under R. 10; at any rate by the time the Government amended the demand, the duty claimed became barred even under Rule 10. We are unable to accept this contention as correct. There is no dispute that the officer who made the demand was competent to make demands both under Rule 9 (2) as well as under Rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well-settled proposition of law. In this contention reference may usefully be made to the decision of this Court in P. Balakotaiah v. The Union of India, 1958 SCR 1052 = (AIR 1958 SC 232 ) and Afzal Ullah v. State of U. P. 1964-4 SCR 991 = (AIR 1964 SC 264 ). Further a common from is prescribed for issuing notices both under Rule 9 (2) and Rule 10. The incorrect statements in the written demand could not have prejudiced the assessee. From his reply to the demand, it is clear that he knew as to the nature of the demand. Therefore, I find no substance in the plea of limitation advanced on behalf of the assessee.46. For the reasons mentioned above, this appeal is allowed and the Revenue is directed to refund the excess duty paid under protest.ORDER

0[ds]29. For the purpose of interpreting the clause in question, reference may also be made to entry 63 (36) in the First Schedule to the Tariff Act. It may be remembered that that entry as well as entry 26AA in the First Schedule of the Act were enacted simultaneously under Finance (No. 2) Act, 1962. Both these entries came into force on the same day namely on 24th April 1962.The Act and the Tariff Act are cognate legislations. In other words they are legislations which are pari materia. They form one code. They must be taken together as forming one system and as interpreting and enforcing each other. It is proper to assume from the surrounding circumstances, that these two entries were introduced in pursuance of a common purpose, that purpose being that the articles listed in entry 26AA whether produced out of indigenous Pig Iron or Steel Ingot or made out of imported Pig Iron or Steel Ingot must bear the same amount of duty. If the interpretation placed on entry 26AA by the learned Counsel for the assessee is accepted then it would be seen that that entry by itself would not impose the duty contemplated by the second part of the clause in col. 3 of entry 26AA on imported Pig Iron or Steel Ingot. Evidently in order to equalise the duty on articles made out of indigenous material as well as imported material entry 63(36) of the First Schedule to the Tariff Act was enacted. In other words that entry imposes countervailing duty and not additional duty. It was conceded by the learned Counsel for the Revenue that the duty levied under entry 63 (36) of the First Schedule of the Tariff Act is only a countervailing duty. If that be so, that duty cannot be considered as an additional duty over and above the duty imposed under entry 26AA of the First Schedule of the Act. But it would be an additional duty if the interpretation of entry 26AA canvassed on behalf of the Revenue is accepted because according to the Revenue the rate prescribed in that entry is equally applicable to all articles mentioned therein whether manufactured from indigenous or imported material.If that be so the duty collected under duty 63(36) of the First Schedule under the Tariff Act will be an additional duty and not a countervailing duty.It is true that despite entry 26AA of the First Schedule to the Act and entry 63(36) of the First Schedule of the Tariff Act if pig iron or steel ingot imported before April 24, 1962 is used in the manufacture of an article dutiable under entry 26AA only the ad valorem duty prescribed under that entry can be levied on that article. It may be that the legislature intended it to be so or there is a lacuna in the provision. In either case the effect is the same.From the above decisions, it is clear that several judges in England have referred to the subordinate legislation made under a statute for the purpose of interpreting that statute though for the limited purpose of knowing how the department which was entrusted with the task of implementing that statute, had understood that statute. In the case of fiscal statutes it may not be inappropriate to take into consideration the exemption granted in interpreting the nature and the scope of the impost. In the matter of fiscal legislation the initiative is in the hands of the executive. Under Article 112 (1) of our Constitution the President shall in respect of every financial year cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure for that year. Under sub-article (3) of Article 110 no demand for a grant shall be made except on the recommendation of the President.In the matter of taxation very large powers are left in the hands of the executive. Generally speaking the question of exemption is left to the discretion of the Government. It ought to be so because the exercise of that power depends on various circumstances some of which cannot be anticipated in advance. But yet the levy and exemption are parts of the same scheme of taxation. The two together carry into effect the purpose of thedo not think it is necessary for me to decide in this case the general question whether subordinate legislation can be used for interpreting a provision in the parent Act. I am not unaware of the danger in accepting that it could be so done.But for the present purpose, it is sufficient to hold that for finding out the scope of a particular levy, notifications issued by the executive Government providing for exemption form that levy can be looked into as they disclose the overall scheme.38. Even according to the learned Counsel for the Revenue the notifications referred to earlier were issued with a view to avoid double taxation. If that is so, the exemption granted under those notifications provide a clue as to the scope of the levy made under Item 26AA.39. We have earlier seen that on the very day, the levy came into force the Government had issued two notifications i. e. Notifications Nos. 70 and 77 of 1962. Under Notification No. 70 it exempted Iron and Steel products falling under item 26AA if made from pig Iron or Steel Ingots on which the appropriate amount of duty has already been paid, from so much duty of the excise leviable thereon as is equivalent to the duty leviable under item 25 or as the case may be under Item 26. Under Notification No. 77, it exempted Iron and Steel Products falling under sub-item Nos. 2, 3, 4 and 5 of Item 26AA,if made from articles which have already paid appropriate duty of excise under sub-item (1) of the said item from so much of the duty of exercise as is equivalent to the duty payable under the said sub-item (1). These Notifications clearly indicate that under Item 26AA, there was no intention to levy double excise duty on the same material. The intention appears to be that if one article is made out of another article both of which are subject to excise duty, the excise duty paid on the raw material should be deducted in computing the excise duty payable on the finished product. In addition these Notifications clearly show that the Pig Iron and Steel Ingot mentioned in Cl. 3 of entry 26AA are those used in the manufacture of the article on which duty is sought to be levied under that entry.40. In this connection we may also refer to Notification No. 89/62. Notification No. 77/62 referred merely to Iron and Steel Products falling under sub-items 2, 3, 4, and 5 of item 26AA manufactured out of articles falling under sub-item (1) thereof. That Notification by itself was not all comprehensive. It did not take in other articles made out of Pig Iron or Steel Ingot. It is for that reason Notification No. 89/62 was issued on May 10, 1962 under which exemption was given with effect from April 24, 1962 to all Iron and Steel Products falling under Item 26AA if made from another article falling under the said item and having already paid appropriate amount of duty from so much of the duty of excise as is equivalent to the duty payable on the said article. Notifications Nos. 70, 77 and 89 exempted payment of excise duty on an article to the extent duty had been paid on the law material used in the manufacture of the article dutiable under entry 26AA. All these Notifications proceeded on the basis that the second limb of the levy in column 3 of entry 26AA refers to the duty payable on the Pig Iron or Steel Ingot, as the case may be used in the manufacture of an article dutiable under 26AA.41. But the above notifications do not deal with the countervailing duty levied under Entry 63 (36) of the First Schedule to the Tariff Act. This was clearly an omission. To make good that omission the Government amended Notification No. 89/62 by its order dated December 29, 1962. The amended Notification in addition to the exemption already given under Notification No. 89/62 also exempted from the payment of duty any article falling within any of the sub-items in Items 26AA if made from an article on which countervailing duty has been paid under Item 63(36) of the First Schedule to the Tariff Act from so much of the duty of excise as is equivalent to the countervailing custom duty payable on the said article. This Notification clearly shows that the countervailing duty in question was levied on the basis that the excise duty contemplated by entry 26AA will not apply to articles made out of imported Pig Iron or Steel Ingot. Further if the legislature intended the duty under entry 63(36) to be an additional duty, the exemption granted would nullify the legislative mandate.42. To summarise the effect of the Finance (No. 2) Act of 1962 and the various Notifications issued for the purpose of implementing the scheme under that Act is that excise duty is leviable at the rate mentioned in column 3 of Item 26AA on pig iron or steel ingot used in the production of the article on which duty under entry 26AA is sought to be levied but to the extent any excise duty or countervailing custom duty had been paid on any of the material used in the manufacture of any of that article, the same is exempt. From this scheme it is clear that when Item 26AA speaks of "the excise duty for the time being leviable on Pig Iron or Steel Ingots as the case may be" it refers to the excise duty payable on the Pig Iron or Steel Ingots used in the production of the article dutiable under thatthe fact that the assessee challenged the validity of the demand made on him, both the Assistant Collector as well as the Collector ignored that contention; but when the matter was taken up to the Government it treated the demand in question as a demand under Rule 10. The Government confined the demand to clearance effected after December 21, 1962. The demand so modified is in conformity with Rule 10. But the contention of the assessee is that the demand having been under Rule 9 (2) and there being no indication in that demand that it was made under Rule 10, the Revenue cannot now change its position and justify the demand under R. 10; at any rate by the time the Government amended the demand, the duty claimed became barred even under Rule 10. We are unable to accept this contention as correct. There is no dispute that the officer who made the demand was competent to make demands both under Rule 9 (2) as well as under Rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well-settled proposition of law.For the reasons mentioned above, this appeal is allowed and the Revenue is directed to refund the excess duty paid under protest.

### 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: duty of excise as is equivalent to the duty payable on the said article. Notifications Nos. 70, 77 and 89 exempted payment of excise duty on an article to the extent duty had been paid on the law material used in the manufacture of the article dutiable under entry 26AA. All these Notifications proceeded on the basis that the second limb of the levy in column 3 of entry 26AA refers to the duty payable on the Pig Iron or Steel Ingot, as the case may be used in the manufacture of an article dutiable under 26AA.41. But the above notifications do not deal with the countervailing duty levied under Entry 63 (36) of the First Schedule to the Tariff Act. This was clearly an omission. To make good that omission the Government amended Notification No. 89/62 by its order dated December 29, 1962. The amended Notification in addition to the exemption already given under Notification No. 89/62 also exempted from the payment of duty any article falling within any of the sub-items in Items 26AA if made from an article on which countervailing duty has been paid under Item 63(36) of the First Schedule to the Tariff Act from so much of the duty of excise as is equivalent to the countervailing custom duty payable on the said article. This Notification clearly shows that the countervailing duty in question was levied on the basis that the excise duty contemplated by entry 26AA will not apply to articles made out of imported Pig Iron or Steel Ingot. Further if the legislature intended the duty under entry 63(36) to be an additional duty, the exemption granted would nullify the legislative mandate.42. To summarise the effect of the Finance (No. 2) Act of 1962 and the various Notifications issued for the purpose of implementing the scheme under that Act is that excise duty is leviable at the rate mentioned in column 3 of Item 26AA on pig iron or steel ingot used in the production of the article on which duty under entry 26AA is sought to be levied but to the extent any excise duty or countervailing custom duty had been paid on any of the material used in the manufacture of any of that article, the same is exempt. From this scheme it is clear that when Item 26AA speaks of "the excise duty for the time being leviable on Pig Iron or Steel Ingots as the case may be" it refers to the excise duty payable on the Pig Iron or Steel Ingots used in the production of the article dutiable under that item.43. Form the above discussion, it follows that the wires which are the subject matter of the levy impugned in this case are not liable to pay the duty in dispute in this case.44. At one stage it was contended on behalf of the assessee that the levy under sub-item (1) of Item 26-AA comes into effect only when an article is made directly form out of Pig Iron or Steel Ingot as the case may be and not otherwise. It is not necessary to examine the correctness of this contention because at no stage the assessee had challenged his liability to pay ad valorem duty under Item 26-AA. He paid the same without objection not had he claimed refund of the same.45. I shall now take up the question of limitation. The written demand made on March 21, 1963 purports to have been made under Rule 9 (2) of the rules. Therein the assessing authority demanded steel ingot duty which according to it the assessee had failed to pay. Quite clearly Rule 9 (2) inapplicable to the facts of the case. Admittedly the assessee had cleared the goods from the warehouse after paying the duty demanded and after obtaining the permission of the concerned authority. Hence there is no question of any evasion. Despite the fact that the assessee challenged the validity of the demand made on him, both the Assistant Collector as well as the Collector ignored that contention; but when the matter was taken up to the Government it treated the demand in question as a demand under Rule 10. The Government confined the demand to clearance effected after December 21, 1962. The demand so modified is in conformity with Rule 10. But the contention of the assessee is that the demand having been under Rule 9 (2) and there being no indication in that demand that it was made under Rule 10, the Revenue cannot now change its position and justify the demand under R. 10; at any rate by the time the Government amended the demand, the duty claimed became barred even under Rule 10. We are unable to accept this contention as correct. There is no dispute that the officer who made the demand was competent to make demands both under Rule 9 (2) as well as under Rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well-settled proposition of law. In this contention reference may usefully be made to the decision of this Court in P. Balakotaiah v. The Union of India, 1958 SCR 1052 = (AIR 1958 SC 232 ) and Afzal Ullah v. State of U. P. 1964-4 SCR 991 = (AIR 1964 SC 264 ). Further a common from is prescribed for issuing notices both under Rule 9 (2) and Rule 10. The incorrect statements in the written demand could not have prejudiced the assessee. From his reply to the demand, it is clear that he knew as to the nature of the demand. Therefore, I find no substance in the plea of limitation advanced on behalf of the assessee.46. For the reasons mentioned above, this appeal is allowed and the Revenue is directed to refund the excess duty paid under protest.ORDER ### Response: 0

The Commissioner of Income Vs. M/S. Geoffrey Manners & Company Limited

Oral Judgment: F.I. Rebello, J.These Appeals are in respect of assessment years 2001-2002 and 1996-97. The common question of law which would arise in both these Appeals reads as under:-"Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in deleting the disallowance made by the Assessing Officer for the expenses incurred by the assessee for promotion films, slides, advertisement films and treating the same as capital expenditure The principal contention based on which the Revenue has preferred this appeal is that the Tribunal while passing the judgment ignored the ratio of the judgment of this Court in Commissioner of Income Tax Vs. Patel International Films Ltd., 102 ITR 219 . 2. The Respondent assessee has incurred expenditure on film production by way of advertisement for the marketing of products manufactured by them. It was their submission that these expenses are purely of revenue nature and they derive no enduring benefit to the company. They only will help the company to make the customer aware of the existence of its products, including improvement, if any, in the market which may or may not result in sales. The Assessment Officer disallowed the expenditure by holding that it is capital in nature. In Appeal preferred by the Assessee before the C.I.T. (A), the C.I.T. (A) was pleased to hold that considering that these are films in the form of advertisement whose life term cannot be ascertained they could not be held as capital expenditure even if resulted in benefit for more than one accounting year. Revenue being aggrieved preferred an Appeal before the Tribunal. The Tribunal relied on its own judgment in the case of Deputy Commissioner of Income Tax vs. Metro Shoes P. Ltd., 268 ITR 106 (AT). In that case the Tribunal in respect of advertisement film was pleased to hold that no capital or right or benefit of enduring nature had been created or acquired by the assessee by production of the advertisement film. The Tribunal noted that the assessee to keep mass interest in its products has to continuously strive to keep on advertising its products in ever increasingly novel ways and methods, through the media and as such the expenditure incurred on the production of the advertisement film was in the nature of revenue expenditure.3. The only ground based on which the Revenue has approached this Court is as pointed out earlier that the Tribunal ignored the ratio of the judgment in Patel International Films Ltd. We may point out, that on facts there the assessee company was in the business of processing and printing movie films in a processing and printing laboratory purchased by them. It subsequently purchased a film processor in the laboratory to serve as a model for exhibition to induce confidence in its customers by way of advertisement and claimed the amount spent on the purchase as business expenditure. After considering the facts a learned Bench of this Court noted as under:-"In other words, the asset that was acquired by the assessee-company was a capital asset to be used for the purpose of advertisement of the business that the assessee-company was going to carry on in future and, therefore, the expenditure will have to be regarded as a capital expenditure and not revenue expenditure." It would, thus be clear that the machinery purchased was not in respect of an on going business of the assessee, but in respect of the business which was going to be carried out in the future.In the instant case as the facts bear out, the advertisement was in respect of an ongong business of the assessee herein.4. A similar issue had come up for consideration before the Division Bench of the High Court of Punjab & Haryana in Commissioner of Income Tax vs. Liberty Group Marketing Division, 2008 (8) DTR Judgments, 28. In that case the assessee had claimed expenditure incurred on glow sign boards as also T.V. Films. The expenditure was held to be revenue in nature.5. In our opinion the correct test to be applied in such a case would be, that if the expenditure is in respect of an ongoing business of the assessee and there is no enduring benefit it can be treated as revenue expenditure. If, however, and if it is in respect of business which is yet to commence then the same cannot be treated as revenue expenditure as expenditure is on a product yet to be marketed. Considering the above, in our opinion the judgment in Patel International Films Ltd. (supra) is clearly distinguishable. The C.I.T. (A) and the Tribunal on the facts of this case were clearly within their jurisdiction in holding that the expenditure was by way of revenue expenditure as it was in respect of promoting ongoing products of the assessee herein.

0[ds]It would, thus be clear that the machinery purchased was not in respect of an on going business of the assessee, but in respect of the business which was going to be carried out in the future.In the instant case as the facts bear out, the advertisement was in respect of an ongong business of the assessee herein.4. A similar issue had come up for consideration before the Division Bench of the High Court of PunjabHaryana in Commissioner of Income Tax vs. Liberty Group Marketing Division, 2008 (8) DTR Judgments, 28. In that case the assessee had claimed expenditure incurred on glow sign boards as also T.V. Films. The expenditure was held to be revenue in nature.5. In our opinion the correct test to be applied in such a case would be, that if the expenditure is in respect of an ongoing business of the assessee and there is no enduring benefit it can be treated as revenue expenditure. If, however, and if it is in respect of business which is yet to commence then the same cannot be treated as revenue expenditure as expenditure is on a product yet to be marketed. Considering the above, in our opinion the judgment in Patel International Films Ltd. (supra) is clearly distinguishable. The C.I.T. (A) and the Tribunal on the facts of this case were clearly within their jurisdiction in holding that the expenditure was by way of revenue expenditure as it was in respect of promoting ongoing products of the assessee herein.

### 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: Oral Judgment: F.I. Rebello, J.These Appeals are in respect of assessment years 2001-2002 and 1996-97. The common question of law which would arise in both these Appeals reads as under:-"Whether on the facts and circumstances of the case and in law the Honble Tribunal was right in deleting the disallowance made by the Assessing Officer for the expenses incurred by the assessee for promotion films, slides, advertisement films and treating the same as capital expenditure The principal contention based on which the Revenue has preferred this appeal is that the Tribunal while passing the judgment ignored the ratio of the judgment of this Court in Commissioner of Income Tax Vs. Patel International Films Ltd., 102 ITR 219 . 2. The Respondent assessee has incurred expenditure on film production by way of advertisement for the marketing of products manufactured by them. It was their submission that these expenses are purely of revenue nature and they derive no enduring benefit to the company. They only will help the company to make the customer aware of the existence of its products, including improvement, if any, in the market which may or may not result in sales. The Assessment Officer disallowed the expenditure by holding that it is capital in nature. In Appeal preferred by the Assessee before the C.I.T. (A), the C.I.T. (A) was pleased to hold that considering that these are films in the form of advertisement whose life term cannot be ascertained they could not be held as capital expenditure even if resulted in benefit for more than one accounting year. Revenue being aggrieved preferred an Appeal before the Tribunal. The Tribunal relied on its own judgment in the case of Deputy Commissioner of Income Tax vs. Metro Shoes P. Ltd., 268 ITR 106 (AT). In that case the Tribunal in respect of advertisement film was pleased to hold that no capital or right or benefit of enduring nature had been created or acquired by the assessee by production of the advertisement film. The Tribunal noted that the assessee to keep mass interest in its products has to continuously strive to keep on advertising its products in ever increasingly novel ways and methods, through the media and as such the expenditure incurred on the production of the advertisement film was in the nature of revenue expenditure.3. The only ground based on which the Revenue has approached this Court is as pointed out earlier that the Tribunal ignored the ratio of the judgment in Patel International Films Ltd. We may point out, that on facts there the assessee company was in the business of processing and printing movie films in a processing and printing laboratory purchased by them. It subsequently purchased a film processor in the laboratory to serve as a model for exhibition to induce confidence in its customers by way of advertisement and claimed the amount spent on the purchase as business expenditure. After considering the facts a learned Bench of this Court noted as under:-"In other words, the asset that was acquired by the assessee-company was a capital asset to be used for the purpose of advertisement of the business that the assessee-company was going to carry on in future and, therefore, the expenditure will have to be regarded as a capital expenditure and not revenue expenditure." It would, thus be clear that the machinery purchased was not in respect of an on going business of the assessee, but in respect of the business which was going to be carried out in the future.In the instant case as the facts bear out, the advertisement was in respect of an ongong business of the assessee herein.4. A similar issue had come up for consideration before the Division Bench of the High Court of Punjab & Haryana in Commissioner of Income Tax vs. Liberty Group Marketing Division, 2008 (8) DTR Judgments, 28. In that case the assessee had claimed expenditure incurred on glow sign boards as also T.V. Films. The expenditure was held to be revenue in nature.5. In our opinion the correct test to be applied in such a case would be, that if the expenditure is in respect of an ongoing business of the assessee and there is no enduring benefit it can be treated as revenue expenditure. If, however, and if it is in respect of business which is yet to commence then the same cannot be treated as revenue expenditure as expenditure is on a product yet to be marketed. Considering the above, in our opinion the judgment in Patel International Films Ltd. (supra) is clearly distinguishable. The C.I.T. (A) and the Tribunal on the facts of this case were clearly within their jurisdiction in holding that the expenditure was by way of revenue expenditure as it was in respect of promoting ongoing products of the assessee herein. ### Response: 0

United Palnters Asson. Of Southern India Vs. K.G. Sangameswaran

those cases where no evidence was recorded at the domestic enquiry and the principles of natural justice were violated. In addition to such cases, namely, cases in which an opportunity of hearing was not given to the employee or the principles of natural justice were, in any way, violated, the Appellate Authority shall also have jurisdiction to record evidence, if necessary, in order to come to its own conclusion on the vital question whether the employee was guilty or not of the charges framed against him. 21. The Madras High Court in Salem-Shevapet Sri Venkateswara Bank Ltd. v. Krishnan (K.K.) and another, 1959(2) LLJ 797, held that the Appellate Authority under Section 41(2) had the jurisdiction to enquire whether the statutory conditions subject to which alone a servant could be dismissed, have been complied with. It would imply that the Appellate Authority can also record evidence specially when it has also to record the findings whether the charges were established or not. 22. The Madras High Court again in Srirangam Janopakara Bank Ltd. v. Rangarajan (S.) , 1964(1) LLJ 221, considered the ambit and scope of Section 41 read with Rule 9 and laid down that :- "It appears to us that this rule is not intended to confer, on the appellate authority, a power to take evidence de hors S. 41(2); the rule really lays down a rule of procedure, that the hearing of appeals shall be summary, that the evidence (if) recorded shall be brief, and that when orders are passed, reasons should be given. There is therefore no room for examining rule 9(2) dissociated from S. 41(2), and to decide that rule 9(2) went far beyond the rule-making power under Section 49, on the ground that it confers power to take additional evidence on the appellate authority.It would also appear necessary in the interests of the proper working of an enactment like the Madras Shop and Establishments Act, to confer on the Appellate Authority the power to take evidence itself, if the circumstances of a case justify it." 23. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.24. If the instant case is analysed in the light of the principles laid down above, it will be noticed that the Appellate Authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The Appellate Authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law. 25. We may now consider the contention of the learned counsel for the respondent relating to the principles of natural justice which were not observed at the initial stage, namely, at the time of the domestic enquiry. Whether the defect is curable at the appellate stage or not is the question. 26. Learned counsel, in support of his arguments that the defect is not curable has placed reliance on the decision of this Court in Institute of Chartered Accountants of India v. L.K. Ratna and others, 1986(4) SCC 537. It was, no doubt, laid down in this case that a post-decisional hearing cannot be an effective substitute of pre-decisional hearing and that if an opportunity of hearing is not given before a decision is taken at the initial stage, it would result in serious prejudice, inasmuch as if such an opportunity is provided at the appellate stage, the person is deprived of his right of appeal to another body. There may be cases where opportunity of hearing is excluded by a particular service or statutory rule. In Union of India and another v. Tulsi Ram Patel, 1985(3) SCC 398, pre-decisional hearing stood excluded by the second Proviso to Article 311(2) of the Constitution and, therefore, the Court took the view that though there was no prior opportunity to a Government servant to defend himself against the charges made against him, he got an opportunity to plead in an appeal filed by him that the charges for which he was removed from service were not true. Principles of natural justice in such a case will have to be held to have been sufficiently complied with. In Mrs. Maneka Gandhi v. Union of India and another, 1978(1) SCC 248, and in Liberty Oil Mills and others v. Union of India and others, 1984(3) SCC 465, an opportunity of making a representation after the decision was taken, was held to be sufficient compliance. All depends on facts of each case. 27. In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratnas case (supra) will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry.

1[ds]23. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.24. If the instant case is analysed in the light of the principles laid down above, it will be noticed that the Appellate Authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The Appellate Authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law.In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratnas case (supra) will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry.

### 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: those cases where no evidence was recorded at the domestic enquiry and the principles of natural justice were violated. In addition to such cases, namely, cases in which an opportunity of hearing was not given to the employee or the principles of natural justice were, in any way, violated, the Appellate Authority shall also have jurisdiction to record evidence, if necessary, in order to come to its own conclusion on the vital question whether the employee was guilty or not of the charges framed against him. 21. The Madras High Court in Salem-Shevapet Sri Venkateswara Bank Ltd. v. Krishnan (K.K.) and another, 1959(2) LLJ 797, held that the Appellate Authority under Section 41(2) had the jurisdiction to enquire whether the statutory conditions subject to which alone a servant could be dismissed, have been complied with. It would imply that the Appellate Authority can also record evidence specially when it has also to record the findings whether the charges were established or not. 22. The Madras High Court again in Srirangam Janopakara Bank Ltd. v. Rangarajan (S.) , 1964(1) LLJ 221, considered the ambit and scope of Section 41 read with Rule 9 and laid down that :- "It appears to us that this rule is not intended to confer, on the appellate authority, a power to take evidence de hors S. 41(2); the rule really lays down a rule of procedure, that the hearing of appeals shall be summary, that the evidence (if) recorded shall be brief, and that when orders are passed, reasons should be given. There is therefore no room for examining rule 9(2) dissociated from S. 41(2), and to decide that rule 9(2) went far beyond the rule-making power under Section 49, on the ground that it confers power to take additional evidence on the appellate authority.It would also appear necessary in the interests of the proper working of an enactment like the Madras Shop and Establishments Act, to confer on the Appellate Authority the power to take evidence itself, if the circumstances of a case justify it." 23. In view of the above decisions, there remains no doubt that the Appellate Authority has jurisdiction to take evidence at the appellate stage and to come to its own conclusion about the guilt of the delinquent employee.24. If the instant case is analysed in the light of the principles laid down above, it will be noticed that the Appellate Authority has interfered with the order of discharge/dismissal of the respondent on the ground only that a domestic enquiry was not held into imputations made against the respondent. It did not decide the application of the appellant for recording evidence. The Appellate Authority, therefore, committed grave error in the exercise of its jurisdiction by not disposing of the application of the appellant for additional evidence and proceeding to dispose of the appeal on the ground that the order of dismissal having been passed without holding a domestic enquiry, was bad in law. 25. We may now consider the contention of the learned counsel for the respondent relating to the principles of natural justice which were not observed at the initial stage, namely, at the time of the domestic enquiry. Whether the defect is curable at the appellate stage or not is the question. 26. Learned counsel, in support of his arguments that the defect is not curable has placed reliance on the decision of this Court in Institute of Chartered Accountants of India v. L.K. Ratna and others, 1986(4) SCC 537. It was, no doubt, laid down in this case that a post-decisional hearing cannot be an effective substitute of pre-decisional hearing and that if an opportunity of hearing is not given before a decision is taken at the initial stage, it would result in serious prejudice, inasmuch as if such an opportunity is provided at the appellate stage, the person is deprived of his right of appeal to another body. There may be cases where opportunity of hearing is excluded by a particular service or statutory rule. In Union of India and another v. Tulsi Ram Patel, 1985(3) SCC 398, pre-decisional hearing stood excluded by the second Proviso to Article 311(2) of the Constitution and, therefore, the Court took the view that though there was no prior opportunity to a Government servant to defend himself against the charges made against him, he got an opportunity to plead in an appeal filed by him that the charges for which he was removed from service were not true. Principles of natural justice in such a case will have to be held to have been sufficiently complied with. In Mrs. Maneka Gandhi v. Union of India and another, 1978(1) SCC 248, and in Liberty Oil Mills and others v. Union of India and others, 1984(3) SCC 465, an opportunity of making a representation after the decision was taken, was held to be sufficient compliance. All depends on facts of each case. 27. In the instant case, the appellant has contended that the respondent did not participate in the domestic enquiry in spite of an opportunity of hearing having been provided to him. He was also offered the inspection of the documents, but he did not avail of that opportunity. He himself invoked the jurisdiction of the Appellate Authority and the order of dismissal passed against him was set aside on the ground that the appellant did not hold any domestic enquiry. It has already been seen above that the Appellate Authority has full jurisdiction to record evidence to enable it to come to its own conclusion on the guilt of the employee concerned. Since the Appellate Authority has to come to its own conclusion on the basis of the evidence recorded by it, irrespective of the findings recorded in the domestic enquiry, the rule laid down in Ratnas case (supra) will not strictly apply and the opportunity of hearing which is being provided to the respondent at the appellate stage will sufficiently meet his demands for a just and proper enquiry. ### Response: 1

Ram Jiwan Singh Vs. Sis Ram and Another

question from Shri KhushiRam Agent.Yours faithfully,Sd. Mangal Sain 1-3-72, 11-3-72P.O.79, Govt. Pry. School.Dhani KhumbhawasBhorakalan.Seeking to explain this documents the witness said :I had written this document also. I was coerced to write this document 3 or 4 days after this incident a Gurgoan by Khushi Ram and Surinder Singh son of the petitioner.According to the witness, Khushi Ram and Surinder Singh had threatened him that unless he agreed to write as he was told he would not be allowed to live in Gurgaon, and out of fright he obliged. Mangal Sain added that he made over this document RW 5/P 14 to the General Assistant to the Deputy Commissioner a few days later but was told that nothing could be done with regard to his complaint at that stage.11. Ranjit Singh, General Assistant to the Deputy Commissioner, Gurgaon and Returning Officer for Pataudi assembly constituency, was examined as RW 4. He enquired into the circumstances leading to the spoiling of the ballot paper. His evidence is that he made enquiries from the Presiding Officer Mangal Sain and also from the polling staff and the polling agents of the candidates. The Presiding Officer handed over to him a report which he had prepared containing his version of the incident. According to the witness no one complained to him that the polling officer had deliberately spoiled the ballot paper. On the basis of the report submitted by the Presiding Officer which, on enquiry, he accepted as correct, he prepared his own report on the same day immediately on reaching his headquarters. That report is Ext. PW 4/P 14, which according to Mangal Sain, he was coerced to write and which he later made over to Ranjit Singh.12. The High Court on examination of the evidence found that the report of the Polling Officer, Ext. PW 30/R 2, and the endorsement thereon made by the Presiding Officer contained the authentic version of the incident regarding the ballot paper, that Exts. PW 20/PW 8 and RW 5/P 14 containing different versions of the incident must have come into existence subsequently as the suspicious circumstances surrounding the execution of these two documents suggested. The High Court did not fail to notice that the Polling Officers story of threat and coercion seemed somewhat exaggerated but in view of the other circumstances did not attach much importance to those exaggerations; among the circumstances that weighed with the High Court were that there was no possible reason why notice of the Returning Officer was not drawn to Hira Lals alleged confession contained in Ext. PW 20/P 8, the fact that no mention was made about Hira Lals alleged confession in the telegraphic complaint made by Surinder Singh to the election authorities regarding the ballot paper incident, and the circumstances that the document, Ext. PW 20/P 8, did not contain any endorsement of the Presiding Officer or any other Polling Officer which was only natural for Khushi Ram to obtain, if the allegation had been true. Considering the circumstances ourselves we think that the conclusion reached by the High Court is right and the version appearing from the report of the Presiding Officer Mangal Sain represents the correct account of the incident concerning the ballot paper.13. As for the document, RW 5/P 14, this document was not referred to in the election petition, nor was it mentioned in the list of reliance, and, as stated earlier, Returning Officer Ranjit Singh was not asked any question regarding the document which was addressed to him. It was brought out for the first time when Mangal Singh Sain was confronted with it in cross-examination, it is also difficult to explain how this document, addressed to the Returning Officer, came to be produced from the petitioners custody. For all these reasons the High Court declined, in our opinion rightly, to place any reliance on it.14. The only other ground that was urged in this appeal, rather halfheartedly, is built on the allegations in paragraphs 7, 8, 12 (ii) and 12 (iii) of the election petition. It is stated that the first respondent got printed a handbill, Ext. PW 1/P 2 in the name of his agent and supporter Shiv Narain Chauhan from M/s. P. K. Press, Delhi, which, contains an appeal to the voters on the ground of castes and includes a wrong statement of fact, which the first respondent and his agent Shiv Narain both knew to be false, regarding the candidature of the second respondent, Shri Mangtu Ram, that he was a figurehead set up by the petitioner for this own benefit. It is further alleged that the first respondent and his agent Shiv Narain distributed copies of the handbill a few days before the polling in the meetings held in several villages in the Pataudi constituency with the intention of furthering the election prospects of the first respondent. The contents of the handbill distributed in these meetings constitute, according to the petitioner, corrupt practices within the meaning of sub-sections (3) and (4) of Section 123 of the Act.15. The evidence as to the distribution of handbills, as found by the High Court, is vague and unconvincing. Khairati Lal (PW 1), proprietor of the press where the handbills are said to have been printed, had not met the person who placed the order for printing. The manager of the press who was best person to fix the identity of the person who placed the order was not examined. The manuscript of the handbill has not been produced, to which the explanation given by Khairati Lal that it had been destroyed was not found believable by the High Court. The register, Ext. PW 1/P 1, produced by Khairati Lal, discloses that it was not regularly kept in the course of business, and the entries therein have not been proved by independent evidence. We therefore, agree with the High Court that the petitioner has failed to prove the charge of corrupt practice under sub-sections (3) and (4) of Section 123 of the Act.

0[ds]13. As for the document, RW 5/P 14, this document was not referred to in the election petition, nor was it mentioned in the list of reliance, and, as stated earlier, Returning Officer Ranjit Singh was not asked any question regarding the document which was addressed to him. It was brought out for the first time when Mangal Singh Sain was confronted with it init is also difficult to explain how this document, addressed to the Returning Officer, came to be produced from the petitioners custody. For all these reasons the High Court declined, in our opinion rightly, to place any reliance on it.The evidence as to the distribution of handbills, as found by the High Court, is vague and unconvincing. Khairati Lal (PW 1), proprietor of the press where the handbills are said to have been printed, had not met the person who placed the order for printing. The manager of the press who was best person to fix the identity of the person who placed the order was not examined. The manuscript of the handbill has not been produced, to which the explanation given by Khairati Lal that it had been destroyed was not found believable by the High Court. The register, Ext. PW 1/P 1, produced by Khairati Lal, discloses that it was not regularly kept in the course of business, and the entries therein have not been proved by independent evidence. We therefore, agree with the High Court that the petitioner has failed to prove the charge of corrupt practice under) and (4) of Section 123 of the Act.

### 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: question from Shri KhushiRam Agent.Yours faithfully,Sd. Mangal Sain 1-3-72, 11-3-72P.O.79, Govt. Pry. School.Dhani KhumbhawasBhorakalan.Seeking to explain this documents the witness said :I had written this document also. I was coerced to write this document 3 or 4 days after this incident a Gurgoan by Khushi Ram and Surinder Singh son of the petitioner.According to the witness, Khushi Ram and Surinder Singh had threatened him that unless he agreed to write as he was told he would not be allowed to live in Gurgaon, and out of fright he obliged. Mangal Sain added that he made over this document RW 5/P 14 to the General Assistant to the Deputy Commissioner a few days later but was told that nothing could be done with regard to his complaint at that stage.11. Ranjit Singh, General Assistant to the Deputy Commissioner, Gurgaon and Returning Officer for Pataudi assembly constituency, was examined as RW 4. He enquired into the circumstances leading to the spoiling of the ballot paper. His evidence is that he made enquiries from the Presiding Officer Mangal Sain and also from the polling staff and the polling agents of the candidates. The Presiding Officer handed over to him a report which he had prepared containing his version of the incident. According to the witness no one complained to him that the polling officer had deliberately spoiled the ballot paper. On the basis of the report submitted by the Presiding Officer which, on enquiry, he accepted as correct, he prepared his own report on the same day immediately on reaching his headquarters. That report is Ext. PW 4/P 14, which according to Mangal Sain, he was coerced to write and which he later made over to Ranjit Singh.12. The High Court on examination of the evidence found that the report of the Polling Officer, Ext. PW 30/R 2, and the endorsement thereon made by the Presiding Officer contained the authentic version of the incident regarding the ballot paper, that Exts. PW 20/PW 8 and RW 5/P 14 containing different versions of the incident must have come into existence subsequently as the suspicious circumstances surrounding the execution of these two documents suggested. The High Court did not fail to notice that the Polling Officers story of threat and coercion seemed somewhat exaggerated but in view of the other circumstances did not attach much importance to those exaggerations; among the circumstances that weighed with the High Court were that there was no possible reason why notice of the Returning Officer was not drawn to Hira Lals alleged confession contained in Ext. PW 20/P 8, the fact that no mention was made about Hira Lals alleged confession in the telegraphic complaint made by Surinder Singh to the election authorities regarding the ballot paper incident, and the circumstances that the document, Ext. PW 20/P 8, did not contain any endorsement of the Presiding Officer or any other Polling Officer which was only natural for Khushi Ram to obtain, if the allegation had been true. Considering the circumstances ourselves we think that the conclusion reached by the High Court is right and the version appearing from the report of the Presiding Officer Mangal Sain represents the correct account of the incident concerning the ballot paper.13. As for the document, RW 5/P 14, this document was not referred to in the election petition, nor was it mentioned in the list of reliance, and, as stated earlier, Returning Officer Ranjit Singh was not asked any question regarding the document which was addressed to him. It was brought out for the first time when Mangal Singh Sain was confronted with it in cross-examination, it is also difficult to explain how this document, addressed to the Returning Officer, came to be produced from the petitioners custody. For all these reasons the High Court declined, in our opinion rightly, to place any reliance on it.14. The only other ground that was urged in this appeal, rather halfheartedly, is built on the allegations in paragraphs 7, 8, 12 (ii) and 12 (iii) of the election petition. It is stated that the first respondent got printed a handbill, Ext. PW 1/P 2 in the name of his agent and supporter Shiv Narain Chauhan from M/s. P. K. Press, Delhi, which, contains an appeal to the voters on the ground of castes and includes a wrong statement of fact, which the first respondent and his agent Shiv Narain both knew to be false, regarding the candidature of the second respondent, Shri Mangtu Ram, that he was a figurehead set up by the petitioner for this own benefit. It is further alleged that the first respondent and his agent Shiv Narain distributed copies of the handbill a few days before the polling in the meetings held in several villages in the Pataudi constituency with the intention of furthering the election prospects of the first respondent. The contents of the handbill distributed in these meetings constitute, according to the petitioner, corrupt practices within the meaning of sub-sections (3) and (4) of Section 123 of the Act.15. The evidence as to the distribution of handbills, as found by the High Court, is vague and unconvincing. Khairati Lal (PW 1), proprietor of the press where the handbills are said to have been printed, had not met the person who placed the order for printing. The manager of the press who was best person to fix the identity of the person who placed the order was not examined. The manuscript of the handbill has not been produced, to which the explanation given by Khairati Lal that it had been destroyed was not found believable by the High Court. The register, Ext. PW 1/P 1, produced by Khairati Lal, discloses that it was not regularly kept in the course of business, and the entries therein have not been proved by independent evidence. We therefore, agree with the High Court that the petitioner has failed to prove the charge of corrupt practice under sub-sections (3) and (4) of Section 123 of the Act. ### Response: 0

KARNATAKA RURAL INFRASTRUCTURE DEVELOPMENT LIMITED & ANR Vs. T.P. NATARAJA & ORS

19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7) 7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. … According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book. 10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (Supra) it is held as hereunder:- 8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleepover their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under: (i) application for change of date of birth can only be as per the relevant provisions/regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation. 11. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law.

0[ds]8. So far as the appellant corporation is concerned, they adopted the provisions of the Act, 1974 by resolution dated 17.05.1991. Therefore, as such the request for change of date of birth as per the Act, 1974 as adopted by the appellant – corporation in the year 1991 was required to be made by respondent No.1 – employee within a period of one year from 17.05.1991 being the employee of the appellant corporation. However, respondent No.1 – employee made the request for change of date of birth vide notice dated 23.06.2007 i.e. after the lapse of 24 years since he joined the service and nearly after the lapse of 16 years from the date of adoption of enactment (Act, 1974) by the appellant – corporation. The High Court in the impugned judgment and order has observed that nothing is on record that resolution dated 17.05.1991 adopting the Act, 1974 was brought to the notice of the employee and that therefore respondent No.1 – employee might not be aware of the applicability of the Act, 1974. Aforesaid cannot be accepted. Being the employee of the corporation, he was supposed to know the rules and regulations applicable to the employees of the corporation. Ignorance of law cannot be an excuse to get out of the applicability of the statutory provisions.9. Even otherwise and assuming that the reasoning given by the High Court for the sake of convenience is accepted in that case also even respondent No.1 – employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service.9.1 In the case of Home Deptt. v. R.Kirubakaran (Supra), it is observed and held as under:-7. An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever…9.4 In the case of Bharat Coking Coal Limited and Ors. v. Shyam Kishore Singh (Supra) of which one of us (Justice A.S. Bopanna) was a party to the bench has observed and held in paragraph 9 & 10 as under:-9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. v. Gorakhnath Sitaram Kamble (2010)14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC465: 2006 SCC (L&S) 96]. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7)7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. … According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (Supra) it is held as hereunder:-8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleepover their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.11. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: 19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7) 7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. … According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book. 10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (Supra) it is held as hereunder:- 8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleepover their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under: (i) application for change of date of birth can only be as per the relevant provisions/regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation. 11. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law. ### Response: 0

K. MEGHACHANDRA SINGH Vs. NINGAM SIRO

Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors.(Supra). These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement. 41. As noted earlier, the Learned Single Judge based his judgment on two propositions but the Division Bench was of the view that result would be the same merely on the basis of one of the two propositions and, therefore, it was unnecessary to pronounce upon the other proposition. Such an approach cannot therefore be described as a conflict (as has been suggested), between the two judgments. Both Benches were absolutely consistent in their conclusion that promotees would have to be given seniority over direct recruits. It cannot therefore be argued that by some convoluted reasoning, it is possible to come to the conclusion that the orders passed by the two Courts would result in diametrically opposite situation namely, that direct recruits would have to be given seniority over promotees. 42. The Learned Single Judge in his Judgment interpreted the Office Memorandum (07.02.1986), as adopted by the State Government vide its OM dated 13.11.1987 to mean that direct recruits could be given seniority only from the date of appointment. The Judgment in N.R. Parmar (Supra) was not cited and the principle contained therein cannot therefore be said to have been intended to be applied by the Learned Judge. 43. That apart, the paragraph (14) of the judgment (7.7.2017) expressly refers to the earlier WP(C) No.235 of 2012 and the 18.02.2013 order passed therein. In that case, the State of Manipur filed counter affidavit categorically stating that, seniority of direct recruits would be counted from their date of appointment and not from the date of initiation of the recruitment process. 44. The Learned Single Judge in paragraph 14 of the judgment directed the State Government to prepare the seniority list after taking into account the observations made by the Court where the Court had clearly observed that the direct recruits cannot get seniority over and above the promotees and that the principle of dovetailing cannot be applied while determining the inter-se seniority between the appellants and the private respondents. This observation is undoubtedly a part of the Courts directions and while implementing this order, the Government could not have given seniority to the direct recruits over the promotees. By doing so, they have acted in violation of the Court Orders and not in conformity therewith. 45. It is now necessary to deal with Mr Patwalias final contentions in reply, placing reliance on All India Judges Association & Ors. Vs. Union of India and Ors. (2002) 4 SCC 247 . He emphasizes the following passage in paragraph 29 of the Judgment:- ……Hardly if ever there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited…… 46. The above would however refer to an incumbent whose roster points have been fixed after their recruitment as per the prescribed quotas. The cited judgment does not propose to say that seniority by roster points be fixed, ignoring the date, when the person is recruited. The judgment obviously was not considering a situation, where seniority is being fixed even before the incumbent is borne in service. In any case, having regard to the specification made in the MPS Rules, 1965, which squarely governs the litigants here, the ratio in the All India Judges Association (Supra) would be of no assistance, for the appellants. 47. As earlier discussed, the Rule 28 of the MPS Rules, 1965 shows that seniority in the service shall be determined based on the date of appointment to the service. In particular Rule 28(i) of the MPS Rules, 1965 which is applicable to both promotees and direct recruits, provides that seniority shall be determined by the order in which the appointments are made to the service. If seniority under Rule 28(i) is to be determined based on the date of appointment, it cannot be said that for the purpose of Rule 28(iii), the seniority of direct recruits should be determined on the basis of the date of initiation of the recruitment process. The term Recruitment Year does not and cannot mean the year in which, the recruitment process is initiated or the year in which vacancy arises. The contrary declaration in N.R. Parmar 2 in our considered opinion, is not a correct view. 48. In view of the foregoing, let us now consider the Government order (29.06.2019) produced by the Manipur Advocate General in the Contempt Case. As it appears the seniority list published on 29.06.2019 could not be an independent exercise but its purpose should be to give effect to the judgments passed by the High Court. Since the judgment of the learned single Judge was affirmed by the Division Bench, the seniority list must be prepared in accordance with the High Courts direction. It is certainly not permissible to prepare a fresh seniority list as an independent exercise, without reference to the decisions of the Court. When we test the validity of the list (29.06.2019), there is no escape from the conclusion that the list ignores the decision of the single Judge as affirmed by the Division Bench. It is declared so accordingly.

0[ds]33. As can be seen from above, the MPS Rules, 1965 never provided that seniority should be counted from the date of vacancy. For those covered by the MPS Rules 1965 the seniority for them will be reckoned only from the date of appointment and not from the stage when requisition for appointment was givenAt the outset it must however be cleared that the cited case had nothing to do with the MPS Rules, 1965 and that litigation related to the Income Tax Inspectors who were claiming benefits of various Central Government OMs (dated 22.12.1959, 07.02.1986, 03.07.1986 and 03.03.2008). The judgment was rendered in respect of Central Government employees having their own Service Rules. The applicable Rules for the litigants in the present case however provide that the seniority in the service shall be determined by the order in which appointments are made to the service. Therefore, the concerned Memorandums referred to in N.R. Parmar (Supra) which deal with general principles for determination of seniority of persons in the Central Government service, should not according to us, have any overriding effect for the police officers serving in the State of Manipur37. From above, it is not only apparent that the above OM was only to be given prospective effect from 1.1.2018 but it contains an express acknowledgement that this was not the position prior to the issuance of the OM and that a different Rule was followed earlier in the State. The conclusion is, therefore, inevitable that at least prior to 1.1.2018, direct recruits cannot claim that their seniority should be reckoned from the date of initiation of recruitment proceedings and not from the date of actual appointment38. When we carefully read the judgment in N. R. Parmar (Supra), it appears to us that the referred OMs (dated 07.02.1986 and 03.07.1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in the N.R. Parmar (Supra) itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent years seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 07.02.1986 and 03.07.1986 and that is why the Government issued the subsequent OM on 03.03.2008 by way of clarification of the two earlier OMs39. At this stage, we must also emphasize that the Court in N. R. Parmar (Supra) need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious in as much as none can be identified as being a selected candidate on the date when the process of recruitment had commenced40. The Judgment in N. R. Parmar (Supra) relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar (Supra) had incorrectly distinguished the long-standing seniority determination principles propounded in, inter-alia, J.C. Patnaik (Supra), Suraj Prakash Gupta & Ors. vs. State of J&K & Ors. (2000) 7 SCC 561 and Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors.(Supra). These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement41. As noted earlier, the Learned Single Judge based his judgment on two propositions but the Division Bench was of the view that result would be the same merely on the basis of one of the two propositions and, therefore, it was unnecessary to pronounce upon the other proposition. Such an approach cannot therefore be described as a conflict (as has been suggested), between the two judgments. Both Benches were absolutely consistent in their conclusion that promotees would have to be given seniority over direct recruits. It cannot therefore be argued that by some convoluted reasoning, it is possible to come to the conclusion that the orders passed by the two Courts would result in diametrically opposite situation namely, that direct recruits would have to be given seniority over promotees42. The Learned Single Judge in his Judgment interpreted the Office Memorandum (07.02.1986), as adopted by the State Government vide its OM dated 13.11.1987 to mean that direct recruits could be given seniority only from the date of appointment. The Judgment in N.R. Parmar (Supra) was not cited and the principle contained therein cannot therefore be said to have been intended to be applied by the Learned Judge44. The Learned Single Judge in paragraph 14 of the judgment directed the State Government to prepare the seniority list after taking into account the observations made by the Court where the Court had clearly observed that the direct recruits cannot get seniority over and above the promotees and that the principle of dovetailing cannot be applied while determining the inter-se seniority between the appellants and the private respondents. This observation is undoubtedly a part of the Courts directions and while implementing this order, the Government could not have given seniority to the direct recruits over the promotees. By doing so, they have acted in violation of the Court Orders and not in conformity therewith46. The above would however refer to an incumbent whose roster points have been fixed after their recruitment as per the prescribed quotas. The cited judgment does not propose to say that seniority by roster points be fixed, ignoring the date, when the person is recruited. The judgment obviously was not considering a situation, where seniority is being fixed even before the incumbent is borne in service. In any case, having regard to the specification made in the MPS Rules, 1965, which squarely governs the litigants here, the ratio in the All India Judges Association (Supra) would be of no assistance, for the appellants47. As earlier discussed, the Rule 28 of the MPS Rules, 1965 shows that seniority in the service shall be determined based on the date of appointment to the service. In particular Rule 28(i) of the MPS Rules, 1965 which is applicable to both promotees and direct recruits, provides that seniority shall be determined by the order in which the appointments are made to the service. If seniority under Rule 28(i) is to be determined based on the date of appointment, it cannot be said that for the purpose of Rule 28(iii), the seniority of direct recruits should be determined on the basis of the date of initiation of the recruitment process. The term Recruitment Year does not and cannot mean the year in which, the recruitment process is initiated or the year in which vacancy arises. The contrary declaration in N.R. Parmar 2 in our considered opinion, is not a correct view48. In view of the foregoing, let us now consider the Government order (29.06.2019) produced by the Manipur Advocate General in the Contempt Case. As it appears the seniority list published on 29.06.2019 could not be an independent exercise but its purpose should be to give effect to the judgments passed by the High Court. Since the judgment of the learned single Judge was affirmed by the Division Bench, the seniority list must be prepared in accordance with the High Courts direction. It is certainly not permissible to prepare a fresh seniority list as an independent exercise, without reference to the decisions of the Court. When we test the validity of the list (29.06.2019), there is no escape from the conclusion that the list ignores the decision of the single Judge as affirmed by the Division Bench. It is declared so accordingly.

### 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: Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors.(Supra). These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under Service Jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement. 41. As noted earlier, the Learned Single Judge based his judgment on two propositions but the Division Bench was of the view that result would be the same merely on the basis of one of the two propositions and, therefore, it was unnecessary to pronounce upon the other proposition. Such an approach cannot therefore be described as a conflict (as has been suggested), between the two judgments. Both Benches were absolutely consistent in their conclusion that promotees would have to be given seniority over direct recruits. It cannot therefore be argued that by some convoluted reasoning, it is possible to come to the conclusion that the orders passed by the two Courts would result in diametrically opposite situation namely, that direct recruits would have to be given seniority over promotees. 42. The Learned Single Judge in his Judgment interpreted the Office Memorandum (07.02.1986), as adopted by the State Government vide its OM dated 13.11.1987 to mean that direct recruits could be given seniority only from the date of appointment. The Judgment in N.R. Parmar (Supra) was not cited and the principle contained therein cannot therefore be said to have been intended to be applied by the Learned Judge. 43. That apart, the paragraph (14) of the judgment (7.7.2017) expressly refers to the earlier WP(C) No.235 of 2012 and the 18.02.2013 order passed therein. In that case, the State of Manipur filed counter affidavit categorically stating that, seniority of direct recruits would be counted from their date of appointment and not from the date of initiation of the recruitment process. 44. The Learned Single Judge in paragraph 14 of the judgment directed the State Government to prepare the seniority list after taking into account the observations made by the Court where the Court had clearly observed that the direct recruits cannot get seniority over and above the promotees and that the principle of dovetailing cannot be applied while determining the inter-se seniority between the appellants and the private respondents. This observation is undoubtedly a part of the Courts directions and while implementing this order, the Government could not have given seniority to the direct recruits over the promotees. By doing so, they have acted in violation of the Court Orders and not in conformity therewith. 45. It is now necessary to deal with Mr Patwalias final contentions in reply, placing reliance on All India Judges Association & Ors. Vs. Union of India and Ors. (2002) 4 SCC 247 . He emphasizes the following passage in paragraph 29 of the Judgment:- ……Hardly if ever there has been a litigation amongst the members of the service after their recruitment as per the quotas, the seniority is fixed by the roster points and irrespective of the fact as to when a person is recruited…… 46. The above would however refer to an incumbent whose roster points have been fixed after their recruitment as per the prescribed quotas. The cited judgment does not propose to say that seniority by roster points be fixed, ignoring the date, when the person is recruited. The judgment obviously was not considering a situation, where seniority is being fixed even before the incumbent is borne in service. In any case, having regard to the specification made in the MPS Rules, 1965, which squarely governs the litigants here, the ratio in the All India Judges Association (Supra) would be of no assistance, for the appellants. 47. As earlier discussed, the Rule 28 of the MPS Rules, 1965 shows that seniority in the service shall be determined based on the date of appointment to the service. In particular Rule 28(i) of the MPS Rules, 1965 which is applicable to both promotees and direct recruits, provides that seniority shall be determined by the order in which the appointments are made to the service. If seniority under Rule 28(i) is to be determined based on the date of appointment, it cannot be said that for the purpose of Rule 28(iii), the seniority of direct recruits should be determined on the basis of the date of initiation of the recruitment process. The term Recruitment Year does not and cannot mean the year in which, the recruitment process is initiated or the year in which vacancy arises. The contrary declaration in N.R. Parmar 2 in our considered opinion, is not a correct view. 48. In view of the foregoing, let us now consider the Government order (29.06.2019) produced by the Manipur Advocate General in the Contempt Case. As it appears the seniority list published on 29.06.2019 could not be an independent exercise but its purpose should be to give effect to the judgments passed by the High Court. Since the judgment of the learned single Judge was affirmed by the Division Bench, the seniority list must be prepared in accordance with the High Courts direction. It is certainly not permissible to prepare a fresh seniority list as an independent exercise, without reference to the decisions of the Court. When we test the validity of the list (29.06.2019), there is no escape from the conclusion that the list ignores the decision of the single Judge as affirmed by the Division Bench. It is declared so accordingly. ### Response: 0

Goverdhan Prasad and Others Vs. Management of Messrs Indian Oxygen Limited

1. This appeal by special leave arises out of an order of the Labour Court, Delhi in L.C.A. No. 7/77 by which the application made by the ten workmen employed by the respondent-Indian Oxygen Ltd. (Company of short) and stationed at Ghaziabad under S.33C(2) of the Industrial Disputes Act was rejected upholding the preliminary objection raised on behalf of the company. The preliminary objection raised on behalf of the respondent was that an application was that an application under S.33C(2) of the Industrial Disputes Act was not maintainable because the relief claimed is not merely a monetary computation of an existing benefits but it is a substantive demand for changing the dearness allowance formula applicable to the applicant-workmen. After upholding the preliminary objection raised on behalf of the respondent-employer Company, the Labour Court dismissed the application. Hence this appeal be special leave.2. A mere narration of factual matrix would expose the utter hollowness of them preliminary objection raised on behalf of the respondent. Ten workmen who applied for monetary computation of existing benefit, namely, that the dearness allowance formula applicable to them was the one awarded by the Industrial Tribunal, Delhi in Reference I.D. No. 88 of 1973 in respect of workmen employed in the factory including general staff (employed in Delhi Branch) were stationed at Ghaziabad which can appropriately be described as part of Delhi agglomeration or a suburb of Delhi though technically it forms part of State of Uttar Pradesh. In reference I.D. No. 88 of 1973, the Industrial Tribunal by its Award dated October 22, 1974 directed as under :"The Dearness Allowance payable to all categories of workmen employed in Factory including general staff (employed in Delhi Branch) should be linked with consumer price index for industrial workers in Delhi prepared by Labour Bureau, Simla from 1st July, 1973 as has been done in the case of office staff in Delhi Branch in pursuance of the award of the Industrial Tribunal in I.D. No. 40 of 1970."It is admitted that the Delhi based workmen of the Company are governed by the dearness allowance formula as per the award in Reference I.D. No. 88 of 1973.3. The ten workmen who moved the Labour Court under S. 33C(2) stated that for all practical purposes they are the general superintendence and control of the Delhi Branch and therefore, the expression in Reference I.D. No. 88/73 including general staff (employed in Delhi Branch) would comprehend the workmen employed by the Company and stationed at Ghaziabad. A mere common sense view would dictate that the claim made is unassailable and unquestionable. It is not a case of a fresh demand made by the workmen. The question raised was one of interpretation of award to determine its coverage when computing monetary benefit admissible to workmen. S. 33C(2) provides that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or/as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. What the workmen contended before the Labour Court was that the dearness allowance paid to them is not according to the award by which they are governed as being included in the expression staff employed in Delhi Branch.4. It was not disputed that for all administrative and managerial control, workmen stationed at Ghaziabad are part and parcel of the staff employed in Delhi Branch. And this ought to be so because Ghaziabad is hardly at a distance of 20 kms from Delhi. Secondly, the price structure prevalent in Delhi and Ghaziabad would not be materially different. And when the expression used in the award is general staff employed at Delhi Branch, obviously those workmen who are under the administrative and managerial control of Delhi Branch would be included in the expression. Obviously, therefore, the dearness allowance admissible to the appellant workmen would be according to the award by which dearness allowance is now being paid to those working in Delhi Branch. Dearness aloneness having not been paid in accordance with the award, it was quite legitimate for the workmen stationed at Ghaziabad to move the Labour Court under S. 33C(2) and there was no question of making and fresh demand and seeking and adjudication thereof.5. Any other view would be wholly unjust and unfair. As pointed our earlier Ghaziabad is hardly at a distance of 20 kms from Delhi and is being for all practical purposes treated as suburb of Delhi. Now if the contention of the respondent-Company were to prevail, the workmen stationed at Ghaziabad would be governed by the All India Consumer Price Index. Calcutta though the equals at a distance of 20 kms. would be governed by a different dearness allowance formula. This is unthinkable when providing norms for healthy industrial relations. Viewed from this angle also the contention of the appellant-workmen must prevail.

1[ds]4. It was not disputed that for all administrative and managerial control, workmen stationed at Ghaziabad are part and parcel of the staff employed in Delhi Branch. And this ought to be so because Ghaziabad is hardly at a distance of 20 kms from Delhi. Secondly, the price structure prevalent in Delhi and Ghaziabad would not be materially different. And when the expression used in the award is general staff employed at Delhi Branch, obviously those workmen who are under the administrative and managerial control of Delhi Branch would be included in the expression. Obviously, therefore, the dearness allowance admissible to the appellant workmen would be according to the award by which dearness allowance is now being paid to those working in Delhi Branch. Dearness aloneness having not been paid in accordance with the award, it was quite legitimate for the workmen stationed at Ghaziabad to move the Labour Court under S. 33C(2) and there was no question of making and fresh demand and seeking and adjudication thereof.5. Any other view would be wholly unjust and unfair. As pointed our earlier Ghaziabad is hardly at a distance of 20 kms from Delhi and is being for all practical purposes treated as suburb of Delhi. Now if the contention of thewere to prevail, the workmen stationed at Ghaziabad would be governed by the All India Consumer Price Index. Calcutta though the equals at a distance of 20 kms. would be governed by a different dearness allowance formula. This is unthinkable when providing norms for healthy industrial relations. Viewed from this angle also the contention of the

### 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: 1. This appeal by special leave arises out of an order of the Labour Court, Delhi in L.C.A. No. 7/77 by which the application made by the ten workmen employed by the respondent-Indian Oxygen Ltd. (Company of short) and stationed at Ghaziabad under S.33C(2) of the Industrial Disputes Act was rejected upholding the preliminary objection raised on behalf of the company. The preliminary objection raised on behalf of the respondent was that an application was that an application under S.33C(2) of the Industrial Disputes Act was not maintainable because the relief claimed is not merely a monetary computation of an existing benefits but it is a substantive demand for changing the dearness allowance formula applicable to the applicant-workmen. After upholding the preliminary objection raised on behalf of the respondent-employer Company, the Labour Court dismissed the application. Hence this appeal be special leave.2. A mere narration of factual matrix would expose the utter hollowness of them preliminary objection raised on behalf of the respondent. Ten workmen who applied for monetary computation of existing benefit, namely, that the dearness allowance formula applicable to them was the one awarded by the Industrial Tribunal, Delhi in Reference I.D. No. 88 of 1973 in respect of workmen employed in the factory including general staff (employed in Delhi Branch) were stationed at Ghaziabad which can appropriately be described as part of Delhi agglomeration or a suburb of Delhi though technically it forms part of State of Uttar Pradesh. In reference I.D. No. 88 of 1973, the Industrial Tribunal by its Award dated October 22, 1974 directed as under :"The Dearness Allowance payable to all categories of workmen employed in Factory including general staff (employed in Delhi Branch) should be linked with consumer price index for industrial workers in Delhi prepared by Labour Bureau, Simla from 1st July, 1973 as has been done in the case of office staff in Delhi Branch in pursuance of the award of the Industrial Tribunal in I.D. No. 40 of 1970."It is admitted that the Delhi based workmen of the Company are governed by the dearness allowance formula as per the award in Reference I.D. No. 88 of 1973.3. The ten workmen who moved the Labour Court under S. 33C(2) stated that for all practical purposes they are the general superintendence and control of the Delhi Branch and therefore, the expression in Reference I.D. No. 88/73 including general staff (employed in Delhi Branch) would comprehend the workmen employed by the Company and stationed at Ghaziabad. A mere common sense view would dictate that the claim made is unassailable and unquestionable. It is not a case of a fresh demand made by the workmen. The question raised was one of interpretation of award to determine its coverage when computing monetary benefit admissible to workmen. S. 33C(2) provides that where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or/as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government. What the workmen contended before the Labour Court was that the dearness allowance paid to them is not according to the award by which they are governed as being included in the expression staff employed in Delhi Branch.4. It was not disputed that for all administrative and managerial control, workmen stationed at Ghaziabad are part and parcel of the staff employed in Delhi Branch. And this ought to be so because Ghaziabad is hardly at a distance of 20 kms from Delhi. Secondly, the price structure prevalent in Delhi and Ghaziabad would not be materially different. And when the expression used in the award is general staff employed at Delhi Branch, obviously those workmen who are under the administrative and managerial control of Delhi Branch would be included in the expression. Obviously, therefore, the dearness allowance admissible to the appellant workmen would be according to the award by which dearness allowance is now being paid to those working in Delhi Branch. Dearness aloneness having not been paid in accordance with the award, it was quite legitimate for the workmen stationed at Ghaziabad to move the Labour Court under S. 33C(2) and there was no question of making and fresh demand and seeking and adjudication thereof.5. Any other view would be wholly unjust and unfair. As pointed our earlier Ghaziabad is hardly at a distance of 20 kms from Delhi and is being for all practical purposes treated as suburb of Delhi. Now if the contention of the respondent-Company were to prevail, the workmen stationed at Ghaziabad would be governed by the All India Consumer Price Index. Calcutta though the equals at a distance of 20 kms. would be governed by a different dearness allowance formula. This is unthinkable when providing norms for healthy industrial relations. Viewed from this angle also the contention of the appellant-workmen must prevail. ### Response: 1

Commissioner of Income Tax Vs. Tata Iron & Steel Company Limited

1. Although several questions of law were raised before the High Court, we are here concerned only with the following two questions "(2) Whether on the facts and in the circumstance of the case, and having regard to the fact that the net gain of Rs. 48, 984 was made by the assessee-company from fluctuations in the rate of foreign exchange while repaying the instalments of the foreign loan for the Assessment Year 1960-61, the appropriate part of the said gain (i.e. after excluding that portion of it which is attributable to the element of interest) was gain on capital account which went to reduce the actual cost of the depreciable assets for computing depreciation for the Assessment Year 1960-1961 ? (3) Whether on the facts and in the circumstances of the case and having regard to the fact that the net loss of Rs. 29, 063 and net loss of Rs. 58, 28, 839 accrued to the assessee-company from the fluctuations in the rate of foreign exchange for the Assessment Year 1961-62, the appropriate part of each of the said two amounts (i.e. after excluding that portion of it which is attributable to the element of interest) was loss on capital account which went to increase the actual cost of the depreciable assets for computing depreciation for the Assessment Year 1961-62 ?" * 2. The High Court has followed its earlier decisions in the case of CIT v. Tata Hydro Electric Power Supply Co. Ltd. (Bom HC)). A point has been taken on behalf of the respondents that the Department not having come up in appeal against that decision, must be taken to have accepted the law stated in that decision as correct. Therefore, it should not be allowed to agitate these questions in this Court 3. Mr. Murthy, learned Senior Counsel appearing on behalf of the Department, has pointed out that we are concerned in this case with assessment for the Assessment Years 1960-61 and 1961-62. The relevant assessment years in the judgments relied upon by the High Court were 1970-71 and 1971-72. The High Court in those cases relied on the provisions of Section 43-A of the Income Tax Act which came into force on 1-4-1967. In the instant case, there is no scope for application of Section 43-A. Therefore, the decision rendered in the case relied upon by the High Court cannot have any bearing to the controversy now raised. We are of the view that Mr. Murthy is right in his contention on this aspect of the matter 4. Coming to the questions raised, we find it difficult to follow how the manner of repayment of loan can affect the cost of the assets acquired by the assessee. What is the actual cost must depend on the amount paid by the assessee to acquire the asset. The amount may have been borrowed by the assessee. But even if the assessee did not repay the loan it will not alter the cost of the asset. If the borrower defaults in repayment of a part of the loan, cost of the asset will not change. What has to be borne in mind is that cost of an asset and cost of raising money for purchase of the asset are two different and independent transactions. Even if an asset is purchased with non-repayable subsidy received from the Government, the cost of the asset will be the price paid by the assessee for acquiring the asset. In the instant case, the allegation is that at the time of repayment of loan, there was a fluctuation in the rate of foreign exchange as a result of which, the assessee had to repay a much lesser amount than he would have otherwise paid. In our judgment this is not a factor which can alter the cost incurred by the assessee for purchase of the asset. The assessee may have raised the funds to purchase the asset by borrowing but what the assessee has paid for it, is the price of the asset. That price cannot change by any event subsequent to the acquisition of the asset. In our judgment the manner or mode of repayment of the loan has nothing to do with the cost of an asset acquired by the assessee for the purpose of his business. We hold that the questions were rightly answered by the High Court.

0[ds]4. Coming to the questions raised, we find it difficult to follow how the manner of repayment of loan can affect the cost of the assets acquired by the assessee. What is the actual cost must depend on the amount paid by the assessee to acquire the asset. The amount may have been borrowed by the assessee. But even if the assessee did not repay the loan it will not alter the cost of the asset. If the borrower defaults in repayment of a part of the loan, cost of the asset will not change. What has to be borne in mind is that cost of an asset and cost of raising money for purchase of the asset are two different and independent transactions. Even if an asset is purchased withe subsidy received from the Government, the cost of the asset will be the price paid by the assessee for acquiring the asset. In the instant case, the allegation is that at the time of repayment of loan, there was a fluctuation in the rate of foreign exchange as a result of which, the assessee had to repay a much lesser amount than he would have otherwise paid. In our judgment this is not a factor which can alter the cost incurred by the assessee for purchase of the asset. The assessee may have raised the funds to purchase the asset by borrowing but what the assessee has paid for it, is the price of the asset. That price cannot change by any event subsequent to the acquisition of the asset. In our judgment the manner or mode of repayment of the loan has nothing to do with the cost of an asset acquired by the assessee for the purpose of his business. We hold that the questions were rightly answered by the High Court.

### 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: 1. Although several questions of law were raised before the High Court, we are here concerned only with the following two questions "(2) Whether on the facts and in the circumstance of the case, and having regard to the fact that the net gain of Rs. 48, 984 was made by the assessee-company from fluctuations in the rate of foreign exchange while repaying the instalments of the foreign loan for the Assessment Year 1960-61, the appropriate part of the said gain (i.e. after excluding that portion of it which is attributable to the element of interest) was gain on capital account which went to reduce the actual cost of the depreciable assets for computing depreciation for the Assessment Year 1960-1961 ? (3) Whether on the facts and in the circumstances of the case and having regard to the fact that the net loss of Rs. 29, 063 and net loss of Rs. 58, 28, 839 accrued to the assessee-company from the fluctuations in the rate of foreign exchange for the Assessment Year 1961-62, the appropriate part of each of the said two amounts (i.e. after excluding that portion of it which is attributable to the element of interest) was loss on capital account which went to increase the actual cost of the depreciable assets for computing depreciation for the Assessment Year 1961-62 ?" * 2. The High Court has followed its earlier decisions in the case of CIT v. Tata Hydro Electric Power Supply Co. Ltd. (Bom HC)). A point has been taken on behalf of the respondents that the Department not having come up in appeal against that decision, must be taken to have accepted the law stated in that decision as correct. Therefore, it should not be allowed to agitate these questions in this Court 3. Mr. Murthy, learned Senior Counsel appearing on behalf of the Department, has pointed out that we are concerned in this case with assessment for the Assessment Years 1960-61 and 1961-62. The relevant assessment years in the judgments relied upon by the High Court were 1970-71 and 1971-72. The High Court in those cases relied on the provisions of Section 43-A of the Income Tax Act which came into force on 1-4-1967. In the instant case, there is no scope for application of Section 43-A. Therefore, the decision rendered in the case relied upon by the High Court cannot have any bearing to the controversy now raised. We are of the view that Mr. Murthy is right in his contention on this aspect of the matter 4. Coming to the questions raised, we find it difficult to follow how the manner of repayment of loan can affect the cost of the assets acquired by the assessee. What is the actual cost must depend on the amount paid by the assessee to acquire the asset. The amount may have been borrowed by the assessee. But even if the assessee did not repay the loan it will not alter the cost of the asset. If the borrower defaults in repayment of a part of the loan, cost of the asset will not change. What has to be borne in mind is that cost of an asset and cost of raising money for purchase of the asset are two different and independent transactions. Even if an asset is purchased with non-repayable subsidy received from the Government, the cost of the asset will be the price paid by the assessee for acquiring the asset. In the instant case, the allegation is that at the time of repayment of loan, there was a fluctuation in the rate of foreign exchange as a result of which, the assessee had to repay a much lesser amount than he would have otherwise paid. In our judgment this is not a factor which can alter the cost incurred by the assessee for purchase of the asset. The assessee may have raised the funds to purchase the asset by borrowing but what the assessee has paid for it, is the price of the asset. That price cannot change by any event subsequent to the acquisition of the asset. In our judgment the manner or mode of repayment of the loan has nothing to do with the cost of an asset acquired by the assessee for the purpose of his business. We hold that the questions were rightly answered by the High Court. ### Response: 0

Controller Of Estate Duty, Kerala Vs. M/S. R.V. Vishwanathan & Ors

donor had given. The benefit the donor had as a member of the partnership was not a benefit referable in any way to the gift but was unconnected therewith.Coming to the facts of this case, we find that according to the agreed statement of the case, the deceased transferred the sum of Rs. 45, 000 from his persona account to the credit of each of his four sons on September 12, 1955, with a view to covert the business carried on by him into a partnership business with his major sons. clause 4 of the deed of partnership which was executed by the deceased and his four adult sons on September 17, 1955, was as under :"4. The capital of the partnership for the present shall be Rs. 2, 25, 000 contributed equally by the five partners at Rs. 45, 000 each but the partners shall have the option to increase the capital as and when required, each partner contributing the additional capital as and when same proportion as the original contribution and all such contributions including the original investment shall carry no interest for any duration. The present capitals represented by the assets, outstanding, liabilities and goodwill of the business, P. R. N.Ramanatha Iyer & Co., and R. V. Veeramani Iyer, which have been taken over as going concerns and made part and parcel of the partnership business here by constituted. The agreement which was entered into on the following day by the deceased and his four adult sons relating to the admission of the two minor sons of the deceased to the benefits of partnership expressly recited that Rs. 45, 000 had been transferred by the deceased from his personal account to the credit of each of the minor sons. It was also stated that the capital of the partnership would be Rs. 3, 15, 000 made up by contribution of Rs. 45, 000 by the deceased and each of his sons and that the share of the deceased and his six sons in profits would be one-seventh each. The transfer of Rs. 45, 000 by book entries in favour of each of the four adult sons on September 12, 1955, and in favour of each of the minor sons on September 16, 1955, the execution of the partnership deed on September 17, 1955, and of the other agreement on September 18, 1955, in our opinion, were all parts of one integrated transaction, the object of which was to bring about transfer of six-sevenths share of the deceased in his business in favour of his sons so that he and his sons might have each one- sevenths share in business. The Tribunal has expressly recorded a finding that what the deceased gifted to his sons was only a share in the business. The Tribunal also expressed its full agreement with the following observations made by the Assistant Controller :"From the facts of the case it is clear that the gift in favour of the sons represented amounts transferred by book entries to the account of each of the sons who were admitted to the partnership and that it does not actually represent cash sums of Rs. 45, 000 as such. By virtue of these transfer entries the sons of the deceased got a share in the business. Thus, the gift cannot be construed as a gift of cash but it only represented a gift of a share in the business. By virtue of this gift, the sons had necessarily to become partners. The subject-matter of the gift is the investment in the business and such investment was compulsory or, in other words, gift was for the specific purpose of admission into the business as partners and for no other purpose." 13. The above finding of the Tribunal has been arrived at upon the material facts and relevant circumstances of the case and in answering the question referred to by the Tribunal, we must proceed upon the basis of the correctness of the above findings. although Mr. Mehta has tried to assail that finding, nothing cogent has been brought to our notice as might indicate any infirmity in that finding. The circumstances of the case indeed point to the conclusion that the said finding is well-founded. 14. In the right of the finding that the deceased transferred six-sevenths share in the business in favour of the sons and retained only one- seventh share, no question can possibly arise for the inclusion of the said six-sevenths share or of the amount of Rs. 2, 70, 000 in the estate of the deceased. The transfer of Rs. 2, 70, 000 by the deceased in the favour of his sons was not in cash but was by means of book entries. The transfer of that amount was a part of the scheme as stated above, to transfer six-sevenths share in the business in favour of the sons. There was no absolute transfer of Rs. 2, 70, 000 in favour of the sons but the transfer was made subject to the condition that the sons would use it as capital, not for any benefit of the deceased donor but for each of them becoming entitled to one-seventh share in the business. No benefit of any kinds was enjoyed by way of possession or otherwise by the deceased under the gift of the subject-matter of the gift. Whatever benefit was enjoyed by the deceased subsequent to the date of the gift was on account of the fact that he held one-seventh share in the business, which share heartened throughout and never parted with. No extra benefit was also conferred under the deed of partnership upon the deceased although some extra benefit was conferred upon two of the major sons in the form of remuneration because of their active and full participation in the business. Keeping in view the position of law discussed earlier, it is plain that the facts of the case would not fall within the ambit of section 10 of the Act.

0[ds]In the right of the finding that the deceased transferred six-sevenths share in the business in favour of the sons and retained only one- seventh share, no question can possibly arise for the inclusion of the said six-sevenths share or of the amount of Rs. 2, 70, 000 in the estate of the deceased. The transfer of Rs. 2, 70, 000 by the deceased in the favour of his sons was not in cash but was by means of book entries. The transfer of that amount was a part of the scheme as stated above, to transfer six-sevenths share in the business in favour of the sons. There was no absolute transfer of Rs. 2, 70, 000 in favour of the sons but the transfer was made subject to the condition that the sons would use it as capital, not for any benefit of the deceased donor but for each of them becoming entitled to one-seventh share in the business. No benefit of any kinds was enjoyed by way of possession or otherwise by the deceased under the gift of the subject-matter of the gift. Whatever benefit was enjoyed by the deceased subsequent to the date of the gift was on account of the fact that he held one-seventh share in the business, which share heartened throughout and never parted with. No extra benefit was also conferred under the deed of partnership upon the deceased although some extra benefit was conferred upon two of the major sons in the form of remuneration because of their active and full participation in the business. Keeping in view the position of law discussed earlier, it is plain that the facts of the case would not fall within the ambit of section 10 of the ActThe Tribunal has expressly recorded a finding that what the deceased gifted to his sons was only a share in the business. The Tribunal also expressed its full agreement with the following observations made by the Assistant Controller :"From the facts of the case it is clear that the gift in favour of the sons represented amounts transferred by book entries to the account of each of the sons who were admitted to the partnership and that it does not actually represent cash sums of Rs. 45, 000 as such. By virtue of these transfer entries the sons of the deceased got a share in the business. Thus, the gift cannot be construed as a gift of cash but it only represented a gift of a share in the business. By virtue of this gift, the sons had necessarily to become partners. Ther of the gift is the investment in the business and such investment was compulsory or, in other words, gift was for the specific purpose of admission into the business as partners and for no other purpose."The above finding of the Tribunal has been arrived at upon the material facts and relevant circumstances of the case and in answering the question referred to by the Tribunal, we must proceed upon the basis of the correctness of the above findings. although Mr. Mehta has tried to assail that finding, nothing cogent has been brought to our notice as might indicate any infirmity in that finding. The circumstances of the case indeed point to the conclusion that the said finding is

### 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: donor had given. The benefit the donor had as a member of the partnership was not a benefit referable in any way to the gift but was unconnected therewith.Coming to the facts of this case, we find that according to the agreed statement of the case, the deceased transferred the sum of Rs. 45, 000 from his persona account to the credit of each of his four sons on September 12, 1955, with a view to covert the business carried on by him into a partnership business with his major sons. clause 4 of the deed of partnership which was executed by the deceased and his four adult sons on September 17, 1955, was as under :"4. The capital of the partnership for the present shall be Rs. 2, 25, 000 contributed equally by the five partners at Rs. 45, 000 each but the partners shall have the option to increase the capital as and when required, each partner contributing the additional capital as and when same proportion as the original contribution and all such contributions including the original investment shall carry no interest for any duration. The present capitals represented by the assets, outstanding, liabilities and goodwill of the business, P. R. N.Ramanatha Iyer & Co., and R. V. Veeramani Iyer, which have been taken over as going concerns and made part and parcel of the partnership business here by constituted. The agreement which was entered into on the following day by the deceased and his four adult sons relating to the admission of the two minor sons of the deceased to the benefits of partnership expressly recited that Rs. 45, 000 had been transferred by the deceased from his personal account to the credit of each of the minor sons. It was also stated that the capital of the partnership would be Rs. 3, 15, 000 made up by contribution of Rs. 45, 000 by the deceased and each of his sons and that the share of the deceased and his six sons in profits would be one-seventh each. The transfer of Rs. 45, 000 by book entries in favour of each of the four adult sons on September 12, 1955, and in favour of each of the minor sons on September 16, 1955, the execution of the partnership deed on September 17, 1955, and of the other agreement on September 18, 1955, in our opinion, were all parts of one integrated transaction, the object of which was to bring about transfer of six-sevenths share of the deceased in his business in favour of his sons so that he and his sons might have each one- sevenths share in business. The Tribunal has expressly recorded a finding that what the deceased gifted to his sons was only a share in the business. The Tribunal also expressed its full agreement with the following observations made by the Assistant Controller :"From the facts of the case it is clear that the gift in favour of the sons represented amounts transferred by book entries to the account of each of the sons who were admitted to the partnership and that it does not actually represent cash sums of Rs. 45, 000 as such. By virtue of these transfer entries the sons of the deceased got a share in the business. Thus, the gift cannot be construed as a gift of cash but it only represented a gift of a share in the business. By virtue of this gift, the sons had necessarily to become partners. The subject-matter of the gift is the investment in the business and such investment was compulsory or, in other words, gift was for the specific purpose of admission into the business as partners and for no other purpose." 13. The above finding of the Tribunal has been arrived at upon the material facts and relevant circumstances of the case and in answering the question referred to by the Tribunal, we must proceed upon the basis of the correctness of the above findings. although Mr. Mehta has tried to assail that finding, nothing cogent has been brought to our notice as might indicate any infirmity in that finding. The circumstances of the case indeed point to the conclusion that the said finding is well-founded. 14. In the right of the finding that the deceased transferred six-sevenths share in the business in favour of the sons and retained only one- seventh share, no question can possibly arise for the inclusion of the said six-sevenths share or of the amount of Rs. 2, 70, 000 in the estate of the deceased. The transfer of Rs. 2, 70, 000 by the deceased in the favour of his sons was not in cash but was by means of book entries. The transfer of that amount was a part of the scheme as stated above, to transfer six-sevenths share in the business in favour of the sons. There was no absolute transfer of Rs. 2, 70, 000 in favour of the sons but the transfer was made subject to the condition that the sons would use it as capital, not for any benefit of the deceased donor but for each of them becoming entitled to one-seventh share in the business. No benefit of any kinds was enjoyed by way of possession or otherwise by the deceased under the gift of the subject-matter of the gift. Whatever benefit was enjoyed by the deceased subsequent to the date of the gift was on account of the fact that he held one-seventh share in the business, which share heartened throughout and never parted with. No extra benefit was also conferred under the deed of partnership upon the deceased although some extra benefit was conferred upon two of the major sons in the form of remuneration because of their active and full participation in the business. Keeping in view the position of law discussed earlier, it is plain that the facts of the case would not fall within the ambit of section 10 of the Act. ### Response: 0

State Of Gujarat Vs. Essar Oil Ltd.

on such stand, the High Court remanded the suit for trial. Thereafter the respondent therein tried to urge the same plea of irrevocable license before the Trial Court and this Court. This Court did not accept the plea holding that the common law doctrine of approbation and reprobation is well established in our jurisprudence and applicable in our laws too. That principle has no application to the facts of this case.81. The principles decided in the case of Karnataka Rare Earth & Anr. v. Senior Geologist, Department of Mines & Geology and Anr., reported in (2004) 2 SCC 783 is equally of no assistance to Essar. In that case both the doctrines of “actus curiae” and “restitution” were discussed together. We have already held that these equitable doctrines are not applicable in the facts of the present case. In Karnataka Rare Earth (supra), the appellants, on the basis of an interim order granted by this Court, extracted minerals and disposed of the same. Ultimately the interim order was vacated by this Court and the appeal filed by Karnataka Rare Earth was dismissed. In that context this Court held that the appellants cannot enjoy the benefits earned by them under the interim order of this Court and this Court held that the demand of the State for the price of mines and minerals from the appellant is neither unreasonable nor arbitrary.82. Reliance was placed on the judgment of this Court in Bareilly Development Authority v. Methodist Church of India & Anr., reported in (1988) Supp SCC 174. In that case no principle was decided but the case was decided on its facts. In Bareilly Development Authority (supra), a commercial complex was to be constructed within a time schedule. During the said period of construction, the work had to be stopped in view of the demolition order passed by the authority. This Court held that the said period has to be excluded in computing the period of completion. It was not a case of construing any exemption scheme. What was construed was condition 6 of the construction sanction plan. Therefore principles of Bareilly Development Authority (supra) cannot be applied.83. In the case of Hitech Electrothermics & Hydro Power Ltd. v. State of Kerala & Ors., reported in (2003) 2 SCC 716 it is true that this case is one relating to grant of concessional tariff rate. However the fact shows that in that case the Electricity Board provided power to the appellant only in the year 1998 and the Court found that the delay in giving power was for sheer inaction on the part of Electricity Board. In that context this Court held that literal construction to the entitlement of concessional tariff rate should not be done and the Court also noted that the appellant enjoyed concessional tariff rates on the basis of interim order of Court.84. In the instant case, no inaction on the part of appellant was pleaded by Essar. In fact before the High Court, Essar expressly gave up its plea of delay against the appellant. In fact the High Court passed the injunction order not because of the inaction of the appellant but the said order was passed in a proceedings which was opposed by appellant right upto this Court. Therefore, the case of Hitech Electrothermics (supra) is clearly distinguishable on facts.85. The learned counsel for Essar relied on a decision of this Court in Ishwar Dutt v. Land Acquisition Collector & another reported in (2005) 7 SCC 190. But no question of issue estoppel was argued before the High Court and no such question actually has fallen for consideration in the course of argument before this Court. Therefore reliance on the principle of issue estoppel on the basis of Ishawar Dutt (supra) is not relevant at all.86. In this case we are to interpret the provisions of exemption scheme.87. In Novopan India Ltd. Hyderabad v. Collector of Central Exercise and Customs, Hyderabad [(1994) Supp 3 SCC 606] the question for consideration before this Court was that, in case of ambiguity, which rule of construction will be applicable to exemption provision. This Court relied on the case of Union of India & others v. Wood Papers Ltd & another reported in (1990) 4 SCC 256 , wherein at para 4, page 260 this Court observed as under: "...Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction." 88.This Court held that the principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision, as the same have to be construed strictly. Further this Court also held that a person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision and in case of doubt or ambiguity, benefit of it must go to the State.89. In this case, Essar was categorically told by letter dated 28.05.2002, which is much prior to the expiry of the period, that time for availing the exemption cannot be extended. Admittedly, Essar failed to meet the deadline. In that factual scenario, the exercise undertaken by the High Court in the impugned judgment by directing various adjustments which virtually re-wrote the States exemption scheme, is an exercise which is, with great respect, neither warranted in law nor supported by precedents. There is no question of equity here, an exemption is a stand alone process. Either an industry claiming exemption comes within it or it does not.

1[ds]78. Coming to the first question, as mentioned above, it is clear that the appellant had also challenged this restraining order before this Court. It cannot be said by this restrainingthe appellant hadgained any undue advantage. On the contrary, twin objects of development of the backward areas and employment opportunities, which were sought to be achieved by the appellant by floatinge, were adversely affected.79. Therefore the principles in South Eastern Coalfield Ltd. (supra) are not attracted here.80. In Mumbai International Airport Pvt. Ltd v. Golden Chariot Airport & another, (2010) 10 SCC 422 , after a Civil Court returned the plaint filed by respondent, the respondent came up in appeal againstorder before the High Court and expressly gave up its claim of irrevocable license in order to revive the suit and on such stand, the High Court remanded the suit for trial.nt therein tried to urge the same plea of irrevocable license before the Trial Court and this Court. This Court did not accept the plea holding that the common law doctrine of approbation and reprobation is well established in our jurisprudence and applicable in our laws too. That principle has no application to the facts of this case.81. The principles decided in the case of Karnataka Rare Earth & Anr. v. Senior Geologist, Department of Mines & Geology and Anr., reported in (2004) 2 SCC 783 is equally of no assistance to Essar. In that case both the doctrines ofwere discussed together. We have already held that these equitable doctrines are not applicable in the facts of the present case. In Karnataka Rare Earth (supra), the appellants, on the basis of an interim order granted by this Court, extracted minerals and disposed of the same. Ultimately the interim order was vacated by this Court and the appeal filed by Karnataka Rare Earth was dismissed. In that context this Court held that the appellants cannot enjoy the benefits earned by themthe interim orderof this Court and this Court held that the demand of the State for the price of mines and minerals from the appellant is neither unreasonable nor arbitrary.82. Reliance was placed on the judgment of this Court in Bareilly Development Authority v. Methodist Church of India & Anr., reported in (1988) Supp SCC 174. In that case no principle was decided but the case was decided on its facts. In Bareilly Development Authority (supra), a commercial complex was to be constructed within a time schedule. Duringperiod of construction, the work had to be stopped in view of the demolition order passed by the authority. This Court held thatperiod has to be excluded in computing the period of completion. It was not a case of construing any exemption scheme. What was construed was condition 6 of the construction sanction plan. Therefore principles of Bareilly Development Authority (supra) cannot be applied.83. In the case of Hitech Electrothermics & Hydro Power Ltd. v. State of Kerala & Ors., reported in (2003) 2 SCC 716 it is true that this case is one relating to grant of concessional tariff rate.ct shows that in that case the Electricity Board provided power to the appellant only in the year 1998 and the Court found that the delay in giving power was for sheer inaction on the part of Electricity Board. In that context this Court held that literal construction to the entitlement of concessional tariff rate should not be done and the Court also noted that the appellant enjoyed concessional tariff rates on the basis of interim order of Court.84. In the instant case, no inaction on the part of appellant was pleaded by Essar. In fact before the High Court, Essar expressly gave up its plea of delay against the appellant. In fact the High Court passed the injunction order not because of the inaction of the appellant butorder was passed in a proceedings which was opposed by appellant right upto this Court. Therefore, the case of Hitech Electrothermics (supra) is clearly distinguishable on facts.85.The learned counsel for Essar relied on a decision of this Court in Ishwar Dutt v. Land Acquisition Collector & another reported in (2005) 7 SCCBut no question of issue estoppel was argued before the High Court and no such question actually has fallen for consideration in the course of argument before this Court. Therefore reliance on the principle of issue estoppel on the basis of Ishawar Dutt (supra) is not relevant at all.86. In this case we are to interpret the provisions of exemption scheme.87. In Novopan India Ltd. Hyderabad v. Collector of Central Exercise and Customs, Hyderabad [(1994) Supp 3 SCC 606] the question for consideration before this Court was that, in case of ambiguity, which rule of construction will be applicable to exemption provision. This Court relied on the case of Union of India & others v. Wood Papers Ltd & another reported in (1990) 4 SCC 256 , wherein at para 4, page 260 this Court observed asspeaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberalCourt held that the principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision, as the same have to be construed strictly. Further this Court also held that a person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered byprovision and in case of doubt or ambiguity, benefit of it must go to the State.89. In this case, Essar was categorically told by letter dated 28.05.2002, which is much prior to the expiry of the period, that time for availing the exemption cannot be extended. Admittedly, Essar failed to meet the deadline. In that factual scenario, the exercise undertaken by the High Court in the impugned judgment by directing various adjustments which virtually re-wrote the States exemption scheme, is an exercise which is, with great respect, neither warranted in law nor supported by precedents. There is no question of equity here, an exemption is a stand alone process. Either an industry claiming exemption comes within it or it does not.

### 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: on such stand, the High Court remanded the suit for trial. Thereafter the respondent therein tried to urge the same plea of irrevocable license before the Trial Court and this Court. This Court did not accept the plea holding that the common law doctrine of approbation and reprobation is well established in our jurisprudence and applicable in our laws too. That principle has no application to the facts of this case.81. The principles decided in the case of Karnataka Rare Earth & Anr. v. Senior Geologist, Department of Mines & Geology and Anr., reported in (2004) 2 SCC 783 is equally of no assistance to Essar. In that case both the doctrines of “actus curiae” and “restitution” were discussed together. We have already held that these equitable doctrines are not applicable in the facts of the present case. In Karnataka Rare Earth (supra), the appellants, on the basis of an interim order granted by this Court, extracted minerals and disposed of the same. Ultimately the interim order was vacated by this Court and the appeal filed by Karnataka Rare Earth was dismissed. In that context this Court held that the appellants cannot enjoy the benefits earned by them under the interim order of this Court and this Court held that the demand of the State for the price of mines and minerals from the appellant is neither unreasonable nor arbitrary.82. Reliance was placed on the judgment of this Court in Bareilly Development Authority v. Methodist Church of India & Anr., reported in (1988) Supp SCC 174. In that case no principle was decided but the case was decided on its facts. In Bareilly Development Authority (supra), a commercial complex was to be constructed within a time schedule. During the said period of construction, the work had to be stopped in view of the demolition order passed by the authority. This Court held that the said period has to be excluded in computing the period of completion. It was not a case of construing any exemption scheme. What was construed was condition 6 of the construction sanction plan. Therefore principles of Bareilly Development Authority (supra) cannot be applied.83. In the case of Hitech Electrothermics & Hydro Power Ltd. v. State of Kerala & Ors., reported in (2003) 2 SCC 716 it is true that this case is one relating to grant of concessional tariff rate. However the fact shows that in that case the Electricity Board provided power to the appellant only in the year 1998 and the Court found that the delay in giving power was for sheer inaction on the part of Electricity Board. In that context this Court held that literal construction to the entitlement of concessional tariff rate should not be done and the Court also noted that the appellant enjoyed concessional tariff rates on the basis of interim order of Court.84. In the instant case, no inaction on the part of appellant was pleaded by Essar. In fact before the High Court, Essar expressly gave up its plea of delay against the appellant. In fact the High Court passed the injunction order not because of the inaction of the appellant but the said order was passed in a proceedings which was opposed by appellant right upto this Court. Therefore, the case of Hitech Electrothermics (supra) is clearly distinguishable on facts.85. The learned counsel for Essar relied on a decision of this Court in Ishwar Dutt v. Land Acquisition Collector & another reported in (2005) 7 SCC 190. But no question of issue estoppel was argued before the High Court and no such question actually has fallen for consideration in the course of argument before this Court. Therefore reliance on the principle of issue estoppel on the basis of Ishawar Dutt (supra) is not relevant at all.86. In this case we are to interpret the provisions of exemption scheme.87. In Novopan India Ltd. Hyderabad v. Collector of Central Exercise and Customs, Hyderabad [(1994) Supp 3 SCC 606] the question for consideration before this Court was that, in case of ambiguity, which rule of construction will be applicable to exemption provision. This Court relied on the case of Union of India & others v. Wood Papers Ltd & another reported in (1990) 4 SCC 256 , wherein at para 4, page 260 this Court observed as under: "...Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction." 88.This Court held that the principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision, as the same have to be construed strictly. Further this Court also held that a person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision and in case of doubt or ambiguity, benefit of it must go to the State.89. In this case, Essar was categorically told by letter dated 28.05.2002, which is much prior to the expiry of the period, that time for availing the exemption cannot be extended. Admittedly, Essar failed to meet the deadline. In that factual scenario, the exercise undertaken by the High Court in the impugned judgment by directing various adjustments which virtually re-wrote the States exemption scheme, is an exercise which is, with great respect, neither warranted in law nor supported by precedents. There is no question of equity here, an exemption is a stand alone process. Either an industry claiming exemption comes within it or it does not. ### Response: 1

Uberoi Mohinder Singh and Associatesv. State of Haryana and Others,. With Doon Construction Company Vs. State of Haryana and Others

heard learned counsel for the parties at length. From a perusal of the entire correspondence placed on record we are fully convinced that there was no fault on the part of the appellant and he was insisting even before the execution of the agreement dated May 26, 1977 that the quarry of Yamuna sand be handed over after obtaining clearance from the Flood Control Department as the entire quarrying area lay within the protected area as is borne out from Annexure I dated November 19, 1976. The appellant under the pain of forfeiture of his security amount as well as the first instalment as contained in Rule 33 was left with no other option than to execute the deed in From L within one month from the date of communication of acceptance of bid. It is pertinent to note that soon after the acceptance of the bid in favour of the appellant, he was repeatedly making a request to the respondents to hand over possession of the area and to grant him no objection certificate from Executive Engineer (Flood and Irrigation). Copy of letter Annexure V dated August 8, 1977 written by the Director of Industries to the appellant itself makes a mention in the following terms "With reference to your letter dated July 8, 1977 on the above subject I have to inform you that the Dikshit Award is yet to be implemented and at present the whole of the revenue estate of Basantpur falls within Haryana State. Under the authority of the contract you can extract the sand after getting permission from the Executive Engineer, Flood Division, Faridabad. You are, therefore, liable to pay the contract money from May 27, 1977 the date of commencement of contract agreement." * The contents of the above letter clearly go to show that the appellant was authorised to extract the sand after getting permission from the Executive Engineer Flood Division, Faridabad. Annexure VI dated January 28, 1978/February 6, 1978 written to Senior District Industries Officer also goes to show that a joint inspection was made on the spot and the appellant was given to understand that no mining operation could be permitted within the area of revenue estate of Basantpur because of various flood control preventive measures undertaken by the Flood Control Department unless no objection certificate and possession was delivered by the Flood Control Department. The appellant had clearly mentioned in the aforesaid letter that he would inform regarding the results of his efforts in obtaining no objection certificate. Thereafter vide Annexure VII dated January 28, 1978/February 6, 1978, he submitted an application to the Executive Engineer (Flood and Irrigation) for granting no objection certificate for undertaking the quarrying work within the river bed of Jamuna flowing in the revenue estate of Basantpur. A copy of the aforesaid letter was event sent to the Chief Minister in which the difficulty was pointed out even for future and it was suggested that in order to avoid all these complications it was desirable that a prior consultation was done between the Department of Industries and Flood Control Department and only those areas should be auctioned which did not affect the flood control preventive measures. It is important to note that the Executive Engineer vide Annexure VIII dated February 15, 1978 did not grant no objection certificate but simply directed the appellant to remain in touch with the Industries Department in this connection10. All the above correspondence unmistakably goes to show that the appellant was driven from pillar to post but was not given no objection from the Flood Control Department nor it was made feasible for him to excavate or take out sand from any area of the village. The appellant has not been able to take out or excavate a single particle of sand from the leased out area and the difficulty in this regard was pointed out not only after the execution of the agreement but even prior to such execution. In facts and circumstances of the case, there was no fault on the part of the appellant and his bona fides are evident inasmuch as he had deposited a sum of Rs. 47, 750 even before the execution of the agreement and was always ready and willing to perform his part of the contract, but the Flood Control Department was not giving clearance and as such the performance of the contract itself was made inexecutable by the respondent. Clause 26 of the agreement as well as Rule 61 of the Rules do not apply in the present case. There is no question of payment of any compensation to start quarrying operation in the present case. The minor mineral i.e. sand was to be lifted from the surface itself and it was admittedly the property of the government. We do not find any force in the arguments of the learned counsel for the respondents that the appellant was benefited in not starting the excavation as the prices of sand were going high. The above inference is based on mere conjecture and is not supported by any material nor such plea has been taken in the counter filed by the respondents. We are unable to appreciate as to how the appellant was at all benefited in not excavating even a single price of sand even though he had already deposited a substantial amount of Rs. 47, 750 with the respondents11. We are thus clearly of the view that the respondents are neither entitled to forfeit any amount nor to demand any further money from the appellant under the alleged agreement dated May 26, 1977 12. The case M/s. Doon Construction Company in the abovementioned writ petition filed under Article 32 is almost identical with the appellant except that it took the contract in an auction for the period September 17, 1978 to March 31, 1981. The contract amount in its case is Rs. 2, 70, 000 per annum and it had deposited a sum of Rs. 1, 35, 050 in all

1[ds]9. We have heard learned counsel for the parties at length. From a perusal of the entire correspondence placed on record we are fully convinced that there was no fault on the part of the appellant and he was insisting even before the execution of the agreement dated May 26, 1977 that the quarry of Yamuna sand be handed over after obtaining clearance from the Flood Control Department as the entire quarrying area lay within the protected area as is borne out from Annexure I dated November 19, 1976. The appellant under the pain of forfeiture of his security amount as well as the first instalment as contained in Rule 33 was left with no other option than to execute the deed in From L within one month from the date of communication of acceptance of bid. It is pertinent to note that soon after the acceptance of the bid in favour of the appellant, he was repeatedly making a request to the respondents to hand over possession of the area and to grant him no objection certificate from Executive Engineer (Flood andcontents of the above letter clearly go to show that the appellant was authorised to extract the sand after getting permission from the Executive Engineer Flood Division, Faridabad. Annexure VI dated January 28, 1978/February 6, 1978 written to Senior District Industries Officer also goes to show that a joint inspection was made on the spot and the appellant was given to understand that no mining operation could be permitted within the area of revenue estate of Basantpur because of various flood control preventive measures undertaken by the Flood Control Department unless no objection certificate and possession was delivered by the Flood Control Department. The appellant had clearly mentioned in the aforesaid letter that he would inform regarding the results of his efforts in obtaining no objection certificate. Thereafter vide Annexure VII dated January 28, 1978/February 6, 1978, he submitted an application to the Executive Engineer (Flood and Irrigation) for granting no objection certificate for undertaking the quarrying work within the river bed of Jamuna flowing in the revenue estate of Basantpur. A copy of the aforesaid letter was event sent to the Chief Minister in which the difficulty was pointed out even for future and it was suggested that in order to avoid all these complications it was desirable that a prior consultation was done between the Department of Industries and Flood Control Department and only those areas should be auctioned which did not affect the flood control preventive measures. It is important to note that the Executive Engineer vide Annexure VIII dated February 15, 1978 did not grant no objection certificate but simply directed the appellant to remain in touch with the Industries Department in this connection10. All the above correspondence unmistakably goes to show that the appellant was driven from pillar to post but was not given no objection from the Flood Control Department nor it was made feasible for him to excavate or take out sand from any area of the village. The appellant has not been able to take out or excavate a single particle of sand from the leased out area and the difficulty in this regard was pointed out not only after the execution of the agreement but even prior to such execution. In facts and circumstances of the case, there was no fault on the part of the appellant and his bona fides are evident inasmuch as he had deposited a sum of Rs. 47, 750 even before the execution of the agreement and was always ready and willing to perform his part of the contract, but the Flood Control Department was not giving clearance and as such the performance of the contract itself was made inexecutable by the respondent. Clause 26 of the agreement as well as Rule 61 of the Rules do not apply in the present case. There is no question of payment of any compensation to start quarrying operation in the present case. The minor mineral i.e. sand was to be lifted from the surface itself and it was admittedly the property of the government. We do not find any force in the arguments of the learned counsel for the respondents that the appellant was benefited in not starting the excavation as the prices of sand were going high. The above inference is based on mere conjecture and is not supported by any material nor such plea has been taken in the counter filed by the respondents. We are unable to appreciate as to how the appellant was at all benefited in not excavating even a single price of sand even though he had already deposited a substantial amount of Rs. 47, 750 with the respondents11. We are thus clearly of the view that the respondents are neither entitled to forfeit any amount nor to demand any further money from the appellant under the alleged agreement dated May 26, 1977

### 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: heard learned counsel for the parties at length. From a perusal of the entire correspondence placed on record we are fully convinced that there was no fault on the part of the appellant and he was insisting even before the execution of the agreement dated May 26, 1977 that the quarry of Yamuna sand be handed over after obtaining clearance from the Flood Control Department as the entire quarrying area lay within the protected area as is borne out from Annexure I dated November 19, 1976. The appellant under the pain of forfeiture of his security amount as well as the first instalment as contained in Rule 33 was left with no other option than to execute the deed in From L within one month from the date of communication of acceptance of bid. It is pertinent to note that soon after the acceptance of the bid in favour of the appellant, he was repeatedly making a request to the respondents to hand over possession of the area and to grant him no objection certificate from Executive Engineer (Flood and Irrigation). Copy of letter Annexure V dated August 8, 1977 written by the Director of Industries to the appellant itself makes a mention in the following terms "With reference to your letter dated July 8, 1977 on the above subject I have to inform you that the Dikshit Award is yet to be implemented and at present the whole of the revenue estate of Basantpur falls within Haryana State. Under the authority of the contract you can extract the sand after getting permission from the Executive Engineer, Flood Division, Faridabad. You are, therefore, liable to pay the contract money from May 27, 1977 the date of commencement of contract agreement." * The contents of the above letter clearly go to show that the appellant was authorised to extract the sand after getting permission from the Executive Engineer Flood Division, Faridabad. Annexure VI dated January 28, 1978/February 6, 1978 written to Senior District Industries Officer also goes to show that a joint inspection was made on the spot and the appellant was given to understand that no mining operation could be permitted within the area of revenue estate of Basantpur because of various flood control preventive measures undertaken by the Flood Control Department unless no objection certificate and possession was delivered by the Flood Control Department. The appellant had clearly mentioned in the aforesaid letter that he would inform regarding the results of his efforts in obtaining no objection certificate. Thereafter vide Annexure VII dated January 28, 1978/February 6, 1978, he submitted an application to the Executive Engineer (Flood and Irrigation) for granting no objection certificate for undertaking the quarrying work within the river bed of Jamuna flowing in the revenue estate of Basantpur. A copy of the aforesaid letter was event sent to the Chief Minister in which the difficulty was pointed out even for future and it was suggested that in order to avoid all these complications it was desirable that a prior consultation was done between the Department of Industries and Flood Control Department and only those areas should be auctioned which did not affect the flood control preventive measures. It is important to note that the Executive Engineer vide Annexure VIII dated February 15, 1978 did not grant no objection certificate but simply directed the appellant to remain in touch with the Industries Department in this connection10. All the above correspondence unmistakably goes to show that the appellant was driven from pillar to post but was not given no objection from the Flood Control Department nor it was made feasible for him to excavate or take out sand from any area of the village. The appellant has not been able to take out or excavate a single particle of sand from the leased out area and the difficulty in this regard was pointed out not only after the execution of the agreement but even prior to such execution. In facts and circumstances of the case, there was no fault on the part of the appellant and his bona fides are evident inasmuch as he had deposited a sum of Rs. 47, 750 even before the execution of the agreement and was always ready and willing to perform his part of the contract, but the Flood Control Department was not giving clearance and as such the performance of the contract itself was made inexecutable by the respondent. Clause 26 of the agreement as well as Rule 61 of the Rules do not apply in the present case. There is no question of payment of any compensation to start quarrying operation in the present case. The minor mineral i.e. sand was to be lifted from the surface itself and it was admittedly the property of the government. We do not find any force in the arguments of the learned counsel for the respondents that the appellant was benefited in not starting the excavation as the prices of sand were going high. The above inference is based on mere conjecture and is not supported by any material nor such plea has been taken in the counter filed by the respondents. We are unable to appreciate as to how the appellant was at all benefited in not excavating even a single price of sand even though he had already deposited a substantial amount of Rs. 47, 750 with the respondents11. We are thus clearly of the view that the respondents are neither entitled to forfeit any amount nor to demand any further money from the appellant under the alleged agreement dated May 26, 1977 12. The case M/s. Doon Construction Company in the abovementioned writ petition filed under Article 32 is almost identical with the appellant except that it took the contract in an auction for the period September 17, 1978 to March 31, 1981. The contract amount in its case is Rs. 2, 70, 000 per annum and it had deposited a sum of Rs. 1, 35, 050 in all ### Response: 1

J.Y. Kondala Rao & Ors Vs. Andhra Pradesh State Road Transport Corpn. & Ors

the bracketing of the number of vehicles between two or more routes contravened the provisions of R. 4.Though the order of the Minister only contains a direction, the apportionment of the vehicles between the routes was not made by the State Transport Authority, but only by the State Transport Authority, but only by the Government, for the approved schemes were published not by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are no merits in this objection either.18. Re. (8) :The next contention is that R: 5 framed by the State Government in exercise of the power conferred on it under S. 68(1) is inconsistent with the provisions of S. 68E of the Act and, therefore, is void. The schemes prepared by the State Transport Authority contain the following note:"The frequency of services on any of the notified routes or within any notified area shall, if necessary, be varied having regard to the traffic needs during any period.Indeed the said note was practically a reproduction of a note appended to R.5. The only question is whether R. 5 and the note made pursuant thereto come into conflict with S. 68E of the Act. Section 68E reads:"Any scheme published under sub-section (3) of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme."The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of S. 68E of the Act. The rule is not so innocuous as the learned Advocate General of the Andhra Pradesh contends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route with-in the meaning of S. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes; but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned counsel contends that the note only provides for an emergency. But the rule and the note are comprehensive enough to take in not only an emergency but also a modification of the scheme for any period which may extend to any length of time. We are, therefore, definitely of opinion that the rule confers powers on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under S. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said note was illegally inserted in the schemes. But on that ground, as the learned counsel contends, we cannot hold that the schemes are void. The note is easily severable from the schemes without in any way affecting their structure. Without the note the schemes are self-contained ones and it is impossible to hold that the schemes would not have been framed in the manner they were made if this note was not allowed to be included therein. We, therefore, hold that the note should be deleted from the schemes and the schemes are otherwise good.19. Re. (9) : The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of S. 68C are concerned with the existing routes only. Support is sought to be drawn for this contention from the provisions of S. 68C of the Act. The relevant part of that section says:"Where any State Transport Undertaking is of opinion that.....it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking....the State transport undertaking may propose a scheme ......."Now the contention is that the word " route in that section refers to a pre-existing route, for it is said that the words " route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do not see any force in this contention. Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or portion of a route. There is no inherent inconsistency between an " area and a " route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area with the meaning of S. 68C. We, therefore, hold that S. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes.20. Though some other points were raised in the affidavits filed before us, they were not pressed.

0[ds]6. Re. (1): The first contention does not now merit a detailed consideration as it has been considered and rejected by this Court in H. C. Narayanappa v. State of Mysore, Petn. No. 2 of 1960, D/- 28-4-1960: (AIR 1960 SC 1073 ). In that case, after considering the question, Shah, J., speaking for this Court, observed:"We are therefore of the view that Chapter IVA could competently be enacted by the Parliament under entry No. 21 read with entry No. 35 of the Concurrent List."7. Nothing further need be said on this point. With respect we accept and follow the saidconstitutional validity of Ch. IVA of the Act was raised in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959-Supp-1 SCR 319 : (AIR 1959 SC 308 ). There it was argued that Ch. IVA of the Act was a piece of colourable legislation whose real object was to take over the business of the petitioners therein under the cover of cancellation of permits in contravention of Art. 31 of the Constitution and that plea was rejected by this Court. But no attack was made on the validity of Ch. IVA of the Act on the ground that it infringed the provisions of Art. 19(1)(g) of the Constitution and was not saved by cl. (6) of the Article. That point is now raised before us. Under Art. 19(1)(g), all citizens shall have the right to carry on trade or business.The answer to this argument depends upon the true meaning of the provisions of the said Article. Under sub-cl.(ii) of Art. 19(6), the State can make a law relating to the carrying on by the State or by a corporation, owned or controlled by the State, of any particular business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. Article 19(6) is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does not exceed the limits of the scope of the said provision. Sub-cl. (ii) is couched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion complete or partial of citizens or otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens; it may exclude some of the citizens only; it may do business in the entire State or a portion of the State, in a specified route or a part thereof. The word " service is wide enough to take in not only the general motor service but also the species of motor service. There are, therefore, no limitations on the States power to make laws conferring manopoly on it in respect of an area, and person or persons to be excluded. In this view, it must be held that S. 68C does not exceed the limits prescribed by Art. 19(6) (ii) of thes true that the provisions of this Chapter enable a scheme to be framed conferring a monopoly on the State in respect of transport services to the partial or complete exclusion of other persons. However, the provisions of the scheme do not make any distinction between individuals operating a transport service and private transport undertakings; they are all treated as one class and the classification is only made between the State Transport Undertaking and private transport undertakings, whether the business is carried on by individuals or firms or companies.But it is said that S. 68C of the Act and other provisions of Ch. IV-A thereof confer an arbitrary power upon the State Transport Undertaking to discriminate between individuals and the said Undertaking, between individuals and private undertakings, and between individuals and individuals. But the scheme of Ch. IV-A, which has been considered by this Court in 1959Supp-1 SCR 319 : (AIR 1959 SC 308 ) evolves a machinery for keeping the State Transport Undertaking within bounds and from acting in an arbitrary manner, for S. 68C lays down the legislative policy in clear and understandable terms and the State Transport Undertaking can initiate a scheme only for providing an efficient, adequate, economical and properly co-ordinated road transport service. Another condition which it lays down it that the scheme is necessary in the public interest. The scheme so framed is published, with all necessary particulars, in the official Gazette and also in such manner as the State Government may direct; persons affected by the scheme may file objections within the prescribed time; the State Government, after considering the objections and giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the manner, may approve or modify the scheme; the scheme so approved or modified is published. The rules framed under the Act provide for personal hearing. If the State Transport Undertaking seeks to modify a scheme, it will have to follow the same procedure before doing so: see Ss. 68C, 68D and 68E of the Act. It will be seen from the provisions of Ch. IVA of the Act that the State Transport Undertaking, before propounding a scheme, arrives at the decision on objective criteria. The parties affected and the public are given every opportunity to place their objections before the Government, and the Government, after following the prescribed quasi-judicial procedure, confirms or modifies the scheme. The scheme, before it is finalised, is subjected to public gaze and scrutiny and the validity and appropriateness of the provisions are tested by a quasi-judicial process. The Government cannot be equated to a Court; but the procedure prescribed accords with the principles of natural justice. It is said that the State Transport Undertaking is either the State Government or a corporation, owned or controlled by the State, and as such the entire quasi-judicial procedure prescribe is only a cloak to screen the exercise of an absolute and arbitrary power on the part of the Government. We cannot say that Ch. IVA is such a device. The legislature made a sincere attempt to protect as far as possible individual rights from the arbitrary acts of the executive. Once it is conceded that Ch. IVA of the Act is constitutionally good and that the legislature can validly make law for nationalization of the road transport service, the procedure laid down for implementing the said policy cannot, in our view, be said to be unreasonable. If in any particular case the mala fides of the authorities concerned and collusion between the State Transport Undertaking and the State Government to deprive particular persons of their right to do road transport business or to drive out particular persons from the trade on extraneous considerations, are established, that may be a ground for striking down that particular scheme. But the provisions of Ch. IVA cannot be struck down on the ground that they confer an arbitrary power on the State Transport Undertaking and on the State Government to discriminate between individuals and the State Transport Undertakings, between individuals and private undertakings, and between individuals and individuals.Re.(4): By the next contention the learned counsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District and indeed had pre-determined the issue. In the petitions it was alleged that the Government had complete control over the Road Transport Corporation, that the entire administration and control over such road transport undertaking vested in the Government, that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the Government. On this hypothesis it was contended that the Government itself was made a judge in its own cause and that, therefore, its decision was vitiated by legal bias. That apart, it was also pleaded that a sub-committee, consisting of Ministers, Secretaries and officers of connected departments and presided over by the Minister in charge of transport, decided in its meeting of January 28, 1960, that under the scheme of nationalization of bus service, the State Government would take over the bus services in West Godavari District and Guntur District before the end of that year and, therefore, the Minister in charge of the portfolio of transport, he having pre-determined the issue, disqualified himself to decide the dispute between the State Transport Undertaking and thethe above cases the transport department of the Government was the transport undertaking, but here the State Road Transport Corporation, which is a body corporate having a perpetual succession and common seal, is the transport authority. Though under the provisions of the Act, the State Government has some control, it cannot be said either legally or factually that the said Corporation is a department of the State Government. The State Government therefore, in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions. This objection, therefore, has no merits. Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias. The fact that he presided over the sub-committee constituted to implement the scheme of nationalization of bus services in the West Godavari District does not in itself establish any such bias. Indeed, in the counter-affidavit filed on behalf of the first respondent the contents and authenticity of the reports of the proceedings of the sub-committee published in the Telugu daily "Andhra Patricia" were not admitted. Even if the sub-committee came to such a decision, it is not possible to hold that it was a final and irrevocable decision in derogation of the provisions of the Act. It was only a policy decision and in the circumstances could only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision could not either expressly or by necessary implication involve a predetermination of the issue; it can only mean that the policy would be implemented subject to the provisions of the Act. It is not suggested that the Minister in charge of the concerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has not been established that the Minister in charge of the portfolio of transport had personal bias against the operators of private buses and, therefore, disqualified himself from hearing the objections under Ch. IVA of theelaborating on the scope of S. 68C of the Act, Wanchoo, J., observed at p. 136 (of SCR): (at pp. 352-353 of AIR), thus:"Therefore, the scheme to be framed must be such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof. .....if the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of S. 68E."Based on these observations it is contended that the State Government intended to frame only one scheme for the entire district though it was not in a position to implement the scheme in the entire district at one and the same time, but to circumvent the observations of this Court it had split up one scheme into seven schemes. The first respondent in its counter-affidavit met this allegation in the following way:"Having regard to the resources of the Undertaking in men, material and money, each scheme has been so framed that it is capable of being carried out all at once, and in full, without breaking its integrity. The State Transport Undertaking will carry out each of the published schemes on a date fixed by the State Government for the implementation of each scheme.The Minister in his order also adverted to this aspect and observed:"In this case, seven different schemes have been framed. Each scheme is a separate and independent scheme by itself. In terms of the notification, each scheme after approval will come into force only from a date to be fixed by the Government. Though different dates may be fixed for each scheme, each scheme will be implemented in its entirety. No piecemeal implementation of any one scheme will be done.Indeed the order of the Minister fixed specific dates from which each of the schemes shall come into force. This Court did not lay down that there cannot be any phased programme in the nationalization of transport services in a State or in a district; nor did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme. In the present case, seven schemes were framed not to circumvent the observations of this Court, but only to avoid the vice inherent in piecemeal implementation. Not only seven separate schemes were framed in respect of separate areas of the district, but also the Government made it clear that each scheme should be implemented in its entirety commencing from different dates. We do not, therefore, see any legitimate objection to the framing of seven separatehave no reason not to accept the statement of the first respondent that there was a resolution passed by the Corporation in terms of S. 12 (c) of the Road Transport Corporations Act. If so, the only question is whether the act of publishing the proposed schemes framed by the Corporation in the Gazette pertains to the day to day administration of the Corporations business. The Chief Executive Officer has no power under the Act to frame a scheme. Section 68C empowers only the State Transport Undertaking to prepare a schedule and cause every such scheme to be published in the official Gazette and also in such other manner as the State Government may direct. The scheme, therefore, need not be directly published by the Corporation, but it may, cause it to be published in the official Gazette. The act of publishing in the official Gazette is a ministerial act. It does not involve any exercise of discretion. It is only a mechanical one to be carried out in the course of day to day administration. So understood, there cannot be any difficulty in holding that it was purely a ministerial act which the Chief Executive Officer by reason of the aforesaid resolution can discharge under S. 12(c) of the Road Transport Corporations Act. It must be presumed for the purpose of this case that the Corporation decided the terms of the proposed schemes and the said decision must have been duly authenticated by the Chairman or any other member authorized by the Corporation in this behalf and the Chief Executive Officer did nothing more than publish the said scheme in exercise of its administrative functions. We, therefore, hold that the Chief Executive Officer was well within his rights in publishing the said proposed schemes in the Andhra Pradeshcertain schemes the number of vehicles to be operated on each route was not specified, and one number was mentioned against two or more routes bracketing them. When an objection was taken before the Government in regard to this matter, the Minister accepted it and directed that the scheme might be modified so as to indicate the number of vehicles to be operated on each route separately. The schemes were accordingly modified by indicating the number of vehicles to be operated on each route separately and the approved schemes with the said modification were duly published in the Gazette dated March 21, 1960. The approved schemes, therefore, satisfy rule 4 (2) of the Rules, for the approved schemes, as duly modified, contain the number of vehicles proposed to be operated on each route. But the point sought to be made is that the Minister himself should have fixed the number of vehicles proposed to be operated on each route and should not have merely directed the appropriate modification to be made in the approved schemes. It does not appear from the record that there was any dispute before the Minister as regards the apportionment of the number of vehicles shown against two or more routes to each of the routes, but the only contention raised was that the bracketing of the number of vehicles between two or more routes contravened the provisions of R. 4.Though the order of the Minister only contains a direction, the apportionment of the vehicles between the routes was not made by the State Transport Authority, but only by the State Transport Authority, but only by the Government, for the approved schemes were published not by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are no merits in this objectionrule is not so innocuous as the learned Advocate General of the Andhra Pradesh contends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route with-in the meaning of S. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes; but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned counsel contends that the note only provides for an emergency. But the rule and the note are comprehensive enough to take in not only an emergency but also a modification of the scheme for any period which may extend to any length of time. We are, therefore, definitely of opinion that the rule confers powers on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under S. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said note was illegally inserted in the schemes. But on that ground, as the learned counsel contends, we cannot hold that the schemes are void. The note is easily severable from the schemes without in any way affecting their structure. Without the note the schemes are self-contained ones and it is impossible to hold that the schemes would not have been framed in the manner they were made if this note was not allowed to be included therein. We, therefore, hold that the note should be deleted from the schemes and the schemes are otherwisenew routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of S. 68C are concerned with the existing routes only. Support is sought to be drawn for this contention from the provisions of S. 68C of the Act. The relevant part of that section says:"Where any State Transport Undertaking is of opinion that.....it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking....the State transport undertaking may propose a scheme ......."Now the contention is that the word " route in that section refers to a pre-existing route, for it is said that the words " route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do not see any force in this contention. Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or portion of a route. There is no inherent inconsistency between an " area and a " route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area with the meaning of S. 68C. We, therefore, hold that S. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes.20. Though some other points were raised in the affidavits filed before us, they were not pressed.

### Instruction: Interpret the case information and speculate on the court's decision: acceptance (1) or rejection (0) of the presented appeal. ### Input: the bracketing of the number of vehicles between two or more routes contravened the provisions of R. 4.Though the order of the Minister only contains a direction, the apportionment of the vehicles between the routes was not made by the State Transport Authority, but only by the State Transport Authority, but only by the Government, for the approved schemes were published not by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are no merits in this objection either.18. Re. (8) :The next contention is that R: 5 framed by the State Government in exercise of the power conferred on it under S. 68(1) is inconsistent with the provisions of S. 68E of the Act and, therefore, is void. The schemes prepared by the State Transport Authority contain the following note:"The frequency of services on any of the notified routes or within any notified area shall, if necessary, be varied having regard to the traffic needs during any period.Indeed the said note was practically a reproduction of a note appended to R.5. The only question is whether R. 5 and the note made pursuant thereto come into conflict with S. 68E of the Act. Section 68E reads:"Any scheme published under sub-section (3) of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme."The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of S. 68E of the Act. The rule is not so innocuous as the learned Advocate General of the Andhra Pradesh contends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route with-in the meaning of S. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes; but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned counsel contends that the note only provides for an emergency. But the rule and the note are comprehensive enough to take in not only an emergency but also a modification of the scheme for any period which may extend to any length of time. We are, therefore, definitely of opinion that the rule confers powers on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under S. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said note was illegally inserted in the schemes. But on that ground, as the learned counsel contends, we cannot hold that the schemes are void. The note is easily severable from the schemes without in any way affecting their structure. Without the note the schemes are self-contained ones and it is impossible to hold that the schemes would not have been framed in the manner they were made if this note was not allowed to be included therein. We, therefore, hold that the note should be deleted from the schemes and the schemes are otherwise good.19. Re. (9) : The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of S. 68C are concerned with the existing routes only. Support is sought to be drawn for this contention from the provisions of S. 68C of the Act. The relevant part of that section says:"Where any State Transport Undertaking is of opinion that.....it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking....the State transport undertaking may propose a scheme ......."Now the contention is that the word " route in that section refers to a pre-existing route, for it is said that the words " route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do not see any force in this contention. Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or portion of a route. There is no inherent inconsistency between an " area and a " route. The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area with the meaning of S. 68C. We, therefore, hold that S. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes.20. Though some other points were raised in the affidavits filed before us, they were not pressed. ### Response: 0

Sri Jagadguru Kari Basavarajendraswami Of Gavimutt Vs. Commissioner Of Hindu Religious Charitable Endowments

that the fundamental rights guaranteed by the Constitution are not retrospective in operation; but that he says, is no answer to his plea, because the deprivation of his property rights is taking place for the first time in 1952 and as such it is open to the challenge that it is invalid on the ground that it contravenes his fundamental right under Article 19(1)(f). 12. In support of this argument, Mr. Sastri has relied on certain observations made by Mukherjee J., in the case of Shanti Sarup v. Union of India, (S) AIR 1955 SC 624 . In that case a partnership firm known as Lallamal Kardeodas Cotton Spinning Mill Company of which the petitioner was a partner, used to carry on the business of production and supply of cotton yarn. When it was found that the Mill could be run only at a loss, it was closed on 19th March, 1949. Thereafter on the 21st July, 1949, the Government of U.P. passed an order purporting to exercise authority under Section 8(f) of the U.P. Industrial Disputes Act, 1947, by which one of the partners of the firm was appointed as "authorised controller" of the undertaking. The said order directed the said authorised controller to take over possession of the Mill to the exclusion of the other partners, and run it subject to the general supervision of the District Magistrate, Aligarh In 1952, the Union of India passed an order u/S. 3(4) of the Essential Supplies (Temporary Powers) Act, 1946 appointing the same person as an authorised controller under the provisions of that section, and issued direction to him to run the said undertaking to the exclusion of all the other partners. It was then that the petitioner moved this Court by writ petition under Art. 32 and challenged the validity of both the orders on the ground that they were illegal and that they invaded his fundamental right. His plea was upheld and both the impugned orders were quashed. 13. In appreciating the effect of this decision, it is necessary to hear in mind one crucial fact on which there was no dispute between the parties in that case, and that fact was that both the impugned orders did not come within the purview of, and were not warranted by, the provisions of the relevant Acts, under which they were purported to have been issued. In other words, it was conceded by the Government that the impugned orders were invalid in law. Even so, it was urged that though the orders may be invalid, they cannot be challenged under Art. 32 inasmuch as the first invasion of the petitioners right was made in 1949 when the constitutional guarantee was not available to him. In repelling this contention, Mukherjee, J. observed that the order against which the petition was primarily directed was the order of the Central Government passed in October, 1952, and that was a complete and clear answer to the contention raised by the learned Attorney-General. Even so, the learned Judge proceeded to observe that assuming that the deprivation took place in 1949 and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must he held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Art. 13(1) of the Constitution. It is on these observations that Mr. Sastris argument is founded. With respect, we are not prepared to hold that these observations were intended to lay down an unqualified proposition of law that even if a citizen was deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Constitution was not in force, the mere fact that such a scheme would continue to operate even after the 26th January, 1950, would expose it to the risk of having to face a challenge under Art. 19. If the broad and unqualified proposition for which Mr. Sastri contends is accepted as true, then it would virtually make the material provisions of the Constitution in respect of fundamental rights retrospective in operation. In the present case, the scheme was framed and the Executive Officer was appointed as early as 1939. If the Executive Officer could not take over the actual administration of the Mutt and its properties, it was partly because the appellant has continuously challenged the implementation of the scheme by legal proceedings and partly because he has otherwise obstructed the said implementation. But it is clear that when the scheme was framed and a challenge made by the appellant to its validity failed in courts of law, his property rights had been taken away. 14. The fact that the order was not implemented does not make any difference to this legal position. If Mr. Sastris argument were right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipatis fundamental rights under Art. 19. Such a plea does not appear to have ever been raised and, in our opinion, cannot be validly raised for the simple reason that the fundamental rights are not retrospective in their operation. The observations on which Mr. Sastri relies must be read in the light of the relevant fact to which we have just referred. The deprivation of the petitioners property rights was brought about by invalid orders and it was in respect of such invalid orders that the Court held that the petitioner was entitled to seek the protection of Art. 19 and invoke the jurisdiction of this Court under Art. 32. In our opinion, therefore, there is no substance in the contention that since in the present case, the scheme has not been completely implemented till 1952, we must examine its validity in the light of the fundamental rights guaranteed to the appellant under Art, 19 of the Constitution. 15.

0[ds]9. We are not impressed by this argument. It is no doubt true that S. 103(d) provides that a scheme settled or modified by a Court under the earlier Act shall be deemed to have been settled or modified under the latter Act, but the effect of this provision merely is to make the schemes in question operative as though they were framed under the provisions of the latter Act; the intention was not to examine the said scheme once again by reference to the relevant provisions of this latter Act and reframe them so as to make them consistent with these provisions. This position appears to be clear if we examine other sub-clauses of S. 103. Section 103(a) which deals with rule made, notifications or certificates issued, orders passed, decisions made, proceedings an action taken, scheme settled, and things done by the Government, the Board or its President or by an Assistant Commissioner under the earlier Act, provides that the said rules, notifications, etc. in so far as they are not inconsistent with the latter Act, shall be deemed to have been made, issued, passed, settled or done by the appropriate authority under the corresponding provisions of this latter Act and shall subject to the provisions of Cl. (b) have effect accordingly. Having thus provided for the continuance of rules, notifications, orders, etc. in so far as they are not inconsistent with the provision, of the latter act, S. 103 (b) has made provision for the modifications in the said rules, notifications and orders. In other words, the scheme of S. 103(a) and (b) clearly brings out the fact that where the legislature wanted the continuance of the action taken under the provisions of the earlier Act only if the said action was consistent with the relevant provisions of the latter Act, it has so provided. The same type of provision is made by S. 103(f), (g) and (h). If we examine S. 103(d) in the light of these other provisions, it would be clear that the question of the constancy or otherwise of the scheme of S. 103(d) applies, is treaded as irrelevant, because no reference is made to the said aspect of the schemes. In other words, the schemes to which S. 103(d) applies have to be deemed to be settled or modified under the provisions of the latter Act without examining whether all the provisions of the said schemes are necessarily justified by, or consistent with the provisions of this latter Act, and that is why we do not think Mr. Sastri is right in contending that the deeming clause prescribed by S. 103(d) necessitates an examination of the said schemes before they are allowed to continue as though they were settled or modified under the latter Act10. This does not, however, mean that there is no provision prescribed by the latter Act for the modification of such schemes. Section 62(3)(a) specifically provides that any scheme for the administration of a religious institution settled or modified by the Court in a suit under sub-section (1) or on an appeal under sub-section (2) or any scheme deemed under S. 103, clause (d), to have been settled or modified by the Court may, at any time, be modified or cancelled by the Court on application made to it by the Commissioner, the trustee or any person having interest. This provision clearly brings out the fact that if a scheme governed by S. 103(d) is deemed to have been made or sanctioned under the provisions of the latter Act and thus continued, modifications in it can be effected by adopting the procedure prescribed by S. 62(3). In other words, a scheme like the present is automatically continued by operation of S. 103(d), but is liable to be modified if appropriate steps are taken in that behalf under S. 62(3). Reading S. 103(d) and S. 62(3) together, it seems to us that Mr. Sastris argument that the consistency of the scheme with the relevant provisions of the latter Act should be examined in writ proceedings, cannot be entertained. In fact, unless modifications are made in the scheme under S.62(3), the scheme as a whole will be deemed to have been made under the latter Act and will be enforced as a valid scheme. That clearly is the purpose of S. 103(d). Therefore, we do not think we are called upon to consider the further contentions raised by Mr. Sastri that some of the clauses in the scheme are inconsistent with the provisions of the latter ActWith respect, we are not prepared to hold that these observations were intended to lay down an unqualified proposition of law that even if a citizen was deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Constitution was not in force, the mere fact that such a scheme would continue to operate even after the 26th January, 1950, would expose it to the risk of having to face a challenge under Art. 19. If the broad and unqualified proposition for which Mr. Sastri contends is accepted as true, then it would virtually make the material provisions of the Constitution in respect of fundamental rights retrospective in operation. In the present case, the scheme was framed and the Executive Officer was appointed as early as 1939. If the Executive Officer could not take over the actual administration of the Mutt and its properties, it was partly because the appellant has continuously challenged the implementation of the scheme by legal proceedings and partly because he has otherwise obstructed the said implementation. But it is clear that when the scheme was framed and a challenge made by the appellant to its validity failed in courts of law, his property rights had been taken away.The fact that the order was not implemented does not make any difference to this legal position. If Mr. Sastris argument were right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipatis fundamental rights under Art. 19. Such a plea does not appear to have ever been raised and, in our opinion, cannot be validly raised for the simple reason that the fundamental rights are not retrospective in their operation. The observations on which Mr. Sastri relies must be read in the light of the relevant fact to which we have just referred. The deprivation of the petitioners property rights was brought about by invalid orders and it was in respect of such invalid orders that the Court held that the petitioner was entitled to seek the protection of Art. 19 and invoke the jurisdiction of this Court under Art. 32. In our opinion, therefore, there is no substance in the contention that since in the present case, the scheme has not been completely implemented till 1952, we must examine its validity in the light of the fundamental rights guaranteed to the appellant under Art, 19 of the Constitution.

### 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: that the fundamental rights guaranteed by the Constitution are not retrospective in operation; but that he says, is no answer to his plea, because the deprivation of his property rights is taking place for the first time in 1952 and as such it is open to the challenge that it is invalid on the ground that it contravenes his fundamental right under Article 19(1)(f). 12. In support of this argument, Mr. Sastri has relied on certain observations made by Mukherjee J., in the case of Shanti Sarup v. Union of India, (S) AIR 1955 SC 624 . In that case a partnership firm known as Lallamal Kardeodas Cotton Spinning Mill Company of which the petitioner was a partner, used to carry on the business of production and supply of cotton yarn. When it was found that the Mill could be run only at a loss, it was closed on 19th March, 1949. Thereafter on the 21st July, 1949, the Government of U.P. passed an order purporting to exercise authority under Section 8(f) of the U.P. Industrial Disputes Act, 1947, by which one of the partners of the firm was appointed as "authorised controller" of the undertaking. The said order directed the said authorised controller to take over possession of the Mill to the exclusion of the other partners, and run it subject to the general supervision of the District Magistrate, Aligarh In 1952, the Union of India passed an order u/S. 3(4) of the Essential Supplies (Temporary Powers) Act, 1946 appointing the same person as an authorised controller under the provisions of that section, and issued direction to him to run the said undertaking to the exclusion of all the other partners. It was then that the petitioner moved this Court by writ petition under Art. 32 and challenged the validity of both the orders on the ground that they were illegal and that they invaded his fundamental right. His plea was upheld and both the impugned orders were quashed. 13. In appreciating the effect of this decision, it is necessary to hear in mind one crucial fact on which there was no dispute between the parties in that case, and that fact was that both the impugned orders did not come within the purview of, and were not warranted by, the provisions of the relevant Acts, under which they were purported to have been issued. In other words, it was conceded by the Government that the impugned orders were invalid in law. Even so, it was urged that though the orders may be invalid, they cannot be challenged under Art. 32 inasmuch as the first invasion of the petitioners right was made in 1949 when the constitutional guarantee was not available to him. In repelling this contention, Mukherjee, J. observed that the order against which the petition was primarily directed was the order of the Central Government passed in October, 1952, and that was a complete and clear answer to the contention raised by the learned Attorney-General. Even so, the learned Judge proceeded to observe that assuming that the deprivation took place in 1949 and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must he held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and became void on and from that date under Art. 13(1) of the Constitution. It is on these observations that Mr. Sastris argument is founded. With respect, we are not prepared to hold that these observations were intended to lay down an unqualified proposition of law that even if a citizen was deprived of his fundamental rights by a valid scheme framed under a valid law at a time when the Constitution was not in force, the mere fact that such a scheme would continue to operate even after the 26th January, 1950, would expose it to the risk of having to face a challenge under Art. 19. If the broad and unqualified proposition for which Mr. Sastri contends is accepted as true, then it would virtually make the material provisions of the Constitution in respect of fundamental rights retrospective in operation. In the present case, the scheme was framed and the Executive Officer was appointed as early as 1939. If the Executive Officer could not take over the actual administration of the Mutt and its properties, it was partly because the appellant has continuously challenged the implementation of the scheme by legal proceedings and partly because he has otherwise obstructed the said implementation. But it is clear that when the scheme was framed and a challenge made by the appellant to its validity failed in courts of law, his property rights had been taken away. 14. The fact that the order was not implemented does not make any difference to this legal position. If Mr. Sastris argument were right, all such schemes, though implemented and enforced, may still be open to challenge on the ground that they contravened the Matadhipatis fundamental rights under Art. 19. Such a plea does not appear to have ever been raised and, in our opinion, cannot be validly raised for the simple reason that the fundamental rights are not retrospective in their operation. The observations on which Mr. Sastri relies must be read in the light of the relevant fact to which we have just referred. The deprivation of the petitioners property rights was brought about by invalid orders and it was in respect of such invalid orders that the Court held that the petitioner was entitled to seek the protection of Art. 19 and invoke the jurisdiction of this Court under Art. 32. In our opinion, therefore, there is no substance in the contention that since in the present case, the scheme has not been completely implemented till 1952, we must examine its validity in the light of the fundamental rights guaranteed to the appellant under Art, 19 of the Constitution. 15. ### Response: 0